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Wednesday, July 24, 2013

Or. 40, rule 1 CPC - Appointment of interim receiver is not maintainable as the petitioner received the amount from the respondent to put a stop to the litigation and on the other hand the respondent is in possession of property = during the pendency of these proceedings, the second respondent sold the property in favour of respondent nos. 4 and 5 by sale deed dated 11.07.2006. It appears that the Sub-Registrar on inspection of the disputed plot found that there were two constructed duplex and two more near completion as on the date of inspection i.e. on 13.03.2007 of which one was occupied by respondent no.4.= It must be remembered that the instant proceedings arise out of the interlocutory proceedings seeking appointment of the receiver at the instance of the petitioner herein. Having regard to the fact that respondent no.4 was in possession of the property in dispute at least since 13.03.2007 admittedly and also having regard to the fact that the petitioner received an amount of Rs.6,50,000/- we do not see any justification for the appointment of the receiver. We see no reason to interfere with the judgment under appeal. We accordingly dismiss the special leave petition.

PUBLISHED IN http://judis.nic.in/supremecourt/imgst.aspx?filename=40573

                                                              NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA


                        CIVIL APPELLATE JURISDICTION


                 SPECIAL LEAVE PETITION(C) NO. 13255 OF 2012


Satya Pal Anand                              …Petitioner
                       Versus
Punjabi Housing Co-operative Society
& Others                                           …Respondents






                               J U D G M E N T




Chelameswar, J.


1.    This petition arises  out  of  the  final  judgment  and  order  dated
03.08.2011 passed in Writ Petition No.14548 of 2008 by  the  High  Court  of
Madhya Pradesh at Jabalpur.


2.    It is rather difficult to cull out the  facts  accurately  because  of
the inadequacy of the record.  Be that as it may, the broad  and  undisputed
facts are as under:


3.    The petitioner’s mother was  allotted  a  plot  of  land  (hereinafter
referred to as ‘the property in dispute’) by  the  first  respondent  –  the
Punjabi Housing Co-operative Society Ltd.  
Pursuant to  such  an  allotment,
the  sale-deed  dated  22.03.1962  came  to  be  executed,  which  deed  was
registered on 30.03.1962 before the Sub-Registrar, Bhopal.
It appears  that
the petitioner’s mother died on 12.06.1988.  The  petitioner  claims  to  be
the sole successor-in-interest though we find  from  the  record  (from  the
alleged compromise deed dated 06.07.2004 executed by the petitioner  herein)
that he has a sister.


4.    It appears that after lapse of about 40 years,  the  first  respondent
purported to have cancelled the sale made  in  favour  of  the  petitioner’s
deceased mother.
On 09.08.2001, a deed styled as Extinguishment  Deed  came
to be executed by the first respondent before the  Sub-Registrar,  Bhopal  -
the legality of which deed is required to be examined separately.  
However,
we do not propose to say anything at this stage.


5.    Subsequently, the first respondent executed  another  sale  deed  with
respect to the property in dispute in favour of  the  second  respondent  on
21.04.2004.


6.    A document styled as Compromise  Deed  dated  06.07.2004  came  to  be executed by the petitioner herein,  the  substance  of  which  is  that  the petitioner agreed to receive a sum of Rs.6,50,000/-  only and put an end  to all the disputes in respect of the disputed property.  
It appears  from  the
recital of the document that out of the  above mentioned  amount,  a  sum  of
Rs.4.50,000/- was paid by draft issued by the State Bank of  Indore,  Bhopal
Branch and the balance by a post dated cheque.
We may state here  that  the
petitioner does not dispute  either  the  execution  of  the  abovementioned
document or the receipt of the abovementioned amounts.
As it  can  be  seen
from the synopsis filed in  this  appeal  at  page  ‘J’,  it  is  stated  as
follows:
       “Amount was not returned as the petitioner had been advised  by  the
       learned advocates having expertise in civil litigation  and  of  the
       Indian  Contract  Act,  1872  that  the   agreement   secured   upon
       misrepresentation & upon the facts in his case on 06.07.2004 was  in
       law null and void & amount had been paid for unlawful purposes &  in
       violation of the provisions of  the  Indian  Contract  Act  and  the
       return of the amount paid there under could not be  claimed  in  law
       and the suit if filed shall meet its dismissal.”

However, the petitioner now maintains that the said compromise was  obtained
under duress.
Subsequently, the petitioner raised a dispute by  approaching
the Additional Registrar, Cooperative Societies.

7.    It appears from the record that  subsequently  the  petitioner  herein
raised a  dispute  before  the  Registrar  under  Section  64  of  the  M.P.
Cooperative Societies Act questioning the legality of the execution  of  the
abovementioned unilateral Extinguishment Deed and allotment of the  property
in dispute in favour of the second respondent.  Vide order  dated  1.2.2006,
the Deputy Registrar passed an order injuncting the defendants from  raising
any construction or transferring by way of sale  etc.  of  the  property  in
dispute.

8.    However, the said interim injunction appears to have been  vacated  by
an order dated 12.4.2006.  Aggrieved by the same, the  petitioner  preferred
an appeal before the Registrar, Cooperative Society.  It  appears  that  the
Registrar vide order dated 29.08.2006 set aside the order dated  12.04.2006.
 Unfortunately, the order  dated  29.08.2006  is  not  available  on  record
completely, only part of the order is annexed to the paper book.

9.    On 02.02.2008, the petitioner herein filed an application under  Order
40 Rule 1 CPC before the Deputy Registrar for  appointment  of  receiver  in
respect of the property  in  dispute.  
On  04.02.2008,  an  ex-parte  order
appointing receiver was passed which was modified on 18.2.2008  and  it  was
further directed  to  the  receiver  to  take  physical  possession  of  the
property in dispute.
It appears that by another order dated  25.03.2008  the
Deputy Registrar directed the receiver to take symbolic possession,  instead
of physical possession, of the property in dispute.  (Copy of this order  is
not available on record).
Aggrieved by the same,  the  petitioner  filed  a
revision before the Joint Registrar.  Simultaneously, the second  respondent
also filed two revisions  challenging  the  orders  of  appointment  of  the
receiver dated 04.02.2008 and 18.02.2008 whereby the receiver  was  directed
to take physical possession of the property in dispute.

10.   By order dated 08.11.2008, the Joint Registrar allowed  the  revisions
of the second respondent and remitted the case back to the Deputy  Registrar
to decide the matter afresh.
Aggrieved by the said  order,  the  petitioner
herein preferred a second  appeal  before  the  Cooperative  Tribunal  which
appeal was treated as revision  filed  under  Section  77  of  the  Act  but
dismissed vide order dated  22.11.2008.   (Neither  of  the  two  orders  is
available on record).

11.   Aggrieved by the decision of the Tribunal, the  petitioner  approached
the High Court by way of a writ  petition  from  which  the  present  appeal
arises.

12.   By the impugned judgment, the writ petition was dismissed.


13.   We must  also  mention  herein  that
during  the  pendency  of  these
proceedings,  the  second  respondent  sold  the  property  in   favour   of
respondent nos. 4 and 5 by sale deed dated 11.07.2006.  
It appears that  the
Sub-Registrar on inspection of the disputed plot found that there  were  two
constructed  duplex  and  two  more  near  completion  as  on  the  date  of
inspection i.e. on 13.03.2007 of which one was occupied by respondent no.4.


14.   It must be remembered that the instant proceedings arise  out  of  the
interlocutory  proceedings  seeking  appointment  of  the  receiver  at  the
instance  of  the  petitioner  herein.   
Having  regard  to  the  fact  that
respondent no.4 was in possession of the property in dispute at least  since
13.03.2007  admittedly  and  also  having  regard  to  the  fact  that   the
petitioner  received  an  amount  of  Rs.6,50,000/-  
we  do  not   see   any
justification for the appointment of the receiver.   
We  see  no  reason  to
interfere with the  judgment  under  appeal.   We  accordingly  dismiss  the
special leave petition.

                                                            ………………………………….J.
                                                 (P. SATHASIVAM)




                                                            ………………………………….J.
                                                 (J. CHELAMESWAR )

New Delhi;
July 17, 2013.

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