1 25 nms.2331.06 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2331 OF 2006 IN SUIT NO. 2066 OF 2006 Housing Development Finance Corporation Limited. ... Plaintiff Vs. Parasrampuria Industries Limited and anr. ... Defendants -------- Mr. Sinil Purohit i/b Wadia Ghandy and Company for the Plaintiff. Mr. Rahul D. Oak for the Defendants. -------- CORAM : A.A. SAYED, J. DATE : 28 th July, 2010. P.C. 1 The above Notice of Motion is taken out by the Plaintiff inter- alia for appointment of Court Receiver with power to sell the mortgage properties. 2 The suit is filed by the Plaintiff against the Defendants for recovery of amount given on loan to the Defendant No.1 alongwith interest thereon. It is an admitted position that the property in question was mortgaged to the Plaintiff. It is further admitted that the business of the Defendant No.1 has closed down and that the reference before BIFR 2 25 nms.2331.06 filed by the Defendants was rejected. 3 By an order dated 30 th March, 2010 (Coram: R.Y.Ganoo, J) in the above Notice of Motion, the statement of the Defendants came to be recorded that till the disposal of the Notice of Motion, Defendants shall not create third party rights in regard to the 16 dwelling units in question and that they shall not deliver possession of any of the units to an outsider if the possession of any dwelling unit is returned by its employee. The said order also directed the Defendants to file list of occupants in regard to the 16 dwelling units. Pursuant to the said directions contained in the order dated 30 th March, 2010, the Defendants have filed their Affidavit in Reply. Annexure -A to the Affidavit in Reply reflects the position of the 16 dwelling units as on 21 st April, 2010. The relevant extract of paragraph 6 of the Affidavit reads as under: “6. I say that all the 16 dwelling units mortgaged against the said loan were allotted to staff of the Defendant No.1. I say that since the business of Defendant No.1 is closed down and financial claims of the said staff members are still pending, the said staff members have not vacated the said premises. I say that I visited the said premises on 11/4/2010 and find out that currently some dwelling units are vacant and some units are locked by the staff members. Hereto annexed and marked as Annexure – A is the list of last allotment to the staff members in respect of 16 dwelling units concerned.” 3 25 nms.2331.06 4 In paragraph No.5 of the affidavit in reply, it is stated as follows: “5. I say that in November, 2004 the Defendant No.1 was facing the severe labour problems due to which the factory of Defendant No.1 at Silvasa was shut down and serious law and order situation was arose. I say that due to said labour problems the senior staff of the Defendant No.1 was not able to enter the premises of the factory. With reference to para 6 of the above Notice of Motion, I deny specifically that the Defendants are in possession of the original Agreement of Sale or are bound to return the same. I say that the papers which were sent by the Registrar at the relevant time might have been received by some employees who were indulged in to the said illegal strike. I again say that the Defendants herein never received original Agreement of Sale and are not in possession of the same.” 5 The learned counsel for the Defendants is not in a position to state whether after filing of the affidavit-in-reply dated 21 st April, 2010, the status of the dwelling units is the same or is in any manner altered. From the averments in said affidavit-in-reply it appears that the Defendants are not entirely in control of the mortgaged property. 6 Considering the overall facts and circumstances of the case, I am satisfied that the appointment of the Court Receiver is just, 4 25 nms.2331.06 convenient and necessary to prevent any waste being caused to the mortgaged property. The Notice of Motion is allowed in terms of prayer clause (b) to the extent of the portion bracketed in red. The Court Receiver shall take symbolic possession of the mortgaged property. The Court Receiver is appointed on usual terms and conditions. The Court Receiver shall visit the suit property and submit a report with regard to the allotment and actual possession and occupation of the 16 dwelling units within a period of eight weeks from today. The parties to the suit as well as the occupants of the mortgaged property shall cooperate with the Court Receiver. The Plaintiff would also be at liberty to apply for further orders by taking out appropriate application, if the need so arises. 7 Notice of Motion to stand disposed of accordingly. [ A.A. SAYED, J ]