:1: 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. 3177 OF 2007 OF MOTION NO. 3177 OF 2007 OF MOTION NO. 3177 OF 2007 IN IN IN SUIT SUIT SUIT NO. 712 OF NO. 712 OF NO. 712 OF 2003 2003 2003 Mrs. Neelaben Dahyabhai Patel. ... Plaintiff. V/s. Norein w/o. George J. Pareira & Ors. ... Defendants. Ms. Nutan S. Moily for the Plaintiff. Mr. Bhavesh Parmar for Defendant No.9. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 10TH 10TH 10TH FEBRUARY 2009. FEBRUARY 2009. FEBRUARY 2009. P.C. P.C. P.C. : : : . This is a Notice of Motion by the Original Plaintiff. It prays for the appointment of Court Receiver in respect of the property more particularly described in prayer clause (a) of the Notice of Motion and for an injunction restraining the Defendants from dealing with or disposing off or parting with possession or inducting anyone else or creating any tenancy rights for incorporating or entering into a Development Agreement or making any construction on the subject plot. 2. It is the case of the Plaintiff that she has filed this suit for a declaration that the consent terms dated 13th February 2001 arrived between the Defendants inter-se are bad, illegal and not binding on the Plaintiff. 3. In para 2 of the affidavit in support of the Notice of Motion, the grievance projected in the plaint is set :2: out and thereafter, the Plaintiff alleges that she entered into an agreement for sale of this suit property. She was put in possession. She paid Rs.12,50,000/- by cheques. The deceased filed the Suit in the City Civil Court when George J. Pereira was alive. The deceased Leo Pereira relied upon certain letters written by George Pereira and further taking advantage of the fact that both Leo Pereira and George Pereira expired, consent terms were filed in the suit by the Defendants claiming to be representating the estate of both deceased. The terms conferred the ownership rights on them. It is in such circumstances that relief against the Original Defendant as also the newly added parties were sought. 4. Since Defendant No.9 was a newly added party, I permitted him to file an affidavit in reply to the Notice of Motion. It is stated by him that the Suit is filed in the year 2003. There is no interim relief. The Suit was earlier dismissed. On 15th April 2005, a development agreement was entered into by Defendant No.9 with Defendant Nos. 1 to 8. This was after public notice was issued. In these circumstances, it is stated that the order dated 5th October 2007 should not be continued. 5. After the material on record was perused by me, I had passed an order on 21st Junuary 2009 and permitted Defendant No.9 to file an additional affidavit showing as to how he claims to be in physical possession of the :3: property. 6. An additional affidavit is filed and beyond placing reliance upon clauses 15,16 and 18 of the Development Agreement dated 15th April 2005 and I.O.D./C.C. nothing has been pointed out which would indicate that Defendant No.9 is put in physical possession of the property. Prima-facie, therefore, it appears that Defendant No.9 purporting to be acting as a Constituted Attorney of the owner applied for I.O.D./C.C. The agreement which is relied upon by him, and a copy of the same is annexed to the affidavit in reply filed to this Motion on 12th January 2009, records that the owners desire to allow the developer to develop the property by demolishing the old house and constructing a new building thereon by getting the plan sanctioned from the Municipal Corporation. It is clear that it is the owners who desire to develop the property through this developer. The agreement does not record that physical possession is handed over otherwise than for this purpose. All that is recorded is that the owners have handed over possession to enable Defendant No.9 to demolish the existing house and to commence the construction work. No document is produced, which would evidence that pursuant to the clauses of the agreement, the physical possession was handed over and therefore, the activities postulated by the agreement have been undertaken. The I.O.D./C.C. relied upon is dated 25th May 2007 but beyond stating that the exclusive physical :4: possession of the property was taken after execution of the agreement, nothing has been produced by Defendant No.9. 7. In my view, the merits of the controversy cannot be gone into at this interlocutory stage. All that has to be considered is whether a prima-facie case has been made out. Defendant Nos. 1 to 8 are absent and have not filed any affidavit despite being served. They have not stated that physical possession is handed over to Defendant No.9. It is Defendant No.9 who has filed the affidavit and is relying upon the development agreement in his favour. such being the case to preserve and protect the subject matter of the litigation, interlocutory relief needs to be granted, more so, when prima-facie case is made out and balance of convenience is in favour of the Plaintiff. 8. Hence, it is directed that pending the hearing and final disposal of the Suit, both sides shall maintain status-quo as is being directed under the order dated 21st January 2009. However, the order of status-quo which is granted on 21st January 2009 and continued today, till the disposal of the Suit shall be without prejudice to the rights and contentions of parties. All pleas on jurisdiction and merits so also limitation are kept open. The Notice of Motion is allowed accordingly. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)