1 appl488.11.sxw ssm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (LODGING) NO. 488 OF 2011 IN NOTICE OF MOTION NO. 524 OF 2010 IN SUIT NO. 426 OF 2010 Prasad Bhau Satam ......Appellant Vs. Darshan Developers and Ors. ......Respondents Mr.V.Y. Sanglikar with Mr. Prakash L. Mahadik for the Appellant. Mr. Shailesh Shah with Mr. Y.M. Chaudhari and Mr. Kunal Cheema for Respondent No.1. Mr.P.G.Lad with Ms. Aparna Murlidharan for Respondent Nos. 2 and 3. CORAM :- DR. D.Y. CHANDRACHUD AND ANOOP V. MOHTA, JJ. DATE :- 8 AUGUST 2011. P.C. :- This appeal arises against an order of the learned Single Judge dated 22 July 2011, granting relief as sought in terms of prayer clause (b) of the Notice of Motion. The learned Single Judge appointed the Court Receiver as receiver with a direction to take possession of Flat No. 202 situated on the second floor in “B” Wing of the newly constructed building called “Ganesh Darshan” and to shift the Appellant, the Original First Defendant, to this flat from the temporary accommodation. The Receiver has been directed to hand over the temporary accommodation to the Original Plaintiff-First Respondent. 2 appl488.11.sxw ssm 2 On 3 August 2010, in a Motion taken out by the First Respondent, the learned Single Judge granted relief in terms of prayer clause (a), while at the same time, recording the undertaking of the Developer. Against the order of the learned Single Judge, an Appeal was filed before this Court. By an order dated 21 December 2010, the Division Bench dismissed the Appeal. It may be noted that during the pendency of the Appeal, by an interim order, the Municipal Corporation was directed to file a report inter-alia specifying the area of the tenement to be provided to the Appellant; the position of the amenities; and whether the tenement conforms to the sanctioned plan. It is after considering the report of the Corporation that this Court dismissed the Appeal, after recording the undertaking of the Developer that in the event that the Appellant is required for any reason whatsoever to vacate the existing tenement, a tenement admeasuring 400 sq. ft. shall be provided in the same development. Thereafter, a Review Petition was dismissed on 15 February 2011. Before the Division Bench, in the earlier proceedings, time to vacate the premises was granted to the Appellant on the request of the Appellant until 10 January 2011. Since the Appellant did not vacate the premises, the First Respondent sought a further order in the Motion in terms of prayer clause (b) so as to enable the Receiver to 3 appl488.11.sxw ssm execute the earlier order by taking possession. 3 In our view, the learned Single Judge has not committed any error at all, in appointing the Court Receiver as receiver and in issuing consequential directions. However, at the hearing of these proceedings, two submissions have been urged: (i) The Developer did not have consent of 70% of the occupants; and (ii) The area of the tenement which is allotted to the Petitioner does not admeasure 400 sq. ft. Both these aspects cannot be considered to be of any substance in view of the previous orders of this Court, which have attained finality. On the first aspect, it needs only to be noted that no such grievance was raised before the learned Single Judge when the order was passed on 3 August 2010. Such a contention was not raised before the Division Bench on 21 December 2010, when the Appeal was dismissed. It was in Review that the question of consent was sought to be raised. The Division Bench, by its order dated 15 February 2011, declined to entertain the submission at that stage. The learned Single Judge in the impugned order has furnished cogent reasons for holding that the contention was sought to be taken up belatedly after several years. As regards the second question, namely, the area of the tenement, that has been considered in the earlier order 4 appl488.11.sxw ssm of the Division Bench dated 21 December 2010, which has attained finality. 4 We, however, find from the prayers in the Notice of Motion, that prayer clause (b) was for the appointment of a receiver in respect of the temporary transit accommodation. In view of the fact that the First Respondent had sought the appointment of a receiver in respect of the temporary transit accommodation, the order of the learned Single Judge would have to be suitably modified so as to provide that there shall be an order in terms of prayer clause (b) of the Notice of Motion before the learned Single Judge. 5 In that view of the matter, the impugned order of the learned Single Judge is in aid of the directions which were already issued in the earlier proceedings. For these reasons, we do not consider that there is any merit in the Appeal, subject to the modification made above. 6 The Appeal is accordingly disposed of. There shall be no order as to costs. (ANOOP V. MOHTA, J.) (DR. D.Y. CHANDRACHUD, J.)