- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION No. 1252 OF 2007 IN SUIT No. 927 OF 2007 Priyanka R. Dwivedi and Anr. ... Plaintiffs Vs. Ramesh Parekh ... Defendant *** Mr. D. Brijesh, for the Plaintiff. Mrs. A. S. Malvankar, for the Defendant. *** CORAM : S. J. VAZIFDAR, J. DATE : OCTOBER 8, 2009. PC :- 1. The suit is filed for specific performance of an agreement for sale dated 9th September 2005 by which the plaintiff agreed to purchase from the defendant a flat admeasuring 34.80 sq. mt. carpet area on the first floor of a building to be constructed by the defendant for a price of Rs.11,31,865/-. 2. The execution of the agreement is not denied. It is also admitted that a sum of Rs.1,23,000/- has been paid so far. The agreement was registered on 6th October 2005. The possession of the flat to be given on 31st January 2006. - 2 - 3. By a letter dated 8th February 2007 i.e. after the date by which the defendant was to hand over possession the defendant called upon the plaintiff pay the balance consideration of Rs.9,83,865/- together with interest. The agreement however, does not require the plaintiff to pay interest if there is no default in payment of the amounts on his part. Clause 9 of the agreement requires the flat purchasers to pay interest at 21% per annum if the amounts remained unpaid. It is pertinent to note that Clause 41 of the agreement states that possession of the flat was to be given on or before 31st January 2006. Admittedly, even on 8th February 2007 when the demand was made the defendant was not in a position to hand over possession of the flat. 4(A) It is true that the Architect’s certificate dated 6th February 2007 states that work upto the 7th floor for Wing ‘C’ and ‘D’ had been completed. However, in these circumstances, it was not unreasonable for the plaintiff to have inquired by a letter dated 7th March 2007 as to when possession of the flat would be handed over. In fact the plaintiff has suffered on account of the delay and handing over possession. 4(B) The defendant by his letter dated 17th March 2007 terminated the agreement. The defendant admitted that there was a delay in completing the structure but attributed it to the reasons beyond his control. Be that as it may, the fact of delay is admitted. 5. It is also pertinent to note that under Clause 10 of the - 3 - agreement, the defendant was bound to give 15 days notice to the plaintiff of his intention to terminate the agreement to enable the plaintiff to remedy the breach, if any. The termination is therefore, not valid in any event. The flat is now ready for occupation. The plaintiff is ready and willing to pay the balance consideration. 6. However, at this stage the defendant is not willing to perform the agreement. 7. In the circumstances, it is necessary to protect the plaintiff’s rights in respect of the suit flat. However, considering the facts of this case I am not inclined to permit the plaintiff to occupy the said flat. On the other hand, it would be to the detriment of both the parties to allow the flat to remain vacant. It is necessary therefore to protect the interest of both the parties. 8. In the circumstances, the Court Receiver, High Court Bombay is appointed receiver of the flat. The Receiver shall appoint an agent after inviting the bids from third parties for the agency. Liberty to the parties to bid for the agency of the Court Receiver. However, in the event of the defendant being appointed as an agent, the Court Receiver shall not insist on security. Till the Court Receiver takes possession, there shall be an injunction in terms of prayer Clause (a).