Savitridevi C. Tiwari & Ors. v. Budhiraj R.Tiwari (deceased)

Plaintiffs. CORAM : S.J. VAZIFDAR, J. DATED : 10TH JULY, 2008. P.C. :

The suit is filed for partition of the properties belonging to the Hindu joint family as per the deed of partition of the joint family settlement dated 29.6.1984. It is not necessary to deal with various facts averred in the plaint for the purpose of this Notice of Motion. After the suit was filed, the Plaintiff had taken out Notice of Motion No.2825 of 2003 for various reliefs. Some of the reliefs had been granted.

I am not inclined to consider the reliefs which even according to the Plaintiff’s counsel had been sought or could have been sought when the suit was filed six years before the Notice of Motion was taken out. There is no explanation as to why the Plaintiff ought to be allowed to apply for these : 2 : reliefs after a lapse of six years.

However, I am inclined to protect the Plaintiff’s interest in respect of three items which had been considered by an order dated 1.2.2006 passed in the said Notice of Motion No.2825 of 2003.

By the said order dated 1.2.2006, Defendant No.2 had inter-alia undertaken to file the accounts every year commencing from 1.4.2005 within one month from the expiry of the financial year i.e. 31st March of each year. The accounts were ordered to be kept in a sealed envelope and a copy thereof was directed to be furnished to the Plaintiff. This is in respect of the business of Ramesh Dairy Farm. A similar order was passed in respect of the business of Tiwari Dairy Farm.

It is alleged that the accounts have still not been filed in respect of both the businesses. It is alleged that in respect of both the business, the accounts have been filed only upto 31st March, 2006. There is, it is further stated, no application for extension of time.

There is no affidavit in reply filed in this Court. However, Mr.Singh, the learned counsel : 3 : appearing on behalf of the Plaintiff fairly states that a copy of an affidavit in reply has been served upon him in which it is stated that the accounts for the year ended 31st March, 2007 had been given to the Defendants’ advocate who obviously did not forward the same to the Plaintiff’s advocate.

I will presume what is stated in the affidavit is correct. The ends of justice would be met by granting Defendant No.2 further time to furnish the accounts for the year ended 31st March, 2007 as well as for the year ended 31st March,2008 and order for appointment of a Court Receiver in the event of Defendant No.2 failing to comply with the same.

It was further alleged that Defendant No.2 had undertaken to furnish the details of the sale of the property on the first, second and third floors and the loans within four weeks. It is alleged that the same has not been done. Even if I were to consider the unaffirmed affidavit in reply, it must be noted that there are no details as to how the order has been complied with. There is only a bare statement that the order has been complied with.

In the circumstances, the following order is passed :- : 4 : i). Defendant No.2 is granted time upto

31.8.2008 to furnish the accounts upto the year ended 31st March, 2008 in respect of the said businesses of Ramesh Dairy Farm and Tiwari Dairy Farm. In the event of Defendant No.2 failing to do so, the Court Receiver shall take formal possession of the premises and the businesses and apply to this Court for further orders and directions about appointing an agent in respect of the said businesses. ii). Even if the order dated 1.2.2006 in so far as it directs Defendant No.2 to furnish the details of the sale of the properties etc. on the first, second and third floors has been complied with, the same shall once again be complied with. The compliance shall be by furnishing the details in writing under cover of a letter of Defendant No.2 and/or his advocate on or before 31.8.2008. In the event of Defendant No.2 failing to do so, the Court Receiver shall stand appointed in respect of the suit property. The Court Receiver shall initially take formal possession and make a report to this Court : 5 : for further directions. The Court Receiver shall also in his report include the details of the parties in possession thereof and the manner they came to be in possession. iii). The Plaintiff/Plaintiff’s advocate shall serve a copy of this order on the advocate of Defendant No.2 on or before

17.7.2008.