1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 842 OF 2007 IN SUIT NO.618 OF 2007 Gleg Engineering Co.Pvt.Ltd. .. Plaintiff versus Pushpa Uttamchandani & Anr. .. Defendants ... Mr.I.M.Vora i/b Sanjeev R. Singh for plaintiffs in support of Notice of Motion. Mr.C.S. Joshi for the defendants CORAM : D.G. KARNIK, J DATED :18 th June 2009 P.C:- 1. Heard both sides. 2. Plaintiff has taken out this motion for appointment of a court receiver of the suit flat. The defendant has not filed any reply. 3. In the plaint, the plaintiff has stated that under an oral agreement, the defendant agreed to sell the suit flat to the plaintiff for a sum of Rs.5,00,000/- out of which the 2 plaintiff paid to the defendant a sum of Rs.1,00,000/-. The defendant handed over vacant possession of the suit flat to the plaintiff in the year 2002 in part performance of the agreement. The plaintiff on receiving possession allowed one of its employees to occupy the flat. The plaintiff was continuously in possession of the suit flat from the year 2002 and it was being actually occupied by one of the employees of the plaintiff till he was illegally dispossessed in January 2007. The plaintiff has further alleged that on 7th January 2007, when the employee of the plaintiff was out of station, the defendant forcibly took possession of the suit flat. Plaintiff has therefore filed this suit for possession u/s.6 of the Specific Relief Act. 4. The defendant has not filed any reply to the motion. Hence, the averments made in the affidavit in support of the motion are deemed to be admitted by the defendant. Plaintiff has produced on record at Exhibit-U to the plaint a photo copy of the letter written by the defendant to the plaintiff on 29th November 2006. In the said letter, the defendant has referred to the notice dated 15th April 2003 given by him to the plaintiff for vacating the flat failing which he would be liable to pay Rs.50,000/- per month as damages. In paragraph no.5 of the said letter, the defendant has admitted that the plaintiff was in possession of the flat and had not vacated it. Thus, the fact that the 3 plaintiff was in possession of the suit flat atleast from the year 2003 till 29th November 2006 is admitted by the defendant. 5. The plaintiff has been dispossessed. No material has been produced on record by the defendant that the plaintiff has been dispossessed by due process of law. On the other hand, plaintiff has specifically averred that he was dispossessed forcibly, in January 2007 when the plaintiffs employee had gone out of Mumbai. 6. Learned counsel for the defendant submitted that there is an arbitration agreement between the parties relating to some other partnership business and submitted that the amount of Rs.1,00,000/- paid by the plaintiff was not towards the consideration of the flat but towards some partnership agreement between them. He further submits that there is an arbitration agreement relating to the said partnership business and proceedings for arbitration agreement are pending. In my view, that has no relevance to the fact of the case. This is a suit under section 6 of the Specific Relief Act wherein the Court is required to consider the claim of the plaintiff irrespective of the title of the parties. On the basis of the averments made in the plaint and the defendants letter, I am satisfied that the plaintiff was in possession and has been dispossessed by 4 the defendant without due process of law. That dispossession has taken place within six months immediately prior to the filing of the suit. In my view, this is a fit case for appointment of a receiver. Accordingly, Court Receiver is appointed as the receiver of the suit property. The receiver shall take possession of the suit flat, if necessary with the aid of the police help. 7. Liberty to the parties for moving the court for appointment of an agent of the receiver, after the receiver takes possession. (D.G. KARNIK, J)