1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1209 OF 2008 IN SUIT NO.4139 OF 1994 Nazimuddin Sayed ..Plaintiff V/s Sourabha Co-operative Housing Society .. Defendants & ors And Court Receiver ..Respondent Mr.K.T.Kukreja i/b.M/s.Kukreja & Co., Advocate, for the plaintiff None for the defendants Mr.R.T.Bhagat, Section Officer of the Court Receiver present CORAM : R.M.SAVANT, J. DATE : 4TH DECEMBER, 2008 P.C. . The applicant/plaintiff is in possession of the suit premises being flat No.402 in the defendant No.1-society as an agent of the Court Receiver. The plaintiff is obliged to pay the monthly outgoings to the defendant No.1-society. By an order dated 10th April, 2006 2 passed in Chamber Summons No.318 of 2006 a statement was on behalf of the defendant No.1-society by its advocate which has been recorded, to the effect that all the bills pertaining to the monthly outgoings in respect of the flat in question would be forwarded to the Court Receiver and the Court Receiver is directed to ensure that the defendant No.1-society's monthly outgoings are paid by the plaintiff. In spite of the said statement it appears that bills have not been forwarded to the Court Receiver, who further by his letter dated 7th April, 2008 has informed the plaintiff that no bills have been received by the Court Receiver. It appears that the advocate for the plaintiff had entered into correspondence with the defendant No.1-society and its Advocate pursuant to which the advocate for the defendant No.1- society, to his reply has annexed bill for the month of August, 2008 wherein the outstanding dues are shown. The said bill also shows an interest component of Rs.1025/-. Similar interest component has been shown for the preceeding month which is also annexed to the said reply of the advocate for the defendant No.1-society. It is the case of the applicant/plaintiff that till date an amount of Rs.2,00,000/- has been paid by the applicant/plaintiff which includes an amount of 3 Rs.85,000/- deposited with the Court Receiver and therefore in the absence of particulars being furnished by the society, the plaintiff should not be burdened with the payment of the so called arrears and interest. The applicant/plaintiff has therefore filed the above Notice of Motion for the following reliefs. (a) That pending the hearing and final disposal of the above suit, the Respondents be directed to furnish to the plaintiff copies of the bills issued by defendant No.1 till date and further as and when defendant No.1 furnishes copies of bills to the respondent or in the alternative, defendant No.1 be directed to furnish copies of the Society's bills to the plaintiff, to enable the plaintiff to make payment on time. (b) That pending the hearing and final disposal of the above suit, the defendants be directed to disclose on oath, in respect of suit flat, the following (i) The outgoings due and payable defendant No.2 to defendant No.1 per month from the year 1994 till date. (ii) The date of payment made by defendant No.2 to defendant No.1 towards the outgoings from 1994 till date. (iii) The rate and period of interest charged by defendant No.1 to defendant No.2 and on what amount. (c) That pending the hearing and final disposal of the above suit, the plaintiff should not be held liable for the payment of interest on the amounts due and payable by defendant No.2 to defendant No.1 in respect of bills till date as no 4 copies of bills were/are furnished to the plaintiff. (d) That pending the hearing and final disposal of the suit, the defendants, their servants and agents, any person or persons acting through or by themselves be restrained by an order and injunction of this Hon'ble Court from implementing/enforcing/executing the Order dated 10th April, 2006 (Exhibit “H” hereto) in respect of the suit flat No.402, Saurabh Apartment, Gokuldham, Goregaon(East), Mumbai – 400 063 or any part thereof. 2. Considering the reliefs sought this Court was of the view that the presence of the defendant No.1-society would be necessary for the adjudication of the reliefs sought in the Notice of Motion. The plaintiff's advocate was therefore directed to issue notice to the defendant No.1-society and its advocate. Inspite of notice being issued and served by the plaintiff's advocate none appeared for the defendant No.1-society on 1st December, 2008. The Notice of Motion was therefore adjourned for today and the plaintiff's advocate was directed to give a fresh notice by way of telegram of today's hearing, both to the society and the advocate for the defendant No.2. The plaintiff's advocate has accordingly sent a telegram on 1st December, 2008 informing the defendant No.1-society and the advocate for the defendant No.2 of today's hearing. Inspite of the same, none appears 5 for the defendants. The plaintiff has shown his willingness to pay the monthly outgoings which he is also otherwise obliged to pay as an agent of the Court Receiver. The difficulty has arisen in view of the fact that the plaintiff is not served with a copy of the monthly bills which, as directed by this Court are to be served on the Court Receiver, who in turn has to give it to the plaintiff. The letter of the Court Receiver to the plaintiff indicates the said bills are not served upon the Court Receiver also. 3. The notice and telegrams issued by the advocate for the plaintiff are taken on record and marked “X” and “Y” for identification. 4. In my view, therefore, it would be just & proper to issue the following directions. (i) The defendant No.1-society is directed to furnish a copy of the monthly bill to the plaintiff on or before 10th of each month, apart from the same being furnished to the Court Receiver. (ii) On receipt of the said bill, the plaintiff would remit the maintenance charges for the month by 15th of the said month. (iii) In so far as the arrears and interest are concerned, since 6 the defendant No.1 has failed to appear inspite of notice, the defendant No.1 would not be entitled to recover the alleged arrears and interest without the leave of this Court. (iv) The applicant/plaintiff would be entitled to continue to occupy the said premises on payment of the monthly outgoings from November, 2008 excluding interest pending the hearing of the above suit. (v) The Notice of Motion is accordingly made absolute in the aforesaid terms. (R.M.SAVANT, J.)