1 HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION. NOTICE OF MOTION NO.624/2009 IN SUIT NO.340/2009 Jayenti L. Karotra and another. ..Plaintiffs -VERSUS- Varsha Builders and Developers and others. ..Defendants ......... Mr.Kunal Cheema, Advocate i/b Ashoka Law Firm, for the Plaintiffs. Mr.S.R.More, Advocate for the Defendant No.1. Mr.R.J.Singh, Advocate for the Defendants Nos.2 and 3. .......... CORAM : A.P.DESHPANDE, J. DATED : 08th APRIL, 2009. P.C. : 1. By consent of the learned counsel for the parties, the notice of motion is taken up for hearing. 2. The Plaintiffs have instituted a suit against the Defendants seeking various reliefs such as a declaration that the Plaintiffs are owners of the Flat No.3 admeasuring 516 Sq.Feet. situated on third floor of Sapna Residency. Direction is sought against the Defendants with a view to seek execution of an agreement of sale in favour of the 2 Plaintiffs in respect of the Flat No.3. Prayer for possession of the flat is also made. Lastly, a prayer for injunction is made seeking to restrain the Defendants and/or anyone claiming through them from dealing with the Flat No.3. 3. The suit is based on a document titled as ' Cash Receipt of Sapna Residency' . 4. The Defendants have denied the receipt by pointing out that the receipt runs into two pages, the first page of the receipt has a logo on the left side top portion of the letter-head whereas a different page of the different letter-head is used for writing the second page of the receipt. The Plaintiffs have allegedly paid sum of Rs.20 Lacs in three installments, first one is stated to be of Rs.5 Lacs indicating payment of cash dated 11.07.2007, second installment is of Rs.10 Lacs for payment of cash dated 09.08.2007 and last installment is of Rs.5 Lacs paid in cash dated 02.09.2007. Thus, allegedly total sum of Rs.20 Lacs are paid. No agreement has been entered into. No separate cash receipts are passed on by the Defendants to the Plaintiffs for payment of Rs.5 Lacs and Rs.10 Lacs dated 11.07.2007 and 09.08.2007 respectively. However, a composite document is prepared acknowledging payment of cash in the sum of Rs.20 Lacs and it also shows that balance of Rs.64,000/- remains to be paid. It is not very much probable for the flat purchaser to pay sum of Rs.20 Lacs without demanding a receipt for payment of first Rs.15 Lacs, leave aside the non-execution of agreement in regard to specific identified 3 flat. The receipt does not indicate even the flat number. 5. Perusal of the receipt indicates that the Plaintiffs have made investment and second paragraph appearing on the first page indicates charging of interest at 3% per month by the Plaintiffs as an investor. Thus, perusal of receipt does not repose confidence as regard genuineness of an agreement of sale allegedly entered into between the parties and that too in respect of Flat No.3. The amount if any paid by the Plaintiffs could be an investment in the business. The Defendant No.1 has denied receipt of the amount of Rs.20 Lacs and has contended that the document on the basis of which the present suit for specific performance has been filed, which is titled as `cash receipt of Sapna Residency', cannot be termed as an agreement giving rise to the concluded contract between the parties. It is relevant to note and it is admitted by the learned counsel for the Plaintiffs that for the first time when the plaint is filed in this Court mention of Flat No.3 appears therein. No other document is placed on record to indicate that there is any agreement in respect of Flat No.3. The Defendant No.1 has denied execution of the receipt and his signature thereof. He has also denied that the Plaintiffs have paid sum of Rs.20 Lacs. 6. Having regard to the facts narrated herein above, I am of the clear view that the Plaintiffs have failed to make out prima facie case for grant of interim relief. In the result, the notice of motion is dismissed. 4 7. The learned counsel for the Plaintiffs has tendered the original receipt of Sapna Residency and I am informed that the same has been produced pursuant to the direction issued by the Court on the earlier date. The original receipt is taken on record and the Registry is directed to keep the said document in the sealed cover and safe custody. 8. The notice of motion is dismissed. JUDGE