1 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1354 OF 2008 IN SUIT NO. 1187 OF 2008 Manish Bhagwanji Adesara & Anr. .. Plaintiffs Vs. Bharat Ramjibhai Makwana & Ors. .. Defendants Ms. Shailesh Shah with Mr. P. M. Shah for the Plaintiffs. Mr. D. H. Mehta with Mr. Nitin Shukla for Defendant No.1. Mr. Vivek S. Sawant i/b Mr. Kusumakar Kaushik for Defendant No.3. CORAM : MRS. R. S. DALVI, J. DATE : 22nd March, 2010. P.C. 1. The plaintiffs and the defendants entered into an agreement on 18.04.2007 with regard to the suit flat which was then owned and possessed by defendant No.1 and which was to be purchased by the plaintiffs. The total price payable as agreed between the parties was Rs.15.20 lacs to be paid by 30.06.2007. 2. Prior to this agreement, defendant No.1 had taken a loan from defendant No.3 Bank in respect of the same flat. That loan amount was not paid. Proceeding 2 under Section 13(4) of the Securitisation Act was initiated on 15.06.2006. 3. Consequently, it is seen that in the teeth of those proceedings when possession would have been taken by the Bank, defendant No.1 sought to transfer the suit flat to the plaintiffs. 4. The plaintiffs also applied for loan in respect of part of the payment to be made. The plaintiff paid Rs.4.21 lacs to the defendants at the time of the execution of the agreement. The plaintiff applied for loan for the balance amount of Rs.11 lacs. 5. The plaintiffs claim to have paid further amount of Rs.1.5 lacs by two cheques to defendant No.1. Defendant No.1 claims that, that amount is paid to his brother who separated from defendant No.1 much earlier. 6. Thereafter further part payment was made by the plaintiffs of Rs.50,000/- to defendant No.1 which has been admitted to be received. 7. Defendant No.1 issued a letter dated 25.07.2007 stating that he has no objection to the sale of the flat to the plaintiffs. It may be remembered that defendant No.1 was facing proceeding under the Securitisation Act at that time. 3 8. It is the plaintiffs’ case that further amount of Rs. 50,000/- was also paid to defendant No.1. Defendant No.1 has refused its receipt on the ground that he was made to sign a bearer cheque on the reverse and the plaintiffs took the amount under the bearer cheque. It is impossible to accept that defendant No.1, under those circumstances, signed bearer cheque on its reverse and allowed the proceeds to be appropriated by the plaintiffs. 9. Defendant No.1 was agreeable to transfer the flat to the plaintiffs. Defendant No.1 was to receive the consideration. Defendant No.1 has also made two payments on his own loan transaction to the bank. 10. After various part payments made Rs.8.60 lacs was to be yet paid to defendant No.1. The loan account of defendant No.1 was showing a debit of Rs.5.61 lacs. The Bank credited that account to the extent of Rs.5.61 lacs. This would enure for the benefit of none other than defendant No.1. This would be the advantage received by defendant No.1 in the transaction that he entered into for sale of the flat pending the proceeding under the Securitisation Act which was previously undertaken by the Bank and by which his loan would be cleared. Defendant No.1 has thereafter not offered to pay any part of the loan to the Bank by way of EMIs or otherwise. 11. The last balance amount was Rs.2.91 lacs to be 4 paid by the plaintiffs to defendant No.1. The plaintiffs had taken loan for that purpose. The Bank was to issue a cheque in the name of defendant No.1. The plaintiffs would be required to pay all the loan by EMIs or otherwise. 12. The Bank issued a DD in favour of defendant No. 1 on 11.12.2007. It was sent by Speed Post to defendant No. 1 on 12.12.2007. It was refused to be accepted on 14.12.2007 by defendant No.1. 13. The suit came to be filed on 11.03.2008. Thereafter the Bank again sent the DD by post on 14.03.2008 along with earlier letter dated 11.12.2007. The refusal by defendant No.1 has not been produced by the Bank. However the plaintiffs called upon defendant No.1 to hand over possession of the suit flat to the plaintiffs by his letter dated 27.12.2007. The possession was to be handed over by 02.01.2008. 14. Defendant No.1 sought to terminate the agreement on 29.12.2007. 15. It would have to be seen whether the termination of the contract by defendant No.1 is valid and justified and whether the plaintiffs would lose their right under the admitted agreement to sell the suit flat to the plaintiffs by virtue of such termination. The reason for the termination is delay in payment. The delay in payment is 5 between 30.06.2007 by which the payments had to be made as per the agreement and 29.12.2007 when the contract was sought to be cancelled. 16. In view of the proceedings under the Securitisation Act, the title of defendant No.1 was itself under a clout. Defendant No.1 himself desired to sell out the suit flat. He was to receive consideration therefor. He accepted part payment after the date on which the payment was to be effected namely on 30.06.2007. He allowed the Bank to credit his account so that his loan came to be wiped out. Mr. Mehta’s contention that he had not consented for wiping off his loan or crediting his account and that the plaintiffs and the Bank did so in collusion with one another is absurd. No loan of any party would be wiped off by the Bank crediting the party’s account when the party was already in default and Securitisation proceedings were initiated without his consent. In any event rather than defendant No.1 being prejudiced by the Bank he has benefited therefrom. His properties would otherwise have been taken by the Bank in its possession. His loan would have remained pending. 17. Defendant No.1 must, therefore, abide the arrangement by which his amount got credited. 18. Defendant No.1 continues to be in possession of the suit premises. Since this loan has been wiped out, he 6 would not pay EMIs to the Bank or otherwise pay off the loan amount. The plaintiffs instead would be required to pay all the loan amount without obtaining possession. The situation is, therefore, grossly unjust for the plaintiffs accept for the fact that the plaintiffs did make some delay in paying balance amount shown in the agreement between the parties. However, defendant No.1 has himself condoned the delay. Part payment was received by defendant No.1. Thereafter his entire liability stood discharged allowing defendant No.1 to continue in possession of the suit premises. In such situation would be grossly unfair and unjust to allow defendant No.1 to continue in possession. 19. Consequently, case for grant of injunction as well as appointment of Receiver is made out. 20. Court Receiver is appointed Receiver in respect of suit flat No.201 in Ramsmruti Co-operative Housing Society Ltd. at Liberty Garden Cross Road No.1, Malad (West), Mumbai. The Receiver shall allow defendant No.1 to remain in possession upon defendant No.1 paying by way of royalty at least the amount of the EMIs required to be paid by the plaintiffs to the defendant No.3 Bank. This would be in addition of the arrears of Society maintenance which would have to be cleared by defendant No.1 within four weeks from today and in addition to usual security and the usual undertaking. If the defendant No.1 clears all the arrears within four weeks from today and pays the royalty as 7 fixed by the Receiver upon the parameters stated above, the Receiver shall himself pay the EMIs to defendant No.3 Bank. The Receiver shall also pay all the arrears of the Society. 21. Defendant No.1 shall continue to pay the maintenance and other charges of the society as levied by the society pending the suit without default. If any default is made in the payment of royalty or society charges the Receiver shall take possession from defendant No.1 and hand it over to the plaintiffs upon the same terms and conditions. 22. Defendant No.1 shall not dispose off, transfer, part with possession, alienate and encumber or create any third party right in the suit premises pending the suit. 23. This order is stayed for two weeks. (R. S. DALVI, J.)