-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.368 OF 2007 IN SUIT NO.226 OF 2007. Housing Development Finance Corporation Ltd. ..Plaintiffs. v/s. Shri Rahul Digambar Barhanpurkar & Ors. ..Defendants. .... Mr.H.N.Thakore, i/b. M/s. Thakore & Jariwala & Asso., for the Plaintiffs. None for the Defendants. .... CORAM CORAM CORAM : S.J.KATHAWALLA, J. : S.J.KATHAWALLA, J. : S.J.KATHAWALLA, J. DATE DATE DATE : 17TH DECEMBER, 2008. : 17TH DECEMBER, 2008. : 17TH DECEMBER, 2008. P.C. P.C. P.C. . The suit is filed by the plaintiffs to recover the amounts lent and advanced by the plaintiffs to the defendant nos.1 & 2 (the principal borrowers). The defendant nos.3 & 4 are the guarantors. It is the case of the plaintiffs that on the date of the filing of the suit, i.e. on 21st December, 2006, an amount of Rs.5,21,553/- was due and payable by the defendant nos.1 & 2 to the plaintiffs, as more particularly shown in Exhibit ‘Q’ to the plaint. It is also the plaintiffs’ case that in view of the sums lent and advanced by the plaintiffs to the defendants, the defendants had deposited with the plaintiffs the original Title Deeds in respect of the flat no.203-B, "Yamini", Yamini -2- Co-operative Society Limited, Sector-X, Vasant Nagari, Vasai (East), Thane-401 205, by way of an equitable mortgage. 2. The notice of motion is taken out by the plaintiffs for ad-interim / interim relief by way of appointment of Court Receiver and an injunction against the defendant no.1 & 2 from parting with possession and/or creating any third party rights in respect of the said suit flat, which is mortgaged in favour of the plaintiff. 3. The defendants have through out not appeared before this Court despite being served on several occasions, which can be seen from the Roznama as well as the affidavit of service dated 16th December 2008 filed by the plaintiffs, which is taken on record. 4. The plaintiffs on 27th December 2006 moved this Court (Coram : S.J. Vazifdar, J.) seeking ad-interim reliefs against the defendants when the Court Receiver in respect of the mortgaged property was appointed in terms of prayer clause (a) of the notice of motion except the bracketed portion in red ink. An order of injunction was also passed in terms of prayer clause (b) of the notice -3- of motion against the defendants until the Court Receiver takes possession of the mortgaged property. 5. After the ad-interim order dated 27th December 2006 was passed, the defendants made payment to the plaintiffs to the tune of Rs.2,31,081/- and a balance of Rs.3,70,829/- was due and payable to the plaintiffs as on 30th September 2008. In view of the aforesaid, the plaintiffs have submitted that the plaintiffs did not approach the Court Receiver to take possession of the mortgaged property in accordance with the ad-interim order dated 27th December 2008. The plaintiffs have further submitted that the notice of motion again came up for ad-interim reliefs before this Court (Coram : S.A. Bobde, J.) on 9th February 2007. The plaintiffs except for an injunction in terms of prayer clause (b) of the notice of motion did not press for any relief. 6. It is submitted by the plaintiffs that thereafter, all the post-dated cheques given by the defendants for the period of February 2007 to September 2008 were dis-honoured. The plaintiffs are, therefore, now at the hearing of the notice of motion once again seeking appointment of Court Receiver in terms of prayer clause (a) except the bracketed portion which is marked -4- in red ink. The plaintiffs are also seeking an injunction in terms of prayer clause (b) of the notice of motion, till the Court Receiver takes possession of the said flat in terms of prayer clause (a) of the notice of motion. 7. In support of the plaintiffs’ submission that the Court Receiver should be appointed for the suit flat, the plaintiffs have pointed out that they had earlier vide their letter dated 28th August 2006 addressed to the Secretary, Yamini Co-operative Housing Society Ltd. informed the Society about the creation of the mortgage by the defendants in favour of the plaintiffs. The Society by its reply dated 13th September 2006 informed the Legal Department of the plaintiffs that when the defendant no.2 was the Treasurer of the Society during June 2000 to August 2001, she with the help of her son, i.e. defendant no.1 has mis-appropriated an amount of Rs.2,81,811/- from the society fund for which the society has filed recovery proceedings before the Co-operative Court, Thane, and by an order of the Co-operative Court, the defendants are restrained from selling of the said mortgaged flat. The society has further informed that they are waiting for the orders of the Co-operative Court after which they would recover the mis-appropriated -5- amount of Rs.2,81,811/- and also the outstanding maintenance charges of more than Rs.30,000/- with Bank interest from defendant no.2. The plaintiffs have submitted that keeping in mind the aforesaid conduct of defendant nos.1 & 2, it is just and necessary for this Court to appoint Court Receiver of the said mortgaged flat. 8. Under the above circumstances, the notice of motion is made absolute in terms of prayer clause (a) of the notice of motion except the bracketed portion in red ink. Till the Court Receiver takes formal possession, there will be an order in terms of prayer clause (b) except the bracketed portion marked in red ink. 9. Notice of motion stands disposed of accordingly. The Court Receiver to act upon an ordinary copy of this order duly authenticated by the Associate of this Court. [S.J.KATHAWALLA, [S.J.KATHAWALLA, [S.J.KATHAWALLA, J.] J.] J.]