rng 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.4365 OF 2006 OF MOTION NO.4365 OF 2006 OF MOTION NO.4365 OF 2006 in in in SUIT SUIT SUIT NO.4151 OF 1993 NO.4151 OF 1993 NO.4151 OF 1993 Shalan Shankar Velankar adn two ors.. Plaintiffs Vs. Shrikant Shrikrishna Oka & 2 ors.. Defendants Mr.M.P.Narayanswamy for Plaintiff Mr.K.R.Belosey a/w Mr.D.D.Beloseay for Defendants CORAM CORAM CORAM : A.S.OKA, J : A.S.OKA, J : A.S.OKA, J DATE DATE DATE : 20TH : 20TH : 20TH OCTOBER, 2008 OCTOBER, 2008 OCTOBER, 2008 P.C. P.C. P.C. 1. Heard the learned counsel appearing for the plaintiff in support of the Notice of Motion and the learned counsel appearing for the defendants who has opposed the Notice of Motion. 2. The learned counsel appearing for the plaintiff has invited my attention to orders dated 6th November 1996 and 27th June 1998 passed by this Court in earlier Notice of Motion taken out by the plaintiff. He invited my attention to the averments made in the affidavit in support and in particular to the averments made in paragraph nos. 7 and 8 thereof. He submitted that the averments 2 made in paragraph 8 of the Notice of motion clearly show that the defendants allowed strangers to occupy the suit flat. He therefore submitted that there is a clear breach committed by the defendants of the order dated 22nd June 1998 passed in earlier Notice of Motion. He, therefore, submitted that this is a fit case for appointment of a Court Receiver. 3. Learned counsel for the defendant nos.1 and 2 invited my attention to what is stated in paragraph no.6 of the reply filed to the Notice of Motion. His submission is that the defendants have not parted with possession and the defendants allowed close relatives to occupy the suit flat only for a few days to enable one of them to take treatment of chemotheraphy in Tata Memorial Hospital. 4. Learned counsel appearing for the defendant nos. 1 and 2 states that apart from their statement recorded in the order dated 15th December 2006, he is making a statement that the said defendant nos.1 and 2 will not allow any stranger to occupy or use the suit flat till the final disposal of the suit. He states that the 3 said defendants are using the suit flat as an office of partnership business. 5. The learned counsel for the plaintiffs made a grievance that the said defendants have not submitted the accounts in terms of the earlier order. However, I find that there is no such grievance made in the affidavit in support of the notice of motion. 6. I have carefully considered the submissions. The prayer made for appointment of Receiver in the earlier notice of motion has not been granted by this Court and only a relief of temporary injunction was granted. In view of the statement on oath made in paragraph 6 of the reply of the 2nd defendant and in view of the statement made by the learned counsel for the 1st and 2nd defendant today, and the statements which are already recorded in order dated 15th December 2006, this is not a case where appointment of receiver can be made. Hence, I pass the following order : ORDER ORDER ORDER 4 (1) The statement made by the learned counsel appearing for the 1st and 2nd defendant that they will not allow any stranger to occupy the suit flat till the final disposal of the suit is accepted. The statements made by the 1st and 2nd defendants which are incorporated in order dated 15th December 2006 are accepted. (2) In view of the aforesaid statements no case is made out for grant of any interim relief. Notice of motion is accordingly dismissed. Suit shall be set down for settlement of issues on 25th November, 2008. In the meanwhile, the parties shall exchange draft issues. { A.S.Oka, J } A.S.Oka, J } A.S.Oka, J }