1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NOTICE OF MOTION NO. 4453 OF 2007 IN SUIT NO. 3238 OF 2007 M/s. Besto Textiles Pvt. Ltd. & Anr. …Plaintiffs Vs. Estelle Estates Pvt. Ltd. & Ors. …Defendants Mr. Ashish Kamat i/b.M/s. Apex Law Partners for the Plaintiffs Mr. R.D. Soni with Ms. Trupti Gohil for Defendant No.1 CORAM: SMT. ROSHAN DALVI, J. DATED : 17 TH OCTOBER, 2008 P.C. 1. Plaintiff No.2 and Defendants 2 and 3 are co-owners of the suit property with certain other co-owners. Plaintiff No.2 is the Director of Plaintiff No.1. Plaintiff No.1 Company is a tenant of one of the premises in the suit property. The suit property is a building which has been tenanted. 2. Plaintiff No.2 and Defendants 2 and 3 along with the other co-owners sought to develop the suit property and 2 construct a new building. Defendant No.1 is the developer. The parties negotiated in respect of the consideration. The Plaintiff No.2 was to be given Rs.63 lakhs in lieu of the premises of Plaintiff No.1, which was on the ground floor of the suit property. The Plaintiff No.2 was also to be paid a consideration of Rs.10,76,000 /- . Certain cheques to the extent of Rs.63 lakhs were indeed sought to be passed as consideration from Defendant No.1 to Plaintiff No.2. However the Plaintiff No.2 did not accept the said cheques because one of them was postdated by 3 months. The parties instead entered into a Deed of Conveyance under which the consideration to be paid to the Plaintiff No.2 was a promise as specified and shown in red in the annexure to the said Conveyance in addition to the consideration of Rs.10,76,000/- . The Indenture of Conveyance is dated 13th October, 2006. It has been executed by the Plaintiff No.2 on 17 th October, 2006. 3. The execution of Conveyance is not denied. It has been stated and reiterated in the correspondence between the parties. Under recital “K” of the said conveyance the Plaintiff No.2 was to be entitled to a shop of 2148 cubic ft. referred to as Shop No.5. The conveyance specifies consideration of Rs.10,76,000 /- AND a premises admeasuring 2148 cubic ft. on the first floor of the 3 property. The annexure to the conveyance shows the erstwhile partnership firm of Plaintiff No.1 as the tenant of Room No.5. Its user is shown to be non- residential. The other annexure shows that inter alia the erstwhile partnership firm of Plaintiff No.1 has shown rent receipts, electricity bills and Gumasta license. 2 rent receipts of the said firm are also annexed to the conveyance (pages 65 and 66 of the plaint). The plan annexed with the conveyance shows in red the precise premises to be allotted to the Plaintiff No.2 on behalf of the Plaintiff No.1. The right and entitlement of Plaintiffs under the conveyance is clear. 4. In the correspondence that ensued after the conveyance, the Advocates of the Plaintiffs as well as Defendant No.1 have reiterated the Plaintiff’s entitlement. The letter of the Plaintiff’s Advocate dated 18 th October, 2006 refers to alternate permanent accommodation on the first floor on ownership basis to be provided to the Plaintiffs free of cost. The letter dated 19 th October, 2006 of the first Defendant’s Advocate states that the Plaintiff had agreed to accept permanent alternate accommodation on the first floor of building on ownership basis since Room No.5 on the ground floor was reserved for School. Further correspondence is repetitious and need not be repeated. 4 5. Nevertheless, in accordance with the prior agreement between the parties of accepting Rs.63 lakhs as the then value of the suit premises a cheque of Rs.63 lakhs was sought to be given in favour of Plaintiff No.2 on 17th July, 2007. By the letter of 26 th March, 2007 of the Plaintiff’s Advocate the said cheque came to be returned and this suit came to be filed. 6. The Defendant No.1 contends that the agreement between the parties was for payment of the amount of Rs.63 lakhs. It is seen that whatever be the agreement the valuation of the premises to be given to Plaintiff No.2 was Rs.63 lakhs. This has been offered to the Plaintiff before and after the execution of the conveyance. 7. Before the execution the amount was broken up in 2 parts payable by 2 cheques. After the conveyance also the amount has been offered. 8. The property has been shown to be worth Rs.85 lakhs at the time of the filing of the suit on 30 th October, 2007. It is now stated to be worth much less as the value of real estate is falling. 9. The Advocate for Defendant No.1 says that though the 5 prices have fallen, since they have agreed to offer the Plaintiffs Rs.63 lakhs for the suit premises, he is prepared to pay/deposit a cheque for the said amount to secure the Plaintiffs monetary claim. It is seen that though there was an agreement under which the Plaintiff could have accepted Rs.63 lakhs and there was further conveyance ear- marking the property to be handed over to the Plaintiffs, the Defendants have substantially been ready and willing to perform their reciprocal part of the agreement computed by way of damages. The Plaintiffs’ Advocate refuses to accept the cheque for Rs.63 lakhs. Consequently a case for appointment of Court Receiver is not made out. 10. The Defendant No.1 has sought to create rights in favour of the Defendant No.4 under the ad- interim order of injunction. However, as per the ad- interim order of injunction the Defendant No.1 was directed not to create any further rights and not to put Defendant No.4 in possession. 11. The Suit property is required to be protected pending the suit. 12. The ad- interim order of injunction shall continue 6 pending the suit. 13. The Advocate for Defendant No.1 states that the premises for which the injunction has been granted is in the same position as is shown in the plan Exhibit- C to the plaint which is the plan annexed to the conveyance. 14. The Notice of Motion is disposed off accordingly. (SMT. ROSHAN DALVI, J.)