: 1 : SD 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.992 OF 2006 OF MOTION NO.992 OF 2006 OF MOTION NO.992 OF 2006 IN IN IN SUIT SUIT SUIT NO.859 OF 2006 NO.859 OF 2006 NO.859 OF 2006 Amey Deepak Sarnobat ...Plaintiff V/s. Anita Bhandare & Ors. ...Defendants Mr.G.N. Salunke, Advocate, for the Plaintiff. None for the Defendants. CORAM CORAM CORAM : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. DATE DATE DATE : 27TH AUGUST, 2008. : 27TH AUGUST, 2008. : 27TH AUGUST, 2008. P.C.: P.C.: P.C.: . The Notice of Motion was served on the contesting Defendant Nos.1 to 3. The other Defendants are also served. Even the Writ of Summons is served on all the Defendants. The Notice of Motion is seeking quite a drastic order against the Defendant Nos.1 to 3. In spite of this, the Defendants have chosen not to oppose the same. I am shown the correspondence that occurred between the parties prior to filing of the Suit. The Defendant Nos.1 to 3 sent numbers of replies to the letters of the Plaintiff’s Advocate and yet they apparently chosen not to oppose the Motion. : 2 : 2. The Suit is filed for specific performance of an agreement for sale of certain flat. The father of the Defendant Nos.1 to 3 was the original allottee of this flat in a building owned by MHADA and maintained by the Defendant No.4-Society. The Plaintiff paid substantial amount out of the agreed consideration of Rs.6 lacs to the father of the Defendant Nos.1 to 3. Before the agreement for sale was executed, by consent of the parties, the MHADA changed its record and entered the name of the Plaintiff as allottee of the suit flat. This was done during the lifetime of the allottee i.e. the father of the Defendant No.1 to 3. Before the remaining amount of consideration of Rs.1,97,505/- could be handed over to the seller and before the possession could be taken, the seller i.e. the father of the Defendant Nos.1 to 3, died on 15th December, 2004. The Plaintiff thereafter approached the legal heirs and representatives (i.e. Defendant Nos.1 to 3) of the seller for completing the transaction. Initially they agreed to refund the amount which their father had received from the Plaintiff. But this they could not do for : 3 : reasons known to them. The Plaintiff failed to get the specific performance of the agreement. In this background, the Suit came to be filed. 3. As said above, the contesting Defendants are absent. In this Notice of Motion, the Plaintiff offered to deposit the remaining amount of consideration of Rs.1,97,505/- and sought eviction of the Defendant Nos.1 to 3 from the suit flat and for appointment of Court Receiver in respect of the suit property and initially to appoint the Defendant Nos.1 to 3 as agents of the Court Receiver and subsequently their eviction and his own indication in the suit premises as agent. He also demanded that the Defendants be directed to pay royalty @ Rs.3,500/- per month which according to him is the market rate. 4. In my view, since the averments in the plaint and Notice of Motion have gone unchallenged, the Plaintiff deserves a relief. In my view, the prayer for appointment of Court Receiver in respect of the suit flat is justified but at this stage I am not inclined to direct eviction of the Defendant Nos.1 to 3 from : 4 : the suit flat. So following order should suffice the ends of justice :- "O "O "O R D E R" R D E R" R D E R" "(a). The Notice of Motion is partly allowed. (b). The Plaintiff is directed to deposit a sum of Rs.2,25,000/- in the Court within a period of two weeks from today. The office shall invest this amount in a Fixed Deposit initially for a period of six months in any Nationalized Bank. (c). On depositing the aforesaid amount, the Court Receiver, High Court, Bombay, is appointed as Receiver in respect of the suit flat. They shall immediately take formal possession of the suit flat and they shall appoint one of the Defendants as Agent. They shall recover a sum of Rs.3,500/- per month as royalty from the Defendant Nos.1 to 3 or any one of them. This amount shall be : 5 : handed over to the Plaintiff. (d). In case of two consecutive defaults in payment of compensation by the Defendant Nos.1 to 3, the Court Receiver shall take possession of the suit flat and report the same to the Court. (e). The Notice of Motion stands disposed of in the aforesaid terms. (f). Hearing of the Suit is expedited." [A.V. [A.V. [A.V. NIRGUDE, J.] NIRGUDE, J.] NIRGUDE, J.]