NMS2475-09 1 YBG IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2475 OF 2009 IN SUIT NO.1705 OF 2009 Housing Development Finance Corporation .. Plaintiff Versus Mishra Indraprakash & Anr. .. Defendants Mr.S.A.Oak i/b. Mahesh Menon & Co. for plaintiff Mr.C.A.Shukla for defendant Nos.1, 2 and 3. CORAM: S.C. DHARMADHIKARI, J. DATE : 23rd AUGUST, 2010. P.C. 1] This is a suit by Housing Development Corporation, against the borrowers for recovery of the sums more particularly mentioned in prayer clause (a) of the plaint. 2] In the usual course of business, the plaintiffs advanced loans and monies to defendant Nos. 1 to 3 for purchase of flat in a project which is to be completed by defendant No.4 Developer. The plaint proceeds on the basis that there were defaults committed by the borrower and the guarantor. Even the defendant No.4 had admitted in writing as early as on 4th July 2005 that there are defaults committed and that he would take over the liability to pay the amount due and payable to the plaintiff Corporation. However, this is stated without in any manner indicating as to how that would be and till then what is to happen to the flat in question. Plaintiffs NMS2475-09 1 now apprehend that the defendant Nos. 1 to 3 would deal with the flat which is their only security and thereby it would not be possible to recover the loan amount with interest. 3] At the hearing reliance is placed only on the fact that defendant No.4 Developer has not put the borrower in possession of the suit flat. On a repeated query from the court as to whether in the absence of physical possession being handed over can the suit flat be transferred or not, the learned Counsel for defendant Nos. 1 to 3 was unable to give any satisfactory answer. All that he states is that defendant No.4 retain control of the property. It may have been dealt with by defendant No.4 because nothing has been heard after 4th July 2005. 4] In my view, prima facie the defendants have not disputed their liability to pay the amount to the plaintiffs together with interest. All that they are stating on oath is that the equal monthly installments have been paid but as the defendant Nos. 1 to 3 were not put in physical possession of the flat, there was no question of repayment of loan. 5] The stand taken in para 3(i) to (iv) would indicate that the construction was being carried out by the defendant No.4. It is quite likely that none of the defendants would come forward to pay the amounts and thereby if there is a decree in favour of plaintiff, it will be difficult for them to execute it by enforcing the security. Plaintiffs have stated in the plaint that all the documents have been duly executed. They have also stated very clearly in the plaint that an equitable mortgage has been created in respect of the suit flat. In such circumstances, balance of convenience is in favour of the plaintiff and irreparable loss, injury and harm will be caused to them in case protective reliefs are not granted. NMS2475-09 1 6] It is true that after 4th July 2005, no documents have been placed on record acknowledging liabilities or stating anything with regard to possession of the suit flat. Yet, the plaintiffs cannot be deprived of the protection and while granting it appropriate condition can be imposed. In the result, the following order:- 7] The defendants, their servants and all persons claiming through them are restrained by interim injunction of this Court from transferring, alienating, parting with possession of or creating third party rights so also disposing of the flat more particularly described in prayer (a) of the notice of motion in any manner whatsoever. This interim order will continue during the pendency of the suit. Needless to clarify that benefit of this interim injunction will not be available to the plaintiff in case the flat in question has already been disposed of. (S.C. DHARMADHIKARI, J.)