1 app365.10.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 365 OF 2010 IN NOTICE OF MOTION NO. 3069 OF 2007 IN SUIT NO. 2308 OF 2003 Dipak Development Corporation ....Appellant. Vs. Veena Vithaldas Sampat & Ors. ....Respondents. Mr. Sanjay Jain with Ms. Yogini Gada i/by M/s. Harakhchand & Co. for the Appellant. Mr. Mahendra Rathod, i/by Mr. Vishnu Damle for Respondent Nos. 1,2,3,9,15, 19A, 21 to 23. CORAM : DR. D.Y. CHANDRACHUD AND ANOOP V. MOHTA, JJ. DATE : NOVEMBER 29, 2010 P.C.: Admit. 2 Since the contesting parties are represented by counsel, the Appeal is taken up for hearing and final disposal, by consent. 2 app365.10.sxw ssm 3 Leave granted to delete Respondent Nos. 4,5, 6, 7, 8, 11, 12, 13, 14, 16, 17, 18, 20 and 24. 4 The order of the learned Single Judge, which is impugned in this Appeal, arises out of a Motion for interim relief in a Suit for specific performance of an agreement contained in three documents dated 6 August 1978, modified as stated in paragraph 12 of the plaint. The case of the Plaintiff, who is the Appellant before this Court, is that this agreement has been substantially implemented. Before this Court, it has been stated on behalf of the Plaintiff that the entire consideration of Rs.19.50 lacs was paid; an area admeasuring 14000 sq. ft. of residential flats and a hall was handed over by the plaintiff; the plaintiff proceeded to construct on the suit property and alternative accommodation has been handed over to various tenants thereon. Several other co-owners entered into a conveyance of their respective rights, title and interest in favour of the Plaintiff. 5 In the motion for interim relief, the Plaintiff sought in prayer clauses (a) and (b) an order of injunction and in prayer clauses (c) and (d), the appointment of a Receiver. The learned Single Judge was 3 app365.10.sxw ssm of the view that a very strong case had been made out by the Plaintiff. The learned Judge noted that the agreement has been substantially implemented to the extent of over 50% of the suit property; the entire consideration had been paid; constructions had been put up and third party rights had been created therein. However, some of the signatories to the documents and/or their heirs have failed to execute a conveyance in favour of the Plaintiff. In the order, the learned Single Judge noted that despite sufficient time being given to the Defendants, no affidavit in reply has been filed to the Motion. The Court observed that the Defendants were avoiding filing any reply and/or written statement. The Defendants derived benefits not only by way of receiving monetary consideration but also in terms of possession of constructed accommodation which has been handed over by the Plaintiff. Despite these observations, the learned Single Judge declined to appoint a Receiver, which is the ground on which the Appeal has been filed by the Plaintiff. 6 At the hearing of the Appeal, counsel appearing on behalf of the Appellant - Plaintiff has urged that a fit and proper case was made out for the appointment of a Receiver for the limited purpose of ensuring that those portions of the suit properties which are reserved for a 4 app365.10.sxw ssm Municipal Play-ground and Municipal School are handed over to the Municipal Corporation. 7 This relief was sought with reference to prayer clause (d), which reads as follows:- “(d) that pending the hearing and final disposal of the present Suit, the Court Receiver, High Court, Bombay be appointed Receiver in respect of such portions of the suit property described at Exhibit “A”to the Plaint that are reserved for Municipal Playground and Municipal School with directions to hand over such portions of the suit property so reserved for Municipal playground and Municipal School to the Municipal Corporation of Greater Mumbai.” 8 The attention of the Court has been drawn to the circumstance that in the written statement which has been filed by the contesting Defendants on or about 30 March 2010, it has been specifically stated in paragraph 26 that the Defendants never objected in principle to handing over of the possession of some portion of the land to the Municipal Corporation. 9 At the hearing of the Appeal, counsel appearing on behalf of the contesting Defendants does not dispute the position that the Plaintiff 5 app365.10.sxw ssm would be required to hand over to the Municipal Corporation a part of the suit property described in Exhibit “A” to the plaint which is reserved for a Municipal playground and Municipal School. In fact, in paragraph 26 of the Written Statement, it has been stated as follows;- “These Defendants have never objected in principle for handing over possession of some area of land to M.C.G.B.. On the contrary the Defendants have suggested to Municipal Corporation to get constructed earlier and faster the school, etc. as contemplated purpose of taking over the portion of the land.” 10 The learned Single Judge has found that a very strong case has been made out for the grant of interim relief. Both having regard to the facts, which have been noted in the Judgment of the learned Single Judge and what is now stated on behalf of the contesting Defendants in paragraph 26 of the written statement, we are of the view that a case has been made out by the Appellant-Plaintiff for the grant of relief in terms of prayer clause (d) of the Motion before the learned Single Judge. The Appellant is bound to handover to the Municipal Corporation, a portion of the land which is reserved for a Municipal Playground and Municipal School as stated in the Motion. However, the counsel has stated before the Court that if any benefits 6 app365.10.sxw ssm are derived by the Appellant from the Municipal Corporation on account of the handing over of the reservation, those benefits shall be held by the Receiver subject to the Suit. 11 We accordingly allow this Appeal. In addition to the reliefs granted by the learned Single Judge, there shall be an order in terms of prayer clause (d) of the Notice of Motion. This shall be, however, subject to the condition that the benefits including TDR/FSI that may be received from the Municipal Corporation upon the handing over of the reserved areas shall be held by the Receiver. Upon receipt of these benefits, the Receiver shall place a report before the learned Single Judge for directions. It would also be open to the Appellant to apply for necessary reliefs before the learned Single Judge in this behalf. The Receiver shall, for the purpose of effectuating the handing over of possession of the area under reservation to the Municipal Corporation be at liberty to call upon the parties to execute necessary documentation and on their failure to do so, the Receiver shall act on their behalf and execute the necessary deeds and documents. The Receiver shall give notice to the parties, if he intends to have demarcation and measurements carried out. Counsel appearing on behalf of the Appellant states that the Appellant would appoint an 7 app365.10.sxw ssm Architect at his cost and expense for taking necessary steps for handing over possession of the reserved area to the Municipal Corporation. 12 The Appeal is accordingly disposed of. There shall be no order as to costs. (ANOOP V. MOHTA, J.) (DR. D.Y. CHANDRACHUD, J.)