: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 ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.477 OF 2007 IN SUIT NO.271 OF 2007 Bandra Eye Institute Pvt. Ltd. ..Plaintiffs. Vs. Dhamo Tikamdas Butani and anr. ..Defendants. Mr. Snajay Jain with Ms. Yogini Tada i/by M/s. Harakchand & Co. for the Plaintiffs. None for the Defendants. CORAM : R.S.MOHITE, J. DATE : 8th May, 2009 P.C. P.C. P.C. 1. This is a notice of motion taken out by the original plaintiffs who have filed a suit for specific performance in respect of the agreement dated 30.4.2005. The suit flat being flat No.4 is situated in Roseland Co.op. Housing Society Ltd. at Bandra and is owned by the defendant No.1. The defendant No.2 is the sister of defendant No.1.There was a dispute between the defendant No.1 and his sister defendant No.2. It was taken to the Co-operative Court and was ultimately settled by a settlement under which the defendant No.1 agreed to give to his sister 26.67% share in the sale proceeds of the suit flat. 2. An agreement for sale was executed between the plaintiffs and the defendant No.1 on 30.4.2005 and the defendant No.2 was consenting party to this agreement and a :2: signatory to this agreement. Under the said agreement, the defendant Nos. 1 and 2 agreed to sell the suit flat to the plaintiffs for the total consideration of Rs.1.20 Crores and the amount of Rs.7.50 lacs was agreed as earnest money payable under the agreement. It is not in dispute that the said amount was paid on the date of the agreement. 3. The agreement provided that the balance amount of Rs.1,12,50,000/- was payable by the plaintiffs to the defendant No.1 at the time of completion of the transaction and it was agreed that upon this payment the defendants would handover the vacant possession of the flat to the plaintiffs alongwith all title documents. The agreement also recorded that the sale was to be completed within a period of one month from the date of the agreement. After awaiting for sufficient period of time, on 4.5.2006, a notice for specific performance was issued by the plaintiffs stating that they are still ready and willing to perform their obligation. The record indicates that this notice was replied by the defendant No.1 through his Advocate’s letter dated 17.5.2006. The stand taken by the defendant No.1 was that under the MOU what was payable as earnest money was 20% of the MOU value and what was actually paid was Rs.7.50 lacs. The execution of the MOU dated 30.4.2005 was not disputed. Perusal of the MOU dated 30.4.2005, it is seen that there is no mention therein regarding the payment of 20% of MOU value. The defendant No.1 has stated in his :3: reply that he is ready and willing to sell his flat at the prevailing market rate value. In this background, suit was filed for specific performance of the agreement dated 30.4.2006. In the present notice of motion, though the ad-interim relief was refused when the plaintiffs took the matter in appeal, the injunction was granted subject to deposit of the full balance amount inclusive of interest totalling Rs.1,46,00,000/-.Today, receipt is shown which shows that said amount was deposited by the plaintiffs in this court on 22.6.2007. 4. In the background of this case, it is seen that the suit agreement is admitted by the defendant No.1. The defendant No.2 has not filed any reply. It is admitted position that full amount partly has been paid to the defendants and partly has been deposited in this court. The defendants are still enjoying the possession of the suit flat in question. In my view, therefore, this is a fit case and it will be just and proper to allow the notice of motion in terms of prayer clause (a) subject to the condition that the Court Receiver will take formal possession of the suit premises and allow the defendant Nos. 1 and 2 to continue to occupy the suit property subject to payment of royalty without security. From the date on which the Court Receiver takes formal possession, injunction will cease to operate. Motion stands disposed off. :4: 5. The Court Receiver to act on a copy of this order duly authenticated by the registry of this court. (R. S. MOHITE, J.)