1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3791 OF 2007 IN SUIT NO. 1074 OF 2007 Usha Michel Gohany ... Plaintiff Vs 1. Kishore Tikamdas Idnani & anr. ... Defendants Mr. Prem S. Gidwani for the plaintiff. Mr. J.S. Kini i/b Suresh Dubey for the Defendant No.1. Mr. Deepak Thakre for the Defendant No.2. CORAM: S.J. VAZIFDAR, J . DATED : 14TH DECEMBER, 2009. P.C. : 1. The suit is filed for a declaration that an alleged agreement dated 16th January, 1996 and an alleged Power of Attorney dated 5th January, 1996 are null and void. Defendant No.2 is the Plaintiff’s son. According to the Plaintiff, she purchased the suit flat by a registered agreement dated 29th March, 1988 from Defendant No.1. The execution of the agreement is not denied. It is contended, however, that the agreement was only as security 2 for the repayment of a loan of about Rs.8,00,000/- granted by the Petitioner to the Defendant. 2. The impugned agreement dated 16th January, 1996 was allegedly executed by Defendant No.2 as the Constituted Attorney of his mother, the Plaintiff. The exercise of rights as a Constituted Attorney were under the alleged Power of Attorney dated 5th January, 1996. 3. It is alleged by the Defendants that out of the consideration of Rs. 7,00,000/- stated in the alleged agreement dated 16th January, 1996, a sum of Rs.1,00,000/- was paid by cheque and a sum of Rs.6,00,000/- was paid in cash to Defendant No.2 as he was the Constituted Attorney of the Plaintiff. 4. To say the least, the Plaintiff requires protection in respect of the said flat. This is especially in view of the fact that the agreement dated 29th March, 1988 is admitted, the only contention being that it was a security to repay the loan of Rs.8,00,000/-. Further, there is no proof of payment of a sum of Rs.7,00,000/- under the alleged agreement dated 16th January, 1996 to the Plaintiff. It is stated on behalf of the Defendant No.1 that he is residing in the said flat permanently. A statement is made on behalf of 3 Defendant No.1 that he will not alienate, transfer, encumber, part with possession of or create any third party right, title and/or interest in, to, upon or in respect of the said flat. The statement is accepted and it is so ordered. Further, in the event of Defendant No.1 ceasing to reside in the said flat permanently, Defendant No.1 shall forthwith inform the Plaintiff’s Advocates in writing of the same. Liberty to the Plaintiff to apply in that event. 5. Defendant No.1 shall, without prejudice to the Plaintiff’s rights, pay all costs, charges, and expenses in connection with the said flat, including outgoings, repairs, taxes etc. during the pendency of this suit. 6. Defendant No.2 is restrained from acting upon the alleged Power of Attorney dated 5th January, 1996, in any manner whatsoever. He shall deliver the original Power of Attorney to this court within two weeks from today. 7. The counsel have agreed that evidence in this matter be recorded on commission. The directions for the same shall be applied for by the parties after the Issues are framed. 4 8. Notice of Motion, accordingly, stands disposed of.