:1: :1: :1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. O.O.C.J. O.O.C.J. NOTICE OF MOTION NO. 2992 OF 2003 NOTICE OF MOTION NO. 2992 OF 2003 NOTICE OF MOTION NO. 2992 OF 2003 IN IN IN SUIT NO. 3181 OF 2003 SUIT NO. 3181 OF 2003 SUIT NO. 3181 OF 2003 KANCHANGAURI KIRTIKUMAR VAKHARIA ...Plaintiffs. vs. SHANTIBHAI SHAH AND ORS. ...Defendants. Sanjay Jain i/by. Ramesh Jain for the plaintiffs. R.D. Suryavanshi for the defendants. CORAM: S.U. KAMDAR, J. CORAM: S.U. KAMDAR, J. CORAM: S.U. KAMDAR, J. DATE : 22ND FEBRUARY, 2006. DATE : 22ND FEBRUARY, 2006. DATE : 22ND FEBRUARY, 2006. P.C. : P.C. : P.C. : 1. The present Notice of Motion has been taken out for the impounding documents being the agreement for sale dated 22.2.1984, power of attorney dated 21.3.1989 and the sale deed dated 7.3.2003. Reliefs of injunction and Receiver in respect of the premises being Shop no. B-18, in :2: :2: :2: the building known as Sarvodaya Nagar, C.P. Tank, Panjrapole Lane, Bombay-400 004 are also sought herein. It is the case of the plaintiff that the agreements on which reliance has been placed by the defendant being agreement for sale dated 22.2.1984 and power of attorney dated 21/3/1989 and sale deed dated 7.3.2003 are all fraudulent and bogus and are required to be cancelled under the provisions of the Specific Relief Act. 2 In support of the aforesaid contention learned counsel for the plaintiff has drawn my attention that agreement indicates that the same is executed as far back as 22.2.1984 and the same provides for consideration of Rs.1,75,000/-. He further pointes out that the case of the defendant is that out of the sum of Rs.1,75,000/- Rs.1,50,000/- is paid in cash. Learned counsel for the defendant has relied upon a receipt which is at the bottom of the agreement on page 92 of the plaint in support of the aforesaid payment. :3: :3: :3: It is his case that thereafter infact two licence agreements have been executed between the plaintiff and the defendant no.1 being licence agreement dated 26.8.1989 and 26.5.1991 and in both the said licence agreements there is not even a reference of any such alleged agreement of sale dated 22.2.1984. It has been the further case of the plaintiff that infact under the licence agreement not only the defendant no.1 was put in possession of the said premises but infact the defendant no.1 has also paid the charges which are stipulated in the said licence agreement. The plaintiff has also contended that the son of the plaintiff i.e. defendant no.2 has colluded with the defendant no.1 herein and has obtained fabricated power of attorney and on the basis of fabricated power of attorney the sale deed has been executed by defendant no.2. It is the case of the plaintiff that she filed a complaint with the police both against defendant no.1 and 2 for flat and fabrication of documents and the said proceedings are pending. Both the defendant no.1 and 2 are on bail. :4: :4: :4: 3. Learned counsel for the defendant has on the other hand contended that there is enough evidence to show that not only there is an agreement of sale dated 22.2.1984 executed but that he is in possession of the said premises since 1984. It is however admitted that defendant no.2 has executed the sale deed on the basis of power of attorney purpotedly executed by defendant no.1. Learned counsel for the defendant has also contended that the licence agreement dated 26.8.1989 and 26.5.1991 were executed merely to accommodate the defendant no.2 who is the son of the plaintiff and not for any other purpose. 4. I have considered the case of both sides. I am of the opinion that the plaintiff has made out a prima-facie case for appointment of the Court Receiver. Firstly the agreement dated 22.2.1984 is for total consideration of Rs.1,75,000/-. Admittedly there is no proof to show that infact the sum of Rs.1,50,000/- is paid :5: :5: :5: save and except the receipt which is also forming part of the same agreement which is under challenge. The plaintiff has denied the execution of the said agreement in toto including the receipt of the cash amount thereunder. In the light of the denial of execution of the agreement it was necessary for the defendant to show that any payment is made or atleast to show that between 22.2.1984 to 26.8.1989 there is contemparious evidence or documents to suggest that infact such an agreement was executed between the parties. The defendant has failed to produce any material whatsoever to establish that even prima-facie any such agreement dated 22.2.1984 was executed. Infact the conduct of the defendant in entering into licence agreement dated 26.8.1989 and 26.5.1991 is contrary to the case that the defendant no.1 is the purchaser of the property. Clauses 2, 3 and 8 of the agreement indicates that infact the defendant was only a licensee as far back as 1989. It is inconceivable to accept the case of the defendant that even after purchasing the agreement he :6: :6: :6: continued to enter into licence agreement contrary to his rights as purchaser of the said property. In so far as the sale deed is concerned it is admittedly not signed by the plaintiff. The said sale deed recites that a sum of Rs.7,108/- was paid by the defendant no.1 to the plaintiff by Cheque No. 139890 in the favour of Punjab National Bank dated 3.3.2003. Admittedly the said cheque has been deposited in an account which has been a joint account of the plaintiff and the defendant no.2. As soon as the said fact has come to the knowledge of the plaintiff the plaintiff has immediately filed a criminal complaint and has filed the present suit in 2003 itself. In the light of the aforesaid fact, prima-facie I am of the view that the case set out for purchase of the property by the defendant cannot be accepted and therefore the following order is required to be passed : (i) The Court Receiver is appointed inrespect of the said Shop :7: :7: :7: premises being Shop no. B-18, Sarvodaya Nagar, C.P. Tank, Panjrapole Lane, Bombay-400 004. However the Receiver is directed not to take physical possession but appoint defendant no.1 as his agent without payment of security, but on payment of regular royalty charges. (ii) Till the Receiver takes possession, ad-interim order of injunction to continue. (iii) A further order is passed restraining the defendant no.2 from acting on the said power of attorney dated 21.3.1989. assed/- *********