1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTIC OF MOTION NO. 1504 OF 2007 IN NOTICE OF MOTION NO.3135 OF 2007 IN SUIT NO. 1146 OF 2007 Vinod Harkishandas Sanghavi & Ors. ...Plaintiffs Vs. M/s. Mangal Developers & Builders & Ors. ...Defendants Mr.Simil Purohit with Ms. Raji Radhakrishnan i/b. India Law Alliance for Plaintiffs Mr.Rajesh Kachare with Mr. Ravindra N.Kachare for Defendants 1 to 4. CORAM: SMT.ROSHAN DALVI, J. DATED: 31ST MARCH , 2009 P.C. 1. The Plaintiffs have essentially prayed for appointment of Court Receiver in both these Notices of Motion. In the first Notice of Motion the Plaintiff has desired appointment of Court Receiver in respect of room Nos.2,3,5 and 10 only. The Plaintiffs have also asked for injunction restraining the Defendants, their servants and agents and persons claiming through them from trespassing, encroaching and entering upon the suit building. 2 2. In the second Notice of Motion the Plaintiffs have applied for appointment of Court Receiver in respect of “the suit properties”, which the Plaintiffs' Advocate states is the entire property. The entire property, being the suit property, is the building consisting of ground plus 2 upper floors which are fully tenanted. It has 18 tenants. The parties entered into the initial MOU on 9th August 2002. The suit property had to be developed by the Defendants. Since it was fully tenanted the development was meant to be under Regulation 33(7) of the D.C. Regulations. NOC from all the tenants had to be obtained. The consideration was payable in five installments. The development was to be on “as is where is” basis. The Defendants were to obtain the consent of the tenants for redevelopment. Upon non-payment of consideration under clauses (ii) and (iii) the amount already paid was entitled to be forfeited. 3. The parties entered into a novatio on 22nd August 2002 titled “Final Mutual Understanding”. Under clauses (i) and (ii) of the novatio Plaintiffs as the owners undertook the responsibility in respect of 10 tenants. These are 10 out of 18 tenements. For those tenants it was agreed that the Defendants were not to give any alternate accommodation 3 and not to give any new area or flats in the new building to be constructed also. Hence, under the novatio the Plaintiffs were required to obtain consent for redevelopment of those tenements by negotiating with them. Though the clauses are cryptic and perhaps not happily worded, the novatio is essentially in respect of clauses (i) and (ii) of the initial MOU. Consequently, whereas under the first agreement the Defendants as the developers were to negotiate with all the tenants and get their consent for the redevelopment of the suit property, under clauses (i) and (ii) of the novatio the owners took up that responsibility for 10 out of the 18 tenants and hence became obliged to negotiate with them and obtain their consent for redevelopment. Further they agreed that those tenants were not to be given alternate accommodation or area or flat in the new building. 4. The Plaintiffs have obtained possession of these 10 tenements. They have kept possession with themselves. The Plaintiffs admit that they are in possession of those 10 rooms. These may be the rooms already in their possession or in the possession of their relatives or those of the tenants with whom they negotiated. It is for the rooms for which they were to obtain the consent for redevelopment. Hence, upon the admission of the Plaintiffs that they are in 4 possession of the 10 rooms mentioned in the novatio dated 22nd August 2002, they have the responsibility for vacating such possession for redevelopment. That has not been done. 5. The novatio dated 22nd August 2002 is also in respect of the consideration payable. That is shown in clauses (iii), (iv) and (v) thereof. The compensation/price mentioned in the initial MOU is the total sum of Rs.231,11,111 (Rupees two crore thirty one lakhs eleven thousand one hundred eleven only). That consideration, correctly mentioned in words but incorrectly mentioned in figures in clause (iii) of the novatio, included the 10 out of the 18 tenants who were to be initially negotiated with, provided alternate accommodation and implicitly rehabilitated. In the novatio the liability of the Defendants for these 10 tenements ceased. Hence, the last 2 payments under clauses (iv) and (v) of the original agreement were deferred. They were to be paid “only after completion of reversal in writing on paper of occupancy and possession of those 10 tenants”. Consequently only after the possession was obtained from those 10 tenants, which the Plaintiffs were obliged and responsible to obtain, the last 2 installments were payable. Interest was payable, if there was delay in payment of last 2 installments at the rate of 18% p.a. 5 6. The tenants who were under the owners' responsibility have been specified in the list annexed to the novatio. Plaintiff No.1 who is present in Court has instructed his Advocate to state that each of these tenants were the owners' responsibility. The term “owners' responsibility” means owners responsibility to obtain the consent of those tenants for redevelopment and to hand over possession after which alone there could be reversal in writing. Hence, instead of the Defendants obtaining possession from all the 18 tenants (including the Plaintiffs) the Defendants were to obtain possession from only 8 remaining tenants and the Plaintiffs were to obtain possession from the 10 tenants mentioned in the list. 7. The Plaintiffs had obtained possession for themselves, but not given possession to the Defendants. Hence, no reversal in writing has been effected. 8. Upon the premise that the Defendant has not paid the agreed consideration included in the contract under clause (iii), the Plaintiffs have terminated the agreement between the parties on 14th April 2003. Since this Notice of Motion is not for specific performance the consequences of the 6 termination are not required to be decided at least at present. 9. This leaves what is called the developers' responsibility in respect of the remaining 8 tenements. The Defendants were to obtain consent and possession from the other tenants. The Defendants claim to have obtained consent from all of them. When exactly this consent is obtained is not shown, but it is shown to be after the list has been prepared by MHADA shown at page 58 of the affidavit in reply to Notice of Motion No.1504/2007. 10. The Plaintiffs have claimed reliefs for the 4 out of 8 rooms i.e., in respect of room Nos.2,3,5 and 10. Agreements have been entered into with these tenants. These agreements show tenants as the assignor, the Defendant No.2, a partner of Defendant No.1 as the assignee and the Plaintiffs, being the owners as the confirming party. Under these agreements the Defendants have been put in physical possession of those rooms. The Defendants are entitled to use the said premises only for residential purposes. The Defendants therefore, have stepped in the shoes of the tenants of these tenements. The Defendants' possession is not disputed. Since the possession is not disputed, no case for 7 appointment of Court Receiver is made out upon the Defendants' possession. 11. However, it is contended that the Defendants do not personally reside in any of these tenements. They have inducted their servants in the premises. A number of persons reside there. They moved about in the building in an indecent manner. The Plaintiffs have alleged harassment. Upon such a case the Plaintiffs have applied for appointment of Court Receiver. 12. The Plaintiffs have produced 2 photographs purporting to show 2 rooms. The Plaintiffs have not relied upon these photographs in the affidavit. It cannot be deciphered from the photographs, which precise rooms are shown. The rooms are vacant. Some articles are thrown on the floor. Further a scanned photograph of one person in a passage is also shown to the Court. No statement about that photograph is also made on affidavit. 13. The Defendants' Advocate rightly argued that upon mere showing photographs without any mention in the affidavit and without stating on affidavit which precise premises is shown in the photographs or who is the person, the 8 Plaintiffs' case cannot be met. 14. It is seen that the Plaintiffs have alleged harassment and nuisance. The Court is unable to decipher whether photographs pertains to any specific portion of the suit building. However they may be taken to be so. The Defendants agree that they shall not induct any servant in any of the rooms of which they have been put in possession. However, they claim that the Plaintiffs' suit based on trespass is misconceived and the action is frivolous. They claim that the Plaintiffs have backed out of the agreement and have not handed over possession of the other 10 tenements of which the responsibility was taken over by the owners. They, therefore, contend that they must be allowed to keep one security guard to secure possession of the premises obtained by them which was their responsibility under the novatio dated 22nd August 2002. 15. No case for appointment of Court Receiver in respect of the any part of the suit property is made out. No case for appointment of Court Receiver in respect of room numbers 2,3,5 and 10 is also made out. However, on account of nuisance and harassment alleged by the Plaintiffs some equitable reliefs may be granted to the Plaintiffs, in view of 9 the fair stand of the Defendants that they shall not induct any servants in any of the rooms of which possession is taken by them. The Defendants' statement is accepted. Hence, the following order. O R D E R 1.The Defendants shall not allow any servants to occupy, use or reside in room Nos.2,3,5 and 10 pending the suit. 2.The Defendants shall be entitled to keep one security guard in the suit building to secure possession of the 8 rooms mentioned in the list shown in the novatio dated 22nd August 2002. 3.There shall be no other order in both the Notices of Motion. 4.No order as to costs. 5.The photographs produced by the Plaintiffs are returned to them. (SMT. ROSHAN DALVI, J.)