In the Court of Hon’ble Civil Judge (SD), Saket District Court,

New Delhi-110017
Suit No. 181/ 2018
Topic Assigned: Receiver

In the matter of:

Mr. Animesh … Plaintiff

Versus
Mr. Brijesh …Defendant

(Application under Rule 2 of Order XL PRAYING for directions sought by the

Receiver)

PROJECT for “CIVIL PROCEDURE CODE & LIMITATION ACT II”

Submitted by:
Utkarsh Singh

PRN: 16010224135;
Programme: BBA.LLB ; Group: A
Batch: 2016-21
Symbiosis Law School, NOIDA
Symbiosis International (Deemed University), Pune

Under the guidance of:

Ms. Megha Nagpal
Assistant Professor

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune
 DECLARATION
(For Internal Assessment Project of Civil Procedure Code & Limitation Act II)

This Project based on a hypothetical civil dispute relating to the Powers of the Receiver
appointed by the Court, submitted by the undersigned to Symbiosis Law School,
NOIDA for the course “Civil Procedure Code and Limitation Act II” as part of
Internal Assessment is based on an imaginary situation which has no relation to any
person living or dead. The research work has not been submitted elsewhere for award of
any degree or any other purpose whatsoever.
The “remedy” and “draft” portion of the project has been submitted purely for
understanding applicability of provisions of the Code of Civil Procedure, 1908 and /or
the Limitation Act,1963 as part of project for the aforesaid course. The designation/s, if
any, given in the project are purely hypothetical.

The contents of the project are original and not plagiarized. The material borrowed from
other sources and incorporated in the project has been duly acknowledged.
I have also taken due care that the contents of my project are not similar or same as
another learner’s project for the aforesaid course.
I understand that I could be held responsible and accountable for plagiarism, if any, even
if detected later.

(Signature of the Learner)

Date: January 29, 2019

Name of the Learner: Utkarsh Singh

PRN:16010224135
Batch:2016-21
Programme: BBA.LLB
GROUP:A
Symbiosis Law School, NOIDA Symbiosis International (Deemed University), Pune

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 FINAL SUBMISSION
INDEX

S. NO PARTICULARS PAGE NO.

1. Declaration 2

2. Hypothetical facts 4

4. Debatable question of law 4

5. Rule applicable 4

6. IRAC 1- Indian Bank V. Manilal Govindji Khona (2016 ) 3 SCC 712 5

7. IRAC 2- Shree Ram Urban Infras. Ltd. S. R. Mill V. Court Receiver, 7

High Court Of Mumbai 2015 (5) SCC 539.

9. Answer to the debatable question 10

10. Applicable Civil Remedy 11

11. Application U/O XL Rule 1(b) and Section 151 of the, C.P.C, 1908 12
for directions sought by the Receiver

12. Affidavit 14

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HYPOTHETICAL SITUATION

"On an application by Animesh, the Court appointed Mr. Chirag as the Court Receiver
under Order XL Rule 1, with all the powers under O XL R1(d). Subsequent to this, Mr.
Chirag, the Court receiver decided a compensation amount and in effect send a Notice
to Mr. Brijesh to vacate the suit premises."

QUESTION OF LAW

"Whether the Power of a Court Receiver conferred below O XL R 1(d) (Regrading

realization, control, protection, preservation and improvement of the property, the
gathering of the rents and earnings thereof, the application and disposal of such rents
and earnings, and the execution of documents as the proprietor himself) is Per se
exhaustive and extensive or is it strictly restrained by using the Court ?"

RULE APPLICABLE

1. O XL R 1(d) -
Appointment of receivers.—(1) Where it appears to the Court to be just and
convenient, the Court may by order—
(a) appoint a receiver of any property, whether before or after decree;

(b) remove any person from the possession or custody of the property;

(c) commit the same to the possession, custody or management of the receiver;
and

(d) confer upon the receiver all such powers, as to bringing and defending suits
and for the realization, management, protection, preservation and improvement
of the property, the collection of the rents and profits thereof, the application and
disposal of such rents and profits, and the execution of documents as the owner
himself has, or such of those powers as the Court thinks fit.

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(2) Nothing in this rule shall authorize the Court to remove from the possession
or custody of property any person whom any party to the suit has not a present
right so to remove.

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 IRAC ANALYSIS

SUPREME COURT CASE

1. Case Law - Indian Bank V. Manilal Govindji Khona (2016 ) 3 SCC 712.

FACTS

Messrs. Harinagar Sugar Mills Ltd., the corporation turned into under the control and
supervision of a joint hindu family having Mr. Manilal Govindji because the Karta. At
the same time, the stated Karta turned into additionally the Chairman of a Company
owned by using the said joint family. In addition to this, the 4 sons of him had been
acting inside the role of the Directors of the same organisation. There have been various
immovable belongings transactions among the Company and the Hindu Joint Family.
The stated own family also owned a sugarcane farm at Harinagar within the State of
Bihar. At this, juncture, one of the sons of Manilal Govindji filed a Suit on the Bombay
High Court (Original Side) against his father and others for partition of the joint family.
The Court appointed a Receiver for the control of the joint family assets.

ISSUES

1. "Whether, the Power of a Court Receiver allows him file a petition in Court for
the Winding Up of the Company."

2. "Whether it is mandatory for the Court Receiver to obtain the leave of the Court
while exercising his powers under O XL R(1)(d) ?"

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RULE

1. O XL R 1(d) -
Appointment of receivers.—(1) Where it appears to the Court to be just and
convenient, the Court may by order—
(a) appoint a receiver of any property, whether before or after decree;

(b) remove any person from the possession or custody of the property;

(c) commit the same to the possession, custody or management of the receiver;
and

(d) confer upon the receiver all such powers, as to bringing and defending suits
and for the realization, management, protection, preservation and improvement
of the property, the collection of the rents and profits thereof, the application and
disposal of such rents and profits, and the execution of documents as the owner
himself has, or such of those powers as the Court thinks fit.

(2) Nothing in this rule shall authorize the Court to remove from the possession
or custody of property any person whom any party to the suit has not a present
right so to remove.

ANALYSIS

a) Applying Rule 1 to Issue 1

"Clause (d) of Rule 1 provides an exceptional power to the Receiver to bring forth any Suit
in protecting suits and for the realization, control, safety, upkeep and development of the
assets, the gathering of the rents and income thereof, the software and disposal of such rents
and earnings, and the execution of documents as the proprietor himself has, or such of those
powers as the Court deems proper."

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 It is sincerely instilled in the Part II of the Palmers Co. Precedents that the Winding Up
Petition is a proper mode of executing the Creditors right in opposition to a Company that's
not able to Pay or Clear it debts with the latter. Therefore, the Court on this ground brings
forth two principles:"

i) "That the right to file a Winding Up Petition lies only with the de facto
defendant of the Case. The Court also points out that the Receiver is only
a de jure entity which assists the judicial body in receiving and executing
its supervision over the dispute and procedure."

ii) "Secondly, the Court brings it to the notice that a Winding Up Petition
cannot be interpreted or taken in expression under the term ‘Suit’ as it is
stated within Clause (d) of Rule 1."

"The Hon’ble Court therein laid down and affirmed the principle that a Court can
simplest confer the energy to convey a match and not some other powers. Therein
proscribing the scope of the Receivers strength. By this, the Court narrowed down the
exhaustive and wide meaning of the word ‘management.’"

b) Applying Rule 1 to Issue 2

"In the instant case, the Court negates the previously laid down rule and therein calls for
the dismissal of the Court for any technique or acts undertaken by means of the
Receiver. In case of a Suit that is instituted without adhering with the identical, the Suit
is at risk of be brushed off."

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"In addition to this, when the transaction in effect involves the presence of an
immovable property, the Suit should have the Trustees and Owners as the parties to the
same. The Court relied on Shyam Lal Gomatwala vs. Nand Lal & Ors1 and stated that
the permission of the Court was necessary for any procedural actions of the Receiver. It
further stated that when a court appoints a Receiver to have possession of an immovable
property in a case, the property falls under the sole custody of the Court and the
Receiver acts only as an agent appointed by the Court. The Receiver represents none of
the parties, being a person appointed by the court, he is accorded the permission to sue.
However, the failure to obtain a leave of the Court would definitely fall upon as a
procedural lapse."

CONCLUSION

"The powers of the Receiver is well expressed by using the Court. It follows,
consequently, that a Court might also authorize a receiver to sue and that a receiver
who's authorized to sue has the proper to achieve this through his appointment with
complete powers under O XL R1(d) of the Civil Procedure Code, 1908. However, the
Court has made it mandatory for the Receiver to achieve a go away of the Court for any
procedural choices taken via the Receiver. Moreover, the Court has narrowed down the
scope of Rule 1 via defining the term Suit as a non- umbrella terminology."

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SUPREME COURT CASE

2. Case Law - Shree Ram Urban Infras. Ltd. S. R. Mill V. Court Receiver, High
Court Of Mumbai 2015 (5) SCC 539.

FACTS

"An immovable property is a tenanted property situated at Padam Tekri, Peddar Road,
Bombay. The Court Receiver become appointed to take control and charge of the Suit
belongings. Later, the Receiver via a Notice issued, requested the Plaintiff to pay repayment at
the Rate of Rs.1,65,000/- according to month until the appellant vacate the Suit premises. In
the period in-between, the appellant had additionally been declared as a ill enterprise
underneath the Sick Industrial Companies (Special Provisions) Act, 1985"

"The appellant responded to the said notice of the Court Receiver mentioning that the
respondent has been appointed to manipulate the suit premises and has no proper and
power to decide the tenancy of the appellant."

ISSUES

1) "Whether, the Power of a Court Receiver allows him to evict the tenant through
a mere Notice?"

2) "Whether it is procedurally mandatory for the Court Receiver to obtain the leave
of the Court before sending a Notice for eviction of the tenants?"

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RULES

2. O XL R 1(d) -
Appointment of receivers.—(1) Where it appears to the Court to be just and
convenient, the Court may by order—
(a) appoint a receiver of any property, whether before or after decree;

(b) remove any person from the possession or custody of the property;

(c) commit the same to the possession, custody or management of the receiver;
and

(d) confer upon the receiver all such powers, as to bringing and defending suits
and for the realization, management, protection, preservation and improvement
of the property, the collection of the rents and profits thereof, the application and

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 disposal of such rents and profits, and the execution of documents as the owner
himself has, or such of those powers as the Court thinks fit.

(2) Nothing in this rule shall authorize the Court to remove from the possession
or custody of property any person whom any party to the suit has not a present
right so to remove.

ANALYSIS

a) Applying Rule 1 to Issue 1

"R 1(d) of Order squarely applies to the justification of the Receivers moves. The Court
receiver has the proper to take all of the steps which is in the fine interest of his duty to
the Court. When the receiver is appointed and given powers underneath O XL R 1(d),
he is appointed with complete powers to administer and supervise the belongings
underneath his custody,"
i.e. ‘Custodia Legis.’

"Rule 1(d) has specifically given all such powers as to bringing and defending the fits
and for the belief, management, safety and upkeep of the property which the Receiver
holds on behalf of the Court. The Court inside the instantaneous case additionally
mentioned to the phrase ‘Management as stated in R 1(d). It further went directly to the
attribute and maintain that this phrase will be interpreted in a broader perspective and
no longer on a narrower one."

" Moreover, the Court additionally delivered forth the factor that unless the phrases of
appointment of the receiver restricts his energy, there can not be some other
impediments to the same. In the intervening time, the Court additionally highlighted that
the stated restriction stands legitimate handiest whilst it's far expressed via the Court in
writing through an Order or a subsequent Special Order before or during the
corresponding proceeding."

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 b) Applying Rule 1 to Issue 2

"In addition to R 1(d), the Court stated Jagat Tarini Dasi v. Naba Gopal Chaki [(1907) ILR 34 Cal
305] and expressed that the Receiver is considered equal to the actual party interested in the litigation.
Further, the proper to sue exists as a common will and this right has the capability to be transferred in
the advantage of interest. The present exercise and principles hold the proper of the receiver on this
issue to the affirmative. The Court also drew the eye to the Order and files appointing the Receiver
and similarly contended that if a tenant is in arrears of rent for a uncertain duration or if the leased
assets after recuperation of possession can fetch extra profits to the beneficiary, the Receiver is
entitled to take actions in the rely and can ship a Notice for eviction without acquiring the depart of
the Court…………………………………………………………………………………."

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CONCLUSION

"The receiver, as an officer of the Court, which has taken manipulate of the assets, is in
the meantime, and for the cause of the administration of the belongings, the actual
celebration interested by the litigation. There is no actual purpose on why the healthy
must not be instituted in his personal call without the depart of the Court. It can also
further be delivered that there are numerous case legal guidelines, from which it
appears that a receiver who has authority to sue has been always allowed to do the
equal in all times. The Court depended upon the following selections while figuring out
the instant case."

1. Shunmugam v. Moidin [(1884) ILR8Mad 229]

2. Gopala Sami v. Sankara [(1885) ILR8Mad 418]
3. Sundaram v. Sankara [(1886) ILR9Mad 334]
4. Drobomoyi Gupta [318]. v. C.T. Davis [(1887) ILR14Cal 323]
5. Huri Dass Kundu v. J.C. Macgregor [(1891) ILR18Cal 477]
6. W.R. Fink v. Buldeo Dass [(1899) ILR26Cal 715]

ANSWER TO THE DEBATABLE QUESTION

"The Court vide its judgement mentioned in Indian Bank V. Manilal Govindji Khona
(2016 ) three SCC 712 sincerely settles its aim to limit and manage the powers of the
Receiver. It derecognized its previously usual principle that ‘a Receiver is Equal to the
Real Owner’. It similarly lays down that Rule 1 of O XL of the C. P. C has to study
narrowly."

"It is crucial to recognise that the Court has attempted to align this precept of
proscribing the Receivers powers according with the present exercise at numerous
jurisdictions which include that of the United Kingdom. By relating to the Palmers Co.
Precedents, the Court drove home the narrower which means of the term ‘Suit’ as
described below O XL R (1)(d) of the Code of Civil Procedure, 1908."

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"However, the Court modified its order within the year 2016. Through the
second one judgement, it hooked up the precept that the ‘Receiver isn't always
equal to the Real Owner’ and therefore has no limitless rights. It careworn at the
law that the Receiver is a trifling assistant of the Court whose only duty of right
is in implementing the needs of the Court. For the equal cause, it held that, whilst
a Suit is being instituted by means of the Receiver inside the footwear of the
Real Owner, the Suit could stand brushed off till the subsequent two procedural
tips are accompanied:"

a) "It is procedurally mandatory to obtain the leave of the Court even to

exercise the powers granted exclusively under O XL R1(d) of the
Code of Civil Procedure, 1908."
b) "That it is procedurally mandatory to have the Real Owner of the
immovable property as a party to the Suit."

"From this, it's far absolutely hooked up that the Court points out the legislative aim of

restricting the energy of the Receiver by means of best bringing in the time period ‘Suit
within R 1(d) of Order XL. Therefore, the answer to the controversial query seems
inside the non-affirmative." Therefore, inside the Hypothetical statistics, the Court
Receiver trespassed his rights as described inside Rule 1(d).…………………………

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APPLICABLE CIVIL REMEDY

In the hypothetical situation, the Court Receiver has to document an application to the
Court for acquiring the direction of the Court for the eviction of the tenants. The same,
application for instructions sought by means of the Receiver shall be filed Under O. XL
R1(b) and Section 151 of the Code of Civil Procedure, 1908.

Further, the Receiver on the Order and course of the Court may also proceed with the
motion therein sought through the Receiver, in the instant case, the eviction proceedings
can be undertaken against the occupants of the defendants premises.…………………….

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 In the Court of Hon’ble Civil Judge (SD), Saket District Court,
New Delhi-110017
Suit No. 181/ 2018

Mr. Animesh
…Plaintiff

V.
Mr. Brijesh
…Defendant

APPLICATION FOR DIRECTIONS SOUGHT BY THE RECEIVER IN THE

ABOVE CASE

(Under Order XL Rule 1(b) & Section 151 of the Code of Civil Procedure, 1908.)

1) That this application is being filed by the Court Receiver appointed by the District
Court sitting at Saket, Delhi..

2) That the Court made a recovery order appointing me, an approved person for the
purposes of attaching the properties of the Defendant.

3) That it is submitted that the present application may be considered by the Court
for obtaining the following directions herein sought:

a) A tenant is occupying the premises of the defendant, which is a subject matter

in the above case. Now the tenant is occupying the said premises without
paying the rent and he refuses to pay the same even after repeated demands
made by me.

b) To protect the interest of the Parties and the property, steps have to be taken
against the tenant by filing a eviction petition against him.

c) In the above circumstances, a direction from this Hon’ble Court is required,

empowering me to take the necessary legal actions as prescribed by the Code.

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A copy of the recovery judgement passed by the Hon’ble Court is attached with this
application as ANNEXURE-III.

PRAYER

In the light of the facts and circumstances of the present Application and in the light of
the judgement cited herein above, it is most humbly submitted that this Hon’ble Court
maybe pleased to:
1. Pass an order empowering the receiver to initiate legal proceedings against
the tenants, occupying the premises of the defendant.

2. And Pass any other Order that the Court deems fit.

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 In the court of Civil Judge, Saket District, Kerala Civil
Suit No. 153 of 2019

In the matter of

Mr. Animesh .............................................................................................Plaintiff

V.
Mr. Brijesh .................................................................................... Defendant

AFFIDAVIT

I, C, the Court Receiver aged about 44 years, R/o. Ponkal House, , Saket do hereby
solemnly affirm and declare as under:

1. That I am the Court Receiver in the above noted case and as such I am well
conversant with the facts of the present matter and competent to depose this
affidavit.

2. That I have read and understood the contents of the accompanying Application
which has been drafted by my counsel upon my instructions and the contents of the
same have been explained to me in vernacular language and having understood the
same, I confirm that the same are true and correct to the best of my knowledge.

3. That the contents of the accompanying Application may be read as part and parcel
of this affidavit and the same are not reproduced here for the sake of brevity.

DEPONENT

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 VERIFICATION

I, the deponent named above, verify that the contents of the above affidavit are
true and correct to the best of my knowledge. No part of it is false and nothing material
has been concealed there from.

DEPONENT

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