IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 872 OF 2009 IN SUIT NO. 170 OF 2009 UCO Bank....... Plaintiff versus Vinayak Narayan Sawant & ors........Defendants. Mr. M.R. Patel adv. For the Plaintiff Ms. Deepa Kamath forf Defendant nos.1 to 3. Mr. O.S. Kutty for defendant no.5. CORAM: A. P DESHPANDE, J. DATED : 13th July, 2009. P. C.: 1. UCO Bank has instituted the present suit for recovery of an amount of Rs. 4,36,836/- seeking a decree jointly and severally against the defendant nos. 1, 2 and 3. Defendant nos. 1 and 2 are the borrowers whereas the defendant no.3 is the guarantor. No decree is sought against defendant no.5. 2. According to the plaintiff on account of mis-representation, the plaintiff had advanced loan for purchase of a flat bearing no. 303. The defendants no.1 and 2 have also created an equitable mortgage by deposit of title deed. The loan is stated to have been advanced on 21st June 2004 and the deposit of title deed with a view to create a mortgage is also of the same date. According to the defendants 1 and 2 the amount was disbursed to the contractor defendant no.4. The Plaintiff is placing its claim on the loan document coupled with the deposit of title deed creating a mortgage. The defendant no.5 has filed an affidavit in reply stating therein that he is in possession of the flat in question under the conveyance executed by defendant no.4 dated 29-1-2003. According to the defendant no.5 the conveyance is registered with the Sub Registrar of Assurances, Thane. It is also stated that the original documents have been deposited with Bank of Baroda as defendant no.5 has taken loan from Bank of Baroda. As defendant no.5 has purchased the flat much before the grant of loan by the plaintiff to defendant nos. 1, 2 and 3, the execution of the mortgage by deposit of title deed which pertains to the same flat does not create any right, title or interest in the plaintiff, prima facie. As the defendant no.5 has purchased the property much prior to the alleged purchase of the same property by defendants 1 and 2 the said transfer cannot affect the right, title and interest of the defendant no.5. 3. In the result, I hold that the plaintiff has failed to make out a prima facie case in support of the prayer made in the Notice of Motion which relates to appointment of Receiver and an order of injunction. The defendant no.5 is admittedly in possession of the flat and he claims the possession consequent upon the execution of the conveyance by defendant no.4. It is also brought to my notice that the defendant nos. 1 and 2 herein have approached the Consumer Forum with a view to recover the amount from defendant no.4, and a decree has been passed in favour of defendant nos. 1 and 2 and against defendant no.4 in the sum of Rs. 4,01,700/- which obviously includes the amount advanced by the plaintiff to the defendant nos. 1 and 2 for purchase of the flat. In that view of the matter as no case for ad-interim relief is made out, the Notice of Motion claiming ad-interim relief is rejected. (A. P. Deshpande, J.)