1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 877 OF 2008 IN SUIT NO. 1308 OF 2005 Marina Francis Thanicatt ....Plaintiff Versus Jennifer Collin Pinto & Ors. ....Defendants Ms. Anita Agrawal i/b. Mr. S. S. Jinsiwale, Advocate for the Plaintiff. Mr. Raymond Samuel, Advocate for Defendant No.1. CORAM : R. V. MORE, J. DATE : 20TH JANUARY, 2010. P.C. : Heard learned Counsel for Defendant No. 1 and Plaintiff, respectively. None appears on behalf of Defendant Nos. 2 to 8 though served. 2. The notice of motion is preferred by Defendant No.1 for direction to Defendant No.8 to hand over peaceful and vacant possession of flat more appropriately described in prayer clause (a) of the notice of motion. 3. The Plaintiff claims 1/8 share in the property of her deceased father - Sebastian Francis Fernandes. The Plaintiff and Defendant Nos. 1 to 7 are siblings. The Plaintiff’s father and mother died intestate. Her father was 2 residing in a tenanted flat. The building in which her father was residing was developed by Defendant No.8. The Plaintiff's father filed a R.A.D. Suit No.1624 of 1986 in Small Causes Court. The suit is disposed of in terms of Consent Terms under which the Plaintiff's father was to handover the possession of the tenement in his possession and he was to be given alternate accommodation on ownership basis in the redeveloped property. It was the claim of the Plaintiff in the suit that the Defendant No.1 should not be put in possession of the alternative accommodation as and when it is ready. 4. Per contra Defendant No.1's case is that her father left behind Will dated 13th July, 1985 under which the tenented premises mentioned above is bequeathed to her. On the basis of this Will, the Defendant No.1 stakes claim to the tenanted premises as well as redevelopment property which was agreed to be given to her father under above Consent Terms. 5. The Plaintiff took out the notice of motion no. 1399 of 2005 for various reliefs. Prayer (b) of the said notice of motion is relevant. By this prayer, the Plaintiff claimed injunction against Defendant No.8 restraining him from alienating and/or disposing and/or creating their party interest and or handing over the possession to Defendant No.1 in respect of the suit flat more appropriately described in prayer clause (a) of the notice of motion. This notice of motion was disposed of by an order dated 8th August, 2006. By this order, the notice of motion was made absolute in terms of prayer clause (b) with clarification that in the event Defendant No.1 deposits the amount of 3 Rs.6,00,000/- in this Court, she may apply to this Court for possession of the redeveloped premises. The amount of Rs.6,00,000/- was fixed on the basis of the fact that the Plaintiff accepted, the price of the said premises is Rs.48,00,000/-. 6. In pursuant of the above order dated 8th August, 2008, the Defendant No.1 has deposited an amount of Rs. 6,00,000/- in this Court on 6th February, 2008 and thereafter, the present notice of motion is filed for possession of the new premises more appropriately described in prayer clause (a) of the present notice motion. 7. Mrs. Agarwal, learned Counsel for the Plaintiff after taking instructions from her client submits that if the Plaintiff is allowed to withdraw unconditionally the above said amount of Rs.6,00,000/- then she has no objection to hand over possession of the suit flat to Defendant No.1. The learned Counsel for Defendant No.1 after taking instructions from his client who is present before the Court recorded no objection for withdrawal of the said amount of Rs.6,00,000/- by the Plaintiff, unconditionally. As Defendant Nos. 2 to 8 have not contested the notice of motion either by appearing or filing reply, the averments made by Defendant No.1 therein are presumed to have been accepted by these Defendants. In the light of the facts and circumstances, the present notice of motion is disposed of, by passing the following order : 4 i. The Defendant No.8 is directed to hand over possession of the suit flat more appropriately described in prayer clause (a) of the above notice of motion to Defendant No.1 within a period of 8 weeks from today. ii. The Plaintiff through her Constituted Attorney - Francis Joseph Thanicatt is allowed to withdraw unconditionally an amount of Rs.6,00,000/- with interest deposited by Defendant No.1 in this Court on 6th February, 2008. This amount may be allowed to be withdrawn only after Defendant No.1 receives possession of the suit flat as per clause(i) of the operative part of the order. iii. The Defendant No.1 to intimate the Plaintiff about date of receipt of possession of the suit flat. iv. The Defendant No.1 shall serve copy of this order to Defendant No.8, within period of two weeks from today. Sd/- (R. V. MORE, J.)