SRJ 1 ao-634-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.791 OF 2009 IN APPEAL FROM ORDER NO.634 OF 2009 Mrs. Poonam H. Jashnani & Another .. Applicants V/s. Mr. Chandan Shewani & Another .. Respondents. Shri P.S.Dani i/b. S.V.Gavand, for the Appellant. Shri R.S.Apte, Senior Counsel a/s. Amol Deshpande, for Respondent No.1. CORAM :J.H.BHATIA,J. DATE :3rd MAY, 2010 P.C.:- 1. With consent of the learned counsel, the matter is taken up for hearing and final disposal immediately. 2. Admitted facts are that the Plaintiffs are the owners of suit flats bearing nos.33 and 36 in the building known as Shamsharan situated at B Lane, Koregaon Park, Pune. The Plaintiffs filed Special Civil Suit No.806 of 2008 before the Civil Judge Senior Division, Pune for possession of the suit property on the ground that the Defendants have taken forcible possession of the suit property. The Plaintiffs during the pendency of the suit, filed application for appointment of Court Receiver and to hand over the possession to the Plaintiffs and not to SRJ 2 ao-634-09.sxw create any third party interest and parting with possession. The Defendants contested the suit. According to them, there was oral agreement under which the Plaintiffs has agreed to sell the suit flat to the Defendants for consideration amount of Rs.15 lakhs out of which, amount of Rs.5 lakhs was paid by the Defendants to the Plaintiffs in cash. Balance of Rs.10 lakhs was paid by the Defendants to the firm of which husband of the Appellant No.1 is a partner and thus, whole of the consideration of the payment has been paid and they were put in the possession of the said agreement. They also filed Counter Claim for Specific Performance of the contract. The Trial Court rejected the application of the Plaintiff in respect of all the three prayers. Hence, this Appeal. 2. Admittedly, there is no documents to show agreement for sale between the parties. According to the Plaintiffs, they have paid Rs.5 lakhs to the Defendants in cash , again there is no record to show the same. According to them, they have paid amount of Rs.10 lakhs to the firm of which husband of Appellant No.1 is a partner. The said payment was made by the two cheques. It needs to considered at the trial of the suit as to whether the payment made to that firm was towards part of the consideration of the amount to be paid to the Appellant. Atleast, at this stage, there is no documentary evidence to support that the said payment was made towards consideration of the said flat. The Defendants are in SRJ 3 ao-634-09.sxw possession of the suit property for last about four years and the suit filed by the Appellant is also pending for last about two years. In view of the circumstances and the Counter Claim of the party, it will not be desirable at this stage to grant mandatory injunction to hand over possession of the flat to the Plaintiff and the learned counsel for the Plaintiff also fairly considered this position. However, the learned counsel prays for appointment of Court Receiver (and with directions not to create any third party interest during pendency of the suit). Even in Written Statement filed by the Defendants while denying all the contentions of the Plaintiff, the Defendants have made an alternative prayer that if Court Receiver is to be appointed, the Defendant be appointed as agent of the Court Receiver so that possession of the Defendant over the suit property will not be distributed. In my considered opinion, it will be just and convenient and in the interest of both the parties to appoint Court Receiver with directions to appoint Defendants as their agents of the Court Receiver. Though the Defendants claims that they have paid whole of considered amount, that is in dispute. In case, the Appellant succeed in the suit and the Defendants fails to prove the agreement for sale and the payment, the Appellant may be entitled to property. To secure the mesne profits for the period during which the Appellant may be out of possession, some rent will have to be fixed by the Court Receiver and the Defendants, as the agents of the Court Receiver, may be SRJ 4 ao-634-09.sxw required to deposit that amount with Court regularly. 3. For the aforesaid reason, the impugned order is set aside and in the interest of justice and to protect the interest of both the parties, the Civil Judge Senior Division, Pune, before whom the Special Civil Suit No.806 of 2008 is pending, shall appoint Court Receiver with directions to appoint Defendants as agents of the Court Receiver. The Court Receiver shall fix the rent of the suit property, which will be deposited by the Defendants every month with the Court and that amount shall be deposited with some nationalized bank during pendency of the suit. The Plaintiff will not be allowed to withdraw that money. The rent so deposited and interest which may accrue on the same shall be subject to the result of the suit. The Defendants shall also file undertaking in the usual terms within four weeks after they are appointed as agents of the Court Receiver. 4. The Trial Court shall expedite the hearing of the Special Civil Suit No.806 of 2008 and shall dispose of the same as early as possible and preferably within one month. The Trial Court shall not be influenced by any observations made by this Court. 5. As appeal itself is disposed of, Civil Application No.719 of 2009 does not survive and stand disposed of. (J.H.BHATIA,J.)