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Premji Hurji and Co. Vs. Premji Pannalal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberO.C.J. Suit No. 927 of 1931
Judge
Reported inAIR1932Bom314; (1932)34BOMLR717
AppellantPremji Hurji and Co.
RespondentPremji Pannalal
Excerpt:
bombay high court rules (original side), 1930, rules 348, 200, 199-commercial cause-receiver, appointment of-application-notice of motion in court-practice and procedure.; an application for the appointment of a receiver in a commercial cause must be made by a notice of motion, as in the case of an ordinary long cause, under rule 348 of the rules of the high court of bombay, 1930. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to point out that the assets recovered in the search were not undisclosed to point out that the assetsrecovered in the search were not undisclosed income. secondly,..........used on the hearing of the summons except by the special order of the judge. then the nextmaterial rule is rule 202 which runs as follows:-202. any application subsequent to the original summons for any directions as to any matter by any party shall be made under the summons on two clear days' notice to the other party, stating the grounds of the application.if the judge is of opinion that such application could properly have been made on the original summons, he may direct that the party applying shall in any event pay the costs of such application.3. taking rules 199 and 202 together. i think that the directions which can be sought under a notice in accordance with the latter rule must be of the same kind and nature as in the former. the jurisdiction under rule 202 is the same in all.....
Judgment:

Rangnekar, J.

1. This is a motion for the appointment of a receiver in a commercial cause. Mr. Setalvad has raised a preliminary objection that the application cannot be entertained on a notice of motion as in the case of an ordinary long cause. The point covered by the objection has not been decided in any reported decision of this Court. My attention, however, has been drawn to three suits on the record of this Court. The first is a suit No. 1133 of 1929, in which Mr. Justice Sir Norman Kemp entertained an application for the appoint meat of a receiver under the summons for directions taken out in the suit. As to this it is pointed out that there was a prayer for the appointment of a receiver in the original summons for directions. The next suit is Suit No. 2187 of 1930, in whichMr. Justice Blackwell held that an application for the appointment of a receiver must be made in the ordinary way in the Court on a notice of motion and not under a summons for directions. But the same learned Judge laid down a somewhat different rule in Suit No. 8 of 1931, and entertained an application for the appointment of a receiver under a notice taken out under the summons for directions in that case. In the summons for directions one of the directions sought was as regards the appointment of a receiver. I am not disposed to attach much weight to the argument that in two of these decisions the summons for directions included a direction for the appointment of a receiver. In my opinion, on principle, there is no difference between the case in which the summons for directions includes a direction for the appointment of a receiver and the case in which no such direction is mentioned in the summons for directions, because if it is open to a party to apply for the appointment of a receiver under the summons for directions, he may do so by the summons itself or under the rules by a notice under the summons. The whole question is, Is it open to a party to apply for the appointment of a receiver under the summons for directions? I shall first consider our rules contained in Chapter XII of the Rules of the High Court,1930. Rule 199 says that on the plaint being accepted the plaintiff shall take out a summons for directions which has to be served on other parties and made returnable within notless than four days. The summons has to be in Form No. 22, Rule 200 runs as follows :-

200. At the hearing of the summons for directions the Judge may make such order as he thinks fit for the speedy determination of the suit, the avoidance of multiplicity of interlocutory proceedings and the avoidance of expense and delay which might arise from commissions to take evidence orotherwise....

2. Then certain particular matters in regard to which directions may be given by the Judge are set out. These, it may be stated, are generally similar in nature toany are of the same kind as the matters mentioned in Form No. 22. Then Rule 201 states that no affidavit shall be made or used on the hearing of the summons except by the special order of the Judge. Then the nextmaterial rule is Rule 202 which runs as follows:-

202. Any application subsequent to the original summons for any directions as to any matter by any party shall be made under the summons on two clear days' notice to the other party, stating the grounds of the application.

If the Judge is of opinion that such application could properly have been made on the original summons, he may direct that the party applying shall in any event pay the costs of such application.

3. Taking Rules 199 and 202 together. I think that the directions which can be sought under a notice in accordance with the latter rule must be of the same kind and nature as in the former. The jurisdiction under Rule 202 is the same in all respects as that which can be exercised on a summons for directions. Beading Rule 199 and the Form No. 22, in my opinion, the dominant idea seems to be that such directions should be given as are necessary for (1) speedy determination of the suit, (2) avoidance of multiplicity of interlocutory applications of the nature mentioned in the rule and the Form No. 22, and (3) avoidance of expense and delay consequent upon applications for commissions or otherwise. The governing idea of these rules is speedy determination of the suit. On the construction of the rules, therefore. I have come to the conclusion that applications for injunctions and for appointment of receivers are outside the scope of the summons for directions or of the notice under Rule 202.

4. I now come to the rules as to motions. These rules show that an application for injunction, for appointment of a receiver, and such other interim reliefs must be made by a notice of motion to a Judge in open Court underRules 340-849 of the High Court; and Rule 348 runs thus:-

348. Application for the Appointment of a receiver of property, the subject-matter of a suit, shall be made to the Court....

In other cases a receiver may be appointed by the Judge sitting in Chambers if the matter is one usually dealt with in Chambers.

5. If it was intended that the question as to the appointment of a receiver should be disposed of on a summons for directions, I should have expected some sort of limitation put on the imperative terms of Rule 348, or a specific mention of this matter either in the list given in Rule 199 or in Form No. 22. I am, therefore, of opinion that the application for the appointment of a receiver even in a commercial cause must be made in accordance with and under Rule 348.

6. What is the position in England under the Rules of the Supreme Court Rule 2 of Order XXX of those rules corresponds with ourRules 199 and 202 and Form No. 22 as to the matters in which orders may be passed upon the hearing of a summons for directions, but the language is somewhat different. It runs as follows :-

Upon the hearing of the summons the Court or a Judge shall, so far as practicable, make such order as may be just with respect to all the proceedings to be taken in the action, and as to the costs thereof, and more particularly with respect to the following matters :-Pleading, particulars, admissions, discoveries, interrogatories, inspection of documents, inspection of real or personal property, commissions, examination of witnesses, place and mode oftrial....

7. It seems to me that this rule is wider than our rule inasmuch as it says that all directions may be made upon the hearing of the summons for directions with respect to all the proceedings to be taken in the action, whereas, as I have pointed out, in our Rule 199 such directions only can be given as are necessary for the speedy determination of the suit in addition to the matters specifically mentioned therein, Order XXX, Rule 5, corresponds to our Rule 202, and it runs thus :-

Any application subsequent to the original summons and before judgment for any directions as to any interlocutory matter or thing by any party shall be made under the summons by two clear days' notice as to the other party stating the grounds of the application.

8. Rule 1 (b) of Order XXX is important, and shows that it is open to the plaintiff to apply for an injunction or for a receiver even before taking out a summons for directions. There is no rule in our rules similar to this, and it is clear that if a plaintiff has to apply in an urgent case for the appointment of a receiver in a commercial cause, he has to proceed under our ordinarypractice.

9. In spite of a diligent search for authorities neither counsel nor I have been able to find out any authority bearing on the question before me, but Mr. Setalvad has drawn my attention to a note in the Yearly Practice of the Supreme Court, 1932, at p. 450, under notes on Order XXX, Rule 2. It runs as follows:-

A receiver can be appointed on the summons for directions, but a special order for the use of affidavits is necessary, and the summons must be referred to the Judge.

10. No authority, however, is cited for this statement in the book; and it may be mentioned that there is nothing in the Annual Practice, 1932, to support it.

11. If necessary I am prepared to hold that on the language of Rule 2 of Order XXX of the Supreme Court an application for receiver may be made on a summons for directions, but the language of our rules seems to me to prohibit such an application, as it cannot be contended that the appointment of a receiver is necessary for the speedy determination of asuit. The appointment of a receiver is a serious matter and involves serious consequences, and it seems to me desirable that such orders should be made in open Court on proper materials and affidavits and not in a summary manner in which directions are given under the summons for directions in chambers. I am supported in the view which I am taking by the remarks of the learned Chief Justice Sir Amberson Marten in the case of Mirza Masham v. Mirza Ahmed (1926) 29 Bom. L.R. 214 which are as follows (p. 215):-

we think that these applications (i.e. applications for the appointment of receivers) should be made in the ordinary way by notice of motion in open Court and not in Chambers.

12. Under the circumstances I overrule the preliminary objection.


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