1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (L) NO.203 OF 2009 IN NOTICE OF MOTION NO.864 OF 2009 IN SUIT NO.453 OF 2009 ALONG WITH APPEAL (LODGING) NOS.204, 211, 212, 214, 215, 216, 217, 218, 219, 220, 221, 71, 72, 73 AND 74. Vijay Dwellers Private Limited & Ors. Petitioners Vs Smart Microsoft (Mumbai) Pvt. Ltd. & Ors. Respondents -- Shri Dushyant Dave with Saurav Kripal Singh, Sanjay Jain and S.Aravindh i/by Mayur Narendra & Co. for the Appellants in Appeal (L) Nos. 203, 204, 218, 219, 220 and 221 of 2009 – Original Defendant Nos. 1 and 2. Shri A.S. Chandiok with Shri Dipan Merchant i/by Mukesh Malkam for Appellants in Appeal (L) Nos. 211, 212, 71, 72, 73 and 74 of 2009 – Original Defendant Nos.9 and 10. Shri Shailesh Shah with Shri Pankaj Kowli i/by Pankaj Shah for Appellants in Appeal (L) Nos. 214, 215, 216 and 217 of 2009 – Original Defendant Nos.7, 8, 11 to 16. Shri Janak Dwarkadas, Sr. Counsel along with Shri Mustafa Doctor, Shri N. Dave and Shri Raj Mehta i/by R.K. M. Legal Services Advocates for the Respondent No.1-Original Plaintiff. Shri Pravin K. Samdani, Sr. Counsel, Shri Dushan R. Mehta, Ms Faiza 2 A. Dhanani i/by Dhruve Liladhar & Co. advocates for Respondent Nos.2 and 3- Original Defendant Nos.3 and 4. Shri K.L. Vyas, Court Receiver, present. -- CORAM : SWATANTER KUMAR, C.J. & S.C. DHARMADHIKARI, J DATED : 8TH APRIL, 2009. P.C. Present Appeals are directed against the order dated 19th March, 2009 passed by the learned Single Judge on Notice of Motion taken out by the Plaintiffs/Respondents. The learned Single Judge for the reasons stated in the order has appointed a Receiver with certain further directions as contained in the operative part of the order. It is contended on behalf of the Appellants that the suit itself was not maintainable, no case was made out, much less a case for appointment of a Receiver and also that the rights of the people, who claim to be the tenants, still remained to be determined. All these contentions are refuted by learned Counsel appearing for the Respondents. According to them, these questions have been rightly and fairly dealt with in the order impugned. The learned Single Judge felt that the question with 3 regard to the maintainability of the suit will be gone into during trial and rights of six of the tenants were required to be protected and finding prima facie case in favour of the Respondents observed that he was inclined to pass a rather drastic order in respect of the flats which are earmarked in the building “Babylon” out of which six flats have been sold. We do not consider it necessary to go into the merits or otherwise of the order in view of the approach of the learned Single Judge and we propose to deal with the appeals finally with the consent of learned Counsel apearing for the parties at the admission stage itself. 2. Having heard learned Counsel appearing for the parties and particularly keeping in view the fact that on the query raised it is submitted that question regarding the six flats being available to the tenants whose rights in question are to be determined may be left open for determination in the event they file a suit. It is stated that there are 19 tenants who are required to be accommodated as per the list submitted to the Board and only 11 flats are available. 4 Considering two flats retained by Defendant No.2, remaining six tenants are yet to be accomodated. There is serious dispute raised by the respective parties in relation to the tenancy status of the said defendant and according to the Respondents the persons to whom the same are stated to have been transferred needs to be gone into during the trial or at aleast after parties have completed their pleadings and after relevant documents are placed on record in the Notice of Motion pending before the learned Single Judge. Thus, we dispose of these Appeals with the following directions: - (1) Liberty to the parties to mention the matter before the learned Single Judge before whom the Notice of Motion is pending for final disposal and we do hope that if such a request is made, the learned Single Judge would expedite the hearing of the Notice of Motion finally. (2) In the meanwhile, appointment of Receiver would 5 continue. He would not take physical possession or lock any of the flats. However, he will only have formal possession of the flats in question. (3) The Appellants herein shall within one week from today furnish to the Receiver details of six flats which would be available to the persons whose rights are to be determined in the suit. (4) In the flats mentioned in the list, which will be furnished, none of the parties shall create any third party interest either by execution of documents or by giving possession to any parties or third persons. All the persons including the tenants, purchasers from the tenants shall be bound by the result of the decree that may be ultimately passed in the suit in question. 6 (5) In the event the Appellants do not identify the flats as stated in the order within one week, the order impugned shall automatically revive and shall be in force. The order dated 18th Decembver, 2008 passed by Justice A.S. Oka shall stand modified to that extent only. With these directions, the Appeals are dismissed, with no order as to costs. CHIEF JUSTICE S.C. DHARMADHIKARI, J