1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3199 OF 2004 IN SUIT NO.3124 OF 2004 Ms.Lakshmi Nambiar. ... Plaintiff. vs. 1. Mr.Vijay Dhirubhai Desai & others. .... Defendants. --- Mr.Hiralal Thakkar i/b. K.B.Nambiar, for Plaintiff. Mr.S.K.Jain with Ms.Naina Desai, for Defendants. CORAM: D.K.DESHMUKH,J. DATED: 15th September,2005 P.C.:- 1. Heard the learned Counsel for both the sides. This is a notice of motion taken out by the plaintiff. The plaintiff has filed the suit under Section 6 of the Specific Relief Act. The admitted position is that there is a registered sale deed executed by the original defendant nos.1 and 2 in favour of the plaintiff. Admittedly, the agreed consideration was paid by the plaintiff to the defendants. Admittedly though it is the contention of the defendants that the transaction narrated in the plaint is a benami transaction and that the sale deed is 2 not to be acted upon, there is no proceeding launched by the defendants seeking declaration to that effect. In this situation, the Court therefore, will have to go at the prima facie stage by the registered document which is admittedly executed between the plaintiff and original defendant nos.1 and 2. If that is so then title and possession will vest in the plaintiff. By ad-interim order dated 1.11.2004, Receiver has already been appointed. Taking overall view of the matter therefore, in my opinion, the following order would meet the ends of justice:- (i) The notice of motion is granted in terms of prayer clause (b) excluding the bracketed portion. (ii) The Receiver is directed to appoint defendant no.2 as agent of the Receiver to be in possession of the suit flat on usual terms and conditions except security. The amount of royalty be charged at Rs.5000/- per month. In case the defendants file a suit and they succeed in securing some interim order in that suit, the defendants shall be at liberty to apply for modification of this order. Similarly if the defendants do not succeed in getting suitable order in that suit, the plaintiff shall be entitled to apply for enhancement of the amount of royalty and for seeking either variation or modification of the terms and conditions on which the defendant no.2 is directed to be appointed as agent. The learned Counsel appearing for defendants states that 3 the defendants would file the suit which they intend to file, within a period of 90 days from today. The statement is accepted. Notice of Motion is disposed of. ---