- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION No. 1365 OF 2007 IN SUIT No. 1054 OF 2007 Austin D’Souza & Anr. ... Plaintiffs Vs. Ronendra Paul & Anr. ... Defendants *** Mr. Vinay J. Hegde, for the Plaintiffs. Mr. Rajeev Matkar, for Defendant No.2.. *** CORAM : S. J. VAZIFDAR, J. DATE : SEPTEMBER 16, 2009. PC :- 1. The suit is filed by the plaintiffs for specific performance of an agreement dated 14th August 2006 by which the plaintiffs agreed to purchase a flat from the defendants for a consideration of Rs.19,00,000/-. By this Notice of Motion, the plaintiffs seek the appointment of a Court Receiver with a direction to put them in possession in the suit flat during the pendency of the suit. Despite the plaintiffs having made out a very strong case, I am not inclined to pass such a drastic order at this stage. The ends of justice would be met by the order, I intend passing. 2. There is no dispute that the agreement dated 14th - 2 - August 2006 was executed. It is also admitted that the same was registered and that the plaintiffs paid the registration fees and stamp duty. The Society had also issued its NOC in respect of the suit agreement. Further it is admitted that in July 2006 an amount of Rs.90,000/- was paid by the plaintiffs to the defendants. 3. It is also admitted that in July 2006 an amount of Rs. 90,000/- was paid by the plaintiffs to the defendants. It is important to note that it is also admitted that through the Bank of Baroda, the plaintiff paid a further amount of Rs.16,49,000/-. In other words, the defendants have admittedly received an amount of Rs. 17,39,000/- against the consideration of Rs.19,00,000/-. 4. The only dispute is with regard to a sum of Rs.1,10,000/- and Rs.51,000/- which the plaintiffs allege to have paid on 25th August 2006 and 3rd September 2006 respectively. . The plaintiffs relied upon the receipts, admittedly executed by defendant No.1, acknowledging receipt of Rs.1,10,000/- and Rs.51,000/-. 5. Thus, according to the plaintiffs they paid the entire consideration of Rs.19,00,000/-. According to the respondent the plaintiffs paid Rs.17,39,000/-. 6. According to defendant No.2, however, defendant No. 1 executed these receipts when he was inebriated. . Defendant No.2 further alleges that her husband defendant - 3 - No.1 after receipt of the said consideration misappropriated a sum of Rs.6,00,000/-. 7. I am not inclined to accept either of these contentions. There is nothing that suggests that the receipts were executed by defendant No.1 because he was inebriated. Further even assuming defendant No. 1 misappropriated Rs.6,00,000/- that is a matter between the defendants inter-se. There is nothing on record to implicate the plaintiffs in this regard. 8. In the result therefore, the plaintiffs despite having paid the entire consideration of Rs.19,00,000/- and in any event admittedly a sum of Rs.17,39,000/- have neither the benefit of the money nor the benefit of the flat. On the other hand, the defendants are enjoying the benefit of the use of the flat as well as the use of the money. This is entirely unacceptable. Although in a matter of this nature, it would not be impermissible to permit the plaintiffs to occupy the flat as agents of the Court Receiver, I do not intend doing so. However, the plaintiffs are entitled, during pendency of the suit, to the return of the money with interest at 10% per annum for three years but strictly without prejudice to their rights and contentions in the suit. In other words, the plaintiffs shall be entitled to receive the money that I intend to direct the defendants to deposit in this Court entirely without prejudice to their rights and contentions in the suit. It will not be open in that event for the defendants to contend at the final hearing of the suit that having accepted the money during pendency of the suit, the plaintiffs - 4 - ought not to be granted specific performance if they are otherwise entitled to the same. 9. The Notice of Motion is accordingly disposed of by the following order. ORDER (i) The defendants shall deposit in this Court a sum of Rs.25,00,000/- on or before 31st October 2009. (ii) In the event of the amount being so deposited, the plaintiffs shall be entitled to forthwith withdraw the same, without prejudice to their rights and contentions. (iii) In the event of the defendants failing to deposit the amount as above, the Court Receiver, High Court Bombay is appointed to recover possession of the flat with all powers under Order 40, Rule 1 of the Civil Procedure Code 1908. The Court Receiver shall appoint an agent in respect of the said flat on a “leave and license” basis. The parties are at liberty to bid for the agency of the receiver. In the event of the defendants matching the highest bid, the Court Receiver shall appoint them as agents in the first instance. In that event the defendants shall not be liable to furnish security. (iv) Pending the hearing and final disposal of the suit or the Receiver taking possession of the suit flat, as the case may be, the defendants shall not alienate, dispose of, transfer, encumber or create any third party rights in, to, upon or in - 5 - respect of the said flat or part with possession of the suit flat. . The Notice of Motion is accordingly disposed in above terms.