NMS 467-09com YBG 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.467 OF 2009 WITH NOTICE OF MOTION NO.2901 OF 2009 IN SUIT NO.251 OF 2009 Ravi Agarwal .. Plaintiff Versus Zenal Construction Pvt.Ltd. .. Defendants WITH NOTICE OF MOTION NO.468 OF 2009 WITH NOTICE OF MOTION NO.2903 OF 2009 IN SUIT NO.253 OF 2009 Ravi Agarwal .. Plaintiff Versus Zenal Construction Pvt.Ltd. .. Defendants WITH NOTICE OF MOTION NO.469 OF 2009 WITH NOTICE OF MOTION NO.2902 OF 2009 IN SUIT NO.252 OF 2009 Premlata A. Agarwal .. Plaintiff Versus NMS 467-09com YBG 2 Zenal Construction Pvt.Ltd. .. Defendants WITH NOTICE OF MOTION NO.470 OF 2009 WITH NOTICE OF MOTION NO.2904 OF 2009 IN SUIT NO.254 OF 2009 Premlata A. Agarwal .. Plaintiff Versus Zenal Construction Pvt.Ltd. .. Defendants Mr.A.A.Joshi i/b. Viraj Maniar Associates for plaintiffs Mr.D.H.Mehta i/b.D.A.Barot for defendants Mr.G.G.Ketkar, 1st Asstt. To Court Receiver. CORAM : S.C.Dharmadhikari, J. Date : 26th August 2010. P.C. 1] In a suit for specific performance of an agreement of sale in respect of flats more particularly described therein and in the prayers of the plaint and in this motion, after a detailed hearing, this Court made an order on 10th February 2009 and appointed Court Receiver in respect of the Flat Nos.703 and 801 in "A" wing. NMS 467-09com YBG 3 2] That order was further modified on 20th March 2009 after hearing both sides and physical possession of the subject flats was permitted to be taken over by the Court Receiver. 3] Today, the Court Receiver retains possession of the same. Thereafter, further motions were moved being Notice of Motion Nos. 2901 of 2009 and other motions. Those were heard along with other notices of motions in the companion suits. These motions were placed before the Court on 27th November 2009 and 2nd December 2009. After hearing the parties, once again at some length and perusing the affidavits and other material on record, the Court made further orders with regard to a flat bearing No.101 on the first floor of "A" wing, which was then proposed to be used as "Fitness Centre". 4] The earlier orders came to be modified with these orders with regard to certain other premises/ flats. 5] Both sides fairly state that these orders have been continuing till NMS 467-09com YBG 4 date. 6] Considering the nature of the dispute, viz., where the plaintiffs are seeking specific performance of an agreement for sale of immovable property but the defendants are contending that these are finance agreements/ transactions, interest of justice would be served, if the earlier orders are continued till hearing and final disposal of the suit. 7] Needless to state that grant and continuation is without prejudice to the rights and contentions of both sides and will not mean that the plaintiffs does not have to prove the case pleaded in the plaint. Ultimately, this Court has made interim orders soas to preserve and protect the subject matter of the suit and the grant of relief of specific performance is always subject to the statutory provisions and particularly sections 16 to 20 of the Specific Reliefs Act, 1963. 8] Accordingly, each of these motions are made absolute in terms of the ad-interim orders dated 10th February 2009 and subsequent orders as NMS 467-09com YBG 5 set out above. 9] In my view, there is sufficient discussion of the subject matter of the suit in the ad-interim orders and the same need not be repeated here. For the reasons set out therein and a prima facie case being made out, the Court Receiver is continued in respect of two flats and the injunction order in respect of flat No.101 shall also continue. 10] Mr.Mehta on instructions states that flat No.101 which was proposed to be utilised as "Fitness Centre" is still vacant and not put to such use. He states that it will not be put to such use except with prior leave of this Court. The statement made on instructions is accepted. 11] Mr.Joshi at this stage submits that keeping the flats vacant would serve no purpose and plaintiffs be put in possession as Agents of the Receiver. I am not agreeable to this suggestion for the simple reason that this is a suit for specific performance. The plaintiffs will have to prove their case and this relief in law is not absolute but it is discretionary. If NMS 467-09com YBG 6 there is any doubt, this is one Statute where the section itself states that the relief is discretionary. Once the relief is of such a nature and until and unless the Court is satisfied that a case is made out for grant thereof, it would not be proper to permit the plaintiffs to be appointed as agents of the Court Receiver and an order be made putting them in possession of the suit flats. Their apprehension is already taken note of and the subject matter of litigation is protected sufficiently with appointment of a Court Receiver and the injunction as granted. In such circumstances, the request of Mr.Joshi is not accepted. 12] Equally, his other submission that the "Fitness Centre" is something which is an after thought and plaintiffs are entitled to have a Receiver appointed of that flat also deserves to be rejected. To my mind, while passing ad-interim order this aspect has been gone into. Therefore, I am not inclined to appoint a Court Receiver of the said flat. The injunction as granted with the statement as recorded and accepted as undertaking to this Court sufficiently protects the plaintiffs at this stage. NMS 467-09com YBG 7 13] Considering that in some of the suits, written statement has also been filed, list all these suits for framing issues on 12th September 2010. 14] Needless to state that there is an Appeal, being Appeal No.202 of 2010, preferred from an order made by a learned Single Judge passed on a notice of motion which was moved by a third party, who lays a claim on flat No.703 A wing, which is stated to be pending. The same having been already disposed by the learned Single Judge and the appeal aforesaid is pending, this order does not preclude either the third party or the plaintiffs so also the defendants from raising appropriate pleas and contentions in that behalf. 15] All notices of motions are disposed of in the above terms. No costs. (S.C.DHARMADHIKARI, J)