: 1 : SD IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.552 OF 2006 OF MOTION NO.552 OF 2006 OF MOTION NO.552 OF 2006 IN IN IN SUIT SUIT SUIT NO.496 OF 2006 NO.496 OF 2006 NO.496 OF 2006 Irshad Ahmed Haji Iqbal Khan ...Plaintiff V/s. Mehrunnissa Saiyyed Shahajaan ...Defendant Mr.V.R. Tripathi, Advocate, for the Plaintiff. None for the Defendant. CORAM CORAM CORAM : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. DATE DATE DATE : 5TH SEPTEMBER, 2008. : 5TH SEPTEMBER, 2008. : 5TH SEPTEMBER, 2008. P.C.: P.C.: P.C.: . The learned Counsel for the Plaintiff presses the Notice of Motion. The Defendant and her Advocate are absent. 2. At ad-interim stage, the Defendant opposed the application and yet after hearing her the Court recorded her statement that she would not part with possession of the suit property. Thereafter, the Defendant had filed a reply, but she has not been attending the case. Even on the last occasion, she was absent. The learned Counsel for the Plaintiff was requested to send a letter by R.P.A.D. to the Defendant’s : 2 : Advocate. Accordingly, the letter was sent and a copy of the said letter alongwith acknowledgment is tendered on record. The same is taken on record and marked "X" for identification. 3. It is thus clear that the Plaintiff has taken all the necessary steps and put the Defendant on notice that he would press the application finally. Despite so many efforts made to secure the presence of the Defendant and / or her Advocate before the Court, none is present today. I think the Defendant does not want to oppose the Notice of Motion. 4. The Plaintiff filed this Suit for specific performance of agreement for sale of certain property. The Plaintiff states that he had paid most of the agreed consideration leaving behind about more or less 1/10th of the agreed consideration. The Plaintiff asserted that instead of performing her part of the agreement, the Defendant handed over the premises on leave and licence basis to a different party and is earning handsome returns. He also stated that the Defendant is also : 3 : negotiating with various persons to transfer her rights to the suit property. The Defendant in her reply admitted having received certain amounts from the Plaintiff, but she said it was a loan transaction and she never agreed to sell the property to the Plaintiff. 5. The question is as to whether the defence is prima-facie believable. The answer to this is in negative. The Defendant has admitted having received Rs.6 lacs by two cheques from the Plaintiff. On one hand she said she is a poor widow and was in need of this amount. She also admitted that she put her signatures on papers prepared by the Plaintiff. She however did not deal with the Plaintiff’s case that the Plaintiff paid of certain loan taken by the Defendant from a Bank. It is thus clear that the Defendant has admitted many crucial aspects of the Plaintiff’s case i.e. (1) she had put her signatures on certain papers; (2) she has received large amounts by cheques from the Plaintiff; (3) it is not her case that she returned the amounts etc. 6. At this stage, I think the property : 4 : needs to be protected initially by appointing the Court Receiver and by appointing the Defendant as agent of the Court Receiver. The Court Receiver should be directed to take an account of the income generated by the suit property and recover the same for safe keeping. Hence, the following order is passed :- "O "O "O R D E R" R D E R" R D E R" "The Notice of Motion is allowed in terms of prayer clauses (a) and (b). However, the Defendant is appointed as agent of the Court Receiver. The Court Receiver shall take formal possession of the suit property. The Court Receiver shall ascertained as to who are the parties occupying the suit property and on what basis the Court shall receive the licence fees directly from the occupants and shall keep accounts of the same." [A.V. [A.V. [A.V. NIRGUDE, J.] NIRGUDE, J.] NIRGUDE, J.]