IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2019 BEFORE THE HON’BLE MR.JUSTICE SREENIVAS HARISH KUMAR M.F.A. No.3311/2019 (CPC) BETWEEN:
M.V. DAYANANDA, S/O K. VASU, AGED ABOUT 38 YEARS, R/O NO.311, K.C. LAYOUT, MYSORE CITY – 570 011.
... APPELLANT (BY SRI B.N. ANANTHANARAYANA, ADVOCATE) AND:
1. K. VASU, S/O LATE KRISHNAIAH, AGED ABOUT 71 YEARS, R/O NO.311, K.C. LAYOUT, MYSORE CITY – 570 011.
2. M.V. KRISHNA, S/O K. VASU, AGED ABOUT 37 YEARS, R/O NO.311, K.C. LAYOUT, MYSORE CITY – 570 011.
ALSO AT NO.836, G.F., 26TH MAIN, 11TH CROSS, 1ST SECTOR, HSR LAYOUT, BANGALORE – 560 002.
3. M.V. RAGHU, S/O K. VASU, AGED ABOUT 36 YEARS, R/O NO.311, K.C. LAYOUT, MYSORE CITY – 570 011.
… RESPONDENTS (BY SRI G.S.BALAGANGADHAR, ADVOCATE FOR R1; SRI A. NIRANJANA KUMAR, ADVOCATE FOR R2; R3 – SERVED AND UNREPRESENTED) THIS M.F.A. IS FILED UNDER ORDER 43 RULE 1(S) READ WITH SECTION 104(1) OF CPC AGAINST THE ORDER DATED 14.01.2019 PASSED ON I.A. NO.1 IN O.S.NO.304/2018 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE & CJM, MYSURU, DISMISSING THE I.A.NO.1 FILED BY THE PLAINTIFF UNDER ORDER 40 RULE 1 R/W SECTION 151 OF CPC.
THIS M.F.A. COMING FOR ADMISSION ON THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is by the plaintiff in O.S.No.304/2018 on the file of II Additional Senior Civil Judge & C.J.M., Mysuru. The suit is for partition in respect of two items of the properties described in Schedule ‘A’ and ‘B’ to the plaint. The plaintiff claimed 1/4th share in these two properties in addition to claiming mesne profits.
2. It is the case of the plaintiff that these properties belong to the joint family and that his request for partition was not considered by the defendants. Along with the plaint, the plaintiff also made an application, I.A.No.1 under Order XL Rule 1 of C.P.C. for appointment of Commissioner in respect of plaint ‘A’ schedule property.
3. The defendant No.1 filed his written statement contending that there was a partition between him and his brothers. He has purchased portion of the property allotted to his brothers and therefore the plaint schedule properties are his self-acquisitions. The defendant No.2 made an application I.A.No.2 seeking appointment of receiver in respect of a shop said to be under the occupation of the plaintiff.
4. In the application, I.A.No.1, the plaintiff alleged that the defendants are misutilising the money derived from the rental income. The defendant No.1 raised loan from Mysore Merchants Co-operative Bank Limited, Mysore. The loan installments are not being paid.
Third defendant is misusing the ATM Card of the first defendant and drawing money from his account for his personal expenses. When the first defendant raised loan from the bank, made a statement very clearly that the schedule properties belonged to the joint family consisting of himself and his children, therefore it is clear that the schedule properties belonged to the joint family. The third defendant is using the rental income without paying bank instalments, it is nothing but a waste.
5. So far as IA No.2 is concerned, the trial Court did not grant that application and that order is not challenged by the defendants. Therefore, there is no need to refer to the contents of IA No.2.
6. The trial Court after hearing both sides has come to conclusion that the plaintiff may be having 1/4th share in the suit schedule properties, but, he has also made a prayer for enquiry with respect to income derived from the plaint schedule properties. A full fledged trial is necessary to resolve the issue emerging from the pleadings. The plaintiff himself has stated that the first defendant availed loan of Rs.30,00,000/- from MMC Bank and invested the money for the purpose of purchasing a vacant site bearing No.311, which is ‘B’ schedule property. As on 28.02.2018, a sum of Rs.8,10,148/- was due in connection with loan and this shows that major portion of the loan has been cleared and that the first defendant has being repaying the loan in regular instalments and the plaintiff has failed to place before the Court that the defendants are wasting the property detrimental to his interest. With these reasons, the application has stood dismissed.
7. Learned counsel for the appellant argues that the first defendant is aged and is suffering from diseases. Taking undue advantage of this position, the third defendant is drawing money from the bank using the ATM card. Loan instalments are not being repaid, there is a huge amount due, it shows that the defendants mismanaging the properties and wasting the income derived from this property. Schedule ‘A’ property is a commercial complex fetching rent from many tenants. In order to see that the rental income is not wasted, receiver is necessary to be appointed. Further, the Corporation taxes are also not paid. The trial Court has failed to appreciate these facts. Therefore the impugned order needs to be set-aside, and IA No.1 to be allowed.
8. Learned counsel for the defendants argues that as on 06.06.2019, amount due was only Rs.2,72,409/- towards loan account. The trial Court has given cogent reason for dismissal of IA No.1. The bank statement shows that the loan instalments are being repaid regularly. Infact, it was the plaintiff who initiated the criminal action against the defendants is creating trouble. Absolutely there are no grounds for appointment of receiver. The property taxes are also being paid. Therefore, there is no truth in the allegations made against the defendants.
9. On going through the impugned order and considering the arguments of learned counsel for the appellant as also the respondents, it is to be held that the receiver can be appointed only under the circumstances where the subject matter of the suit is being wasted by one of the parties to the suit. Here, in this case, the allegation is that since the first defendant is sick, the third defendant is withdrawing the money from the bank account by making use of the first defendant’s ATM Card. There is no proof for this. Second allegation is that the bank instalments are not being repaid. The trail Court has observed that the first defendant has availed loan of Rs.30,00,000/- and as on 28.02.2018, the outstanding amount was Rs.8,10,148/-. Now the learned counsel for the respondents/defendants produces bank statement which is not disputed. This shows that as on 06.06.2019, the money due to the bank was only Rs.2,72,409/-. This means regularly instalments are being paid to the bank towards loan account. If property taxes are not paid, the Corporation will issue notice. But no notice has been issued. Therefore, there are no prima-facie materials to show that the defendants are misusing and wasting the property. In these circumstances, I am of the opinion that the trial Court is justified in rejecting the application IA No.1 for appointment of receiver. There are no grounds to interfere. Appeal is dismissed.
Sd/- JUDGE VGR/KMV