IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1719 OF 2002 NOTICE OF MOTION NO.1719 OF 2002 NOTICE OF MOTION NO.1719 OF 2002 IN IN IN SUIT NO.3901 OF 1991 SUIT NO.3901 OF 1991 SUIT NO.3901 OF 1991 Bharti Mukund Shah of Mumbai Indian Inhabitant, Residing at 111,Mount Unique, 14th floor, 62-D, Peddar Road, Bombay-400 026. ...Plaintiff Vs. M/s. Sindhwa Developers, a firm Having its office at Balram Apartment, Shimpoli Cross Road, Borivili Mumbai 500 092. ...Defendant And Shree Chand Lunia of Mumbai Adult, Indian Inhabitant, Residing at 2B, Shantivan Raheja Town Shop, Malad (East) Mumbau 400 097. ...Applicant ----- Mr.F.Devitri, Sr. Counsel with Mr.T.N.Tripathi for Applicant Mr. Snehal Shah with Mr. R.C. Tolat i/b. L.C. Tolat & Co. for Plaintiff CORAM: SMT.R.S.DALVI,J. CORAM: SMT.R.S.DALVI,J. CORAM: SMT.R.S.DALVI,J. DATED: 4TH JULY, 2005 DATED: 4TH JULY, 2005 DATED: 4TH JULY, 2005 P.C. P.C. P.C. 1. This application is made under Order 40 Rule 1 1. This application is made under Order 40 Rule 1 1. This application is made under Order 40 Rule 1 (2) and Section 151 of C.P.C. for claiming possession (2) and Section 151 of C.P.C. for claiming possession (2) and Section 151 of C.P.C. for claiming possession of the property in suit which was in the possession of of the property in suit which was in the possession of of the property in suit which was in the possession of the Court Receiver pending the suit from the Court the Court Receiver pending the suit from the Court the Court Receiver pending the suit from the Court Receiver, and/or from the Plaintiff. Receiver, and/or from the Plaintiff. Receiver, and/or from the Plaintiff. 2. This suit has been filed for recovery of 2. This suit has been filed for recovery of 2. This suit has been filed for recovery of Rs.60,000/- as the estimated deficiency shortfall for Rs.60,000/- as the estimated deficiency shortfall for Rs.60,000/- as the estimated deficiency shortfall for recovery of the plaintiff’s dues from the defendants recovery of the plaintiff’s dues from the defendants recovery of the plaintiff’s dues from the defendants together with interest at 18% p.a. thereon. The together with interest at 18% p.a. thereon. The together with interest at 18% p.a. thereon. The incidental reliefs, in the suit which is for recovery incidental reliefs, in the suit which is for recovery incidental reliefs, in the suit which is for recovery of the aforesaid sum, are in respect of the shop which of the aforesaid sum, are in respect of the shop which of the aforesaid sum, are in respect of the shop which 2 came to be put in possession of the Court Receiver came to be put in possession of the Court Receiver came to be put in possession of the Court Receiver being shop No.11 in the suit plot of land where a new being shop No.11 in the suit plot of land where a new being shop No.11 in the suit plot of land where a new building has been constructed. These reliefs are for building has been constructed. These reliefs are for building has been constructed. These reliefs are for restraining the defendants from disposing of or restraining the defendants from disposing of or restraining the defendants from disposing of or parting with possession or creating third party right parting with possession or creating third party right parting with possession or creating third party right in the suit shop. The suit is also for compliance of in the suit shop. The suit is also for compliance of in the suit shop. The suit is also for compliance of the terms of M.O.U. executed between the plaintiff the terms of M.O.U. executed between the plaintiff the terms of M.O.U. executed between the plaintiff and the defendants on 6th November, 1989 Exhibit-D and the defendants on 6th November, 1989 Exhibit-D and the defendants on 6th November, 1989 Exhibit-D to the plaint. the plaint. the plaint. 3. The plaintiff applied for appointment of the 3. The plaintiff applied for appointment of the 3. The plaintiff applied for appointment of the Commissioner and later Court Receiver in respect of Commissioner and later Court Receiver in respect of Commissioner and later Court Receiver in respect of the suit shop No.11. Court Receiver came to be the suit shop No.11. Court Receiver came to be the suit shop No.11. Court Receiver came to be appointed pending the suit. The suit was not defended appointed pending the suit. The suit was not defended appointed pending the suit. The suit was not defended and has ended in Ex-parte decree. Under that decree and has ended in Ex-parte decree. Under that decree and has ended in Ex-parte decree. Under that decree the possession taken by the Court Receiver of shop the possession taken by the Court Receiver of shop the possession taken by the Court Receiver of shop No.11 was ordered to be returned to the Plaintiff. No.11 was ordered to be returned to the Plaintiff. No.11 was ordered to be returned to the Plaintiff. 4. This possession is stated to have been taken 4. This possession is stated to have been taken 4. This possession is stated to have been taken not from the defendants but from the applicant. not from the defendants but from the applicant. not from the defendants but from the applicant. Hence, the applicant has applied for being put back in Hence, the applicant has applied for being put back in Hence, the applicant has applied for being put back in possession since it was taken from him. possession since it was taken from him. possession since it was taken from him. 5. The applicant is stated to be the tenant of 5. The applicant is stated to be the tenant of 5. The applicant is stated to be the tenant of the defendants in the old structure on the plot of the defendants in the old structure on the plot of the defendants in the old structure on the plot of land where a new building has come to be constructed land where a new building has come to be constructed land where a new building has come to be constructed and in which Shop No.11 is agreed to have been given and in which Shop No.11 is agreed to have been given and in which Shop No.11 is agreed to have been given by way of permanent alternate accommodation to the by way of permanent alternate accommodation to the by way of permanent alternate accommodation to the applicant by the defendants. The applicant has relied applicant by the defendants. The applicant has relied applicant by the defendants. The applicant has relied 3 upon the agreement with his landlords, the defendants upon the agreement with his landlords, the defendants upon the agreement with his landlords, the defendants herein, dated 23rd January, 1991 for being given herein, dated 23rd January, 1991 for being given herein, dated 23rd January, 1991 for being given alternate accommodation, (Exhibit-A alternate accommodation, (Exhibit-A alternate accommodation, (Exhibit-A to the Notice of Motion), followed by a Deed of Confirmation dated 26th Motion), followed by a Deed of Confirmation dated 26th Motion), followed by a Deed of Confirmation dated 26th June, 1991, Exhibit-B June, 1991, Exhibit-B June, 1991, Exhibit-B to the Notice of Motion. The applicants claim to have been put in possession of applicants claim to have been put in possession of applicants claim to have been put in possession of Shop No.11 by the landlords, the defendants herein on Shop No.11 by the landlords, the defendants herein on Shop No.11 by the landlords, the defendants herein on 1st September, 1991 under a possession receipt, 1st September, 1991 under a possession receipt, 1st September, 1991 under a possession receipt, Exhibit-C Exhibit-C Exhibit-C to the Notice of Motion. 6. The plaintiff claims her right under the 6. The plaintiff claims her right under the 6. The plaintiff claims her right under the M.O.U. dated 6th November, 1989 Exhibit-D M.O.U. dated 6th November, 1989 Exhibit-D M.O.U. dated 6th November, 1989 Exhibit-D to the plaint. The M.O.U. is not registered. The defendant plaint. The M.O.U. is not registered. The defendant plaint. The M.O.U. is not registered. The defendant having never appeared to contest the suit, the having never appeared to contest the suit, the having never appeared to contest the suit, the admission of execution of the M.O.U. is not shown. admission of execution of the M.O.U. is not shown. admission of execution of the M.O.U. is not shown. 7. Under the M.O.U. dated 6th November, 1989 the 7. Under the M.O.U. dated 6th November, 1989 the 7. Under the M.O.U. dated 6th November, 1989 the plaintiff is stated to have given a loan of Rs.4 lacs plaintiff is stated to have given a loan of Rs.4 lacs plaintiff is stated to have given a loan of Rs.4 lacs to the defendants. The defendants are stated to have to the defendants. The defendants are stated to have to the defendants. The defendants are stated to have agreed to return Rs.10 lacs agreed to return Rs.10 lacs agreed to return Rs.10 lacs to the plaintiff within a period of one year period of one year period of one year from the date of execution of M.O.U. i.e. by 6th November, 1990, time being M.O.U. i.e. by 6th November, 1990, time being M.O.U. i.e. by 6th November, 1990, time being essence of the contract. essence of the contract. essence of the contract. 8. It can at once be seen that on the loan of 8. It can at once be seen that on the loan of 8. It can at once be seen that on the loan of Rs.4 lacs Rs.4 lacs Rs.4 lacs the additional amount of rupees six lacs six lacs six lacs is stated to be further lumpsum amount being Rs.6 lacs stated to be further lumpsum amount being Rs.6 lacs stated to be further lumpsum amount being Rs.6 lacs to be paid within a year. This constitutes return of the be paid within a year. This constitutes return of the be paid within a year. This constitutes return of the principal amount with interest at the rate of 150% principal amount with interest at the rate of 150% principal amount with interest at the rate of 150% 4 p.a.! p.a.! p.a.! 9. Further in the M.O.U. it is stated that the 9. Further in the M.O.U. it is stated that the 9. Further in the M.O.U. it is stated that the Power of Attorney has been executed by the defendants Power of Attorney has been executed by the defendants Power of Attorney has been executed by the defendants in respect of shop No.11 "in the project of the in respect of shop No.11 "in the project of the in respect of shop No.11 "in the project of the defendants" defendants" defendants" on the land described in the schedule to the printed agreement of sale which is referred to in the printed agreement of sale which is referred to in the printed agreement of sale which is referred to in the said M.O.U. the said M.O.U. the said M.O.U. 10. Under clause 6 of the M.O.U. the rights of 10. Under clause 6 of the M.O.U. the rights of 10. Under clause 6 of the M.O.U. the rights of the plaintiff upon the failure of payment by the the plaintiff upon the failure of payment by the the plaintiff upon the failure of payment by the defendants of the said sum of Rs.10 lacs defendants of the said sum of Rs.10 lacs defendants of the said sum of Rs.10 lacs or any part thereof within one year of the execution of that thereof within one year of the execution of that thereof within one year of the execution of that document has been set out. That right is when the document has been set out. That right is when the document has been set out. That right is when the unpaid amount would become automatically payable unpaid amount would become automatically payable unpaid amount would become automatically payable towards the purchase price of shop No.11 "being towards the purchase price of shop No.11 "being towards the purchase price of shop No.11 "being constructed" constructed" constructed" by the defendants and the same would be treated as payment towards the said shop. treated as payment towards the said shop. treated as payment towards the said shop. 11. Under clause 7 of the said M.O.U. the 11. Under clause 7 of the said M.O.U. the 11. Under clause 7 of the said M.O.U. the plaintiff would be entitled to convert the loan and plaintiff would be entitled to convert the loan and plaintiff would be entitled to convert the loan and accordingly be entitled to dispose of the said shop accordingly be entitled to dispose of the said shop accordingly be entitled to dispose of the said shop No.11 and realise the sum equivalent to Rs.10 lacs No.11 and realise the sum equivalent to Rs.10 lacs No.11 and realise the sum equivalent to Rs.10 lacs or the unpaid part thereof. the unpaid part thereof. the unpaid part thereof. 12. Under clause 9 of the said M.O.U. a printed 12. Under clause 9 of the said M.O.U. a printed 12. Under clause 9 of the said M.O.U. a printed copy of the agreement for sale for the said shop NO.11 copy of the agreement for sale for the said shop NO.11 copy of the agreement for sale for the said shop NO.11 and a Power of Attorney to be executed by the parties and a Power of Attorney to be executed by the parties and a Power of Attorney to be executed by the parties to the said M.O.U. along with the said M.O.U. was to to the said M.O.U. along with the said M.O.U. was to to the said M.O.U. along with the said M.O.U. was to 5 remain in escrow in the custody of the Solicitors of remain in escrow in the custody of the Solicitors of remain in escrow in the custody of the Solicitors of the parties to be handed over to the plaintiff if the the parties to be handed over to the plaintiff if the the parties to be handed over to the plaintiff if the defendants fail to pay the sum of Rs.10 lacs or any defendants fail to pay the sum of Rs.10 lacs or any defendants fail to pay the sum of Rs.10 lacs or any part thereof on or before 6th November, 1990. part thereof on or before 6th November, 1990. part thereof on or before 6th November, 1990. 13. Under clause 11 of the said M.O.U. if the 13. Under clause 11 of the said M.O.U. if the 13. Under clause 11 of the said M.O.U. if the plaintiff become entitled to exercise her right to plaintiff become entitled to exercise her right to plaintiff become entitled to exercise her right to sell the shop No.11 upon the defendants making any sell the shop No.11 upon the defendants making any sell the shop No.11 upon the defendants making any default in the repayment of Rs.10 lacs to the default in the repayment of Rs.10 lacs to the default in the repayment of Rs.10 lacs to the plaintiff on or before 6th November, 1990, the plaintiff on or before 6th November, 1990, the plaintiff on or before 6th November, 1990, the plaintiff become entitled to dispose of the said shop plaintiff become entitled to dispose of the said shop plaintiff become entitled to dispose of the said shop No.11 within 30 days of the documents kept in escrow No.11 within 30 days of the documents kept in escrow No.11 within 30 days of the documents kept in escrow being handed over to the plaintiff. It was further being handed over to the plaintiff. It was further being handed over to the plaintiff. It was further agreed under the said clause that if the amount of agreed under the said clause that if the amount of agreed under the said clause that if the amount of Rs.10 lacs or the balance unpaid part could not be Rs.10 lacs or the balance unpaid part could not be Rs.10 lacs or the balance unpaid part could not be realised by the plaintiff on or before 8th November, realised by the plaintiff on or before 8th November, realised by the plaintiff on or before 8th November, 1990 (just two days after the agreement became 1990 (just two days after the agreement became 1990 (just two days after the agreement became executable), then the plaintiff would be entitled to a executable), then the plaintiff would be entitled to a executable), then the plaintiff would be entitled to a further compensation of Rs.30,000/- per month from 6th further compensation of Rs.30,000/- per month from 6th further compensation of Rs.30,000/- per month from 6th November, 1990 till realisation. It may be stated November, 1990 till realisation. It may be stated November, 1990 till realisation. It may be stated that this amount would constitute a penal interest at that this amount would constitute a penal interest at that this amount would constitute a penal interest at the rate of 7.5% per month on the principal sum of the rate of 7.5% per month on the principal sum of the rate of 7.5% per month on the principal sum of Rs.4 lacs payable from 6th November, 1990 by the Rs.4 lacs payable from 6th November, 1990 by the Rs.4 lacs payable from 6th November, 1990 by the defendants for default. defendants for default. defendants for default. 14. The M.O.U. therefore creates right in the 14. The M.O.U. therefore creates right in the 14. The M.O.U. therefore creates right in the immovable property which becomes compulsorily immovable property which becomes compulsorily immovable property which becomes compulsorily registerable. It remained to be registered. The registerable. It remained to be registered. The registerable. It remained to be registered. The plaintiff has claimed her right precisely under M.O.U. plaintiff has claimed her right precisely under M.O.U. plaintiff has claimed her right precisely under M.O.U. 6 The plaintiff’s rights are for certain unpaid amounts The plaintiff’s rights are for certain unpaid amounts The plaintiff’s rights are for certain unpaid amounts in the M.O.U. Neverthless, the suit is filed for a in the M.O.U. Neverthless, the suit is filed for a in the M.O.U. Neverthless, the suit is filed for a mere Rs.60,000/-. Para 8 of the plaint shows that the mere Rs.60,000/-. Para 8 of the plaint shows that the mere Rs.60,000/-. Para 8 of the plaint shows that the suit is filed for recovery of the amount of suit is filed for recovery of the amount of suit is filed for recovery of the amount of Rs.60,000/- with future interest thereon as the Rs.60,000/- with future interest thereon as the Rs.60,000/- with future interest thereon as the estimated deficiency shortfall as per particulars of estimated deficiency shortfall as per particulars of estimated deficiency shortfall as per particulars of the plaintiff’s claim, Exhibit-G the plaintiff’s claim, Exhibit-G the plaintiff’s claim, Exhibit-G to the plaint. Exhibit-G to the plaint shows no particulars to the plaint shows no particulars to the plaint shows no particulars whatsoever. It shows only a grand total of whatsoever. It shows only a grand total of whatsoever. It shows only a grand total of Rs.60,000/- to begin with. It recites the words of Rs.60,000/- to begin with. It recites the words of Rs.60,000/- to begin with. It recites the words of prayer (a) itself. prayer (a) itself. prayer (a) itself. 15. The plaintiff has accordingly not shown what 15. The plaintiff has accordingly not shown what 15. The plaintiff has accordingly not shown what part of the amount of Rs.4 lacs taken as loan by the part of the amount of Rs.4 lacs taken as loan by the part of the amount of Rs.4 lacs taken as loan by the defendant remained unpaid which, as per her defendant remained unpaid which, as per her defendant remained unpaid which, as per her calculations came to Rs.60,000/- on the date of the calculations came to Rs.60,000/- on the date of the calculations came to Rs.60,000/- on the date of the suit. The plaintiff nevertheless claimed that short suit. The plaintiff nevertheless claimed that short suit. The plaintiff nevertheless claimed that short fall under clauses 1 and 2 of the M.O.U. fall under clauses 1 and 2 of the M.O.U. fall under clauses 1 and 2 of the M.O.U. 16. Further the plaintiff claims an interest in 16. Further the plaintiff claims an interest in 16. Further the plaintiff claims an interest in the immovable property sought to be secured under said the immovable property sought to be secured under said the immovable property sought to be secured under said M.O.U. itself being shop No.11. The plaintiff M.O.U. itself being shop No.11. The plaintiff M.O.U. itself being shop No.11. The plaintiff requires an injunction restraining any transfer of the requires an injunction restraining any transfer of the requires an injunction restraining any transfer of the said immovable property by the defendants and also an said immovable property by the defendants and also an said immovable property by the defendants and also an injunction restraining the defendants from interfering injunction restraining the defendants from interfering injunction restraining the defendants from interfering with, objecting or acting contrary to the terms in the with, objecting or acting contrary to the terms in the with, objecting or acting contrary to the terms in the M.O.U. M.O.U. M.O.U. 17. The plaintiff in essence claims a transfer of 17. The plaintiff in essence claims a transfer of 17. The plaintiff in essence claims a transfer of 7 the said shop to herself. The plaintiff would be the said shop to herself. The plaintiff would be the said shop to herself. The plaintiff would be entitled to the transfer under clause 7 of the M.O.U. entitled to the transfer under clause 7 of the M.O.U. entitled to the transfer under clause 7 of the M.O.U. since unregistered. since unregistered. since unregistered. 18. Upon the plaintiffs claim in the said 18. Upon the plaintiffs claim in the said 18. Upon the plaintiffs claim in the said immovable property to secure return of the unpaid immovable property to secure return of the unpaid immovable property to secure return of the unpaid amount of Rs.60,000/- the plaintiff initially applied amount of Rs.60,000/- the plaintiff initially applied amount of Rs.60,000/- the plaintiff initially applied for the appointment of the Court Commissioner so soon for the appointment of the Court Commissioner so soon for the appointment of the Court Commissioner so soon as the suit was filed on 7th December, 1991. The as the suit was filed on 7th December, 1991. The as the suit was filed on 7th December, 1991. The Court Commissioner thus appointed submitted his report Court Commissioner thus appointed submitted his report Court Commissioner thus appointed submitted his report on 12th December, 1991. on 12th December, 1991. on 12th December, 1991. 19. The report shows that the suit shop premises 19. The report shows that the suit shop premises 19. The report shows that the suit shop premises was locked. The plaintiff tried to unlock it and was locked. The plaintiff tried to unlock it and was locked. The plaintiff tried to unlock it and could not. The shop was shuttered with a painting could not. The shop was shuttered with a painting could not. The shop was shuttered with a painting "This shop is in possession of Shreechand Lunia", the "This shop is in possession of Shreechand Lunia", the "This shop is in possession of Shreechand Lunia", the applicant herein. The painting was seen to be