: 1 : IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF OF OF MOTION NO.3026 of 2006 MOTION NO.3026 of 2006 MOTION NO.3026 of 2006 IN IN IN SUIT SUIT SUIT NO.3276 of 2005 NO.3276 of 2005 NO.3276 of 2005 Indian Bank .. Plaintiffs. Versus Biren Gunvantrai Pujara & Anr. .. Defendants. Mr.Nitin Nikam for the plaintiffs. Mr.A.B.Shinde for the defendants. CORAM CORAM CORAM : : : R.Y. GANOO, J. R.Y. GANOO, J. R.Y. GANOO, J. DATE DATE DATE : 21st July, 2008. : 21st July, 2008. : 21st July, 2008. P.C.: P.C.: P.C.: 1. Affidavit-in-reply is filed by the defendant No.1. Heard learned Advocates on both the sides. 2. The Court is informed that the Court Receiver has taken possession in accordance with the order dated 22.9.2006 passed by this Court only in the last week and defendant No.1 is ordered to be appointed as the agent of the Receiver. : 2 : 3. Learned Advocate Mr.Shinde appearing on behalf of defendant Nos.1 and 2, upon instructions makes a statement that defendant Nos.1 and/or 2 shall pay to the bank directly, a sum of Rs.50,000/- on or before 30.8.2008. Learned Advocate Mr.Shinde further submits that defendant No.1 and/or 2 shall directly pay to the plaintiffs bank, a sum of Rs.8,000/- on or before 5th day of each month. First instalment shall fall due on or before 5th August, 2008. Instalments for the subsequent months shall be paid on or before 5th day of the respective month. Learned Advocate Mr.Shinde submitted that this amount shall be paid to the plaintiffs bank without prejudice to the right and contentions of the defendants. 4. It is seen that the Court Receiver was appointed and even thereafter, the defendants did not come forward to make payment of the bank even without prejudice. Now that the Court Receiver has taken possession and as defendant No.1 is to be appointed as the agent of the Court Receiver and that defendant No.1 and/or 2 have shown willingness to pay the amount as aforesaid, the appointment of the Court Receiver can be confirmed. The defendants can be permitted to enjoy and use occupation of suit flat. An appropriate order will have to be passed so as to see that if defendants 1 and/or 2 commit any 2 defaults, then, the Receiver could be ordered to take possession of the suit flat and keep the possession with : 3 : him so as to deal with the suit flat after obtaining further orders of this Court. 5. In my view, the aforesaid arrangement will meet the ends of justice. For the reasons mentioned aforesaid, I pass the following order :- O R D E R R D E R R D E R a) Motion is made absolute in terms of prayer clause (a), except bracketed portion. b) Defendant No.1 shall be appointed as the agent of the Court Receiver. Defendant No.1 shall enter into an agency agreement with the Receiver on usual terms without royalty because separate order is being passed as below as regards payment of monthly instalment by defendant No.1 and/or 2. c) In view of the statement made by the learned Advocate Mr.Shinde, defendant No.1 and/or 2 are directed to pay to the bank, a sum of Rs.50,000/- on or before 30.8.2008. d) Defendant No.1 and/or 2 are directed to pay to the plaintiffs bank, a sum of Rs.8,000/- per month on or before 5th of every month. First instalment : 4 : shall fall due on or before 5.8.2008. Subsequent instalments shall be paid without prejudice to the rights and contentions of the defendants and the payment made by the defendant No.1 and/or 2 shall be accounted towards the loan amount. e) It is clarified that if defendant No.1 and/or 2 fail to comply with the aforesaid order of payment and commit any 2 defaults, Court Receiver is directed to take possession of the suit flat from defendant No.1 and/or 2 or any other person found in possession of the suit flat without any further orders from the court and plaintiffs to move the court for further orders. 6. In the facts and circumstances of the case, notice of motion is disposed off in the above terms. There shall be no order as to costs. 7. Defendants to file written statement on 21.8.2008 in the Court directly. Adjourned to 21.8.2008 for filing written statement. (R.Y. (R.Y. (R.Y. GANOO, J.) GANOO, J.) GANOO, J.)