1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL JURISDICTION NOTICE OF MOTION NO. 4941 OF 2007 IN SUIT NO. 2098 OF 2007 Ayub Ibrahim Shaikh. .... Plaintiff. V/s. Mohmed Amin Shaikh & Ors. .... Defendants. ....... Mr. J.G. Shukla i/b. M/s. G.H. Shukla & Co. for the Plaintiff. Ms. Madhuri Raibagkar for Defendants 3 to 5. Mr. Anil C. Singh with Mr. Anil R. Yadav i/b. Dhanesh R. Shah for Defendant 6. Mr. P.J. Nahar, representative of Court Receiver present. ........ CORAM : DR. D.Y. CHANDRACHUD, J. 23RD JANUARY 2008. P.C. :- On 27th July 2007 an order was passed by Hon'ble Mr. Justice A.M. Khanwilkar granting ad-interim relief in terms of prayer clause (a) 2 against the Defendant. In consequence thereof, the First Defendant was injuncted from creating third party rights in respect of the suit premises which consist of a room which admeasures 150 sq. feet on Plot No.7, Bharat Nagar, Bandra (East), Mumbai. On 28th August 2007, the learned Single Judge was moved again by the Plaintiff. A statement was made before the Court that service could not be effected on the First Defendant because when service was attempted at the last known address the premises were found to be closed and the Registered Post Parcel had returned unclaimed. The Court observed that there was no reason to presume that the First Defendant would sell the property inspite of the order of injunction. Permission was granted to the Plaintiff, if he was so advised, to issue an advertisement in the local newspapers. Subsequently, on 28th September 2007, when the Motion came up, Hon'ble Mr. Justice S.J. Vazifdar noted that there was no affidavit-in-reply and the Defendant had remained absent. In view thereof, the Court Receiver was appointed as Receiver of the premises. However, the Receiver was directed not to dis-possess the First Defendant from the premises and was directed not to insist on security 3 or royalty being furnished by the First Defendant. Liberty was granted to apply if any other person was found to be in possession. In the circumstances, the Court Receiver was appointed as Receiver, subject to the aforesaid directions. In terms of the liberty granted by the learned Single Judge on 28th September 2007, the present Motion has been taken out inter-alia for a direction that the Receiver be directed to take over physical possession of the premises from the Sixth Defendant who is found to be in possession. The Sixth Defendant came to be impleaded as a party upon a Chamber Summons when it was found, on a visit of the Receiver's representative, that the Sixth Defendant was in occupation. The affidavit filed by the Sixth Defendant records that on 21st June 2007, she agreed to purchase the premises from the First Defendant. A compilation of documents has been produced on the record which contains a sale deed executed between the First and the Sixth Defendants on 21st June 2007. The sale consideration therein is 4 stated to be Rs.5 lakhs. However, in the Sixth Defendant's affidavit it has been stated that though the sale consideration reflected in the sale deed was Rs.5 lakhs, the actual agreement was for the acquisition of the premises for Rs.55 lakhs, which amount was paid at the time of the execution of the agreement, that is on 21st June 207. The statement that a payment of Rs.55 lakhs was made on 21st June 2007 is, however, falsified by the fact that the details of the cheque furnished in paragraph 6 of the affidavit show that three cheques in the total amount of Rs.25 lakhs were handed over respectively on 12th, 14th and 18th September 2007. This was much after the order of injunction was passed by the Court. According to the Sixth Defendant, an amount of Rs.20 lakhs was paid in cash. In paragraph 8 of the reply, the Sixth Defendant has stated that she had received an amount of Rs.71 lakhs from a builder for surrendering another room which was in her occupation and out of the said amount, the suit premises were acquired from the First Defendant. Details of the cheques which were received by the Sixth Defendant have also been furnished which shows that all those cheques are between 1st July 2007 and 23rd July 2007. The Sixth Defendant has stated that the 5 payments to the First Defendant were made out of the aforesaid cheques. If that is so, it is in-conceivable that any payment was made at the time when the alleged sale deed was executed on 21st June 2007. The sale deed is un-registered and is prepared on a stamp paper of Rs.100/-. In these circumstances, it is evident prima-facie that the entire transaction was envisaged only with a view to defeat the order of injunction that was passed by the Court on 28th August 2007. There are serious inconsistencies in the affidavit filed on behalf of the Sixth Defendant which are noted above. Counsel appearing on behalf of the Plaintiff urges that the Sixth Defendant should be dis-possessed at the present stage. I am of the view that the ends of justice would be served if a direction is issued that the Court Receiver should in the first instance offer the agency of the premises to the Sixth Defendant subject to the payment of security and royalty as may be fixed by the Receiver. Counsel appearing on 6 behalf of the Sixth Defendant submits that since the Sixth Defendant had paid an amount of Rs.30 lakhs by cheque to the First Defendant, the payment of security and royalty should not be insisted upon. This submission cannot be accepted, once the Court has come to the conclusion that the transaction between the First and the Sixth Defendants was to defeat the order of the Court. That apart, even if the case of the First Defendant is to be believed, the question as to whether an amount of Rs.25 lakhs was paid in cash is a matter of evidence to be determined at the trial. The Sixth Defendant cannot be allowed to be in occupation as an agent of Receiver without payment of security or royalty. In the circumstances, the Notice of Motion is disposed of by directing that the Court Receiver shall, in the first instance, furnish an opportunity to the Sixth Defendant to be appointed as his agent, subject to such royalty and Security as may be fixed by the Receiver. Until the Receiver takes charge, there shall be an order of injunction in terms of prayer clause (a) of the Notice of Motion. 7 Prima-facie, the conduct of the First Defendant is in breach of the order passed by the Court on 27th July 2007. The Office is directed to issue a notice to the First Defendant to show cause as to why steps should not be adopted under the provisions of the Contempt of Courts Act, 1971. The Notice shall be issued on the correct address which has been supplied by Counsel for the Plaintiff viz. : Mohmed Amin Shaikh, Defendant No.1, residing at Anand Building, Lodha Chedda Enclave, Flat No.102, Mira Road (East), Thane. -------