IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1342 OF 2009 IN SUIT NO. 860 OF 2009 Fatmabi Farid Ahmed Shaikh ........ Plaintiff versus Naseembanu Riyaz Hussain Sheikh & ors........Defendants. Mr. P.M. Shah adv. For the Plaintiff Mr. D.D. Singh adv. For the Defendant no.1. CORAM: A. P DESHPANDE, J. DATED : 1st July, 2009. P. C.: 1. The plaintiff has instituted the present suit claiming relief of declaration that the agreement dated 24-8-2007 has been revoked and canceled and does not bind on the plaintiff. A further prayer is made seeking possession of the premises purported to have been transferred under agreement of sale dated 24-8-2007. 2. It is undisputed that the present plaintiff was the owner of the suit premises comprising of one room at the time of execution of the agreement of sale dated 24-8-2007. The defendant nos.1 and 2 being desirous of purchasing the suit room entered into an agreement with the plaintiff on 24-8-2007. It is undisputed that the defendant nos. 1 and 2 paid a sum of Rs. On lac. The total consideration agreed was Rs. 2 lacs. According to the plaintiff, as the defendant nos. 1 and 2 did not pay the balance amount of consideration being Rs. One lac, the plaintiff proceeded to revoke and terminate the agreement and brought the present suit. Whereas according to defendant nos. 1 and 2 they had paid a sum of Rs. One lac on the date of execution of the agreement being 24-8-2007 and had handed over a cheque drawn on Oriental bank, Malad west dated 26-8-2007. But the plaintiff did not encash the said cheque. It is undisputed position that the defendant nos. 1 and 2 were put in possession of the suit premises in part performance of contract as envisaged by section 53-A of Transfer of Properties Act. 3. By the present Notice of Motion the plaintiff claims two reliefs, one is in the nature of temporary injunction seeking to restrain the defendant no.1 and 2 from sale, transfer, alienate or creation of third party interest during pendency of the suit and (2) appointment of Receiver with all powers to take possession of the suit flat and to hand over the possession of the suit premises to the plaintiff. The person who is put in possession on the part performance of the contract cannot be dispossessed by an interim order in a suit filed for possession and declaration that the agreement stands validly terminated. Having accepted the fact that the defendant nos, 1 and 2 are put in possession in part performance of contract and having further accepted the receipt of sum of Rs. One lac at the time of execution of the agreement, the plaintiff is not at all justified in claiming the relief of appointment of Receiver. No prima facie case whatsoever is made out by the plaintiff for grant of relief of appointment of Receiver. The learned counsel for the defendant nos. 1 and 2 has re-iterated that they are still ready and willing to hand over the cheque for the balance amount of Rs. One lac in case the plaintiff is ready and willing to accept the same. 4. The learned counsel for the defendant nos. 1 and 2 on instructions from defendant nos. 1 and 2 who are present in the court, has fairly stated that the said defendants do not propose to transfer, sale, alienate or create any third party interest in the suit premises pending the suit or without prior permission of the court The said statement is accepted and thus the prayer clause (b) does not need any consideration. As the plaintiff has failed to make out a prima facie case for appointment of Receiver the said prayer is rejected. The plaintiff is not going to suffer any irreparable loss if no order is passed in favour of the plaintiff in as much as the defendant nos. 1 and 2 are in possession of the suit flat. The balance of convenience lies in favour of the defendant nos. 1 and 2. Thus the motion stands disposed of. (A. P. Deshpande, J.)