: 1 : SD IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.4396 OF 2007 OF MOTION NO.4396 OF 2007 OF MOTION NO.4396 OF 2007 IN IN IN SUIT SUIT SUIT NO.3112 OF 2007 NO.3112 OF 2007 NO.3112 OF 2007 Pradeep Bipin Shah ...Plaintiff V/s. Goa Interactive & Ors. ...Defendants Mr.K.D. Shukla, Advocate, for the Plaintiff. . None for the Defendants. CORAM CORAM CORAM : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. DATE DATE DATE : 7TH AUGUST, 2008. : 7TH AUGUST, 2008. : 7TH AUGUST, 2008. P.C.: P.C.: P.C.: . Mr.Shukla, appears for the Plaintiff. None appears for the Defendants. No reply has been filed by the Defendants to oppose the above Motion. At ad-interim stage on 4th December, 2007, an order in terms of prayer clause (b) was passed. Despite of this, the Defendants, as said above, have not filed reply. 2. The Notice of Motion is taken out for appointment of Court Receiver in respect of certain property situated in Panjim, Goa. The facts of the case are quite peculiar. The Plaintiff lent an amount of Rs.1,50,000/- for business purpose to the Defendant No.1. The Defendant Nos.2 and 3 had accepted Bills of Exchange. When the amount was sought to be recovered, the bills were dishonoured. Even the : 2 : cheques given by Defendant No.1 were dishonoured. In order to recover the amount, the Plaintiff had meeting with Defendant No.2. It is admitted position that besides the Plaintiff here, there were numbers of other creditors of Defendant Nos.1 and 2. The creditors and the Plaintiff held a meeting with Defendant No.2 and the Defendant No.2 then agreed to create a mortgage of an office premises in a building at Panjim in favour of six creditors, one of whom is the Plaintiff here. An agreement came to be executed on a stamp paper. In this agreement, the Defendant No.2 agreed that he had taken loan to the tune of Rs.1,09,50,000/- from various creditors and in order to secure the repayment he agreed to create mortgage in respect of the above property in favour of the above mentioned six persons named in the agreement as mortgagees. In the agreement it is also stated in paragraph No.3 that immediately after the execution of the said agreement possession of the suit office premises would be handed over to the six mortgagees. 3. It is the case of the Plaintiff that despite this agreement for mortgage, Defendant No.2 did not execute registered mortgage deeds : 3 : in favour of the mortgagees including the Plaintiff. Neither the Defendants repaid the amount of loan. So the Plaintiff filed this Suit for declaration that there is valid and subsisting charge of the Plaintiff on the property mentioned above and for recovery of the amount alongwith the interest. 4. In order to obtain interim relief, this Motion is taken out, for appointment of Court Receiver in respect of the above mentioned property. Surprisingly, the Defendants did not come and appear in the case. They did not file any reply to the Motion. But the question still arises as to whether the Plaintiff makes out a prima-facie case for appointment of Court Receiver in respect of the property which is situated at Panjim, Goa. The answer to this is in negative. 5. Admittedly, the Defendant No.2 did not ultimately execute a proper mortgage deed in respect of this property in favour of the Plaintiff and other creditors. Even the property was not handed over to the mortgagees even though the agreement said so. The Plaintiff does not know as to what the position : 4 : of the property is at the moment. The Plaintiff does not know whether the other creditors, the other five mortgagees named in the agreement, have taken possession of the property. The Plaintiff does not know as to whether the property is dealt with further. The Plaintiff probably is making a guess that the property would still be there. The information that Plaintiff has given to the Court through this plaint and the affidavit etc. is not sufficient in my view. Since the property is not properly secured by an agreement, it cannot be said, at this prima-facie stage, that the Plaintiff had secured the property and had valid and subsisting charge on this property. So I am not inclined to appoint Court Receiver in respect of the suit property. 5. Even as regards the prayer seeking temporary injunction, the Plaintiff does not make out a prima-facie case. It is held above that the Plaintiff failed to make out a valid and subsisting charge on the property. So she is not entitled to the temporary injunction sought in the Motion. 6. The Notice of Motion stands dismissed. : 5 : [A.V. [A.V. [A.V. NIRGUDE, J.] NIRGUDE, J.] NIRGUDE, J.]