ndm 1 nms.3199.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3199 OF 2009 IN SUIT NO. 3752 OF 2000 Rachana Ashok Shukla. ... PLAINTIFF Vs. Gyan Chhotelal Shukla and ors. ... DEFENDANTS And Avinash Babu Ingale and anr. ... RESPONDENTS -------------- Mr.T.G.Vora i/b D.R.Mishra for Plaintiff. Mr.Pramod Kathane for Respondent No.2. Mr. V.G.Rane, Section Officer of Court Receiver Office, present. -------------- CORAM : R.V. MORE, J. DATE : 26 th November, 2009. P.C. 1 Heard learned counsel for the Plaintiff and learned counsel for the Respondent No.2. None appears for Defendant Nos. 1 to 4 and Respondent No.1 inspite of due service. The Notice of Motion is taken out for following reliefs: “a) That the pending the hearing and final disposal of the suit, the ndm 2 nms.3199.09.sxw defendants and the respondents jointly and severally be restrained by an order of injunction of this Hon’ble Court from alienating, selling, disposing of, and/or creating third party interest and/or inducting any third party and/or transferring and/or selling any of the suit properties, as more particularly described in Exhibit “C’ to the suit, and/or any part thereof. b) That the pending the hearing and final disposal of the suit, the Court Receiver, High Court, Bombay be appointed as Receiver of the following suit properties namely - (i) Unit No. 329 In Ramgopal Industrial Estate, Dr.Rajendra Prasad Road, Mulund (W), Mumbai [Under Ramgopal Industrial Estate Premises Cooperative Society.] (ii) Flat No. 33 5 th Floor, “B” Wing, Harsha Apartment, Bhakti Road, Mulund (W), Mumbai [Under Harsha Apartment Coop. Hsg. Society, Ltd] (iii) Shop No. 15 Ground floor in building No.2, Damodar Park, Ghatkopar (West), Mumbai – 400 080 [Under Unit Apartment Coop. Hsg. Society Ltd.] With all powers under Order 40, Rule 2 of the Code of Civil ndm 3 nms.3199.09.sxw Procedure 1908 [ and further direct the Court Receiver to appoint the plaintiff as an agent of the Court Receiver to use and occupy the said Shop No. 15 situate on ground floor in Building No.2, Damodar Park, Ghatkopar (W) Mumbai 400 080, without any royalty and/or compensation and/or security deposit and on such terms and conditions that this Hon’ble Court deem fit.]” 2 The Plaintiff has filed above suit for partition of the suit properties mentioned in the prayer clause (b) of the Notice of Motion. It is the case of the Plaintiff that these properties belong to his deceased father and after his demise, she as a daughter and Defendant No.1 as the mother of deceased are entitled to ½ share each. 3 Initially the Notice of Motion was filed by the Plaintiff against the Defendants restraining them from creating third party interest and for appointment of the Receiver. In this Notice of Motion, undertaking was given by the Defendant Nos.1 and 3 that they will not transfer or create third party interest in the suit properties. In pursuance of this undertaking, ad-interim relief was granted by this Court on 14 th March, ndm 4 nms.3199.09.sxw 2002, which was subsequently confirmed by the order dated 23 rd June, 2005. Subsequently, the Plaintiff learnt that the Defendant No.1 sold shop No.15 on 23 rd May, 2003 to the Respondent No. 1 and Respondent No.1 in turn sold out the same shop to Respondent No.2. Therefore, present Notice of Motion is taken out for the relief, which are already mentioned. 4 This Court by an order dated 10 th September, 2009 granted ad-interim relief in terms of prayer clauses (a) and (b). It seems that the Court Receiver by filing report pointed out the symbolic possession of the Shop No. 15 was not given by the Respondent No.2 and therefore, this Court by order dated 14 th October, 2009, directed Receiver to take symbolic possession of Shop No.15, if necessary by breaking upon the lock with the assistance of the police. Since other two properties were locked, the Court directed to seal those properties and submit report thereof on the next date. 5 In pursuance to the above order, the common statement was made by the learned counsel for the Plaintiff and Defendant that the two ndm 5 nms.3199.09.sxw properties at serial Nos. 1 and 2 namely Unit No. 329 and Flat No.33 are sealed by the Court Receiver. Regarding the third property namely Shop No.15, a common statement is made by the Plaintiff and Respondent No. 2 that Receiver has taken symbolic possession of this property. 6 The present Notice of Motion is not contested by Defendant No.1 inspite of due service either by putting appearance in this Notice of Motion or by filing in reply thereto. In the circumstances, the contention that the Plaintiff mentioned in affidavit in support to the Notice of Motion deemed to have been accepted by the Defendant No.1. In that view of the matter, the ad-interim relief granted by this Court so far as property at serial Nos. 1 and 2 are concerned, on 10 th September, 2009 alongwith order dated 14 th September, 2009 deserves to be confirmed. 7 So far as, third property namely Shop No.15 is concerned, it is the contention of the Plaintiff that since this property was transfered in breach of the order of this Court, the Receiver must be directed to take possession and the Respondent No.2 can be appointed as an agent of the Receiver without payment of royalty and compensation. The learned ndm 6 nms.3199.09.sxw counsel for Respondent No.2 has no objection, if this order is passed. 8 In the light of above circumstances and for the reasons stated in the affidavit in support, the Notice of Motion is made absolute in terms of prayer clauses (a) and (b) except bracketed portion of prayer clause (b) of the Notice of Motion. 9 The Court Receiver, High Court is further directed to appoint the Respondent No.2 as his agent in respect of property at serial No.3, namely Shop No.15 without any royalty or compensation or security deposit. 10 Needless to mention, the outgoing of shop No.15 shall be borne out or paid by the Respondent No.2. [ R.V. MORE, J ]