1 NM-2905 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. Notice of Motion No.2905 of 2010 IN Suit No.856 of 1988 Mary Patricia wd/o Joseph Peter Gonsalves & ors. ... ... Plaintiffs v/s. Allan S/o. Hyacinth Waiter Gonsalves & ors. ... ... Defendants And Court Receiver, High Court, Bombay. ... Respondent And Gabriel Apartment Co-Op.Hsg. Society Ltd. ... Applicant Mr.Cletus Gonsalves, Plaintiff No.5 in person. Mr.M. Janardhnan for Applicant. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 19th January 2011 P.C. : 1.This Notice of Motion is taken out by the Applicant-Co- operative Housing Society, essentially for discharge of the Court Receiver appointed in execution of the decree passed in the suit. 2.The Plaintiffs have sued for partition. The Defendants are their cousins. The property is stated to be 2 NM-2905 belonging to the respective predecessor-in-title of the Plaintiffs and the Defendants. 3.The property is a building consisting of 40 flats which were tenanted to various tenants. 4.The Plaintiffs and the Defendants entered into the Consent Terms on 4 th April 1991. They consented to the property being equally divided between the Plaintiffs and the Defendants. They also consented for sale of the property. The minimum price, which was fixed, was Rs.15 Lakhs. The property was to be sold on as is where is basis. The net sale-proceeds were to be divided equally between the Plaintiffs and the Defendants. The preliminary decree was agreed to be passed in those terms. The Court Receiver, who was appointed pending the suit, was agreed to be discharged without passing accounts but was to continue until the property was divided or sold as per the Consent Terms. Consequently, as per the agreement between the parties to the suit, once the property is sold, the Court Receiver has to stand discharged. 5.Parties put an effort to sell the property. The property was fully tenanted. Hence the parties would not have been able to sell it to a third party. The tenants themselves agreed to purchase the property. 3 NM-2905 This was to be purchased on payment of 350 rents to the landlord. Certain agreement came to be entered into by the Society which comprised the tenants as its members. 40 such agreements were signed by the tenants as well as the parties to the suit. Under those agreements, 50% of the amount was paid even prior to the agreements being entered into. 50% was to be paid within four months thereafter. The agreements have been entered into on 20 th October 1991 and are stated to have been registered on 23 rd January 1992. All the balance consideration was paid by the Society comprising the tenants by January 1992. It is alleged by the Society that despite payment of the entire consideration, the property was not conveyed to the Society. 6.The amount, which was paid by the tenants, was initially paid to their Advocate Mr.Saldhana. That Advocate paid to the Plaintiffs Advocate as well as the Defendants Advocate one Mr.Pirani and one Mr.Kapadia, respectively. Mr.Pirani has disbursed the amount received except Rs.2.80 Lakhs which have been invested in a Fixed Deposit. Mr.Kapadia released all the amounts to the Defendants. The Defendants are no longer interested in the property. Plaintiff No.5, who represented the Plaintiffs, is the sole contestant of this Notice of Motion and has challenged the transaction. He claims that the entire consideration is 4 NM-2905 not received and the property has not been sold. He states that upon consideration received, the property is not liable to be sold and since the sale has not been executed and the property has not been conveyed, the Applicant-Society would have to sue for that purpose. 7.The suit would be for obtaining the conveyance of the property upon the agreed consideration amount having been paid entirely. Such a suit has not been filed. Instead a Notice of Motion came to be taken out by the Applicant-Society for conveyance as well as discharge of the Court Receiver. The Court Receiver was discharged by an order of this Court passed by Justice Kamdar, as he then was, on 2 nd March 2006. In appeal that order came to be set aside and a fresh application was directed to be made because the conveyance could not be ordered in an application by way of the Notice of Motion taken out by the Applicant. They were required to file a separate suit for that purpose. They have taken out this Notice of Motion not for conveying the property but only for discharge of the Court Receiver. 8.In ordinary cases the Court Receiver would stand discharged because there is no waste of the property by the parties and there is no case for appointment of the 5 NM-2905 Court Receiver once the parties have settled their disputes and the Court Receiver appointed pending suit is agreed to be discharged without passing accounts. However, the parties have further agreed in the Consent Terms dated 4 th April 1991 that the Court Receiver is continued till the property is divided/sold as per those Consent Terms. The property has not yet been divided/sold. Plaintiff No.5 on behalf of the Plaintiffs states that the consideration is not received and hence there could be no sale. This aspect can be considered only in a separate suit. Only upon consideration of this aspect, can the suit for conveyance of the property to the Society be decreed or dismissed. In view of the agreement between the parties of continuation of the Court Receiver until the property is divided and sold, it would not be possible to discharge the Court Receiver pending such sale or conveyance. 9.It is argued on behalf of the Plaintiffs that the Court Receiver has not even paid taxes and has not managed the property. That may be correct. However, the Applicant has not become the owner of the property and title has not passed to it. It may be that the Applicant has a good case for transfer of the title. Such title can pass only in the suit. For that reason and since the Applicant claims only through the Consent 6 NM-2905 Terms between the parties and has sought the sale pursuant to the Consent Terms, the Applicant must abide by the Consent Terms fully, including its last term of continuation of the Court Receiver. 10.The Applicant would be entitled to apply for discharge of the Court Receiver in the suit upon making out a prima facie case. But in this application, the Court Receiver cannot be discharged. 11.There is no case for recalling the order dated 4 th April 1991 which is based upon the Consent Terms filed by and between the parties to the suit. In fact, the Advocate for the Applicant does not press for that relief. 12.Consequently, there shall be no order on the Notice of Motion. No order as to costs. (SMT.ROSHAN DALVI, J.)