1 nms2372-07.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No. 2372 of 2007 in Suit No. 1562 of 2007 Housing Development Finance Corporation Ltd. .. Plaintiffs v/s. Mr.Mayur Ratanshi Sampat & Ors. ..Defendants Ms.Jyoti Ghad , Mr.Sameer Khadekar i/b. Thakore Jariwala & Associates for the Plaintiffs. Ms. Shilpa Kapil for the Defendant No.3 None for the defendant nos.1, 2, 4,5, 6A and 6B. CORAM : R.Y.GANOO, J. DATED : 19th October , 2010 P.C. : 1. Plaintiffs claim that they had advanced loan to defendant nos.1 and 2 to the tune of Rs.5 lakhs and odd amount by loan agreement dated 29.3.1996 and defendant nos.1 and 2 had executed Demand Promissory Note dated 29.3.1996. According to plaintiffs suit flats 2 nms2372-07.sxw described in prayer clause (b) of the plaint were also mortgaged in favour of the plaintiffs by way of equitable mortgage. 2. According to plaintiffs the defendant nos.1 and 2 did not pay the instalment for purchase of the two flats to defendant no.3 in time and that is how defendant no.3 terminated the agreement as regards the suit flats and alloted the suit flats to defendant nos.4 to 6. 3. The plaintiffs claim that defendant nos.1 and 2 are defaulters so far as the loan transaction and have therefore taken out this Notice of Motion for appointment of Court Receiver and for injunction restraining defendants from creating third party rights etc. 4. I have extensively heard learned Counsel for the plaintiffs and the learned Advocate for the defendant nos.3. Suit in substance is for recovery of money. Plaintiffs want to enforce the said equitable mortgage in their favour. Looking to the nature of the suit, namely suit for recovery of money, I am inclined to observe that proper relief to be obtained by the plaintiffs would be seeking attachment before Judgement in respect of the various properties held by the defendant 3 nms2372-07.sxw nos.1 and 2 as also the flats in prayer clause (b) because mortgage was executed in regard to this flats by defendant nos.1 and 2. The relief of appointment of Court Receiver and injunction sought in the present motion cannot be granted as by appointment of Court Receiver or by an injunction the plaintiff’s ultimate purpose of recovery of money would not be satisfied. If the flats in question are attached as and by way of attachment before judgment, the persons concerned will not be able to sell the flats and if the decree is passed in favour of the plaintiffs, plaintiffs will be able to execute the said decree qua the said flat as also the other properties of defendant nos.1 and 2. In view of the above, motion is disposed of by passing following order. ORDER i. Relief sought in prayer clauses (a) and (b) are declined. There shall be no order as to costs. ii. If plaintiffs apply for attachment before judgment in regard to the properties held by the defendant nos.1 and 2, including properties set out in prayer clause (b), said relief shall be considered on merits of the text of the said application. 4 nms2372-07.sxw iii. Suit to come up in usual course. There shall the no order as to costs. [R.Y.GANOO, J.]