AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3051 OF 2008 IN APPEAL NO.194 OF 2008 IN NOTICE OF MOTION NO.604 OF 2008 IN SUIT NO.448 OF 2008 Mohammed Hussain Abid Zariwala .... Applicant Vs. Mangal Corporation & Ors. .... Respondents Mr. Sable Ashish i/b Mr. Prasad Das for the applicant. Mr. Purnima Bhatia for the respondents. CORAM : SMT. RANJANA DESAI & K.K. TATED, JJ. DATED : 14TH OCTOBER, 2008. P.C. :- 1. The defendant in Suit No.448 of 2008, who is the appellant in Appeal No.194 of 2008 have taken out this notice of motion praying that time to deposit Rs.10 lakhs as mentioned in order dated 26/3/2008 may be extended and the Court Receiver be restrained AJN 2 from taking any steps till the final hearing and disposal of the suit being Suit No.448 of 2008. On 26/3/2008, the instant appeal was placed for admission before the Division Bench presided over by the Hon'ble the Chief Justice. The appeal was disposed of by passing the following order : “1. Learned counsel appearing for the appellant submits that without prejudice to the rights and contentions he will deposit a sum of Rs.10 lakhs with the respondents, subject to the final decree that may be passed in the suit filed by the respondents herein. This offer is accepted by the counsel appearing for the appellant without prejudice to their rights and contentions and subject to the final decision in the Notice of Motion taken out by the appellant. In view of the statement, nothing survives in the appeal. 2. The sum of Rs.10 lakhs should be paid directly to the respondents within a period of 4 weeks from today. If the amount is not paid, the impugned order shall stand automatically revived and the Receiver shall proceed in accordance with law. However, if the amount is paid, the Receiver will not take possession of the property and the same shall be subject to the final decision in the suit. 3. Appeal is disposed of accordingly with no order as to costs.” 2. On 25/8/2008, the appellant/defendant moved an application AJN 3 before the Division Bench presided over by Justice S.B. Mhase by filing a praecipe. It appears that a statement was made that an amount of Rs.10 lakhs has been deposited in the name of Vishal Gupta on 23/8/2008. The Division Bench observed that the payment was made beyond time. The Division Bench further observed that instead of moving a praecipe, the appellant should have preferred an application for extension of time. It appears that pursuant to this order, the present notice of motion has been taken out. 3. On 18/9/2008, this notice of motion was moved before the Division Bench presided over by Justice S.B. Mhase. A statement was made by Mr. Vineet Naik, learned, counsel appearing for the appellant/applicant on behalf of the applicant that without prejudice to the applicants' rights to prove the payment as stated in the affidavit in support of the notice of motion, the applicant shall deposit Rs.10 lakhs in this court. Three weeks' time was sought to deposit the said amount. The Division Bench noted that the controversy was as to whether the amount of Rs.10 lakhs was paid by two cheques and it was observed that that controversy be considered later on. The notice of motion was adjourned to AJN 4 10/10/2008. The Court Receiver was directed not to take possession until further orders from this court. It is obvious that the Court Receiver was restrained from taking possession of the suit property because a statement was made that the said amount of Rs.10 lakhs will be deposited within three weeks from the date of the said order. However, admittedly, the said amount has not been deposited as per the statement made by learned counsel for the applicant. 4. The notice of motion appeared on our board on 10/10/2008. It was adjourned to 13/10/2008. On 13/10/2008, it was again adjourned to 14/10/2008. We had also asked the applicant to deposit the amount of Rs.10 lakhs as directed by this court and as per the statement made by learned counsel appearing for the applicant. We made it clear that if the amount of Rs.10 lakhs is deposited, the Court Receiver can be given necessary direction not to take possession of the suit property. As we have already stated, the amount of Rs.10 lakhs has not been deposited. In the above circumstances, it is not possible to grant further time. The Court Receiver is, therefore, directed to take possession of the suit property. The Court Receiver is present in the court. He states AJN 5 that the possession will be taken on 18/10/2008. Learned counsel for the applicant is also present. We record that he has due notice that the Court Receiver will take possession of the suit property on 18/10/2008. Needless to say that the issue as to whether the payment has been made or not has not been touched by us and that will be decided later on, as observed by the earlier Bench on 18/9/2008. Notice of motion is disposed of. [SMT. RANJANA DESAI, J.] [K.K. TATED, J.]