-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2249 OF 2006 NOTICE OF MOTION NO.2249 OF 2006 NOTICE OF MOTION NO.2249 OF 2006 IN IN IN SUIT NO.1986 OF 2006 SUIT NO.1986 OF 2006 SUIT NO.1986 OF 2006 Shri Babulal Sangam Gada, .. Plaintiff. Vs 1. Shri Gopal Mathurdas Agarwal, since deceased, through LRs 1-a) Ms Vijaya Gopal Agarwal, 2-b) Ms Tejal Gopal Agarwal, 3-c) Ms Sheetal Gopal Agarwal, Nos 2 and 3 minors through their mother and natural guardian the defendant no.2herein, 2. Smt.Kalpana Goapl Agarwal. All residing at Flat No.9, Rajkanya Niwas C-operative Hsg Soc.Ltd, Wamanrao Sawant Road, Dahisar (E), Mumbai 400 068. .. Defendants. Mr Manoj Mhatre, for the plaintiff. Mr K.K.Pandey, for defendant no.2. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. DATE : 24th June, 2008 DATE : 24th June, 2008 DATE : 24th June, 2008 ORAL ORDER: ORAL ORDER: ORAL ORDER: 1. This Motion is taken out by the plaintiff seeking mandatory injunction against the defendants, directing them to hand over vacant and peaceful possession of flat no.9, Rajkanya Niwas Co-op.Hsg Society, Wamanarao Sawant Road, Dahisar (E), (for short, "the suit flat") and in the alternative, for an -2- appointment of the Court Receiver, High Court, under Order 40 Rule 1 of CPC. The plaintiff has further prayed for his appointment as an agent of the Court Receiver. This Court, vide order dated 18.7.2006, granted ad-interim relief in terms of prayer clause (d), by which the defendants were restrained from parting with possession and creating third party rights in the suit flat. 2. I have heard learned counsel for the plaintiff and defendant no.2. None for the other defendants though served. Mr.Mhatre, learned counsel for the plaintiff, submitted that the plaintiff has paid the entire consideration to defendant no.2-Kalpana and her deceased-husband (original defendant no.1) when an agreement for sale in respect of the suit flat was signed by them. After execution of the agreement for sale, Mr.Mhatre, submitted that the suit flat was transferred in the name of the plaintiff. He submitted that in view of an order of the the Deputy Registrar, Co-operative Societies on 31.8.2006, the share certificates have also been transferred in the name of the plaintiff. He, therefore, submitted that after having received the entire consideration the defendants have no right to remain in possession of the suit flat and therefore, the plaintiff is entitled for the -3- reliefs, as prayed, in the motion. 3. Defendant no.2 has filed a reply affidavit stating therein that there were matrimonial disputes between the deceased-defendant no.1 and her, and that she did not receive any consideration upon execution of the agreement for sale. She has also stated that she was made to sign the agreement by her husband under the pretext that he wanted to raise a loan of Rs.two lacs and since the flat was in their joint names her signature would be necessary. Unfortunately, defendant no.1 died on 25.8.2006. 4. It is true that in pursuance of the order of the Deputy Registrar dated 31.8.2006 the society has transferred the share certificates in the name of the plaintiff. There is no dispute that the appeal filed by defendant no.2 against the order of the Deputy Registrar is pending before the Joint Divisional Registrar. Merely because the entire consideration has been paid and the share certificates have also been transferred, does not mean that the plaintiff as of right is entitled for a decree of specific performance. The defence raised by the widow of defendant no.1 cannot be overlooked, apart from the fact as to why the plaintiff did not insist for possession from the -4- deceased-husband immediately upon execution of the agreement for sale dated 6.2.2006. The plaintiff has filed a suit for specific performance of the said agreement for sale. Keeping the nature of relief prayed for in the suit in view and considering the case set up by defendant no.2 that she is an illiterate woman and had signed the document on her husband’s instructions, who represented her that he wanted to take loan of Rs.two lacs and for that purpose her signature was required, she being the joint owner of the suit flat, and further considering that she stays in the suit flat with her minor children, that is, defendant nos 1(a) to 1(c), I am not inclined to grant prayer (a) in the Motion. Learned counsel for defendant no.2, on instructions, submitted that defendant no.2 is prepared to deposit the entire amount of consideration with 12% interest per annum within a period of three months from today. Considering the statement made by learned counsel for defendant no.2, I am satisfied that the following order shall meet the ends of justice. (i) Defendant no.2 shall deposit the entire amount of consideration with 12% interest per annum from the date of payment in this court within a period of three months from today. On such deposit being made by -5- defendant no.2, the Prothonotary and Senior Mater shall invest the said amount in a nationalised Bank initially for a period of one year and shall renew the same from time to time till disposal of the suit. (ii) The Court Receiver, High Court, shall take formal possession of the suit flat and appoint defendant no.2 as his agent without payment of royalty. (iii) If defendant no.2 fails to pay the amount of consideration with interest, as aforestated, within a period of three months, the Court Receiver shall take physical possession of the suit flat and shall appoint the plaintiff as his agent without royalty. Till the Court Receiver takes possession of the suit flat, as aforementioned, the ad-interim relief granted in terms of prayer clause (d) shall remain operative. 5. At this stage, counsel for defendant no.2 stated that the plaintiff has been paying all the outgoings of the suit flat since the time it was transferred in his name. He, therefore, without prejudice to the plaintiff’s rights and contentions, submitted that defendant no.2 be directed to pay the entire amount paid by him to the society by way of maintenance and the electricity charges paid by him. Counsel for -6- defendant no.2, on instructions, submitted that defendant no.2 shall pay the said amount to the plaintiff within six weeks from the date of submitting a statement of the amounts paid by him to the society and towards electricity charges with the proof of payment. Having regard to the submissions made by learned counsel for the parties, I pass the following order. . The plaintiff shall furnish a statement of the amount paid by him to the society and towards the electricity charges, to defendant no.2 with the proof of payment within a period of four weeks from today. The defendant shall pay the said amount to the plaintiff within a period of six weeks therefrom. With these directions, the Motion is disposed of. (D.B.Bhosale, J.) (D.B.Bhosale, J.) (D.B.Bhosale, J.)