1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3269 OF 2008 IN SUIT NO.35 OF 2004 Dena Bank ..Plaintiff Vs. M/s.Yamuna Steel & ors. ..Defendants And Himatlal Bhimji Mehta & ors. ..Applicants And Court Receiver, High Court, Bombay ..Respondent Mr. K.D.Shukla i/b K.D.Shukla & co. for the Plaintiff Mr. C. Kapadia i/b Rustomji & Giniwala Co. for Applicant CORAM: Smt. ROSHAN DALVI, J. DATED: 31ST March, 2009 P.C.: 1. This Notice of Motion is taken out by the Applicants who are shown to be the owners of the building in which one the premises being a room under the staircase has been sought to be mortgaged by the Defendants to the Plaintiff Bank, and in respect of which Court Receiver has been appointed in this suit. The Applicants have applied for vacating certain 2 earlier orders passed for appointment of Court Receiver and to hand over possession of the suit premises to the Applicants. The Applicants have also applied for the relief of injunction against alienation by the Court Receiver. 2. The Plaintiff claims that the Court Receiver has been rightly appointed and must continue and that the suit premises must also be sold by the Court Receiver for satisfaction of the Plaintiff's claim as per law. The Plaintiff has produced the Agreement for Sale dated 06.11.1982. It is unregistered. It shows the Defendants as the owners of the premises described in the said Agreement and that they are residing in the suit premises. The documents produced by the Applicants show that the Defendants cannot claim to be the owners of the suit premises. The Plaintiff Bank has accepted the documents as the document of title without verifying the title under the unregistered Agreement and without making any inquiries. 3. The suit is filed by the Plaintiff Bank for recovery of Rs.2,78,000 /- upon cash credit facility granted to Defendant No.1 for Rs.2,50,000 /- . The Defendants executed a promissory note and sought to create an equitable mortgage in respect of the suit premises under the Memorandum of Entry dated 13.02.2001 signed by Defendant No.1 firm. The 3 said Agreement for Sale dated 06.11.1982 interalia was deposited with the Plaintiff Bank. 4. The Court Receiver came to be appointed in respect of the mortgaged premises. 5. The Applicants have essentially sought to have the Court Receiver discharged, upon their case that the suit premises never belonged to the Defendants and that they are neither owners of the suit premises nor tenants of the Applicants. 6. The Applicants have produced the assignment made in their favour on 25.01.1960 as their document of title. They have also shown the assessment receipts and the property taxes paid by them. The inspection extract of the municipality shows the suit property as room under stair case. 7. The Applicants claim that the signature of Applicant No.1 shown as owner of the premises who sold the suit premises to the Defendants is also forged. The Applicants have produced their counterfoil receipt books showing the signature of Respondent No.1 on the rent receipt issued to the various tenants in respect of various premises in their building. The signature is clearly different. 4 8. The Court Receiver was directed to make an inventory of the movables in the suit premises. The Court Receiver made a report. It shows only one polythene bag containing certain files and papers and a wooden box. The room was otherwise found vacant. It had no furniture or fixtures except one electric switch and bulb. The Court Receiver was directed to bring the files and papers contained in the polythene bag. That was brought and inspected by the Advocates of Plaintiff as well as the Applicants. The files shows that they were the papers of the Applicants. That has been the case of the Applicants. Since the suit premises is merely a small room under the staircase, the Applicants used it as their godown to keep their files. 9. Since the Plaintiff yet contended that the suit premises could belong to the Defendants and was their residential premises. The Court Receiver was again directed to measure the suit premises and make a report. The suit premises consist of two small strips of spaces one by the side of the staircase and one below the staircase landing. In all it is 96 sq.ft. In area. The Agreement of Sale relied upon by the Plaintiff shows that it is 136 sq.ft. in area. That aspect is disproved by the Court Receiver's report. The area of the suit premises as well as the contents found therein clearly show that it could not be and was not used as a residential premises as 5 shown in the unregistered Agreement for sale. The Report of the Court Receiver showing two small spaces under the stair case belies the case of the Defendants that they were the owners of the suit premises, as shown in the Agreement given to the Plaintiff bank. 10. The Applicants have produced the photographs showing the space adjacent to the staircase. The Applicants claim to have the key to the said premises taken possession of by the Court Receiver. 11. It is seen that the Applicants are the owners of the suit premises shown as RUSC which is part of their building. The Court Receiver appointed in respect of the suit premises cannot continue as such and cannot sell the suit premises to any third party. The Court Receiver shall hand over possession of the suit premises to the Applicants. Notice of Motion disposed of accordingly. (Smt. Roshan Dalvi, J)