1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4350 OF 2006 IN SUIT NO.3445 OF 2006 Raman Satyapal Jaggi ..... Plaintiff V/s. Manjushri Arunkumar Mehta & Ors. .... Defendants Mr.Bhandari i/by N.M.Shah, for the plaintiff. Mr.S.S.Pakale, for defendant Nos.1 & 2. CORAM: R.Y.GANOO , J. DATED: 21 st JANUARY, 2009. P.C. 1. The suit is filed by the plaintiff for specific performance of the agreement dated 21-06-2005 and for other appropriate reliefs. The plaintiff has taken out the present notice of motion for two reliefs. By prayer clause (a) the plaintiff wants that the defendants should be restrained from transferring and/or creating third party rights in respect of the suit premises. By prayer clause (b), the plaintiff wants that the Court Receiver be appointed. 2. Pleadings are complete. At the commencement of the hearing of the notice of motion, the learned counsel for the plaintiff upon instructions, submitted that plaintiff is pressing for reliefs in terms of prayer 2 clause (a) only. 3. I have heard the learned counsel for both the sides. The defendants have admitted that the plaintiff had paid to the defendants Rs.21,000/- as set out in the document which came to be entered into between plaintiff and defendants on 21-06-2005. It is also admitted by the defendants that the plaintiff has paid to the defendants a sum of Rs.5,00,000/-. The learned counsel for the plaintiff admitted that by 21-07- 2005, the plaintiff was required to pay to IDBI Bank a sum of Rs.8,00,000/- so that the loan amount standing in the name of the defendants would get adjusted and the property would be free from all encumbrances. The learned counsel for the plaintiff drew my attention to the letter received by the plaintiff from the Co-operative Society in which the suit flat is situated, by which the plaintiff was informed that the “No objection certificate” which was granted earlier, has since been withdrawn. The learned counsel for the plaintiff submitted that balance consideration of Rupees 13 Lakhs and odd amount, was to be paid on 30-07-2005 at the time of taking possession of the suit flat could not be paid and that a sum of Rs.8,00,000/- was not paid because no objection certificate was revoked. The learned counsel for the plaintiff further submitted that the plaintiff has made out a prima facie case to hold that the plaintiff's notice of motion is required to be granted in terms of prayer clause (a). 3 3. As against this, the learned counsel for the defendants contended that the no objection certificate was revoked by the Society on account of misconduct on the part of the plaintiff and that the defendants are no way concerned with the said revocation of no objection certificate. He drew my attention to the Minutes of the meeting held on 21-07-2005. He tried to convince the Court from the said Minutes that due to certain dispute between the plaintiff and society, the society thought it fit to revoke no objection certificate and defendants are no way concerned in the matter of revocation of said no objection certificate. Mr.Pakale, the learned counsel for the defendants, submitted that irrespective of the withdrawal of the no objection certificate, the plaintiff ought to have paid Rs.8,00,000/- to IDBI Bank and as the said amount has not been paid by the plaintiff, the plaintiff is not entitled to specific performance as he has not complied with the terms of the agreement. Mr.Pakale, further submitted that the plaintiff's case that defendants should be restrained from creating third party rights would operate as a bar against the property and therefore, the reliefs prayed for should not be granted. 4. I have considered the rival considerations. It is admitted by the defendants that the plaintiff has paid a sum of Rupees Five lakhs and odd amount. The plaintiff has not paid to IDBI Bank a sum of Rs.8,00,000/, The no objection certificate is revoked on 20-07-2005. After reading the 4 Minutes of the meeting, it is clear that the dispute was between the plaintiff and the Society and therefore, no objection certificate came to be withdrawn. The fact remains that no objection certificate came to be withdrawn and therefore, plaintiff cannot be blamed for non payment to IDBI Bank because no prudent man would pay money when there is no NOC from the society. In my view, the stand taken by defendants that non payment of Rs.8,00,000/- by the plaintiff, ought to have been treated as default towards payment of the total consideration cannot be accepted. In my view, the conduct of the plaintiff in not depositing Rs.8,00,000/- with IDBI Bank can be said to be conduct of a prudent man and therefore, he cannot be blamed for the same. 5. In view aforesaid discussion, the plaintiff has made out a prima facie case for grant of injunction as prayed for. In my view, if the injunction is not granted, there is every likelihood that the defendants may create third party rights and cause further inconvenience to the plaintiff, in as much as a third party may occupy the said flat in future. Hence, the order of injunction is required to be granted as set out in prayer clause (a). Since the prayer for appointment of Court Receiver, is not pressed as of today, the said prayer is being disposed of as not pressed with no order as to costs. At the same time, liberty is granted to the plaintiff to apply for appointment of the Court Receiver in future if the situation so arises. In 5 view of the aforesaid observations, I pass the following order. : O R D E R : 1. The notice of motion is made absolute in terms of prayer clause (a) with no order as to costs. 2. The notice of motion stands disposed of with no order as to costs in so far as prayer clause (b) is concerned. 3. Liberty is granted to the plaintiff to take out afresh notice of motion for appointment of the Court Receiver, if situation so demands. ( R.Y.GANOO, J. )