1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL JURISDICTION NOTICE OF MOTION 4180 OF 2007 IN SUIT NO. 3048 OF 2007 Bhavesh Shah. .... Plaintiff. V/s. Mrs. Leena Marry Coutinho & Ors. .... Defendants. ....... Mr. Sanjay Jain i/b. L.J. Law for the Plaintiff. Mrs. A.S. Malvankar for the Defendants. ........ CORAM : DR. D.Y. CHANDRACHUD, J. 14TH JANUARY 2008. P.C. :- The parties having filed their pleadings in the Motion, by consent the Motion has been taken up for final disposal at this stage. 2 2. The Defendants were in occupation of premises on a plot of land on which the Plaintiff intended to carry out the construction of a building. On 8th June 2003, an agreement was entered into between the Plaintiff and the First Defendant by which the Plaintiff agreed to pay a certain sum of money and to provide permanent alternate accommodation in the building which was to be constructed by the Plaintiff. Clause 8 of the agreement provides as follows :- “ It is agreed by and between the parties that in lieu of the premises in occupation of the Owner the Developer in addition to the said sum of Rs.2 lacs shall provide a permanent alternate accommodation on the said property by constructing pucca building comprising of 1 room built up area admeasuring 170 sq. feet on ground floor and one room admeasuring 210 sq. feet on the 1st floor aggregating in all 380 sq. feet of cost with all facilities and amenities and amenities on ownership basis, as stated in the Schedule attached herewith” 3. The Plaintiff has constructed a building consisting of a ground floor and four upper storeys. A suit has been instituted by the developer under Section 6 of the Specific Relief Act, 1963 in which a motion has been taken out for the appointment of a Receiver in respect of the premises which are more particularly described as Flat No.102 situated on the first floor of the building known as “Vaibhav” situated at 115, St. 3 Anthony Road, Pond Village, Vile Parle (West), Mumbai -56. 4. The contention of the Plaintiff is that the Defendants were in occupation of accommodation situated in the vicinity and that on 25th August 2007, they forcibly occupied Flat No.102 when the occupation certificate was yet to be received. At that stage, according to the Plaintiff, no electric connection had been obtained. On the other hand, according to the Defendants, the Plaintiff put them in occupation of the premises in the month of May 2007 and that the premises of which they are in occupation have been provided in pursuance of their undisputed rights under clause 8 of the agreement dated 8th June 2003. 5. Counsel appearing on behalf of the Plaintiff submitted that the premises which are in the occupation of the Defendants at present have a carpet area of 380 sq. feet whereas the Defendants are entitled to premises admeasuring only a built up area of 380 sq. feet, in which event the carpet area would be substantially less. Hence, according to the Plaintiff, the Defendants are not entitled to the allotment of Flat 102, of which the carpet area is 380 sq. feet. Now, clause 8 of the 4 agreement between the parties to which a reference has already been made hereinabove is not free from difficulty. In so far as the area is concerned, the agreement stipulates that the Plaintiff would provide to the First Defendant one room with a built up area admeasuring 170 sq. feet on the ground floor and one room admeasuring 210 sq. feet on the first floor aggregating in all 380 sq. feet free of cost with all facilities and amenities on ownership basis, as set out in the Schedule. While the agreement refers to the dimensions of the room on the ground floor as 170 sq. feet built up area, it does not refer to the room situated on the first floor as having a built up area of 210 sq. feet. Similarly, while describing the aggregate area, there is no reference to 380 sq. feet being the built up area. This issue will have to be resolved at the trial. Hence, the contention of the Plaintiff that the Defendants are not entitled to the premises which are presently in their occupation cannot be accepted at the interlocutory stage. The Court cannot be unmindful of the fact that it was as a result of the agreement which was executed by the First Defendant with the Plaintiff that the development would proceed in the first instance and, but for the Defendants vacating the accommodation which was in their occupation, the project of 5 development could not have been proceeded with. 6. These circumstances must have some bearing on the equitable considerations which should guide the Court in a manner such as the present. The building is now complete and the Defendants are in occupation of Flat 102 admeasuring a carpet area of 380 sq. feet. At one stage, during the hearing it was stated before the Court by Counsel for the Plaintiff that the Plaintiff has entered into a registered agreement in respect of this flat in favour of a third party but it is now clarified by Counsel on instructions that while the agreement has been stamped, it has not been registered and an amount of Rs.13.50 lakhs has been received in pursuance of the agreement. The contention of the Plaintiff that the Defendants took forcible possession of the premises must be weighed against the contention of the Defendants that they were placed in occupation of the premises by the Plaintiff when the structure was complete, though the occupation certificate was to be obtained. The question as to which of these rival cases should be accepted is a matter of evidence on which it is not possible on the present state of the record to arrive at a finding. On a prima-facie evaluation of the case of the 6 Plaintiff, there is nothing at the present stage to lead the Court to accept the case that the Defendants had forcibly entered upon occupation of Flat 102. 7. During the course of the hearing, Counsel appearing on behalf of the Plaintiff sought to rely upon an affidavit of a watchman and of the Defendant's brother. Counsel appearing on behalf of the Defendants has seriously objected to reliance being placed on the aforesaid affidavit since it has been stated that inspection thereof was not granted at any stage prior to the hearing that has taken place in this proceeding. In my view, besides the aforesaid objection which cannot be brushed aside, the question as to whether it was the Plaintiff who had voluntarily placed the Defendants in possession in May 2007 or whether the Defendants had entered into occupation on 25th August 2007, is a matter on which evidence would have to be adduced at the trial of the suit. 8. In these circumstances, I am of the view that no case has been made out for the appointment of a Receiver in the Motion. 7 However, on behalf of the Defendants, it has been stated that in terms of prayer clause (b) of the Motion, the Defendants shall not sell, transfer, alienate, encumber or create any third party rights and shall not part with the possession of Flat 102 which is in their occupation at present. An undertaking to that effect shall be filed by all the Defendants in Court within a period of one week from today. The statement made on behalf of the Defendants by the learned Counsel on instructions is accepted. 9. The Notice of Motion is accordingly disposed of. -----