1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.545 OF 1997 1. Tirath Rajaram Tiwari, 2. Vina Tirath Tiwari, r/o.2, Shakuntala Bhuvan Hall Village Road, Kurla (West), Mumbai 400 072. Plaintiffs versus 1. M/s.Ralhan Developers, 201/A, Goeal Shopping Arcade, L.T.Road, Borivali West, Mumbai. 2. Pramod Rajkumar Ralhan, Sole Proprietor of defendant no.1, r/o.10, Shiv Om Co-op. Soc., Ratan Nagar, Dahisar (Ez), Mumbai-400 068 Office at 201/A, Goeal Shopping Arcade, L.T.Road, Borivali West, Mumbai. Defendants Mr.H.S.S.Murthy for plaintiffs. None for the defendants. CORAM : A.S.OKA, J. DATE : 17th December 2009 JUDGEMENT :- 1. The suit was listed under the caption "Undefended suits for ex- parte decree". The plaintiffs have filed present suit for a declaration that they are the bona fide purchasers of the suit flat more particularly described in paragraph 1 of the plaint. There is a prayer for a decree for possession as well as a decree for specific performance. There are 2 consequential reliefs prayed in the suit. 2. The case of the plaintiffs is that the first defendant is a proprietary concern of which the second defendant is the sole proprietor. On representation made by the second defendant, the plaintiffs agreed to purchase the suit flat. An agreement for sale dated 8th May 1994 was executed by the first and second defendants in favour of the plaintiffs. The total consideration of the flat was agreed to be Rs.1,47,870/-. It is stated that the agreement was duly stamped and was lodged for registration in the office of Sub Registrar of Assurances. The case of the plaintiffs is that a sum of Rs.45,000/- was paid by them to the first and second defendants in December 1993 as and by way of earnest money. 3. The case of the plaintiffs is that from time to time payments were made by them to the first and second defendants towards the price of the flat. As per the agreement, the first and second defendants were to hand over the possession on or before 31st June 1994. Though the plaintiffs paid full consideration, possession was not handed over. It is stated that in January 1995 the plaintiffs were placed in possession of the suit flat and the first plaintiff started using the suit flat. In August 1995 second defendant represented to the first plaintiff that he had agreed to sell another flat in the same building to the third defendant. It was represented that the third defendant was desirous of disposing off his existing accommodation and, therefore, he was in need of a place to store his goods and articles. Relying upon the said representation, the plaintiffs 3 allowed the third defendant to store the goods for a temporary period. Subsequently, the third defendant started claiming to be the purchaser of the suit flat. There is a reference to the police complaint filed by the 3rd defendant. It is contended that the third defendant was a financer who had lent money to the second defendant for completing the project. A blank signed agreement was taken by him from the second defendant which was mis-used. Therefore, a prayer has been made in the suit for a declaration that the third defendant has no right, title and interest in respect of the suit flat and the agreement for sale set up by him dated 4th July 1994 is not binding on the plaintiffs. 4. The suit has been appearing on board from time to time under the caption of undefended suits for passing ex-parte decree. The plaintiffs have filed an affidavit of the first plaintiff to prove their claim. Original documents have been placed on record. The averments made in the plaint as well as original documents show that the agreement for sale dated 8th May 1994 was executed by the first and second defendants in favour of the plaintiffs. Stamps of Rs.1,480/- have been fixed to the said agreement. A receipt of lodging the said agreement for registration on 10th May 1994 is also produced on record. Letter dated 16th January 1995 issued by the second defendant is produced on record which shows that the possession of the suit flat was handed over to the plaintiffs. The original receipts signed by the first and second defendants in the amounts of Rs.45,000/-, Rs.63,000/-, Rs.40,000/-, Rs.10,000/- and Rs.33,000/- respectively have been produced on record along with a pass-book to 4 show that the cheques were encashed. 5. After having considered the averments made in the plaint which have remained unchallenged and the aforesaid original documents, the plaintiffs have established that the first and second defendants had agreed to sell the suit flat to them and the first and second defendants have received the entire consideration amount in respect of the suit flat. It is established that the plaintiffs were placed in possession of the suit flat. 6. My attention is invited to order dated 13th July 1998 passed by this Court on a Notice of Motion taken out by the plaintiffs. The Court Receiver, High Court, Bombay was appointed as a Receiver of the suit flat. The plaintiff was ordered to be put in physical possession of the suit flat as his agent without any royalty or any security. 7. The representative of Court Receiver who is present in the Court pointed out that when possession of the flat was taken over by the Court Receiver, it was found that certain goods of the defendants were lying in the suit flat and an inventory of the goods has been accordingly made. The order of this Court passed on 13th July 1998 was challenged in an appeal. The Appellate Court modified the order and directed that the Court Receiver should hold bidding between the third defendant and the plaintiffs. Accordingly, a bidding was held and highest bid of the plaintiffs of payment of royalty at the rate of Rs.2,400/- per month was accepted. It is not in dispute that further order dated 10th February 2006 noted that the 5 3rd defendant has not taken back his articles despite notice given by the Court Receiver. This Court directed the Court Receiver to hand over the possession of the suit flat to the plaintiffs in the same condition. The Receiver was directed to give notice to the defendants to take away their articles within two weeks. The said order records that if the defendants do not take away their articles from the suit flat within two weeks from the date of service of the notice, the plaintiffs will be entitled to dispose of the articles in the suit flat. The representative of the Court Receiver states that accordingly notice was served to the defendants but the articles have not been removed by the defendants. The plaintiffs were placed in possession of the suit flat as agents on 10th February 2006. The representative of the Court Receiver pointed out that the plaintiffs are in arrears of royalty from June 2006 to December 2009 and they will have to pay the royalty. The learned counsel for the plaintiffs submitted that in any case the royalty amount would have come to the plaintiffs after passing of the decree. The Court Receiver is entitled to receive commission @ 6% per annum on the royalty amount. The commission and other charges will have to be paid to the Court Receiver. The Receiver will be entitled to charge the penalty @ 5% of the overdue amount of royalty. 8. A case is made out for passing a decree in favour of the plaintiffs. Hence, I pass following order :- ORDER 6 (A) The suit stands decreed in terms of prayer clauses (a) and (b) which read thus :- "(a) that this Hon'ble Court be pleased to declare that the Plaintiffs are bonafide purchasers for valuable consideration of the suit flat bearing flat No.116 in D-Wing, "Shivalaya", Chatrapati Shivaji Road No.2, Dahisar (East), Bombay-400068 from Defendant Nos.1 and 2 and as such entitled for peaceful possession thereof and a decree be passed accordingly for specific performance theirof. (b) that this Hon'ble Court be pleased to declare that the Defendant No.3 has no right, title or interest in respect of the suit flat and his agreement dated 4th July 1994 is not binding upon the Plaintiff." (B) The Court Receiver will calculate the arrears of royalty payable by the plaintiffs. As the plaintiffs are entitled to the entire royalty amount, it is not necessary for them to deposit the said amount. However, the plaintiffs are liable to pay to the Receiver the commission of 6% on the royalty amount and other charges of the Court Receiver together with late fee @ 5% on the overdue amount. The Court Receiver will quantity the arrears of royalty and will call upon the plaintiffs to pay the commission @ 6% on the said amount and all other charges and dues payable by the plaintiffs; (C) The Court Receiver will call upon the plaintiffs to pay the aforesaid amount within a period of four weeks from the date on which an authenticated copy of this judgement is supplied to the Court Receiver; 7 (D) After compliance is made by the plaintiffs with the demand made by the Court Receiver, the plaintiffs shall be placed in legal possession of the suit flat by the Court Receiver in terms of the decree; (E) The Court Receiver will stand discharged only after possession is handed over as above; (F) The defendants will pay costs of the suit to the plaintiffs; (G) The plaintiffs will be entitled to refund of court fees as per rules. (A.S.OKA, J.)