1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4228 OF 2008 IN SUIT NO. 3329 OF 2008 Sejal P. Jobanputra ...Plaintiff Vs. Ramesh O. Modi & 2 Ors. ...Defendants Mr.Atul G. Damle for Plaintiff Ms. Ansu Geogy Jacob i/b. M/s. Geogy Jacob & Associates for Defendant No.2 CORAM : SMT. ROSHAN DALVI, J. DATED : 19TH APRIL, 2010 P.C. : 1. This Notice of Motion is for appointment of Court Receiver and the usual injunctions. The Plaintiff took a loan of Rs.5 lakhs from Defendant No.1. The Plaintiff mortgaged the Suit flat to Defendant No.1. The mortgage is unregistered. The Plaintiff executed a General Power of Attorney in favour of Defendant No.1. The General Power of Attorney is also unregistered. 2. The Plaintiff failed to repay the loan. Defendant No.1 sold the mortgaged flat to Defendant No.2. Defendant No.2 paid consideration for the sale in 2 his favour. The consideration which is paid is by cash as well as cheque. Rs.8 lakhs is shown to be paid by cheques. Rs.3 lakhs is paid in cash. The Bank Account Statement of Defendant No.2 shows 3 debit entries of Rs.2 lakhs, 3 lakhs and 3 lakhs dated 27 th February 2008, 15 th February 2008 and 12 th March 2008 under cheque Nos.0463994, 0463993, 0463992. This shows that three cheques were issued on the same day or at the same time. The entries are however of February 2008 and March 2008 when the cheques would have been deposited by Defendant No.1 and debited to the account of Defendant No.2. 3. The receipt for Rs.3 lakhs paid in cash is separately given by Defendant No. 1 as the Constituted Attorney of the Plaintiff to Defendant No.2. 4. The Defendant No.1 sent his letter dated 2 nd February 2008 to the Plaintiff enclosing a copy of the cheque for Rs.7 lakhs dated 24 th January 2008 drawn on H.D.F.C Bank in favour of the Plaintiff and called upon the Plaintiff to collect the original cheque. The Plaintiff did not claim the said letter. It has been returned to Defendant No.1. Defendant No.2 has produced the cheque drawn on his account in H.D.F.C. Bank. 5. Hence Defendant No.2 paid Defendant No.1 Rs.8 lakhs by three cheques, Rs.3 lakhs in cash and Rs.7 lakhs to be repaid to the Plaintiff in terms of the mortgage created by the Plaintiff. 6. The Defendant No.1has acted upon the mortgage and the General Power of Attorney. The Plaintiff has admittedly executed the mortgage and the 3 General Power of Attorney. The Defendant No.1 cannot be faulted to act upon the same. 7. It is contended that both these documents are unregistered. That may preclude Defendant No.1 from suing on these documents. It cannot preclude Defendant No.1 from acting upon these documents, if he has not been restrained by an order of the Court in a Plaintiff’s action. 8. 3 rd party rights have, therefore, been created under the mortgage executed by the Plaintiff. Defendant No.1 has entered into possession of the Suit flat initially owned by the Plaintiff and mortgaged by her. Defendant No.1 continues in possession. 9. In fact even after Suit flat was thus sold to Defendant No.2, and the Plaintiff was put to notice of the transaction by Defendant No.1 addressing the notice to her, which she has not claimed, the Plaintiff has sold the Suit flat to Defendant No.3. The Plaintiff contends that that was sold because the Plaintiff needed finance and which has been sold subject to the claim of Defendant No.2. 10.It is seen that though it is unfortunate, action has been correctly taken upon the initial mortgage of the Plaintiff herself. 3 rd party rights have been created in respect of the Plaintiff’s flat. Defendant No.2 has been put in possession. The Plaintiff has herself created further 3 rd party rights despite knowledge of the transaction with Defendant No.2 pursuant to her own mortgage. Under these circumstances the Plaintiff is not entitled to any 4 relief. 11.Notice of Motion is disposed off. 12.Xerox copy of the statement of H.D.F.C. Bank of Defendant No.2 showing the aforesaid 3 debit entries is taken on record. (SMT. ROSHAN DALVI, J.)