IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.3952 OF 2009 IN FIRST APPEAL NO.848 OF 2009 Anand Dattaram Matkar ....Applicant/Orig.Plff Vs. Gawade Constructions Pvt.Ltd ....Respondent/Orig.Defd ----------- Mr.Kishore Patil i/by. Mr. S.S. Reddij , Advocate for applicant. Mr. Joshi, adv.for respondent. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 16th December, 2009. P.C. 1. This Civil Application is taken out for appointment of Court Receiver in respect of flat No.501 on fifth floor of building by name `Prachita and for ’ direction to Court Receiver to put the applicant in possession of the suit premises as his agent on usual terms and conditions. Pursuant to the order dated 17th July 2009, the applicant has deposited a sum of Rs.25.00 lacs on 12th August 2009. Pursuant to the interim orders passed in the suit, flat no.501 was directed to be kept vacant, so that the same is available to the applicant in case he succeeded in the suit. The applicant s suit for specific performance was ’ dismissed solely on the ground that the applicant was not ready and willing to perform his part of contract i.e. payment of the consideration amount. Since the applicant has already deposited the entire consideration together with the interest thereon in the Court, he now seeks that he be allowed to occupy the premises as agent of the Court Receiver. 2. The respondent has filed its affidavit-in-reply to oppose the Civil Application. It contends that since the applicant had failed to pay the consideration for the suit flat within the time granted as per the agreement between the parties, it had terminated the agreement with the applicant. Therefore, if the reliefs sought by the applicant are granted today, it will amount to allowing the appeal and decreeing the suit. Mr. Joshi, the learned counsel for the respondent, submits that, the respondent is willing for final hearing of the matter immediately and the interim relief sought by the applicants need not be granted. He also pointed out that it is not the grievance of the applicant, that the respondent has in any way tampered with the suit flat. The respondent has kept the suit flat locked and vacant without creating any third party rights over the same. There was no apprehension expressed on this aspect by the applicants all along. It has arisen for the first time in the present Civil Application, wherein it is stated that the respondent- developer may misuse the suit premises by allowing some third party to use the same. It is also submitted by Mr. Joshi that the suit as framed by the applicant was not for specific performance though the applicant sought specific performance under the guise of a mandatory order. 3. The suit obviously was essentially for specific performance of the agreement of sale of the flat. The only reason why the same was dismissed was that after adducing the evidence, the court was of the opinion that the applicant was not ready and willing to perform his part of the contract i.e. payment of consideration. The applicant has now pursuant to the order dated 17th July 2009 deposited a sum of Rs. 25,00,000/- in the court consisting of the original balance consideration of Rs.19,50,000/- and interest thereon. In view of this deposit, in my opinion instead of leaving the premises vacant, which may lead to the same being wasted for lack of regular maintenance, the applicant can be allowed to occupy the premises as an agent of the Court Receiver, on such terms and conditions as imposed by the Court Receiver. Hence, the Civil Application is allowed in terms of prayer clauses (a) and (b). The Court Receiver shall fix the terms and conditions for occupation by the applicant of the suit flat within a period of 6 weeks from today i.e. on/or before 27th January, 2010. (SMT.R.P. SONDURBALDOTA,J)