NARMADA BISWAL Vs. GAJENDRA NATH BISWAL

JUDGEMENT

(1.) THIS appeal has been filed by the plaintiff challenging the order of the trial Court rejecting her application for appointment of a receiver in respect of the disputed property. The suit was filed for recovery of possession. It has been alleged that she is the owner of the disputed land on which a residential building had been constructed by her father for her occupation. It is further alleged that the present respondents who are the brothers of the husband of the appellant were allowed to stay in the house as the relationship between them was cordial. It was further alleged that in the year 1974, respondent No. 1 had given a proposal to the husband of the appellant to start hotel business. Since the husband of the appellant was a Government servant, he created a partnership firm in the names of the appellant, respondent No. 1 and one Tusharkanti Biswal (son of the elder brother of the appellant's husband) in order to run the hotel business in the name and style of 'Roxy Hotel'. It is claimed that the financing was made by the appellant. It is further claimed that the plaintiff subsequently wanted to construct a building on the disputed land for lodging business and loan had been obtained from the Orissa State Financial Corporation for construction of the said lodging. Respondent No. 1 had volunteered to monitor the construction work and as a matter of convenience, a power -of -attorney was executed by the husband of the appellant in favour of respondent No. 1. After completion of the construction, the appellant started lodging business in the name and style of 'Hotel Roxy' which is different from the partnership firm known as 'Roxy Hotel'. The lodging business started in the year 1982. It is further claimed that due to some reason, the appellant was not able to manage the business and the management of the lodging business in the name and style of 'Hotel Roxy' was handed over to respondent No. 1. In 1984 after a raid by the Vigilance Department, it could be known that respondent No. 1 had made huge profits from 'Hotel Roxy' and both respondents 1 and 2 had misappropriated huge amounts behind the back of the appellant and proper accounts had not been kept. After retirement of the husband of the appellant, he wanted to take over the management of the hotel and to reside in the residential house, but the respondents refused to vacate the house and hand over the hole! business forcing the appellant to file the suit for recovery of possession with further prayer that proper accounts in connection with business and management of 'Hotel Roxy' and 'Roxy Hotel' should be furnished.

(2.) THE trial Court refused to appoint any receiver stating that the hotel was admittedly being managed by present respondent No. 1 who was maintaining accounts.

(3.) HAVING regard to the facts and circumstances of the case, I do not consider it appropriate to discuss in detail about the rival claims of the parties relating to entitlement. Even assuming the present respondents' case to be true, it is apparent that plaintiff -appellant has got 16 per cent share in the business. In normal course, in a partnership business a partner in management is required to maintain accounts. Since there is no dispute that respondent No. 1 is in management, I consider it a fit case where in the interest of justice, respondent No. 1 should continue to manage the property in question as a receiver and he should maintain regular accounts and submit accounts before the trial Court every quarter. Such accounts for the period from August, 1998, to end of October, 1998, shall be furnished by 15th November, 1998, and the accounts for the subsequent quarters shall be furnished by 15th of succeeding month of the relevant quarter. It would be open to the plaintiff to verify the accounts and file objection to the accounts furnished by respondent No. 1. Since there is no dispute by the respondents relating to 16 per cent interest of the plaintiff -appellant, out of the profits, if any, 16 per cent shall be disbursed to the plaintiff. According to Mr. S.P.Mishra, learned counsel for the appellant, there is one lodging known as 'Hotel Roxy' and a restaurant known as 'Hotel Roxy', whereas according to Mr. Mukherjee, both are one unit. It is made clear that the order of appointment of receiver is in respect of the lodging as well as in respect of the restaurant irrespective of the question whether those are two units or one unit. The order of appointment of receiver and disbursement of profit is without prejudice to the contentions of the parties. It is needless to point out that the trial Court should dispose of the suit in accordance with law on the basis of evidence on record without being influenced by any observations made in the impugned order or in the present order. The suit itself is required to be disposed of expeditiously, preferably by end of March, 1999. Parties are to cooperate in the expeditious disposal of the suit.