: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3540 OF 2006 IN SUIT NO.408 OF 2003 Ramanlal B. Shah @ Mehta ....Plaintiff V/s. Mrs.Priya N. Athavale & Ors. ....Defendants And Ibrahim J. Sopariwala & Ors. ....Respondents Mr.Pravin Samdani, Senior Counsel with Mr.Birendra Saraf i/b Kishor Thakordas & Co. for the Plaintiff. Mr.J.P. Sen with Mr.Mehul Shah i/b Mr.A.G. Shah for Defendant No.1. Mr.S.I. Meman for Respondent Nos.1 and 2. CORAM : S.J. VAZIFDAR, J. DATED : 10TH MARCH, 2008. P.C. : 1. By this Notice of Motion, the Plaintiff seeks the appointment of a Court Receiver in respect of the suit property. 2. It is not necessary to deal with the facts in any detail for the purpose of this Notice of Motion. . The suit is filed for specific performance and for damages in the alternative. Specific performance is sought of an agreement entered into : 2 : between the Plaintiff and original Defendant No.1. Defendant No.1 (a) was brought on record after Defendant No.1 expired. By an order dated 7.2.2003 in Notice of Motion No.347 of 2003, taken out by the Plaintiff, the following order was passed :- "That pending the hearing and final disposal of the suit the defendants by themselves, their agents and servants be restrained by an order and injunction of this Hon’ble Court from in any manner alienating, encumbering, transferring, creating any third party, rights, or selling or disposing of or parting with possession of the suit property described in Exhibit "A" to the plaint or any part or portion thereof or any part or portion of any construction thereon save and and except for housing the existing tenants of the suit building." 3. Public notice of the above proceedings and the order was published on 24.7.2003 in Midday and Janmabhumi. It is important to note also that on 10.3.2003 the Plaintiff registered a lis-pendense in respect of the above suit. 4. Defendant No.1 expired on 5.2.2004. By an order dated 28.1.2005, Defendant No.1(a), his widow, was brought on record. What led to the filing of this further Notice of Motion by the Plaintiff is that despite the order dated 7.2.2003, Defendant No.1(a) : 3 : had entered into an MOU dated 14.3.2005. This MOU was entered into between Defendant No.1 (a) on one hand and Defendant Nos.2 and Respondent Nos.1 and 2 on the other. By this MOU various rights were created by Defendant No.1(a) in favour of Defendant No.2 and Respondent Nos.1 and 2. Respondent Nos.3 to 6 are some of the parties who had acquired the properties from Respondent Nos.1 and 2. Pursuant to the said MOU, various rights were created in favour of Defendant No.1(a) on the one hand and Defendant No.2 and Respondent Nos.1 and 2 on the other in the suit property and the construction put up thereon. In short a portion of the constructed area was to go to the share of Defendant No.2 and Respondent Nos.1 and 2 and the other portion thereof was to go to Defendant No.1(a). By a further MOU dated 18.3.2005, the said MOU dated 14.3.2005 was modified inter-alia to the effect that Defendant No.2 and Respondent Nos.1 and 2 were also to have an interest in any additional balance FSI contained therein. 5. Admittedly, the two MOUs dated 14.3.2005 and 18.3.2005 were entered into during the subsistence of the order dated 7.2.2003. Admittedly again the same are contrary to and in violation of the said order dated 7.2.2003. Mr.Sen, submitted that Defendant : 4 : No.1(a) was not aware of the order dated 7.2.2003 or even of the details of the present proceedings. In short, he submits that Defendant No.1(a) was unaware of the details of her husband’s dealings qua the said property. Considering the nature of the order I intend passing, it is not necessary for me to express any opinion on this aspect. 6. Various third party rights have been created by Defendant No.2 and Respondent Nos.1 and 2 pursuant to the said MOU dated 14.3.2005 including in favour Respondent Nos.3 to 6. Defendant No.2 has not appeared at the hearing. On behalf of Respondent Nos.1 and 2, it was submitted that they were unaware of the order dated 7.2.2003. It is true that a building has been put up. However, the order of injunction did not prevent the Defendants from constructing a building. It however restrained the Defendants from creating any third party rights therein. 7. As far as Defendant No.2 and Respondent Nos.1 and 2 are concerned, the Plaintiff is entitled to protection. It is difficult at the interim stage to hold conclusively in favour of Respondent Nos.1 and 2 that they were unaware of the order dated 7.2.2003 in : 5 : view of the fact that the MOU was entered into not merely by Respondent Nos.1 and 2 with Defendant No.1(a) but together with Defendant No.2. The least that must be said is that this aspect would require investigation. 8. It was stated by Respondent Nos.1 and 2 that the premises in the portion which came to their share under the said MOU have been dealt with. The half portion of the basement, premises Nos.201 to 208 on the second floor and 405 to 408 on the fourth floor have been sold to various third parties. In respect of premises Nos.601 to 604 on the sixth floor, tenancy rights have been created. 9. The third parties are not before me. However, a lis-pendense was filed. The effect of the injunction on the third parties would require to be considered. I do not intend doing so in their absence. The third parties including Respondent Nos.3 to 6 are at liberty to adopt appropriate proceedings in respect of their rights, if any qua the suit premises. 10. In the circumstances :- : 6 : i). The Notice of Motion is disposed of in terms of the ad-interim order dated 6.11.2006. However, the Court Receiver shall not insists on security or royalty from the occupants of the premises. The agency agreements, if executed, pursuant to the ad-interim order shall continue as compliance with this order. ii). The third parties including Respondent Nos.3 to 6 are at liberty to adopt appropriate proceedings in respect of their rights,if any, qua the premises sold to them or in respect whereof any rights may have been created in their favour. Such applications will be decided on their own merits without being influenced by this order. iii). The Court Receiver’s Report shall also be dealt with on their own merits.