1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY & ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 827 OF 2009 IN SUIT NO. 507 OF 2009 Chandrakant K. Talekar. ... Plaintiff. V/s. Deepak Rao & Anr. ... Defendants. Mr. Sanjay Jain a/w. Sunita Pandey i/b. L.J. Law for the Plaintiff. Mr. Vipin Kamdi i/b. Nirmala Bhosale for Defendant 1. Mr. Nilesh Patil for Defendant 2. CORAM : S.C. DHARMADHIKARI,J. DATED : 09th OCTOBER 2009. P.C. :- Heard learned Counsel appearing for the Plaintiff and Defendant Nos.1 and 2. 2. Prayer Clauses (a) and (b) of the plaint read as under :- “(a) That pending the hearing and final disposal of the above Suit, this Hon’ble Court be pleased to appoint the Court Receiver, High Court, Bombay, as the Receiver of the said flat being Flat No.1201 situated on the 12th floor in the proposed building known as “Akansha Heights” situate at Kasturba Gandhi Nagar, Worli, Mumbai – 400 018 with all powers under Order XL Rule 1 of the Code of Civil Procedure, 1908, including to take possession 2 of the said property and the said building be completed under the supervision of the Court Receiver, High Court, Bombay and after completion had over the possession of the said flat to the Plaintiff or with such powers as deemed fit and proper to this Hon’ble Court. (b) That pending the hearing and final disposal of the above Suit, this Hon’ble Court be pleased to restrain by a temporary order and injunction, the Defendant, his servants, agents and/or any person claiming through or under him from selling, disposing of, alienating, encumbering, inducting and/or parting with possession of any third party in the said flat being Flat No.1201 situated on the 12th floor in the proposed building known as “Akansha Heights” situate at Kasturba Gandhi Nagar, Worli, Mumbai – 400 018 in any manner whatsoever.” 3. However, after seeking instructions, the learned Counsel appearing for the First Defendant states that the construction of proposed building “Akansha Heights” is not yet completed. There is no occupation certificate granted and therefore, presently, there is no question of putting either the Plaintiff or the Second Defendant in possession of Flat No.1201 situated on the 12th floor of this proposed building/construction. 3 4. Once this statement is made, the Plaintiff presently does not have any apprehension of the Second Defendant being put in possession of the Flat/Suit property by the First Defendant. Once this apprehension is taken care off by recording the afore-noted factual developments at site so also noticing that both Defendant Nos.1 and 2 have stated on affidavits that they are not going to deal with or dispose off the Suit property in any manner whatsoever, then, accepting this without prejudice statements made on affidavit and granting further liberty, the instant Motion can be disposed off. 5. Accordingly, the following order :- (i) The Notice of Motion disposed off with liberty to apply for interim reliefs in terms of the prayers in the instant Motion at a subsequent stage. (ii) All contentions of both sides on merits so also on maintainability of the Suit and proceedings are kept open. (iiii) It is directed that if the occupation certificate is granted by the Bombay Municipal Corporation/Slum Rehabilitation Authority, then, the First Defendant's Advocate shall intimate to the Plaintiff's Advocate the grant of such certificate and for a period of 15 days from the date of receipt of such intimation, the First 4 Defendant shall not taken steps to hand over physical possession of the Flat/Suit Property to the Second Defendant. Needless to state that if no application is made for interim reliefs within the aforementioned period, then, after the expiry thereof, it would be open for the First Defendant to hand over physical possession of the Suit Flat/property to the Second Defendant. (iv) Until the aforementioned intimation is forwarded and for a period specified above, neither the First Defendant nor the Second Defendant shall create any third party rights or transfer the flat which is subject matter of this Suit in any manner whatsoever. 6. Mr. Kamdi, learned Advocate appearing for the First Defendant states that within a period of 10 days from today, the First Defendant’s Advocate shall forward copies of the IOD/CC in respect of the subject building to the Plaintiff’s Advocate. (S.C. DHARMADHIKARI,J.)