1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3899 OF 2009 IN SUIT NO.2868 OF 2009 Dwarkadas alias Dwarkesh Gangadas Panchmatia .. Plaintiff Vs. Lakhani Industries Ltd. and Ors. .. Defendants Mr.P.G.Vora i/b Mr.G.K.Vora and Mr.D.K.Mishra for the plaintiff Mr.Rahul Chitnis with Mr.Nikhil Rajani i/b M/s.V.Deshpande and Co. for respondent nos.1 to 4 Mr.S.U.Kamdar, Sr.Advocate with Mr.Pratik Majumdar i/b M/s.M.P.Savla and Co. for respondent no.6 CORAM : S.C.Dharmadhikari, J. DATE : August 30, 2010 P.C. : 1. The plaintiff by this notice of motion seeks appointment of a Court Receiver in a suit for specific performance of an Agreement for sale. The plaintiff claims that the total consideration was Rs.60 crores under the said agreement but was conditional upon defendant no.1 making out a marketable title. 2. The plaintiff alleges that there was a mortgage of the property in favour 2 of Peoples Cooperative Bank, Pune and therefore, the marketable title was not made out. It is alleged that instead of acting in furtherance of the obligations, the defendants have colluded with each other to defeat the Agreement of which he seeks specific performance. They have filed a collusive suit in which a consent decree has been obtained and a copy of the said consent terms has been annexed at page 102 of the paper book. 3. It is stated that these consent terms were placed before the court and an order was sought in furtherance thereof. Thereafter the consent terms were taken on record and decree came to be passed. In pursuance thereof, in purported execution of such a decree Appointment of Court Receiver was sought and therefore, the Court Receiver, High Court, Bombay has been appointed as Receiver of the immovable Property which is covered by the suit agreement. It is alleged that the Receiver have not been moved by the parties and therefore, despite his appointment he has not taken any steps in the matter. 4. My attention is invited to my order dated 19.11.09 wherein a statement was recorded of the defendants counsel that as and when the court receiver is being discharged, a notice will be given to the plaintiffs and thereafter, they can make appropriate application for interim reliefs. It is alleged that to defeat such a statement and by a circuitous route what the parties have done is to get the Receiver s appointment extended and ’ 3 that too without notice to the plaintiffs or their advocates. The receiver is now appointed upto 19th February, 2011. 5. After this matter was placed for hearing and final disposal, the parties were heard. Mr.Kamdar, learned Senior counsel appearing for defendant no.6 makes a statement that the defendant no.6 will give due notice of any application which would be made in the proceedings in Suit No.125 of 2008 wherein the parties were seeking extension of appointment of the Court Receiver. He states that notice of such an application will be given to the plaintiffs and their advocates and even the Receiver would be duly informed in that behalf. 6. In my view, this statement made on instructions sufficiently protects the plaintiff s interest at this stage. The plaintiff seeks appointment of Court ’ Receiver independent of the claim of the parties under the said consent Decree but presently the property is Custodia Legis in as much as the Court Receiver is already appointed as Receiver of the same. Once there is a Court Receiver and he has not been discharged and will not be discharged without prior notice to the plaintiffs nor would any extension be sought of his appointment without prior notice as indicated above, interest of the plaintiffs are sufficiently protected. Notice of Motion is therefore disposed of with the following order and directions. 7. The Court Receiver and/or defendant no.6 shall give 72 Hours prior 4 notice to the plaintiffs and their advocate, in case he desires to make an application seeking discharge of the Court Receiver or extending his term. Liberty is given to the plaintiff to make appropriate application in case he receives such notice and all contentions of both the sides in that behalf, so also merits of the claim of the parties in the instant suit are kept open. 8. The Court Receiver, High Court, Bombay shall act upon an authenticated copy of this order and hereafter shall attend all such proceedings as would be initiated either by the plaintiffs or the parties to the consent terms, Copy of which is annexed at page 103 of the paper book in suit no.125 of 2008. ( S.C.Dharmadhikar, J )