1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.3984 of 2008 IN Suit No.3463 of 1987 M/s.Sagar Construction Co. .. .. Plaintiff v/s. Manoharlal Kishorilal Gupta HUF & ors. .. Defendants And State Bank of India & anr. .. Respondents Mr.Virag Tulzapurkar, Sr. Adv. With Ms.Alpana Ghone i/by Shah & Sanghavi for Plff. Mr.S.K. Chaturvedi i/by Chaturvedi & Asso. for Res.No.1 . Ms.Swati Sawant for Deft.Nos.2 (a), 2(b)(i) to (iii) & 2(c). Mr.Yatin R. Shah for Deft.Nos.6 to 8. ------- CORAM : SMT.ROSHAN DALVI, J. Dated : 26 th March 2009 P.C. : 1. This Notice of Motion was served on 26.11.2008. Affidavit- in- reply is still not filed. The Defendants' Advocate applies for time to file the Affidavit on the ground that the husband of Defendant No.2(c) expired in the second week of January 2009. The Defendants' Advocate represents Defendant Nos.1, 3 and 4 and all the heirs of the deceased- Defendant No.2. Only the husband of Defendant No.2(c) is not the party required to give instructions to the Advocate. The 2 parties in the Suit are required to give instructions to the Advocate. Instructions for filing Affidavit- in-reply are not given since November 2008 when the Notice of Motion was served. The application for time is refused. 2. This Suit is for specific performance of the Agreement dated 16.10.1985 between the parties. The Defendants were in possession. The Defendants had mortgaged the suit premises to State Bank of India (SBI). The SBI had filed the Suit for recovery of the loan for which the mortgage was granted. That Suit was transferred to the Debts Recovery Tribunal (DRT). The Plaintiff has paid off the loan. The Title Deeds of the premises remained with the SBI as the premises was mortgaged. The loan has been paid off. The Title Deeds are to be returned. However the loan has not been paid off by the loanee. Hence the Title Deeds cannot be returned to the loanee. The loan has been paid off by the Plaintiff. Hence the SBI shall return the Title Deeds to the Court Receiver, who is already appointed Receiver in respect of the suit premises in this Suit. 3. When the Court Receiver was appointed in respect of the suit premises, Defendant Nos.1, 3 and 4 and the heirs of Defendant No.2 were in possession of the 2nd floor premises. Hence they were directed to be allowed to continue as agents 3 of the Court Receiver without security or costs. 4. They have admittedly left the suit premises. The suit premises is at present vacant. The Advocate on behalf of the Defendants stated that there was some gundagiri because of which the Defendants were constrained to leave the suit premises. Otherwise, the possession of the Defendants continued in the suit premises. 5. It is clarified that the juridical possession of the Defendants is not sought to be changed. Only the security of the suit premises has to be maintained. Hence the Court Receiver shall seal the suit premises which is now vacant for either of the parties to the Suit who may be the successful party in the litigation. Upon paying off the loan of the Defendants, the Plaintiff put itself in possession as the mortgagee and became entitled to be handed over the Title Deeds which relief they have sought in this Notice of Motion from the date the loan was paid off. The Plaintiff must, therefore, bear and pay the usual liabilities of the property for which they claim Title Deeds. The SBI has paid security charges for protection of the suit property until now. The Plaintiff shall pay the security charges from the date on which the Plaintiff paid off the bank loan and released the property. 4 6. Mr.Tulzapurkar on behalf of the Plaintiff agrees to make payments. The Plaintiff shall pay to the Court Receiver the amounts paid off by the SBI to the Court Receiver from the date the Plaintiff discharged the loan of the SBI. Once that amount is received by the Court Receiver, the Court Receiver shall repay the SBI. (SMT.ROSHAN DALVI, J.)