abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 4050 OF 2007 IN SUIT NO. 3009 OF 2007 Taraben Amrutlal Jain .. Plaintiff V/s Ramesh K. Gajaria .. Defendant Mr.N.N. Vaishnawa for the plaintiff. Mr.D.D. Madon i/b Mahesh Menon & Co. for the defendant. CORAM : D.G. KARNIK, J. DATE : 30TH JUNE 2008 P.C. P.C. P.C. : 1. Heard the learned counsel for the parties. 2. By this motion, the plaintiff prays for appointment of receiver in respect of flat no.301 on the 3rd floor of the building "Shreyas" at 10th Road, Chembur bearing CTS no.1196 and 1196/1 & 2 at village Chembur, Mumbai (for short "the suit flat") and for an injunction restraining the defendant from transferring - 2 - or creating any third party right in the suit flat till the disposal of the suit. 3. The plaintiff was a tenant in the old structure standing on the property. The defendant as a developer and promoter intended to develop the said property. He therefore requested the plaintiff to vacate the existing tenement and offered him to give accommodation in the new premises. He agreed to give accommodation to the extent of 667 sq.ft. free of costs equivalent to area the defendant was previously occupying and to give additional area of 383 sq.ft. at a concessional price of Rs.3,52,000/-. Accordingly, a written agreement was executed between the parties on 3rd October 2003. By that agreement, the defendant agreed to pay to the plaintiff a sum of Rs.12,000/- per month during the period he was out of possession till the construction of the building. The new building has now been constructed and flat no. 302 is ready for possession. The plaintiff has paid to the defendant Rs.3,52,000/- as provided under the agreement between the parties. According to the defendant, additional sum of Rs.19,14,943/- is due and payable by him as mentioned in para 3 of the affidavit in reply. According to him, the plaintiff is liable to pay the stamp duty and registration charges for the conveyance. He has further stated that the defendant has provided additional built - 3 - up area of 383 sq.ft. and therefore the plaintiff must pay additional sum of Rs.15,22,500/-. 4. As regards the stamp duty and registration charges, the amount has already been paid as can be seen from the endorsement of payment of stamp duty on the agreement itself. According to the defendant, he has incurred the expenditure on behalf of the plaintiff and the plaintiff must reimburse the same. There is no material on record to show that the defendant has paid the said amount on behalf of the plaintiff. That matter can be decided only after the evidence on trial. 5. Learned counsel for the plaintiff, however, submitted that assuming that the amount is payable, the defendant ought to have paid to the plaintiff the sum at the rate of Rs.12,000/- per month towards alternative accommodation as per the agreement and the said amount has not been paid by the defendant and the amount if at all due will be adjusted against the monthly payment of Rs.12,000/- which the defendant has to make. In view of prima facie, it appears that by and large the amount calculated at the rate of Rs.12,000/- per month would cover the amount of stamp duty and registration charges. 6. As regards the payment for the alleged additional built up area, the agreement specifically - 4 - provides that for the additional area of 383 sq.ft. the plaintiff was to pay only Rs.3,52,000/-. That amount has already been paid. Prima facie, it is not shown that the defendant is entitled to any additional sum. In the circumstances, in my view, the plaintiff would be entitled to an interim injunction. 7. As the building is already completed, no useful purpose would be served in keeping the suit flat vacant. In fact, the suit flat is likely to deteriorate in the event it remains unused. In my view, it would be just and convenient to appoint a receiver for the property. The claim of the defendant which at best is a monetary claim can be secured by directing the plaintiff to furnish reasonable amount of security. Hence, I pass the following order:- (a) The court receiver is appointed as the receiver in respect of the suit flat. The receiver shall take physical possession of the suit flat and hand over the possession of the suit flat to the defendant as his agent without payment of any royalty. However, the defendant shall furnish security to the receiver to the extent of Rs.10,00,000/-. (b) The defendant also pay to the receiver the maintenance and other charges payable to the society in - 5 - respect of the suit flat or pay the same directly to the Society/Association of flat owners. (c) Till the receiver takes possession of the suit flat, there shall be an order of injunction in terms of prayer (a) of the motion. (d) At the request of the learned counsel for the defendant, the order of appointment of receiver is stayed for a period of 4 weeks. (D.G. KARNIK, J.)