1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1442 OF 2007 IN SUIT NO.1131 OF 2007 Shambhu Pundalik Nar & Ors. ...Plaintiffs Vs. Jayshree Jagannath Pathak @ Jayshree Suryakant Nar ...Defendant Mr.Vijay Sutrale for Plaintiffs Mr. Rajan Malkani for Defendant CORAM: SMT.ROSHAN DALVI, J. DATED: 10 TH DECEMBER, 2008 P.C. 1. The Plaintiffs have filed this Suit for declaration that the certificate of marriage dated 15 th February 1994 in respect of deceased son of Plaintiff one Suryakant and the Defendant is void. The Suit is also for declaration that the Plaintiffs are entitled to the estate of the said Surayakant, which is more specifically the Suit flat No.A-403, 4th floor, Triveni Co- operative Housing Society, Om Nagar, Sahar Pipe Line Road, Andheri (East), Mumbai- 400 099 and for other incidental reliefs with regard to the said flat. 2. The Defendant has failed to appear at the inception in 2 this Suit. The Plaintiffs took out an interim application and applied for ad- interim reliefs. The Plaintiffs are granted injunction in terms of prayer (b) of Notice of Motion on 26th April 2007, which came to be confirmed on 4th May 2007. 3. Thereafter, the Defendant appeared and filed her reply to the Notice of Motion on 10 th April 2008 through her Advocate Mr. Rajan Malkani & Company. A 3rd party one Mr. Datta Ragunath Bhane filed affidavit stating that the C.A of the Defendant had put him in possession of the suit flat under a certain transaction he had with the Defendant. This Suit is not concerned with that transaction. 4. The Plaintiff has applied for appointment of Court receiver in respect of the suit flat and for being appointed Agent of the Court Receiver as Defendant is shown to have handed over possession of the Suit flat to the said 3rd party Datta Ragunath Bhane. 5. The Plaintiffs' Advocate was directed to give notice of this application to the Defendant's Advocate. Mr. Sutrale on behalf of Plaintiffs gave notice as directed. 6. Mr. Malkani of Rajan & Malkani Company appeared pursuant to notice. He applied for time to take instructions 3 from the Defendants with regard the orders to be passed in the Notice of Motion. He has written to the Defendant on 3rd December 2008 under Certificate of Posting and R.P.A.D calling for instructions. He has not received any instructions. He tenders the copy of this letter addressed to the Defendant along with the original postal certificates and the postal slip showing the packet being sent by U.P.C as well as R.P.A.D. His copy letter as well as the original certificate of posting and the postal slip are taken on record. 7. It is seen that the Defendant has not given instructions. Hence the Plaintiffs' Notice of Motion can be disposed off. It is seen that the Defendant has handed over possession to a 3 rd party. 3 rd party has filed further affidavit stating that he is ready and willing to hand over possession of the suit flat to the Plaintiffs, who may be allowed to use the suit flat till the hearing of the Suit and be directed to pay maintenance amount to the Society. 8. Under these circumstances the Plaintiffs have become entitled to relief of appointment of Court Receiver in respect of the suit flat. 9. Hence following order:- 1. Court Receiver is appointed Receiver in respect of suit 4 flat No.A-403, 4th floor, Triveni Co-operative Housing Society, Om Nagar, Sahar Pipe Line Road, Andheri (East), Mumbai- 400 099. 2. The Plaintiff is appointed Agent of the Court Receiver without payment of royalty and/or security, but on payment of the Society charges and the maintenance amount claimed by the Society. 3. The Plaintiff shall execute the Agency Agreement in terms of the above. 4. The Court Receiver shall take possession of the suit premises from Datta Ragunath Bhane and hand it over to the Plaintiff. 5. It is clarified that the order of appointment of Court Receiver shall not bind on any 3rd party. 6. No order as to costs. (SMT. ROSHAN DALVI, J.)