1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3427 OF 2007 IN SUIT NO.2548 OF 2007 P.D. Shah ....Plaintiff V/s. Kartik V. Kanakia & Anr. ....Defendants Dr.Birendra Saraf with Ms.U. Tapas i/b M. & M. Legal Ventures for the Plaintiff. None for the Defendants. CORAM : S.J. VAZIFDAR, J. DATE : 6TH NOVEMBER, 2009. P.C. :- 1. The suit is filed to recover a sum of Rs.41,49,900/- together with interest at 12% p.a. and for enforcement of the simple mortgage in respect of two flats created by the Defendants to secure the repayment of the said amount. 2. The Plaintiff lent and advanced a sum of Rs.31,80,000/- to the Defendants. In consideration thereof, the Defendants inter-alia executed a deed of mortgage dated 24.8.2004 to secure the repayment of the loan along with interest at 12% p.a. The mortgage was created in respect of two flats. The mortgage deed provides that in case of a single default in payment of installments for the period of fifteen days, the entire sum remaining unpaid shall however due with interest. 2 3. The cheques towards repayment of interest and principal issued by the Defendants were dishonoured. In reply to the Plaintiff’s notice demanding repayment, the Defendants admitted the execution of the mortgage. In fact in view thereof, it was contended by him that the Plaintiff ought not to have deposited the cheques as the same had merely been given as further security. The Defendants stated that the cheques ought not to have been deposited “unless the proceeds of mortgage property are received”. 4. There is no affidavit in reply. The Defendants remained absent on the previous occasions. There appears to be defence to the claim in suit. 5. In the circumstances, the Notice of Motion is made absolute in terms of prayer (a) except the portion bracketed in red. The Court Receiver shall appoint the Defendants as agents in respect of the said flats on the usual terms and conditions except as to security. In the event of the Defendants refusing to act as agents of the Court Receiver in respect of the said flats, the Court Receiver shall appoint any third party as his agent inviting bids in the usual manner. In that event, the Defendants shall also be entitled to bid. Till the Court Receiver takes possession, ad-interim order in terms of prayer (b). The Notice of Motion is accordingly disposed of.