1 NMS428.11.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 428 OF 2011 IN SUIT NO. 326 OF 2011 Sonal K. Patel. ... Plaintiff. V/s. Himanshu D. Desai. ... Defendant. Mr. Gautam Patel with Sheetal Shah i/b. Mehta & Girdharlal for the Plaintiff. Mr. Rajiv Narula i/b. S.H. Bohra & Co. for the Defendant. CORAM : R.Y. GANOO, J. DATED : 10th MARCH 2011. P.C. :- The Plaintiff has instituted this Suit to seek a declaration that the Plaintiff is the owner of the Suit flat described in prayer clause (a) of the plaint to the extent of undivided 95% share. This would equally mean that the Plaintiff admits that the Defendant has 5% share. The Plaintiff has sought partition of the Suit flat by meets and bounds keeping in view his contention that the Plaintiff is owner in respect of the flat to the extent of 95%. The Plaintiff has taken out this Notice of Motion for interim relief. By prayer clause (a) the Plaintiff wants an order against the Defendant calling upon the Defendant to pay compensation/mesne profit at the prevalent market rate but not less than Rs.10,000/- per day. He also 2 NMS428.11.sxw wants appointment of a Court Receiver and other related reliefs including payment of royalty by the Defendant to the Plaintiff. By prayer clause (c), the Plaintiff wants an order of injunction restraining the Defendant from disposing off, alienating, encumbering, parting with possession or creating third party rights in regard to the suit flat. Parties herein have completed the pleadings. 2. The Plaintiff has produced on record agreement to sell dated 30th August 2009 to show that the suit flat was purchased by the Plaintiff and the Defendant jointly from M/s. Premier Automobiles Ltd., Mumbai and the share of the Plaintiff was 95% and the share of the Defendant was 5%. In the said agreement to sell, there is an averment to indicate that consideration equivalent of 95% of the total consideration was paid by the Plaintiff and Rs.1,21,160/- were paid by the Defendant equivalent to 5% of the total consideration. The declaration purported to have been executed by the Defendant dated 25th January 2002 is relied upon by the Plaintiff to say that the name of the Defendant appears in the agreement to sell for name sake and the Plaintiff is the full owner of the flat. Learned Counsel Mr. Narula appearing on behalf of the Defendant pointed out that the said declaration is cancelled. Irrespective of the cancellation of said declaration fact remains that the Plaintiff has specifically admitted that he has 95% share and the Defendant has 5% share. 3 NMS428.11.sxw 3. I have heard learned Counsels on both sides. It was sought to be argued by the learned Counsel for the Plaintiff that since the Defendant is having only 5% share and is occupying the whole flat, the Plaintiff is entitled for compensation to the extent of his share in the suit flat as the Plaintiff is deprived of an amount to that extent. 4. In my view, in order to ascertain the question whether the Plaintiff is entitled to compensation as prayed for, it would be necessary to investigate as to how the Defendant entered the Suit flat. In paragraph 18 of the plaint there is a specific averment that the Defendant was allowed to occupy the Suit flat only for and during the tenure of the employment. It is also stated in the said paragraph that his services have been terminated and the Defendant is not entitled to continue in exclusive use and occupation of the suit flat. There is an averment immediately thereafter, to say that the Defendant is alleged owner of the Suit flat to the extent of 5%. That averment has no over-riding effect on the earlier averment by which the Plaintiff has admitted that the Plaintiff allowed the Defendant to occupy the Suit flat in connection with the employment. Paragraph 18 clearly shows that the initial entry of the Defendant was not on the strength of the ownership though partly and he was allowed to remain in possession of the flat because he was in the employment in an organization where the Plaintiff has some concern. If this is so, the Defendant has not been occupying the flat in his capacity as a 4 NMS428.11.sxw owner but on a different terms. Reading of paragraph 18 shows that according to the Plaintiff right of the Defendant to occupy the suit flat has come to an end on account of his termination of service. This fact has nothing to do with the right of the Plaintiff to occupy 95% or right of the Defendant to occupy 5%. Hence, it will not be possible for this Court to accept the case of the Plaintiff that the Defendant should occupy the premises on payment of some compensation. 5. In so far as the question of appointment of a Court Receiver, I am of the view that by appointment of a Court Receiver, no fruitful purpose will be served and if an order of injunction is granted restraining the Defendant from creating third party rights or by parting with possession, it would meet the ends of justice. The share certificate issued by the Society shows the name of the Plaintiff as well as the Defendant as a members. This will mean that the Defendant on his own to the exclusion of the Plaintiff would not be able to dispose of the Suit flat. This will also mean that it will be difficult for the Defendant to get the customer who would agree to purchase the flat from the Defendant without consent of the Plaintiff. Even other wise, the Defendant had made a statement on 17th January 2011 that he would not create third party rights and or part with possession etc. 6. In my view, there is no need to appoint the Receiver at this stage. There is no waste of the property merely because the Defendant is residing in the Suit flat. If an injunction is 5 NMS428.11.sxw granted in terms of prayer clause (c), that would be sufficient to protect the interest of the Plaintiff. 7. In view of the above, Motion is disposed of by passing following order :- (i) Motion is made absolute in terms of prayer clause (c). (ii) Motion is dismissed so far as prayer clauses (a) and (b). (iii) There shall be no order as to costs. (R.Y. GANOO, J.)