1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1321 of 2007 IN SUIT NO.939 of 2007. a/w NOTICE OF MOTION NO.1892 of 2008 IN SUIT NO. 939 OF 2007. Mrs.Nelofar Arshad Shaikh & Others ..Plaintiffs versus Amatus Salam D/o. Ibrahim Fitwalla & Others ..Defendants Mr.A. Bookwala, Sr. Counsel a/w. Mr.N.S.Fadia i/b. Ms. Uma S. Fadia for the plaintiffs Mr.Dipen Merchant, Sr. Counsel a/w. Mr.S.A.Sawant i/b. B.B.Tiwari for the defendant Nos.9 & 11. CORAM: S.J.VAZIFDAR, J. DATE : 11th SEPTEMBER, 2009. P.C: 1. The suit is filed for a declaration that four registered agreements for sale, four deeds of 2 confirmation and four deeds of ratification are valid and subsisting; a declaration that plaintiff No.1 is the owner of flat Nos.108 and 109 and plaintiff No.2 is the owner of flat Nos.110 and 111; a declaration that the defendants have collusively and fraudulently entered into a sale agreement dated 16.9.2004 in respect of the same premises, subsequent to the plaintiffs agreement and that the same is null and void and a declaration that they have been fraudulently dispossessed of the suit premises which are the subject matter of the said four agreements. The plaintiffs have sought a decree directing the defendants to hand over possession of the said premises to them and an order restraining the defendants from disturbing their use and occupation of the said premises. 2. Notice of Motion No.1321 of 2007 has been taken out by the plaintiffs and Notice of Motion No. 1892 of 2008 has been taken out by defendant Nos.9 and 11. 3 The plaintiffs have in the notice of motion taken out by them, sought the appointment of the Court Receiver and for their being appointed as an agent of the Court Receiver without royalty and for an injunction restraining the defendants from alienating, dealing with, encumbering, disposing of or creating any third party rights in respect of the suit premises. Defendant Nos.9 and 11 in the Notice of Motion taken out by them have sought an order permitting them to run the classes in the suit premises on such terms and conditions as the Court deems fit and proper. 3. The plaintiff s case is as follows:- (A)(i) By two identical agreements for sale, both dated 16.6.2002, entered into between plaintiff No.1 and one Ismail Fitwalla and defendant Nos.1 to 8, plaintiff No.1 purchased flat Nos.108 and 109 on the first floor for a consideration of Rs.14,40,000/-. The entire consideration has been paid. (ii) By two Deeds of Confirmation, both dated 4 15.5.2003, entered into between said Ismail Fitwalla and plaintiff No.1, the said Ismail Fitwalla confirmed having executed the said agreements dated 16.6.2002 for sale in respect of flat Nos.108 and 109. Both the Deeds of Confirmation are signed only by Ismail Fitwalla and not by or on behalf of the other co-owners, namely defendant Nos.1 to 8. Indeed, the Deeds of Confirmation do not even show defendant Nos.1 to 8 as co-owners. (B)(i) By two agreements dated 16.6.2002 and 27.2.2002, plaintiff No.2 purchased from the said Ismail Fitwalla flat Nos.110 and 111 for Rs.7,56,000/- and Rs.6,74,000/- respectively. The entire consideration has been paid. (ii) The said Ismail Fitwalla executed deeds of confirmation dated 15.5.2003 and 7.7.2003, confirming having executed the said agreements for sale dated 16.6.2002 and 27.12.2002. It must be noted that these deeds of confirmation have also been signed only by the said the Ismail Fitwalla and defendant Nos.1 to 8 have not even been shown as parties thereto. 5 (C)(i). The four deeds of ratification dated 1.4.2004 were entered into between the said Ismail Fitwalla and plaintiff Nos.1 or 2 as the case may be in respect of each of the said agreements to sell. By the said deeds, the said Ismail Fitwalla confirmed having executed the said agreements for sale and having granted and transferred all his rights in respect of the said premises to the respective plaintiffs and confirmed their full ownership thereof by virtue of the said agreements for sale. (ii) These deeds of ratification were registered. However, it is important to note that the deeds of ratification did not state that the said Ismail Fitwalla had executed the same as a constituted attorney of defendant Nos.1 to 8. (D) The said Ismail Fitwalla also executed letters dated 7.10.2005 addressed to each of the plaintiffs stating that the said premises were ready for habitation and obtaining occupation certificate 6 from the concerned authorities. Purporting to have addressed the said letters on behalf of himself & others , he stated:- We say that we have no objection for your taking the possession of the said permanent alternate accommodation pending the O.C. at your risk At the foot of the letter each of the plaintiffs confirmed that they were aware that the O.C. had not been obtained, but that they were taking possession of their respective flats at their own risk and costs. 4. The plaintiffs allege that in order to enable plaintiff No.2 to carry on his medical practice, he proceeded to join/ combine the said four flats by carrying out necessary modifications therein. The plaintiffs intend running a nursing home from the said premises. The said vendors were to complete the flooring as per the plaintiffs directions. After initially proceeding satisfactorily the vendors started delaying executing the work despite requests from the plaintiffs to expedite the same. The said 7 Ismail Fitwalla expired on 13.3.2006. In view thereof, the plaintiffs stopped attending the suit premises for some time. On 7.4.2006 when the plaintiffs visited the suit premises, defendant Nos.9 to 13 prevented them from entering the same. Defendant Nos.9 to 13 alleged that they had purchased the said premises through defendant Nos.1 to 8. Defendant Nos.9 to 13 however, described the premises as Unit No.100. 5. Thereafter, the plaintiffs filed police complaints and also proceeding before the Addl. Chief Metropolitan Magistrate, 11th Court, at Kurla. An FIR was also filed and the report was submitted by the concerned officer to the Addl. Chief Metropolitan Magistrate. 6. Defendant Nos.9 and 11 however contend that they had purchased the suit premises from defendant Nos.1 to 8 under an agreement dated 16.9.2004. Defendant Nos.9 and 11 claim to have 8 purchased the said property for a consideration of Rs. 60,00,000/-. They further state that they have paid the entire consideration. Mr. D.V.Merchant appearing on behalf of defendant Nos.9 and 11 submitted that these defendants obtained a copy of the sanctioned plan of the building. He further submitted that the sanctioned plan indicates that the flats claimed by the plaintiffs are on the second floor and not on the first floor and that the plan annexed to the plaintiffs agreements are different and do not pertain to the first floor. He further submitted that the agreement entered into with defendant Nos.9 and 11 has annexed thereto a plan which indicates that what was purchased was the first floor. 7. The agreement dated 16.9.2004 does refer to a plan dated 21.11.1997. However, there is nothing to indicate that there was any new plan or that the same conclusively established which floor the premises were on. The plan annexed to the defendants agreement by itself does not establish conclusively that it was the first floor that was sold to defendant Nos.9 and 11. 9 Nor does the sanctioned plan tendered by Mr. Merchant indicate that the premises sold to the plaintiffs under the said agreements were not on the first floor. The plaintiffs agreements expressedly referred to the premises on the first floor. 8. It is pertinent to note that the registration of the agreement dated 16.9.2004 was effected only on 17.5.2006. Further, this was also pursuant to and along with a declaration cum deed of confirmation dated 17.5.2006. This document however was executed only by defendants 9 and 11 and was registered by them. The vendors were not parties thereto. Indeed it was effected after the said Ismail Fitwalla expired on 13.3.2006. 9. The above facts indicate that there is much to be said on either side. In this matter any conclusive finding must await the trial. 10. Defendant Nos.1 to 8 have remained absent. As I have noted in my earlier orders that after this 10 notice of motion was heard, an advocate appearing on behalf of defendant No.7 sought an adjournment stating that defendant No.7 wanted to file an affidavit. On the next date the learned Advocate stated that he had received no further instructions from defendant No.7. I, accordingly, once again adjourned the matter for judgment to today. 11. Even considering the balance of convenience it is not possible to permit only one party to occupy the premises unconditionally to the exclusion of the others. Such an order would work to the prejudice of the party succeeding at the trial. Further, whereas the plaintiffs desire to run a nursing home/ hospital in the said premises, defendant Nos.9 and 11 conduct coaching classes. Defendant Nos.9 and 11 have filed a notice of motion alleging that some students have expressed difficulty in climbing to the higher floor where the classes are now being conducted. There is, however, a lift in the building. In the circumstances, it is necessary to protect the rights of all the parties. 11 12. Both the notice of motions are therefore disposed of by the following order: ORDER i) The Court Receiver, High Court, Bombay is appointed Receiver of the suit premises with all powers under Order XL Rule 1 of the Code of Civil Procedure. ii) The Court Receiver shall appoint an agent in respect of the suit premises on the usual terms and conditions including as to security and royalty. iii) All the parties shall be entitled to bid for the agency of the Receiver. However, in the event of any of the parties being appointed as the agent of the Court Receiver, the Court Receiver shall not insist on security from them. iv) At the request of the parties, the order is stayed upto 13.11.2009.