1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 378 OF 2009 IN SUIT NO. 3283 OF 2008 Laxman Balwant Khot ....Plaintiff Versus Mrs. Kalpana Keshav Patil ....Defendant Mr. S. P. Kanuga i/b. A. G. Gondwal, Advocate for the Plaintiff. CORAM : R. V. MORE, J. DATE : 2nd FEBRUARY, 2010. P.C. : Heard Mr. Kanuga, learned Counsel for the Plaintiff. 2. The notice of motion is taken out for direction to Defendant to pay to the Plaintiff monthly payment of Rs.7,000/- from 1st July, 2006 till his removal from the suit flat. Alternatively, it was prayed that the Court Receiver, High Court, Bombay be appointed as a Receiver of the suit flat. Injunction was also claimed against Defendant, restraining her from creating third party interest in the suit flat. 3. The Plaintiff has filed the above suit for declaration that an agreement dated 30th June, 2005 between himself and the Defendant is valid, subsisting and Defendant be directed to specifically perform the said agreement. The 2 consequential relief of direction to Defendant to pay the balance amount of consideration of Rs.5,50,000/- with interest to the Plaintiff is also asked for. 4. The Plaintiff is the owner of the suit room i.e. Room no. 310, 3rd floor, 365-C, Shivshakti Park, N. M. Joshi Marg, Mumbai – 400 011. By an agreement dated 30th June, 2005, the Defendant agreed to purchase the suit room from the Plaintiff for total consideration of an amount of Rs.6,50,000/- and out of this amount, an amount of Rs. 1,00,000/- was paid on execution of the said agreement. However, balance consideration of Rs. 5,50,000/- was refused to be paid. It is also the case of the Plaintiff that the Defendant was occupying the suit room since April, 2005 as Gratuitous Licensee. The Plaintiff was ready and willing to perform his part of the contract but the Defendant refused to perform her part of contract and therefore, the present suit. It is submitted that Defendant after execution of the aforesaid agreement could not continue with the possession of the suit room without paying either rent or the balance amount of consideration. 5. The writ of summons alongwith copy of the plaint was served upon the Defendant. However, she failed to appear in the suit and therefore, the suit was transferred to the list of “Undefended Suits”. The Plaintiff thereafter, took out the present notice of motion for the reliefs mentioned above. The present notice of motion was also tried to be served upon the Defendant through the bailiff. However, the Defendant refused the service of the said notice of motion. Affidavit to that effect, is also, filed by the Plaintiff. In such circumstances, I am 3 constrained to proceed to decide above motion in the absence of Defendant. 6. In the absence of any contest on the part of Defendant, the Plaintiff’s contentions that he is the owner of the suit room and Defendant executed the suit agreement, deserves to be accepted. The Defendant’s occupation in the suit room is presumed to be in pursuant of the suit agreement. The outgoings of the suit room are also being paid by the Plaintiff as he is the owner of the suit room. In that event, the Defendant could not occupy the suit room and not pay the balance amount of consideration, outgoings and/or compensation. 7. In the facts and circumstances mentioned above, I am of the opinion that it is just and convenient to appoint the Court Receiver as Receiver of the suit room. The notice of motion is accordingly, disposed of, by passing the following order: i) Pending the hearing and final disposal of the suit, the Court Receiver, High Court, Bombay is appointed as a Receiver of the suit room i.e. Room no. 310, 3rd floor, 365-C, Shivshakti Park, N. M. Joshi Marg, Mumbai – 400 011, with all powers under the provisions of Order 40 Rule 1 of the Code of Civil Procedure, 1908. ii) The Court Receiver to take possession of the said suit room without dispossessing the Defendant and appoint her as his agent on royalty that may be fixed by him without security on usual terms and conditions. 4 iii) Till the Court Receiver takes possession of the suit room, there shall be an interim order in terms of prayer clause (c) of the notice of motion. Sd/- (R. V. MORE, J.)