*1* nms.1873.08.s.1467.08.1030.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1873 OF 2008 IN SUIT NO.1467 OF 2008 Abdul Hameed Abdul Gani Shaikh. ..Plaintiff -versus- Amjad Ali Shafi Khan. ..Defendant ............ Mr.Mehul Shah i/b A.G.Shah, for the Plaintiff. ............ CORAM : S.C.DHARMADHIKARI, J. Date : 14th November, 2011. P.C.: 1 Heard the learned counsel appearing for the Plaintiff. Perused with his assistance the plaint and annexures thereto. In a suit for specific performance of agreement for sale/transfer of immovable property, namely, flat in Mumbai, the Plaintiff being not content with an order of ad-interim injunction, prays that it is just and convenient to appoint the Court Receiver of the subject immovable property. The only ground on which the appointment of a Receiver is sought is that the Plaintiff is out of pocket of Rs.22 lacs which has been paid to the Defendant in the year 2007, so also, Rs.46,000/- paid to the Society, out of total consideration of Rs.42 lacs. It is stated that the sale deed was to be executed in the year 2007, but the same was not executed nor the Plaintiff was put in possession. 2 According to the Defendant, the agreement was unregistered and that the third party was occupying the premises who is not joined as party Defendant to the suit. Therefore, the suit is liable to be dismissed. *2* nms.1873.08.s.1467.08.1030.sxw 3 According to the Plaintiff, apart from bare denial, there is nothing in the Written Statement or the affidavit in reply. Therefore, continuing in possession and enjoying the consideration in respect of the flat by retaining the substantial sum, the Defendant is defeating the rights of the Plaintiff. For all these reasons, it is just and convenient that the Court Receiver, High Court of Bombay be appointed as a Receiver of the flat. 4 To my mind the above contentions are not enough to appoint the Court Receiver of the immovable property. In every such suit, the Plaintiff/ Purchaser is bound to urge that he has parted with valuable consideration and his version is that he was and is always ready and willing to perform his part of the obligation under the contract for sale. The Court has to yet to test the version of the Plaintiff. Even if the Defendant fails to appear, the Court will have to be satisfied by scrutinising the oral and documentary evidence that specific performance is to be granted. This is a discretionary power under section 20 of the Specific Relief Act, 1963. Therefore, when ad-interim order is in force from 2008 and nothing has been pointed out which would enable the Court to hold that the property is being wasted or frittered away, then, the relief as claimed of appointment of the Court Receiver cannot be granted. 5 For all these reasons, the Notice of Motion is made absolute in terms of the ad-interim order passed by this Court on 18.06.2008. The suit be now placed for framing of the issues on 29.11.2011. (S.C. Dharmadhikari, J)