Prima Facie Tenancy Not Forged: Bombay High Court Refuses To Appoint Court Receiver For Prime Mumbai Property In Dispute With Kuwaiti Royalty

"If the statement made before a police officer, in the course of an investigation under chapter XII is sought to be used in any proceeding other than an enquiry or trial or even at an enquiry or trial but in respect of an offence other than which was under investigation at the time when such statement was made, the bar of Section 162 would not be attracted", the court stated.

Justice BP Colabawala, while dealing with a notice of motion in the civil suit, extended the interim relief granted to the eldest daughter of late Sheikh Saad, former Emir of the Kuwait and restrained the defendants from creating any third-party rights in the disputed premises in a building owned by the royal family.

The plaintiff, Sheikhah Fadiah Saad has filed a suit alleging that the defendants Sanjay Punamiya, Amish Shaikh, and Mahesh Soni have taken illegal possession of certain flats and the parking garage (suit premises) of the building named Al-Sabah Court at Marine drive, Mumbai.

According to the plaint, Counsel General of Kuwait Faisal Essa was authorised by Sheikh Saad to care of the building. After Sheikh Saad's demise, his legal heirs granted the authority to Faisal Essa to take care of the properties of the royal family. The plaint states that Faisal Essa was in the possession of the suit premises till he went back to Kuwait on May 06, 2013.

It is the plaintiff's allegation that the defendants took illegal possession of the suit premises after Faisal Essa left for Kuwait. They found blank receipt books, seals, signature stamps etc. and fabricated tenancy agreements and rent receipts between the three defendants and Essa for the suit premises.

The plaintiff filed the present notice of motion in the suit seeking appointment of a court receiver and a declaration that the aforementioned tenancy agreements are forged and do not bind her. She also sought directions to the defendants to pay her mesne profits of Rs 35 lakhs per month.

The defendants relied on CID's investigation of this issue after Faisal Essa registered a criminal complaint against Punamiya in 2014. CID had investigated the case and based on witness statements, handwriting expert reports etc. concluded that the defendants had not forged the tenancy agreements.

While the plaint claims that that Faisal Essa was in possession of the suit premises till May 2013, various witnesses made statements before the CID under section 162 Cr.P.C. that Punamiya was in possession of part of the disputed premises since October 2012.

Advocate Haresh Jagtiani for the plaintiff objected to the court relying on these statements. Usage of statements made to the police officer in the course of an investigation is barred under section 162 and such statements cannot be relied upon in the present proceedings, he contended.

Relying on the Apex Court judgment in Khatri v. State of Bihar the court rejected Jagtiani's interpretation of section 162 of the Cr.P.C. It noted that section 162 specifically bars usage of statements made before the police officer during trial or inquiry with respect to the offence that was being investigated. However, the present case is a civil proceeding.

The court noted that this section has been enacted to protect the accused on the assumption that the statements before the police are not made under circumstances that inspire confidence. "This protection, and which is given to the accused, can certainly not bar the Court from looking at the statements made before the police officer in civil proceedings so long as it is relevant under Indian Evidence Act."

The court noted that the plaintiff has nowhere claimed that Faisal Essa did not have the authority to execute the said tenancy agreements. Therefore, the issue to be considered was whether the tenancy agreements were prima facie forged and fabricated in order to appoint a court receiver, the court said.

The defendants in their respective reply affidavits had set out the circumstances in which the tenancies were created. The court noted that the plaintiff or Faisal Essa has not filed any rejoinder contesting the case of the defendants. Further, their tenancy agreements have been notarized by the same person who also notarized 14 of the affidavits filed by the other tenants of the building which have been relied on by the plaintiff, the court observed.

The defendants had filed suits before the Small Causes Court between January and April, 2013 and attached rent receipts for the suit premises. The court noted that the plaintiff did not explain how they had rent receipts in January and April 2013 if they allegedly forged it after Faisal Essa left for Kuwait in May 2013.

The court concluded that the plaintiff could not prima facie establish that Faisal Essa was in possession of the suit premises till May 2013 and the tenancy agreements between Faisal Essa and the defendants are forged and fabricated. The question of appointing a court receiver will arise only when the court comes to the conclusion that prima facie the plaintiff has an excellent chance of succeeding in the suit, said the court.

Therefore, there is no question of appointing a court receiver for the suit premises or directing defendants to pay any mistake profit to the plaintiff, the court held.

Case no. – Notice of Motion No. 313 of 2014 in Suit No. 175 of 2014

Case Title – Sheikhah Fadiah Saad Al-Abdullah Al-Sabah v. Sanjay Mishrimal Punamiya and Ors.

Citation: 2022 LiveLaw (Bom) 454