1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.186 OF 2009 IN SUIT NO.3305 OF 2008 SEEMA ARIF KHAN PATHAN ..PLAINTIFF VS. ASHRAF KHAN PATHAN & ANR. ..DEFENDANTS Mr.A.S.Khandeparkar with Ms. Shilpa A. Joshi for the Plaintiff Mr. Vikas Khanolkar for Defendant No.1 Mr. H.P.Ingle for Defendant No.2 CORAM: Smt. ROSHAN DALVI, J. DATED: 20 th March, 2009 P.C.: 1. The Plaintiff has sought appointment of Court Receiver with direction to appoint her as agent of the Court Receiver, injunction against the Defendants from transferring or creating any third party rights in the suit premises and for an order of payment of Rs.5000/- per month to the Plaintiff as compensation for wrongful use and occupation of the suit premises. 2 2. The Plaintiff is the wife of Defendant No.2 and the Daughter- in-law of Defendant No.1. The marriage of the Plaintiff and Defendant No.2 was sought to be dissolved under the Petition in the Family Court filed by the Plaintiff. The Plaintiff and Defendant No.2 entered into the consent terms in that Petition on 01.03.2008. 3. Under the consent terms the Plaintiff and Defendant No.2 essentially decided to hand over possession of the suit flat to the Plaintiff and allow the Plaintiff to reside in the suit premises upon payment of certain consideration by her to Defendant No.1 as well as Defendant No.2 and on the promise that the Plaintiff would not claim any maintenance from Defendant No.2. The peaceful possession of the suit flat was to be handed over to the Plaintiff on 10.03.2008. 4. The Plaintiff seeks to be put in possession of the suit flat pursuant to the said arrangement / agreement reflected in the consent terms dated 01.03.2008 filed in the Family Court, Mumbai. 5. The suit flat is a joint property standing in the names of all the three parties to this suit. A loan was taken for the purchase of the suit flat in a sum of Rs.3,90,000 /- . It is 3 stated that the loan of Rs.1 lac was taken by the Plaintiff. The loan of Rs.2 lacs was taken by the Defendant No.2 and loan of Rs.90,000/- was taken by Defendant No.1. On the date of the consent terms the total amount of loan still due and payable was Rs.74,730/- . The Agreement in the Consent Terms shows that the Plaintiff would pay that amount also to discharge the loan completely. The Plaintiff was to pay a total sum of Rs.13 lacs for obtaining suit flat from Defendant No.1 & 2. Consequently it is seen that the Plaintiff and Defendant No.2 entered into certain arrangement under which they agreed to and came upon a specific liquidated amount which would be payable by the Plaintiff to both the Defendants. The Plaintiff had in fact made out two Demand drafts dated 01.03.2008 of Rs.6,50,000 /- each in favour of both the Defendants. 6. Under the Consent Terms the Plaintiff was also to return all the articles and documents which were in her custody to the Defendant No.2, her husband. She was not to claim any maintenance. She was also to withdraw criminal cases filed by her, before she would be put in possession of the suit flat. 7. Under the Consent terms both the Defendants were to co- operate to transfer the flat in the name of the Plaintiff and to comply with all the formalities with regard to such transfer. 4 8. Defendant No.2 was to withdraw certain police cases and criminal cases filed by him against the Plaintiff and her relatives. 9. Defendant No.1, the Father- in-law of the Plaintiff in whose name also the suit flat stood and who was to be paid consideration as reflected in the consent terms was also to relinquish and transfer his rights in the suit flat to the name of the Plaintiff and also to co-operate for the transfer of the suit flat and comply with all the formalities with regard thereto. 10. The decree in terms of the consent terms was to be passed after the parties complied with the consent terms. 11. The seminal requirement under the Consent terms was the payment of consideration by the Plaintiff for the suit flat and handing over of the peaceful possession of the suit flat by the Defendants. 12. It would therefore have to be seen what are the acts and deeds to be done by both the parties as also by others mentioned in the consent terms and whether those acts and deeds have been performed by the parties. 5 13. All the parties acted upon the consent terms. 14. The Plaintiff had already kept the consideration ready on 01.03.2008. Since all the three parties including Defendant No.1 herein had taken loan, the parties had to close the loan account. All the parties went to bank to get the loan discharged. The Plaintiff paid the balance amount of the loan of Rs.74,730/- . Initially the Defendants refuted the fact that they had acted upon the consent terms in any manner and had gone to the bank to get the loan discharged by closing the account upon making payment to the bank. Hence summons was issued upon the Bank Officer to produce documents relating to the loan account and its closure upon it being paid off. The officer of the Bank produced the documents. Copies have been taken on record and have been shown to the parties. The account has been closed on 04.03.2008, three days after the consent terms were entered into. The letter for closing the account has been signed by all the three parties. The amount has admittedly been paid by the Plaintiff. The entry of closure dated 04.03.2008 of the bank certified by the bank under the Bankers' Book Evidence Act and kept in the normal course of its conduct shows also the account closed as signed by all the three borrowers being the parties to this suit. Hence it is clear that 6 the consent terms reflected the agreement / arrangement between the parties as also Defendant No.1 who is the father- in-law of the Plaintiff and in whose name also the flat stood and who was also the joint borrower of the loan taken for the suit flat. It was acted upon by all of them. 15. The mode of withdrawing the criminal complaints filed by the parties would be way of Writ Petition under section 482 of Cr.P.C. to the High Court. The Defendants as also the other family members against whom the criminal complaints were filed, filed criminal Writ Petition No.721 of 2008 on 05.03.2008. The Criminal Writ Petition has been signed by Defendant No.2 on behalf of the all the family members including Defendant No.1. The vakalatnama for the criminal Writ Petition has been signed by all the family members including both the Defendants. Hence it is made further clear that the consent terms dated 01.03.2009 were acted upon by both the Defendants as per its terms soon thereafter. The Plaintiff could do nothing further then consent to the order being passed in the Writ Petition as per the procedure required for the withdrawal of the criminal complaints. 16. The Plaintiff also claims that she returned the articles and documents to the Defendant No.2. Defendant No.2 claims 7 that the articles and documents are not returned. The order passed by the family court, which shall be referred to presently has made a reference to the statement of the Plaintiff that she has returned all the articles and jewellery which were in her custody as per the consent terms. That order has not been challenged. 17. It is therefore seen that the consent terms have been entered into reflecting the Agreement of all the three parties to this suit though only the parties to the Petition actually signed the consent terms. It is further seen that all the parties acted upon the consent terms as agreed. The Plaintiff made arrangement for requisite consideration for being granted possession of the suit flat and got the loan discharged. The Defendants applied for withdrawal of the criminal cases. 18. It appears that Defendants had second thoughts. They sought to withdraw from the consent terms. Defendant No.2 was the Respondent in that Petition filed application in the family court on 07.04.2008 to withdraw from the consent terms on the ground that the Plaintiff failed to comply with the consent terms. The Application is hand written. A copy of the application is produced. The application is cryptic and completely the bereft of particulars. It does not show what 8 was the failure of the Plaintiff to comply with the consent terms. A detailed order has been passed by the then Principal Judge of the family court on the said application. The Application is refused. That order has not been challenged. It is worth nothing that on 07.04.2008 no allegations other than non compliance of the consent terms were made against the Plaintiff. 19. Defendant No.1 has never sought to challenge the consent terms; in fact he has acted upon the consent terms. 20. On 20.05.2008 the Plaintiff applied to the family court for depositing the demand draft in safe deposit. The Court has directed that the demand draft of Rs.13 lacs is kept in safe custody. The certified copy of the Roznama of the Court is produced by Defendant himself. 21. Though the consent terms were acted upon, the Defendants did not give peaceful possession of the suit flat to the Plaintiff. The Defendants continued to reside therein. The occupation and residence of the Defendants is against the consent terms entered into by the Plaintiff and Defendant No.2 and acted upon by the Plaintiff and both the Defendants. It is, therefore, wrongful user of the suit flat. The Plaintiff has filed the suit in this court against the 9 Defendant No.1 as he was not the party Defendant in the Family court. The Plaintiff has also successfully opposed the application for withdrawal from the consent terms in the family court against Defendant No.2 22. It is seen that the Plaintiff alone is entitled to possession and occupation of the suit premises. She is also entitled to transfer of the title of the suit premises. She has paid consideration as agreed between the parties in respect of the suit premises. She has discharged the loan taken for the suit premises. She has not opposed the withdrawal of the criminal cases filed by her. She is seen to have returned the articles and jewelery of the Respondent by the Family court. She became entitled to the enforcement of the consent terms and consequently entitled to enforce possession of the suit premises. 23. She is required to put in possession of the suit premises also because she, as the wife of Defendant No.2, is otherwise required to be maintained by him but is not maintained. 24. Advocate for Defendant No.2 is stated that Defendant No.2 is not employed after he returned from Dubai on 05.10.2007 where he was employed. Admittedly he has not paid any maintenance to the Plaintiff and the Plaintiff has given up 10 her right to maintenance upon being put in possession of the suit premises upon payment of the agreed consideration amount and discharge of the loan. 25. The case for appointment of Court Receiver and to put the Plaintiff in possession of the suit flat as the agent of the Court Receiver is made out. The Defendants' Advocates have relied upon various judgments showing the cases in which the order of the Court Receiver must be passed and with great caution and circumspection Rogunatrao M. Desai & Anr. Vs. Mineira Nacional Ltd., AIR 1974 GOA, Daman & Diu; S.B.Industries, Freegunj & anr Vs. United Bank of India, AIR 1978 ALLAHABAD 189; The Balrampur Sugar Co. Vs. Chalachhitra Bharati & ors., AIR 1981 CAL 123. 26. The facts of this case merits the appointment of Court Receiver as well as grant of injunction sought as prayed. The Notice of Motion is made absolute in terms of prayer (a) and (b). Prayer (c) is not granted in view of the grant of prayer (a). Court Receiver is appointed Receiver in respect of suit flat No.103, Greenvalley Co-op Housing Society Ltd., Building No.2, B Wing, Saki Vihar Complex, GVC Housing, Mumbai- 400072. The Court Receiver shall take possession of the suit flat from the Defendants and hand over vacant possession of 11 the suit flat to the Plaintiff. The Plaintiff shall occupy the suit flat pending the suit as agent of the Court Receiver without payment of royalty or security. The Defendants shall not transfer or part with possession or induct any third party or create any third party rights in the suit flat pending the suit. 27. Notice of Motion disposed of accordingly. 28. This order is stayed for 4 weeks. (Smt. Roshan Dalvi, J)