: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3113 OF 2009 IN SUIT NO.251 OF 2009 Ravi A. Agarwal .. Plaintiff v/s. Zenal Const. Pvt. Ltd. .. Defendants And Ms. Vasanti Bhatt .. Applicant ........ Mr. A.A. Joshi i/by Viraj Maniar Associates for plaintiff. Mr. D.H. Mehta a/w. Mr. D.A. Barot for defendants Mr. Vishwajit Sawant i/by B.S. Nayak for applicant. ........ CORAM : R.Y.GANOO, J. Dated : 18th March, 2010. P.C. : 1. The plaintiff instituted this suit so as to have specific performance of agreement for sale dated 16th March, 2007. The said agreement was for purchase of flat no.801-A wing more particularly set out in the said agreement dated 16th March, 2007. Defendants were to take up project as a whole and according to plaintiff, flat no.801-A wing was agreed to be : 2 : sold. The plaintiff moved this Court for ad-interim reliefs in terms of the Notice of Motion No.469 of 2009 and prayed for diverse reliefs including appointment of Court Receiver in respect of flats, which may be available at the relevant time. The Court after considering the matter, passed an order on 10th February, 2009 and appointed Court Receiver, High Court, Bombay in regard to flat No.801-A wing as well 703-A wing. 2. The applicant is holder of of flat no.703-A wing and has moved this Court for modification or vacation of the order dated 10th February, 2009 and subsequent order dated 20th March, 2009. 3. It must be mentioned that by order dated 20th March, 2009, it was directed that forcible possession in respect of flat no.703-A wing should be taken. In this motion, prayer for modification or setting aside the said order is also prayed. I am informed that the Court Receiver has taken possession pursuant to order dated 20th March, 2009 and it continues to be with the Court Receiver. 4. I have extensively heard learned advocates on both sides. If one peruses the plaint, it is clear that the plaintiff had agreed to purchase flat no.801-A wing from defendants., Plaintiff could not get specific performance of the said agreement. Hence, she filed the suit for recovery : 3 : of possession for specific performance, for which flat no.801-A wing was agreed to be sold. 5. Learned advocate Mr. Joshi submitted that on the day when order dated 10th February, 2009 was passed, he had on the basis of information collected by him had communicated to Court that flat no.703-A wing has not been sold by defendants. Learned Counsel Mr. Joshi submitted before this Court that at the time of passing of order dated 10th February, 2009, learned advocate for defendants informed the Court that flat no.703-A wing is vacant. Learned advocate Mr. Joshi submitted that on the basis of the said statement, the Court passed the order dated 10th February 2009, whereby appointing Court Receiver, High Court, Bombay on the strength of substantive prayer clause (b) of the plaint as the plaintiff had sought possession of some other flat, if flat no.801-A wing is not available. 6. Learned advocate Mr. Joshi submitted that the defendants have carried out alterations in the plan and intended to give a go by the original plans, which were shown to the plaintiff and that is how the direction was given for the appointment of Court Receiver in regard to the flat, which may be then available and that is how order dated 10th February, 2009 came to be passed. : 4 : 7. Learned advocate Mr. Joshi had submitted that the defendants created the agreement with the present applicant as antedated agreement so as to create evidence against the interest of the plaintiff and that the conduct of the defendants as well as the applicant is not proper and has been done in order to defeat the claims of the plaintiff and that is how modification of order dated 10th February, 2009 should not be granted. He further submitted that order dated 20th March, 2009 was passed so as to give effect to order dated 10th February, 2009 and as such Receiver has taken possession pursuant to order dated 10th February, 2009 and hence, the same cannot be moved. 8. Learned advocate Mr. Sawant for applicant in support of the prayer clauses contended that if at all the plaintiff had entered into an agreement with regard to flat no.801-A wing, then the plaintiff may not be entitled for specific relief in respect of the flat no.703-A wing. According to him, the impugned order dated 10th February, 2009 came to be passed without hearing the applicant and that the said order has the effect of causing prejudice to the applicant for no fault of it. Learned advocate Mr. Sawant relied upon agreement executed in his favour and he pressed for granting reliefs in terms of prayer clause (a) in the notice of motion and consequent return of the possession in favour of the applicant. : 5 : 9. After having considered the rival contentions, I am inclined to observe that in a suit for specific performance in regard to a particular flat, the plaintiff would get specific performance of the said flat if he succeeds at the stage of trial. If the Court declines to grant specific performance in regard to a particular flat, which was agreed to be sold to the plaintiff, the plaintiff may on the facts and on merits be entitled to reliefs such as damages in lieu of specific performance. In my view, it is just not possible to grant reliefs to the plaintiff during the pendency of the suit in regard to any other flat in a project, which is being constructed by the defendants. When a builder undertakes a project for construction of various flats and putting them for sale, it is possible that a particular flat may get sold and it is equally possible that a particular flat may not get sold. If the plaintiff approaches the Court with prayer for specific performance in respect of a particular flat certainly the plaintiff cannot lay her claim on any other flat in the project even if the same may not have been sold at all. 10. At this juncture, keeping in view the aforesaid view,, I am not inclined to go into the question whether the agreement said to have been entered into by the defendants with the applicant was antedated or otherwise. In my view, if the plaintiff cannot look to any other flat other : 6 : than one which was agreed to be sold certainly, the plaintiff cannot comment on the transaction in regard to any other flat. 11. In the present case, plaintiff had agreed to purchase flat no.801-A wing. Hence, plaintiff cannot have nexus with any other flat. Hence, plaintiff was not entitled to have appointment of Court Receiver in regard to flat no.703-A wing at all and to that extent, the plaintiff could not have asked for appointment of Court Receiver in regard to flat no.703-A wing. In my view, order dated 10th February, 2009 came to be passed without the plaintiff having any claim over flat no.703-A wing and as such the said order deserves to be modified as the present applicant is deprived of the flat, which is agreed to be sold in her favour. To that extent, order dated 10th February, 2009 will have to be set aside qua appointment of Court Receiver in regard to flat no.703-A wing. Once this observation is made, naturally order dated 20th March, 2009 also will have to be set aside and Court Receiver will have to be directed to handover the possession of the said flat to the applicant forthwith. 12. Once, an order in the aforesaid term is passed, Motion can be disposed off with reference to both the clauses. Hence, the following order is passed to dispose off the present notice of motion. : 7 : ORDER (i) Order dated 10th February, 2009 whereby the Court Receiver, High Court Bombay in regard to flat no.703-A in the project taken up by defendants, is set aside. Consequently, order dated 20th March, 2009 is also set aside. The Court Receiver, High Court, Bombay is hereby directed to return the possession of the said flat no.703 A wing to the applicant forthwith. (ii) In the facts and circumstances of the case, there shall be no order as to costs. The Court Receiver to act upon an authenticated copy of this order. (iii) After the aforesaid order is passed, learned advocate Mr. Joshi applied for stay of the operation of this order. Order is stayed till 30th April, 2010. Other motions are pending. They are adjourned to 19th April, 2009 for hearing. [R.Y.GANOO, J.]