1 NMS116.11 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. NOTICE OF MOTION NO. 116 OF 2011 IN SUIT NO. 494 OF 1991 Verinder Kumar Verma ... Plaintiff v/s Satish Shankar Marathe & ors. ... Defendants Mr.Y.S.Bhate for the plaintiff. Mr.P.N.Patwardhan for defendant No.1. Mr.Ashok Varma i/by Ms.Pallavi R. Marathe for defendant No.2. Mr.K.N.Bhqandary for defendant Nos.3, 5 and 6. Mr.Sudhan Y. Amre for Defendant No.4 in support. Mr.N.A.Bandodkar, 2nd Assistant to Court Receiver is present. CORAM: R.M.SAVANT, J. DATED: 7TH APRIL, 2011 P.C.: 1. The above motion has been filed by defendant No.4 inter-alia praying for the following relief:- 2 NMS116.11 (a) That this Hon’ble Court may direct the Court Receiver, High Court, Bombay, to pay corpus fund, brokerage, transport charges, compensation or rent for temporary accommodation to the defendant No.4 deposited by the defendant No.6 with the Court Receiver. 2. The defendant No.4 was admittedly in possession of the flat in question. The said fact is noted by this Court in the order dated 29.6.2010 passed in Chamber Summons No.843 of 2010 in the above suit. Defendant No.3 Society has entered into an agreement with defendant Nos.5 and 6 who are developers. Under the said development agreement the building in question was to be demolished and a new building was to be constructed and upon reconstruction, a flat in lieu of the suit flat was to be made available to the person who is entitled thereto. 3. The plaintiff has filed the above suit against defendant No.1 seeking specific performance of the agreement dated 3.11.1989 in respect of the suit flat. Insofar as the defendants inter-se are concerned, they are brothers. It is the case of one of the brothers that the suit flat has been purchased by defendant No.2 in the name of defendant No.1. Be that as it may, those issues can be resolved at the time of the hearing 3 NMS116.11 of the above suit. The question which arises is, who would be entitled to the amounts payable by the developer under the development agreement. Under the development agreement, the occupant of the flat, which is handed over for the purpose of redevelopment, is entitled to a fixed rent of Rs.18,360/-, Rs.5000/- towards shifting charges and 90% of the corpus/hardship compensation fund which is arrived at by multiplying the area of the old flat by Rs.750/-. The said amount comes to Rs.2,75,400/-. 4. The learned counsel Shri Bhandary, appearing for defendant Nos.3, 5 and 6 stated that, pursuant to the development agreement, the said defendants had started paying the rent amount of Rs.18,360/- to the defendant No.4 and it has been paid till November, 2010. However, in view of the inter-se disputes between the defendants and since the Court Receiver is in-charge of the property, the said defendants started depositing the said amount of the fixed monthly rent with the Court Receiver. The defendants have accordingly deposited an amount of Rs.2,50,792/- which include the rent from September, 2010 and also include the shifting charges, one month’s rent i.e. for September, 2010, Rs.18360/- towards brokerage being one month’s rent, Rs. 5000/- towards shifting charges, Rs.1,90,712/- towards net of 90% of corpus/hardship compensation, Rs.18,360/- towards 4 NMS116.11 the rent for the month of October, 2010. The defendants have deducted the planning constraints charges of Rs. 32,100/- and the arrears of maintenance charges of Rs. 52,800/- from the amount that they had deposited. 5. In view of the fact that the defendant No.4 was admittedly n possession of the suit flat being flat No.B-5, it is the defendant No.4, in my view, who would be entitled to the payment of fixed rent of Rs.18,360/- per month from December, 2010 onwards as he has already been paid upto November, 2010. The defendant No.4 has made alternate arrangements for residence pending the completion of the building. The defendant No.4 has annexed the Leave and Licence Agreement dated 27.8.2010 which describes that the defendant No.4 is paying Rs.21,000/- per month. Insofar as the amount towards 90% of corpus/hardship compensation is concerned, the same would lie deposited with the Court Receiver until further orders of this Court. Defendant No.4 would also be entitled to the brokerage of Rs.18,360/- and Rs. 5000/- towards shifting charges. 6. The motion is made absolute to the aforesaid extent. This is without prejudice to the rights and contentions of the parties in respect of the title of the respective defendants. 5 NMS116.11 7. The office of the Prothonotary and Senior Master to release the amounts which have been deposited and to which defendant No.4 is held entitled to in terms of the instant order, to the defendant No.4 within a period of four weeks from date. 8. The rent from May, 2011 onwards shall be paid to the defendant No.4 directly by the defendant No.5 by obtaining receipt for the same. Defendant No.4 to keep proper account of the rent received by him. (R.M.SAVANT, J.) 6 NMS116.11