1 IN THE HIGH COURT JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.486 OF 2009 IN NOTICE OF MOTION NO.2120 OF 2009 IN SUIT NO.2871 OF 2009 1.Brickwork Trading (PVT) Ltd. and another. ...Appellants. Vs. Mr.Andrew Chettiar. ...Respondent. AND APPEAL NO.487 OF 2009 IN NOTICE OF MOTION NO.2119 OF 2009 IN SUIT NO.2870 OF 2009 1.Brickwork Trading (PVT) Ltd. and another. ...Appellants. Vs. Mr.S.Paul Mathew Chettiar ...Respondent. --- Mr.Janak Dwarkadas, Sr. Advocate with Mr.Gaurav Joshi & Ms.Pooja Kshirsagar i/b. M/s.I.C.Legal, for Appellants. Mr.S.N.Vaishnawa i/b. M/S.N.N.Vaishnawa & Co., for Respondent. 2 CORAM: D.K.DESHMUKH & R.V.MORE,JJ. DATED: 26th April, 2010 P.C.: 1. Admit. Heard finally by consent of the parties. Both the appeals can be disposed of by common order because the appellants in both the appeals are same. The following can be taken as admitted facts:- The appellants are builder with whom the Respondent in the appeal had entered into an agreement to purchase two flats, one each. Part of the consideration was paid. Suits were filed for decree of specific performance. Notices of motion were taken out. The defence of the builder was that the agreements have been terminated. The learned Single judge who has decided the notices of motion has found the prima facie case in favour of the plaintiffs and has granted temporary injunction and also granted liberty to apply for Receiver as and when construction of the building is completed. Pursuant to that liberty, notices of motion were 3 taken out for appointment of Receiver. Those notices of motion have been decided by the learned Single Judge by orders dated 7.9.2009. These appeals are directed against that order. The learned Single Judge has appointed Receiver on both the flats and has directed appointment of plaintiffs as agent of the Receiver on payment of royalty without security. For the royalty, he has directed bids to be invited. But he has also permitted plaintiffs to bid. But he has directed that whatever may be the bid amount, in case the bid of the plaintiffs is accepted, he should be given credit of the amount that is paid by him as also amount of interest on that amount. 2. The learned Counsel for appellants submits that the learned Single Judge was not justified in making order for appointment of Receiver without recording a finding that the property is likely to be waisted. The order of temporary injunction is already operating. The learned Counsel submits that admittedly, the plaintiffs have not paid full amount of consideration. The learned Counsel further submits 4 that the order of the learned Single Judge for giving credit at the time of his appointment as an agent, of the amount of interest on the amount that he has paid is also unjust. The learned Counsel appearing for original plaintiffs-respondents in the appeal submits that there is already a prima facie finding recorded that the agreement between the parties for sale of the flats subsists. The plaintiffs have paid substantial amount, the flats are ready, they are also willing to pay the balance amount. He submits that the plaintiffs are willing to be appointed as agent of the Receiver and they are ready to deposit the amount which in balance in the Court and have no objection to the defendants withdrawing that amount. They are also willing to pay all the outgoings of the flats once they start occupying the flats as agent of the Receiver. 3. We have perused the record. We find that there is clear finding recorded in the earlier order that there is a strong prima facie case in favour of the plaintiffs and an order of temporary injunction 5 has been granted restraining the defendants from alienating the flats and creating third party interest therein, as also restraining them from handing over possession of the flats to anybody. It is also clear that the plaintiffs have paid substantial amount to the defendants. In our opinion, therefore, nobody s interest will be served by keeping the flats unoccupied during the pendency of the suit. In our opinion, in this situation, no exception can be taken to the order of the learned Single Judge appointing Receiver. However, in our opinion, without requiring the plaintiffs to deposit the balance amount of agreed consideration, an order for plaintiff s appointment as agent of Receiver should not have been made by the learned Single Judge. The plaintiffs are willing to deposit the agreed amount of consideration in this Court and they have also no objection to this Court permitting the defendants to withdraw the amount. In our opinion, therefore, if the plaintiffs deposit the entire amount of consideration, there should be no justification for requiring the plaintiffs to pay any 6 royalty. In our opinion, taking overall view of the matter therefore, the following order would meet the ends of justice:- The appeals are disposed of. The orders passed by the learned Single Judge is confirmed subject to the following modification:- (i) Within a period of four weeks from today, the plaintiffs shall deposit an amount of Rs. 21,00,000/- (Rupees Twenty one lacs only) in Suit no. 2870 of 2007 and also an amount of Rs.21,00,000/- (Rupees Twenty one lacs only) in suit no.2871 of 2007, with due intimation to the defendants. (ii) On the amount being deposited, the Receiver shall take possession of the flats which are subject matter of these suits and appoint the plaintiffs as his agent to be in possession of the flat on usual terms and conditions but without security and royalty. It shall be the responsibility of the plaintiffs to pay outgoings of the flats. 7 (iii) The plaintiffs shall remain in possession of the flats themselves. The plaintiffs shall not be entitled to hand over possession of the flats to anybodyelse. The defendants shall be at liberty to withdraw the amount without prejudice to their rights and contentions in the suit. (iv) In case the amounts are not withdrawn within the period of Eight weeks from today, it be invested in fixed deposit in a nationalised bank to the credit of the suit. (v) At the request of the appellants, it is directed that though the plaintiffs are free to deposit the amount as directed above, the Receiver will not take possession though the amount is deposited, for a period of six weeks from today. In view of the aforesaid order, Notice of motion no.3804 of 2009 in Appeal no.486 of 2009 and Notice of motion no.3805 of 2009 in Appeal no.487 of 8 2009 do not survive for consideration, they are disposed of. (D.K.DESHMUKH,J.) (R.V.MORE,J.)