NMS1281/1277-10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1281 OF 2010 IN SUIT NO.958 OF 2010 Rameshchandra Nanalal Khetani .. Plaintiff Versus Himanshu Rashiklal Gandhi & Anr. .. Defendants WITH NOTICE OF MOTION NO.1277 OF 2010 IN SUIT NO.959 OF 2010 Rameshchandra Nanalal Khetani .. Plaintiff Versus Rasiklal B. Gandhi and Anr. .. Defendants Mr.J.S.Kini i/b. Suresh Dubey for plaintiff Mr.Parag Shah i/b. M.Shah & Co. for defendants CORAM : S.C.DHARMADHIKARI, J. DATE : 8th September 2010. P.C.: 1] Heard both sides. Plaintiff has filed the suit against the defendants on the basis that the agreement for sale of immovable property and more particularly the flat described in the Schedule to the agreement is NMS1281/1277-10 2 terminated and, therefore, the defendants have no right, title or interest to remain in the said property. 2] During the pendency of such a suit, apprehending that defendants may continue to occupy the flat without any payment and also may part with possession thereof or alienate or encumber or transfer them, that this motion for ad-interim relief has been moved. 3] Mr.Kini appearing for plaintiffs in both suits states that the agreements have been terminated. The termination is on account of default committed by the defendants and particularly by defendant No.1 in both suits. The defaults and breaches in payment and not adhering to the time schedule therein disentitles these parties from occupying and using the flats as they have no title thereto. Once the agreements are terminated, there is no question of conveying the property to them. Therefore, it is just and convenient that the Court Receiver, High Court, Bombay be appointed as Receiver and particularly because statement of accounts would demonstrate that paltry sums have been paid in furtherance of the agreement for sale, justifying their termination. NMS1281/1277-10 3 4] On the other hand, the Counsel for first defendant would urge that the defendants have paid amounts which constitute the consideration/ price for the said flats but the plaintiff is not deliberately accounting for the same. The reasons for termination are ex facie bad in law and that is demonstrated in the letter dated 18th March 2010 addressed to the plaintiff’s Advocate and also by the averments and statements in the written statement of the defendants. 5] Having perused the material at some length with the assistance of the Counsel for parties, so also finding that the plaintiff relies upon the figure in the statement of his bank account to show that the amounts are duly paid whereas the defendants try to produce extract of their bank account to show the same, interest of justice would be served at this interlocutory stage with the following order:- (a) Considering the nature of the suit and that it is for possession on title and the subject property needs to be protected and preserved, it would be proper to give an opportunity to the NMS1281/1277-10 4 defendants to show their bonafides as well; (b) In the result, on the defendants depositing in this Court a sum of Rs.7.50 lakhs within two months from today, the only interim order in the suit will be that they will be restrained from creating any third party rights or transferring and/ or alienating the same or parting with possession thereof. (c) In default, in addition to the interim order that has been already made, the Court Receiver will take the possession of the suit flats and then appoint the defendants as his Agents on such terms and conditions as to royalty/ compensation as he may determine to be fit and proper; (d) To enable the defendants to show their bonafides and until the Court Receiver takes possession, ad-interim order passed on 5th May 2010 shall continue but without prejudice to the rights and contentions of parties on merits. Motion disposed of. (S.C.DHARMADHIKARI, J)