IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3762 OF 2008 IN SUIT NO. 3041 OF 2008 Kashimira B. Jhaveri and Ors. ..Plaintiffs Vs. Donatus Anthony Alias Donatus George Anthony Cl. And Ors. ...Defendants ----- Mr.N.C. Dalal i/b. Dalal and Co. for Plaintiffs Mr. J.R. Yadav for Defendant No.1. ----- CORAM: V.M. KANADE J. DATED: 7TH SEPTEMBER, 2009 P.C. 1. Heard the learned Counsel appearing on behalf of the Plaintiffs. 2. None appears on behalf of the Defendants. 3. The Defendants on earlier occasion had appeared in person and had taken time for filing of affidavit in reply. In fact, Justice Shri Kathawalla on 7 th July, 2009 had made a specific observation in the said order that if the Defendants does not file his affidavit in reply, the Court will on the adjourned date of hearing proceed with the Notice of Motion on the basis that the Defendant No.1 has no defence to the Notice of Motion. Even after the said order was passed on 7 th July, 2009, the Defendants on one pretext on the other, have not filed any reply and took time to file affidavit in reply. 4. After heard the learned Counsel for the Plaintiff at length when I started dictating the order, the Advocate for the Defendants Mr. Yadav has requested that further time may be given to file affidavit in reply. However, this request for further adjourment is refused. The Plaintiffs have filed this suit against the Defendants for a declaration that the agreement dated 5.2.2007 made and entered into between the deceased father of the Defendants and Plaintiff No.1 stands terminated and for further declaration that the Defendant Nos.1 and 2 are trespassers in the suit flat and for further direction to the Defendants to hand over quiet, vacant and peaceful possession of the suit flat and for mesne profits in respect of the said flat for wrongful and /or unauthorized possession by the Defendants. It is the case of the Plaintiff No.1 that the Plaintiff No.1 made the entire consideration of Rs.31,00,000/- to the developers. Initially, the Defendant No.1 had agreed to purchase the suit flat for a total consideration of Rs.36,85,500/- and an agreement on or around dated 5.2.2007 was drawn up and executed between the deceased father of Defendant No.1 and the Plaintiff No.1. The said agreement, however, is neither stamped nor registered. Since the balance amount was not paid by the Defendants, the Plaintiff No.1 repaid the Rs.20,00,000/- which was paid by the Defendant No.1 to the Plaintiffs. The Plaintiff No.1 is relying on an amount of Rs.16,00,000/- which was paid by cheque and Rs.4,00,000/- which was paid by cash. The Plaintiff No.1 has relied on the letter written by the Assistant Manager, Central Bank of India certified that the Plaintiff No.1 had issued a cheque for Rs.16,00,000/- dated 8.12.2007 and it was debited from her account. The Plaintiff No.1 has also relied on the xerox copy of the cheque and the bank pass book in respect of her saving bank account. Though the agreement with Defendant No.1 was terminated and he had agreed to hand over the possession to the Plaintiff No.1, the Plaintiff No.1, in the meantime,had entered into an agreement with the Plaintiff Nos.2 and 3 by agreement dated 12.12.2007. The Plaintiffs have taken out this Notice of Motion for an ad-interim order restraining the Defendants from parting with possession of the suit flat and/or creating any third party rights and also for appointment of the Court Receiver. Since no reply has been filed by the Defendants, the averments made in the Notice of Motion taken out by the Plaintiffs will have to be accepted as true and correct. Sufficient time was given to the Defendants to file their reply. However, till today no reply has been filed. As a result, Notice of Motion taken out by the Plaintiffs is partly allowed. Ad-interim relief as prayed in the Notice of Motion is partly allowed . Further, the Court Receiver is appointed in respect of the suit flat. The Court Receiver shall take symbolic possession of the suit flat and shall appoint the Defendant No.1 as an agent of the Court Receiver on payment of security deposit of Rs.5 lacs and royalty at the rate of Rs.20,000/- p.m. The Defendants to file their written statement within eight weeks from today. Notice of Motion is disposed of. If the Defendants do not deposit the amount of royalty and security deposit within eight weeks, liberty is given to the Plaintiffs to apply. (V.M. KANADE J.)