1 NMS.3917.08-S.7179.99.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3917 OF 2008 IN SUIT NO. 7179 OF 1999 Smt. Lilam Arvind Vora ...Plaintiff Vs. Babubhai Jayshankar Trivedi & Ors. ...Defendants Ms. Aruna H. Ghadge for Plaintiff Ms. Pooja Kshirsagar i/b. Yogesh Adhia for Defendants 1 & 2 Ms. Shilpa M. Nadkarni i/b. S.K. Jain for Defendants 3,4 & 6 to 10 CORAM : SMT. ROSHAN DALVI, J. DATED : 6TH JUNE, 2011 P.C. : 1. This Notice of Motion is for appointment of Court Receiver and grant of injunction in a suit for specific performance of 5 unregistered agreements. 2. It is the Plaintiff’s case that the Plaintiff lent and advanced Rs.5 lakhs to the Defendants. Interest on that amount has been paid. Necessary confirmation receipts for the purpose of taxation have been passed. It is the Plaintiff’s case that the amount could not be repaid and hence the Defendant No.1, the developer, executed 5 agreements in respect of 5 flats to be handed over to the Plaintiff in the building to be developed. The agreements are executed on 5 th April 1994 and possession of the 5 flats was to be handed over in April 1997. 2 NMS.3917.08-S.7179.99.sxw 3. Without any other cause, on 13 th September 1995 the Plaintiff gave a public notice in the newspapers. The public notice is not produced. It is argued on behalf of the Plaintiff that this is a usual procedure for all purchasers of flats. Why the public notice had to be given in 1995 after the execution of agreements is not shown. 4. Defendants 1 and 2 replied to the public notice on 28 th September 1995 and 29 th September 1995. They denied the execution of the agreements and the Plaintiff’s rights claimed under them. They denied that Defendant No.2 could have executed the agreements with the Plaintiff since Defendant No.2 was only a Contractor. 5. The Plaintiff did nothing until 2 nd September 1999 when she replied to the notice. The letter of 1999 refers to the public notice and the replies of 1995. It showed three material errors stated to have been made by the Plaintiff. The first was in the name of the Plaintiff herself. The other mistake was in the name of the Vendor. Yet another mistake was the reference to the number of flats in the agreements. The strange admissions of these three mistakes reflects the Plaintiff’s case. The public notice, copy of which is not shown, though it is stated to be the procedure adopted by all purchasers such as the Plaintiff, admittedly shows more flats agreed to be sold to the Plaintiff then which are mentioned in that letter itself and which are claimed by the Plaintiff. The letter further shows that though there was no agreement with Defendant No.2 the public notice mentioned that the Plaintiff had an agreement with Defendant No.2. Such are the unregistered agreements. 3 NMS.3917.08-S.7179.99.sxw 6. After the filing of the suit and when the interim application was taken out, Defendants 1 and 2 showed other agreements entered into with other parties. Two of those agreements are dated 10 th July 1993 and 28 th July 1993 which are prior to the agreements claimed by the Plaintiff. Other three agreements are shown to be subsequent agreements. The knowledge of third party rights was obtained by the Plaintiff soon after the filing of this suit. The Plaintiff applied for necessary amendments and has carried out the necessary amendments by bringing Defendants on record. These are the purchasers of flats claimed by the Plaintiff. Despite this knowledge in about 2000 this Notice of Motion is taken out in 2008. No application for ad-interim relief is made. 7. The application is too delayed. Case of grant of relief of specific performance is not prima facie made out. In fact upon the admitted case of the Plaintiff of mere advance of loan of Rs.5 lakhs the Plaintiff would well be entitled to the relief of compensation or damages. This is not the case for grant of discretionary relief of specific performance. Plaintiff is not entitled to any relief at this late stage against the five purchasers of the flats claimed b y the Plaintiff. 8. The Notice of Motion is dismissed. (SMT. ROSHAN DALVI, J.)