KJ 1 IN THE HIGH COURT OF JUDICUATURE AT MUMBAI ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO.843 OF 2010 IN SUIT NO.494 OF 1991 Verinder Kumar Verma .. Plaintiff V/s. Satish S. Marathe and Anr. .. Defendants And Vastu Shilpa CHS Ltd., & Ors. .. Respondents ---- Mr.Vinay Bhate for the Plaintiff. Mr.M.C.Shah for defendant no.2. Mr.Akshay Patil i/by K.N.Bhandary for respondent no.1. Ms.Nisha K.Bhandary i/by K.N.Bhandary for respondent nos.3 & 4. Mr.K.H.Kanojia @ Mr. P.N.Patwardhan for defendant no.1. ---- CORAM : R.S.MOHITE, J DATE : JUNE 29, 2010 P. C.: 1 Heard all Advocates for the plaintiffs, defendants and respondents. The plaintiff has filed the aforesaid suit for specific performance of an agreement dated 3.11.1989 executed between the plaintiff and defendant no.1. Defendant no.2 to the suit is a KJ 2 real brother of defendant no.1 and he claims that defendant no.1 was not entitled to deal with the property under the suit agreement because property in question is a joint family property. The actual possession of the suit property which is flat no.B-5 is admittedly in the possession of a 3rd brother who is respondent no. 2 and whose name is Purshottam Shankar Marathe. 2 The admitted position is that respondent no.1 society has now entered into an agreement with developers who are respondent nos.3 & 4 and who propose to demolish the building and re-construct a new building in its place. It is also an admitted position that upon re-constructing the said building, a flat in lieu of the suit flat will be available to the person who is entitled thereto. The record also indicates that the Court Receiver has been appointed in respect of the suit flat and he has taken formal possession leaving the respondent no.2 in actual physical possession. Advocate for the respondent no.1 society which is involved in actual re-development of the building states that their main concern is to see that the development process is not stalled KJ 3 particularly since most of the residents of the building have vacated the said building. He states that there are only two persons who have not vacated the building. He also states that the process of obtaining IOD is under way. He further states that they are not really concerned with the dispute as regards the suit flat and would submit to the decision of the court on the question as to who will be actually entitled. 3 It is also an admitted position that defendant no.2 has filed a suit for injunction against defendant no.1. The said suit bears Suit No.3087 of 2007. The said suit is pending in this Court. In the interest of justice and by consent of all parties, the said suit is clubbed along with the present Suit No.494 of 1991. 4 In so far as present Chamber summons is concerned, though there are several reliefs, Advocate for the plaintiffs states that he will be satisfied if relief sought in prayer clause-(i) is molded to ensure that development continues but the rights of all parties are protected. In the circumstances, Chamber summons is disposed off KJ 4 by the following order :- O R D E R (1)That before the demolition of the building in which suit property being flat No.B/5 is situated, respondent nos.1, 3 & 4 will enter into an agreement with the Court Receiver, agreeing an undertaking to hand over vacant possession of the flat which will become allotable in lieu of the suit flat bearing flat no.B/5 to the Court Receiver. The Court Receiver will be entitled to take possession of the aforesaid flat. After taking possession, he will hand over possession thereof to respondent no.2 as an agent of the Court Receiver subject to payment of royalty but without security & further subject to additional undertaking to be taken from respondent no.2 that he will abide by the decision in the present suit and if it is held that the plaintiff is entitled for possession of the said flat, he will forthwith return the said possession to the Court Receiver. (2) It may be stated here that Purshottam has been served. I KJ 5 have seen the acknowledgment and the Advocate for the plaintiff undertakes to file affidavit of service within one week from today. This arrangement will be continued during the pendency of the suit and will be subject to the further orders which will be passed if and when the suit is decreed. It is made clear that for the purpose of re-development, the Court Receiver will be entitled to hand over the suit flat to the society but this would be done only after the agreement is executed by the society and the developers as aforesaid with the Court Receiver. This arrangement is also without prejudice to the rights and contentions of all parties in this suit as well as in Suit No.3087 of 2007. The other prayers of the chamber summons are rejected. However, the prayer relating to amendment is granted and the amendment may be carried out as per the schedule within two weeks from today. Amended copy of plaint to be served on all parties immediately thereafter. Chamber summons stands disposed off accordingly. (R.S.MOHITE,J.) KJ 6