A. Fathima Fareedunnissa vs T.A.H. Zubaida Ummal and Others

K. Govindarajan, J.—The petitioner/plaintiff in both the revisions filed the suit in O.S.No. 286 of 1978, on the file of Sub Court,

Pondicherry on 7.16.1978 for dissolution of the partnership firm. The trial court decreed the suit for dissolution of the firm from 7.10.1978 and

ordered taking of accounts in compliance with the Order 20, Rule 15 of the Code of Civil Procedure, till the date of dissolution and rejected the

same with respect to the other reliefs prayed for in the plaint, by passing a preliminary decree dated 19.9.1988. The plaintiff filed appeal in

A.S.No. 215 of 1988 on the file of Principal District Judge, Pondicherry. The said appeal was allowed on 8.8.1989 and aggrieved against that, the

defendants filed second appeal which is pending. In the judgment dated 8.8.1989 it was held that the partnership firm stands dissolved from

15.11.1978 and one Mr. Narasimhan, Advocate had been appointed as Commissioner to take account from 1.5.1971 to 15.11.1978. The lower

court also granted injunction against the defendants 1 to 3 from converting or transferring or disposing of any of the assets of the firm. Since the

said Advocate could not comply with the assignment in the order dated 22.2.1991, in I.A.No. 1283 of 1990, the lower court appointed one Mr.

Thirunavukkarasu, advocate as receiver. The defendants filed an appeal challenging his appointment in C.M.A.No. 6 of 1991 on the file of the

Principal District Judge, Pondicherry, who confirmed the appointment with the modification that such appointment was only for managing and

administering the firm, barring the receiver from receiving the plaint schedule properties. Still aggrieved, they filed revision in C.R.P.No. 1143 of

1991 and the learned Judge in the order dated 30.7.1991, confirmed the order of the lower appellate court. Even thereafter, they preferred appeal

before the Supreme Court in S.L.P.No. 12953 of 1991. Though originally they obtained interim order dated 22.8.1991, in the order dated

12.11.1992, the Supreme Court directed the receiver to appoint the appellant therein, namely, fourth respondent/defendant as his agent to carry

on the business of the company on such terms and conditions regarding royalty, security and other matters as he thinks fit. It is also stated in the

said order that the terms and conditions have to be settled after giving both the parties an opportunity of being heard. Thereafter, the petitioner filed

an application in I.A.No. 478 of 1992 on, 17.2.1992 before the Additional Sub Judge, against the defendants for contempt of court, on the

ground that the defendants had refused to handover the fourth defendant firm. The said application was dismissed on 30.4.1992, and it was also

directed that the receiver to furnish the security for a sum of Rs. 5,006 and fix a date for the receiver visiting the place of the firm, after giving due

notice to the parties.

Thereafter the petitioner moved another application in I.A.No. 2176 of 1992 on 30.6.1992, for giving suitable direction to the receiver to take

possession of the firm. In the said application, the lower court on the basis that the receiver had not taken proper steps to comply with the

conditions, removed him and appointed one Mr. Ranganathan, Advocate as receiver in the place of Thirunavukkarasu. Aggrieved, the petitioner

filed appeal before the lower appellate court in C.M.A.No. 26 of 1993. The lower appellate court also concurred with the findings of the trial

court. Still aggrieved, the petitioner has filed the above revision in C.R.P.No. 27 of 1995.

The petitioner filed an application in I.A.No. 2004 of 1993 before the Sub Court, Pondicherry to permit the petitioner to summon and examine

the receiver Mr. K. Renganathan, Advocate, with reference to his report filed. That was rejected by the trial court in the order dated 31.1.1994.

Aggrieved, the petitioner has filed C.R.P.No. 891 of 1995.

The learned Counsel appearing for the petitioner has submitted that there is no necessity to remove Mr. Thirunavukkarasu from receivership and

appoint Mr. Ranganathan in his place especially when there is no application for such removal. According to him, the trial court without even taking

into consideration of the reports filed by the receiver, Mr. Thirunavukkarasu, explaining the reason for not taking possession 6f the firm,

unnecessarily disturbed him. In the course of discharge of his duty as receiver, the learned Senior Counsel has submitted that, he should not be

allowed to continue as receiver.

While answering the abovesaid submission, the learned Senior Counsel appearing for the respondents has submitted that the trial court has

power to remove the receiver appointed by him u/s 16 of the General Clauses Act. The trial court has given valid reasons for removing him from

the said post. In view of the order of this Court passed in the revision and also in view of the petitioner filed by the petitioner, the trial court

removed the said Advocate from the receivership and appointed another advocate as receiver. With respect to the complaint against the said Mr.

Ranganathan, the learned Senior counsel has submitted that such a submission cannot be sustained for want of pleadings before the courts below.

According to him, only for the first time, interestedness has been raised in these revision.

It is not in dispute that the trial court has appointed on 22.2.1991 Mr. Thirunavukkarasu as receiver in I.A.No. 1283 of 1990. Admittedly, till

the impugned order has been passed he did not take possession of the firm as directed by the trial court. The petitioner filed the application in

I.A.No. 2176 of 1992 stating that the receiver was directed to deposit a sum of Rs. 5,000 into court as security and fix the date for visiting the

fourth respondent-company, but he has not done anything, and according to him unless the court gives direction to expedite his work, he will be

put to great hardship. At the instance of the petitioner, this Court in C.R.P.No. 847 of 1991 on 2.7.1993 directed the trial court to take up the

matter as to whether any interim relief should be granted to the petitioner, and, for which purposes notice should be given to the receiver and the

fourth respondent-company, to make available the relevant books of accounts or extract thereof including the copies of the current accounts. It is

also directed that the trial court should comply with all formalities within one month and pass necessary orders. At the instance of the petitioner, this

Court in C.M.P.No. 10401 of 1993 extended the period by another one month. In view of the abovesaid facts, the trial court found that the

receiver has not even visited the firm and has not taken any steps for taking possession. It is also found that he is very slow in complying with the

court direction and so interest of justice requires that he should be replaced by some other active receiver in his place. The learned Senior Counsel

appearing for the petitioner has submitted that since a fresh Warrant was not issued asking the receiver to deposit the said sum of Rs. 5,000, he

cannot be expected to comply with the direction. As rightly held by the trial court the receiver was duly informed by the petitioner about the order

passed in I.A.No. 478 of 1992, but the receiver did not comply with the direction, Which is very specific. In view of the above, it cannot be said

that the removal of Mr. Thirunavukkarasu is not without any basis. The reasons that had been recorded by the trial court that in view of the

directions of this Court to complete the proceedings within the particular period, and in view of the pressure given by the petitioner on the basis of

his grievance, it was compelled to replace the receiver, cannot be said to be without jurisdiction or without any basis.

The learned Counsel appearing for the petitioner has submitted that the trial court cannot remove the receiver, in the absence of any application

for such removal. Under Order 40, Rule 1 of the Code, the court has power to appoint a receiver. Though there is no specific provision for

removal of receiver appointed, in view of Clause 16 of the General Clauses Act, the court is vested with such power of removal. While dealing

with such power of the court, the decision in Rayarappan v. Madhavi Amma AIR 1950 F.C. 140, it has been held as follows:

It seems that it was because of this statutory rule based on the principles above mentioned that in Order 40, Rule 1, Civil P.C., no express mention

was made of the power of the court in respect of the removal or suspension of a receiver. The General Clauses Act has been enacted so as to

avoid superfluity of language in statutes wherever it is possible to do so. The legislature instead of saying in Order 40, Rule 1, that the court will

have power to appoint, suspend or remove a receiver, simply enacted that wherever convenient the court may appoint a receiver and it was

implied within that language that it may also remove or suspend him. If Order 40, Rule 1, Civil Procedure Code, is read along with the provisions

above mentioned, then it follows by necessary implication that the order of removal falls within the ambit that rule and once that decision is

reached, it becomes expressly appealable under the provisions of Order 43, Rule 1(s).

So, the submission of the learned Counsel for the petitioner that since there is no application for removal of receivership, the order of the courts

below in removing the receiver cannot be sustainable, cannot be countenanced. As stated earlier the trial court has held that the receiver was very

slow in complying with the direction of the court, and he interfered with the discharge of function of the trial court to comply with the direction of

this Court, as observed by Mishra, J., as he then was, in the C.R.P.No. 847 of 1991. Since the said reasoning are based on materials, this Court

need interfere with the same.

The learned Counsel appearing for the petitioner has challenged the impugned order on the basis of the complaints regarding the function of the

receiver Mr. Ranganathan. If any irregularity or illegality is found in the functioning of the receiver, it cannot be a ground to set aside the order

passed by the trial court, removing the earlier receiver and appointing Mr. Ranganathan as receiver. If at all, it is for the petitioner to file a petition

before the trial court to remove him on the basis of valid reasons. The order of the courts below cannot be interfered with on the basis of the

subsequent event, which has to be proved before the trial court for his removal.

Moreover, as submitted by the learned Senior Counsel appearing for the respondents, the report submitted by the receiver was only interim one

and he has not determined the liability. Determining the liability will come only after following the procedures contemplated under Rules 101, 102

and 103 of the Civil Rules of Practice, It is also brought to my notice by the learned Senior Counsel for the respondents that so far no objection

has been filed by the petitioner stating that the receiver is acting against his interest. Even in the grounds of revision filed by the petitioner, such plea

has not been taken. Even with respect to the complaint that the receiver has not complied with the directions of the Supreme Court, while settling

the terms and conditions by giving an opportunity of being heard, the receiver has given notice dated 16.7.1993 asking the fourth defendant-

company to furnish security of a sum of Rs. 1,00,000 and it is also stated that the terms and conditions will be settled after hearing both the parties

on 18.7.1993, and the receiver has asked the parties to submit their objections if any, regarding the terms. No material is placed before me to

show that the petitioner had objected to the proposed terms mentioned in the notice dated 16.7.1993. So, on the basis of the said terms, the

receiver has appointed the Managing Director of the fourth respondent-company as agent to carry on the business on the basis mentioned in the

letter dated 18.7.1993. It was also informed to the fourth respondent, about the same in the letter dated 24.7.1993. In view of the above, the

submission of the learned Counsel for the petitioner regarding the removal of Mr. Thirunavukkarasu and appointing Mr. Ranganathan in his place

cannot be sustained. If the petitioner is having any grievance he can approach the trial court for redressal in accordance with law. In view of the

above, the revision in C.R.P.No. 27 of 1995 has to be dismissed.

In C.R.P.No. 891 of 1994, the petitioner has come forward with the plea to permit her to cross-examine the receiver. In the affidavit filed in

support of the petitioner the relevant portion is as follows:

Having regard to the objections I feel that I should be permitted to examine the receiver to have some clarifications with regard to his report.

Apart from the above pleading, nothing has been stated in the affidavit, for the purpose of cross-examining the court officer, the receiver. So the

courts below had rightly rejected the said request stating that if the petitioner wants to have any clarification, he can move the receiver in writing

and get it clarified from the receiver. For cross-examination of the Advocate-receiver, unless a ground is made out, the court cannot permit the

petitioner for the same. In this case, there is no basis for such request. Hence, the courts below are correct in rejecting the said application. Hence,

the revision in C.R.P.No. 891 of 1994 has also to be dismissed.

In the result, these revisions are dismissed accordingly. No costs. Consequently C.M.P. No. 194 of 1995 is closed.