Case Note & Summary
The plaintiff, Jayanand Jayant Salgaonkar, filed a suit for partition and accounts against his family members, including his mother, brothers, sisters, and a trust. The suit property is a residential flat at 604B, Laxmi Sadan, Dadar, Mumbai. The plaintiff claimed that he was entitled to a share in the property and that the defendants were mismanaging the property. He filed a Notice of Motion seeking appointment of a receiver to take charge of the property pending disposal of the suit. The defendants opposed the motion, contending that the property was in their possession and that the plaintiff had no right to seek appointment of a receiver. The court, after hearing the parties, held that the appointment of a receiver is a discretionary remedy and the plaintiff must establish a prima facie case, balance of convenience, and irreparable injury. The court found that the plaintiff failed to make out a case for appointment of a receiver as the property was in possession of the defendants and the plaintiff had an alternative remedy of partition. The court dismissed the Notice of Motion with costs.
Headnote
A) Civil Procedure - Appointment of Receiver - Order 40 Rule 1 CPC - Discretionary Power - The court held that appointment of receiver is a discretionary remedy and not a matter of right. The plaintiff must establish a prima facie case, balance of convenience in his favor, and that he would suffer irreparable injury if receiver is not appointed. In the present case, the plaintiff failed to make out a case for appointment of receiver as the property was in possession of the defendants and the plaintiff had an alternative remedy of partition. (Paras 10-15) B) Partition - Suit for Partition - Alternative Remedy - The court observed that the plaintiff's suit for partition and accounts is itself an alternative remedy, and the appointment of a receiver would not be justified when the property is in joint possession and no waste or mismanagement is alleged. (Paras 16-20)
Issue of Consideration
Whether a receiver should be appointed in respect of the suit property pending disposal of the suit for partition and accounts.
Final Decision
Notice of Motion No. 822 of 2014 is dismissed with costs.
Law Points
- Appointment of receiver is a discretionary remedy
- not a matter of right
- Prima facie case must be established for appointment of receiver
- Receiver should not be appointed if it would cause irreparable injury to the other side
- Balance of convenience must favor appointment
- Alternative remedy of partition suit is available
- Section 9 CPC
- Order 40 Rule 1 CPC
