1 MSS IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.307 OF 2008 IN NOTICE OF MOTION NO. 2461 OF 2006 IN SUIT NO. 2096 OF 2006 NITIN KANTILAL GANDHI & ANR. .. APPELLANTS Vs. MRS. FRANCINA ROSE MELITA VAZ & ORS. .. RESPONDENTS Mr. Hiralal Thakkar i/b M/s. Divekar & Co. for appellants Mr. Sailesh Naidu i/b Rupesh Madhav for R-1a & (b) Mr. Dinyar Madon i/b Sea Wassodw for R-2 Mr. J. Reis a/w Santosh Shetty for R-3 CORAM:SMT.RANJANA DESAI & K. K. TATED, JJ. DATE: 29/9/2008 P.C. . The appellants who are original plaintiffs claim one third share in the suit property on the basis of registered assignment deed dated 20/7/1995 executed by Allen one of the lessees, in their 2 favour. 2. The grievance of the appellants is that a development agreement is entered into by original defendant 1 with the 2nd defendant. It is their grievance that inasmuch as they have one third share in the suit property, that share needs to be protected. By the impugned order learned Judge has disposed of the notice of motion taken out by the appellants praying that pending the hearing and final disposal of the suit, the developer be restrained from carrying out development on the suit plot of land. The defendants have been directed not to dispose of two flats in the building that have been constructed on the suit property. Learned Single Judge has further directed that the defendants shall keep those two flats available until disposal of the suit and they shall inform the appellant the particulars of the two flats, that would be kept available, within 12 weeks from the date of the order. Learned Single Judge has further allowed the defendants to let out those flats to any third party on leave and licence basis or on lease, as the case may be, subject to the right of the appellants to claim mesne profits, if the suit is decreed in their favour. Necessary 3 undertaking has been directed to be filed within a period of four weeks from the date of the order stating that the defendants shall not dispose of the said two flats till disposal of the suit. This order is under challenge. 3. We have heard at some length learned counsel appearing for the appellants. He submitted that the statement made on behalf of the defendants that only two flats remain to be sold is not correct. In fact none of the flats have been sold. Learned counsel submitted that the defendants have not produced any registered agreements in support of their claim that the flats have been sold. Only some receipts have been produced in the court. Learned counsel submitted that, therefore, the impugned order deserves to be set aside. He urged that this is a fit case where Court Receiver should be appointed. In any event learned counsel submitted that inasmuch as the appellants have one third share in the suit property, the defendants should be asked to keep four flats vacant. 4. It is not possible for us to accept the submissionS of learned counsel for the appellants. Since building is already constructed appointment 4 of Court Receiver cannot be faulted. Our attention is drawn by learned counsel for the defendants to affidavit dated 26/8/2008 filed by Shri Gunvantrai P. Bhayanai, partner of the 2nd respondent. In paragraph 3 of the said affidavit it is stated that only two flats have not been disposed of. It is further stated that all other flats have been disposed of by the 2nd defendant and 2nd defendant has received consideration for the sale of the flats. There is no rejoinder filed to this affidavit. In our opinion, in the circumstances the impugned order deserves to be confirmed only with slight modification in the operative part. 5. The impugned order is confirmed with the following modification: . In the operative part of the order learned Judge has stated that the two flats could be let out to any third party on leave and licence basis or on lease. We make it clear that this direction will be restricted only to letting out the two flats on leave and licence basis. The words "lease" shall stand deleted. We further direct that net licence fee received by the defendants in respect of the said flats should be deposited by 15th of every 5 month in this court. Upon such amount being deposited the Prothonotary & Senior Master is directed to invest it in any nationalised bank on usual terms. Needless to say that the said amount shall abide by the final order that may be passed in this suit. 6. Appeal is disposed of in the aforestated terms. JUDGE JUDGE