- 1 - 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.1358 OF 2008 OF MOTION NO.1358 OF 2008 OF MOTION NO.1358 OF 2008 IN IN IN SUIT SUIT SUIT NO.1123 OF 2008 NO.1123 OF 2008 NO.1123 OF 2008 S.Thaiagarajan ...Plaintiff vs. James Edward Machado ...Defendant Mr.Chetan Kapadia a/w Mr.Vinod Kothari i/b Apex Law Partners for the plaintiff None for the defendant CORAM CORAM CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : NOVEMBER 10,2008 : NOVEMBER 10,2008 : NOVEMBER 10,2008 P.C.: P.C.: P.C.: 1. Heard the learned counsel for the plaintiff in support of the notice of motion. He states that the defendant has been duly served with the notice of motion and affidavit of service has been filed. 2. Briefly stated the case of the plaintiff is that the defendant is the owner of the immoveable property more particularly described in Exh.A. The plaintiff claims to be a qualified engineer. According to the plaintiff he was initially occupying a residential premises of the defendant as a paying guest. The case is that the plaintiff developed friendly cordial relationship with the defendant’s son. According to the case of the plaintiff the defendant’s son died in October/November 2003. - 2 - 3. The case of the plaintiff is that due to his friendly and cordial relationship, he advanced various amounts from time to time to the defendant totally amounting to Rs.20.75 lakhs. The defendant informed the plaintiff that he had taken a loan from the Citizen Credit Cooperative Bank Ltd., and as a security for the repayment of the said amount, he has mortgaged the suit property in favour of the said bank. In November 2002, on the request made by the defendant, the plaintiff agreed to repay the loan amount to the said bank on behalf of the defendant. Reliance has been placed on a memorandum of understanding executed in November 2002 by and between the plaintiff and the defendant. In the said memorandum of understanding, it is recorded that the defendant had received a total loan amount of Rs.24,25,000/- from the plaintiff. By the said memorandum of understanding, the defendant agreed to repay the said amount of Rs.24,25,000/- with interest thereon at the rate of Rs.12% p.a. within a period of three years from the date of execution of the memorandum of understanding. In the said memorandum of understanding, it was recorded that the defendant had authorised the plaintiff to clear the loan amount payable to the bank and collect the original title deeds from the bank. The documents at Exh.C and D show that the requisite amount was paid to the bank and the plaintiff obtained title deeds in - 3 - respect of the suit property from the bank. Under the deed of mortgage dated 2nd December 2002 the defendant mortgaged the suit property in favour of the plaintiff by deposit of title deeds. The case of the plaintiff is that notwithstanding the demands made by him to to the defendant for repayment of the amount by sending a legal notice of demand dated 10th March 2008, the defendant failed and neglected to pay any amount to the plaintiff. The averments to that effect have been made in the plaint and in particular paragraph 14 thereof. The suit has been filed by the plaintiff for recovery of the amount with interest and for enforcement of mortgage. 4. In the present notice of motion, the prayer made by the plaintiff is for the appointment of the Court Receiver and temporary injunction. By ad-interim order dated 15th September 2008, ad-interim relief of temporary injunction in terms of the prayer clause (b) has been granted. 5. The learned counsel for the plaintiff is pressing for grant of interim relief in terms of prayer clause (a) which reads thus : (a) That pending the hearing and final disposal of the suit, Court Receiver, High Court, Bombay be appointed as Receiver of the suit property being immoveable property situated at Kole Kalyan, Kalina, Mumbai as more - 4 - particularly described in Exh.A to the plaint with all the powers under Order XL Rule 1 of the Code of Civil Procedure,1908 and sell the same by public auction or private treaty and hand over the net sale proceeds thereof to the plaintiff towards his claim in the suit. 6. The learned counsel for the plaintiff has taken me through the documents and the averments made in the plaint. The memorandum of understanding of November 2002, (Exhibit A) prima facie shows the fact that the plaintiff had advanced a total amount of Rs.24,25,000/- to the defendant. The letter dated 7th November 2002 (Exhibit C) issued by the defendant in favour of the Branch Manager of the Citizen Credit Co-op Bank Ltd. records that he had authorised the plaintiff to pay the remaining outstanding amount of loan to the bank and to obtain the custody of documents of title from the bank in respect of the suit property. 7. There is a registered deed of mortgage dated 2nd December 2002 executed by the defendant in favour of the plaintiff by which the defendant created a mortgage in respect of the suit property in favour of the plaintiff as a security for repayment of the amount to the plaintiff. 8. Notwithstanding the service of notice, the defendant has chosen not to contest the notice of motion. In view of the - 5 - documents annexed to the plaint and the averments made in the plaint, prima facie it is established that a sum of Rs.24,25,000/- has been advanced by the plaintiff to the defendant and the suit property has been mortgaged in favour of the plaintiff for repayment of the amount with interest. There is no denial of the averments made in the plaint that the defendant has failed and neglected to pay the amount due and payable. 9. Therefore, a case is made out for appointment of the Court Receiver, High Court, Bombay as a Receiver of the suit property. Considering the facts of the case, the defendant will have to be appointed as an agent of the Court Receiver for holding the property on usual terms and conditions subject to payment of royalty as may be fixed by the Court Receiver. 10. Hence, notice of motion is disposed of by passing the following order : i) The Court Receiver, High Court, Bombay is appointed as the Receiver of the suit property. The Court Receiver will take a formal possession of the suit property and will appoint the defendant to hold the property as his agent on usual terms and conditions including the condition of payment of royalty as may be fixed by the Court Receiver. - 6 - ii) In the event, the defendant is not ready to take possession as an agent or is not in a position to pay royalty, opportunity will be available to the plaintiff to apply for appropriate further interim relief. iii) Ad-interim order passed by this court on 15th September 2008 will continue to operate till the Court Receiver takes formal possession of the suit property. iv) The Court Receiver to act upon an authenticated copy of this order. JUDGE JUDGE JUDGE