1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.1430 of 2008 In Suit No.3448 of 2005 Samruddhi Co-op. Chs.Ltd. .. .. Plaintiff v/s. Mumbai Mahalaxmi Construction Co. Ltd. & ors. .. .. Defendants Ms.Sumedha Rao for Plaintiff. Ms.D.R. Trivedi for Deft.Nos.2 & 3. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 17 th & 18 th September, 2008 P.C. : 1. This Notice of Motion is taken out for appointment of Court Receiver in respect of the suit premises which is flat No.B/213 in the Plaintiff-Society and for an ex-parte judgment and decree under Order 39 Rule 11 of the Code of Civil Procedure for breach of the orders dated 20.12.2005 and 5.2.2008. This Suit has been filed for recovery of amount of arrears of compensation and non- occupancy charges by Defendants 1 to 4 and for injunction against them from creating third party rights. 2. It has been the Plaintiff's case in the Plaint that Defendants 2 and 3, who are the partners of Defendant No.1, were the 2 builders. Defendant No.2 was the sole selling agent of Defendant No.1. They are in collusion. The members of the Plaintiff-Society were forced to take possession of incomplete flats because Defendant No.1 failed to complete the construction. 3. Defendant No.1 is not shown to be served with the writ of summons. Defendant No.4 has since left the premises. The main contesting Defendants are Defendants 2 and 3. 4. In the Plaintiff's initial Notice of Motion, an order came to be passed by Justice Vazifdar on 21.12.2005 accepting the cheque for Rs.1 Lakh given by Defendants 2 and 3 to the Plaintiff without prejudice to its rights and contentions. Outgoings of the Society, as paid by all the members, were directed to be paid by Defendants 2 and 3 and the Plaintiff was directed not to collect the occupancy charges. No further transfer of the suit flat was to take place. 5. The Plaintiff's Notice of Motion No.4040 of 2005 came to be disposed of on 5.2.2008. The statement of Defendants 2 and 3 that they have no intention of inducting any third person without the Plaintiff's permission in their flat was accepted. 6. The Plaintiff alleges that the flat is being misused by third 3 parties and hence it has applied for appointment of Court Receiver. The Plaintiff further alleges that the outgoings have not been regularly paid and hence has applied for decreeing the Suit against Defendant No.7. 7. The Plaintiff has not shown the suit flat transferred to a third party or any third party being inducted in the flat. Hence there is no breach of the order of injunction. 8. The case of the Plaintiff is that some persons come into the suit flat. They allege certain criminal activities which go on in the suit flat. The Plaintiff has applied for appointment of Court Receiver upon such sporadic acts. 9. Paragraph 4 of the Affidavit- in-support of the Plaintiff shows that some unknown persons started residing and parking their cars. Paragraph 5 of the Affidavit- in-support shows a witness summons being received by a member of the Society in a criminal case against Defendant No.2. Paragraph 8 of the Affidavit- in-support made allegations about certain cars being parked and certain strangers entering the flat of Defendant No.2 in a drunken state and some criminal activities taking place in the flat. 10. These allegations are oral. They are vague. They are not 4 supported by any documentary evidence. 11. The Defendants have denied the Plaintiff's allegations. They have shown one of the cars being that of the sister of Defendant No.2. The flat adjoining the flat of Defendant No.2 is admittedly owned by his father. Hence, Defendant No.2's sister's car can be legitimately expected to be parked on certain occasions in the compound of the suit building. 12. It is the main case of Defendant No.2 that he has been severely harassed by a Police Officer one Rajput who has been involved in a Suit for specific performance filed by Defendant No.2 in respect of another property viz. Ashirwad in Borivali against the owners of the property with whom he entered into an Agreement. The said Rajput has been conveyed that premises despite the Suit of Defendant No.2 for specific performance. It is his case that the said Rajput has been harassing Defendant No.2 by framing him in various false criminal cases so that he may give up his claim to that property. 13. The Affidavit- in-support shows no particulars of any criminal cases. The Affidavit- in-rejoinder shows a criminal case, inter alia, of abduction and extortion which appeared in the newspaper of 16 th July 2008. The Affidavit- in- 5 rejoinder further shows a list of several cases against Defendant No.2 which was not filed in support of the Notice of Motion. All these cases, except one, are of the period prior to the Notice of Motion, beginning 1981 until 2002. Defendant No.2 has filed his sur- rejoinder, and in this case most justifiably. 14. The Advocate for Defendant No.2 drew my attention to each of the documents in the sur- rejoinder showing various complaints made by Defendant No.2 against the said Rajput. It is contended by her that most of these cases are in respect of the transaction in Ashirwad building which involves the owner one Karnik and the subsequent purchaser, the said Rajput. Even the complaint in the Bar Council of Maharashtra has been filed by one of the owners against the Advocate of Defendant No.2, which came to be dismissed. 15. By documentary evidence, Defendant No.2 has shown several cases being compounded, one case in which he was discharged and several cases in which charges are not yet framed. Defendant No.2 has also relied upon a poster put up allegedly at the instance of the said Rajput on behalf of one Harish Shetty to whom the Plaintiff had apprehended that the property at Ashirwad would be sold. This is sought to be shown by Defendant No.2 by way of an interim order in his 6 Suit of Justice Rebello making a reference to the said Harish Shetty as well as the said Rajput. 16. Interestingly, certain information under the Right To Information Act [RTI Act] is claimed. The information has revealed that several of the criminal cases listed by the Plaintiff in Exhibit- D to the Affidavit- in-rejoinder are the cases filed in respect of the Ashirwad building at the instance of the employee of the said Police Inspector Rajput. The information given under the RTI Act on 13.2.1997 shows details of the CR filed at the instance of the employee Gopal Singh Pardeshi of the said Rajput, who is the tenant of flat Nos.1A and 1B in the Ashirwad building. It shows an other criminal case, listed in Exhibit- D, which is in respect of a hotel premises in which Defendant No.2 claims that the licence has been issued to the said Rajput's father. Another criminal complaint also listed in Exhibit- D to the Affidavit- in-rejoinder is again by the vendors of the said Ashirwad building. 17. It is the case of Defendant No.2 that after being conveyed the said property during his pending Suit, the said Inspector Rajput has inducted the vendor of cycles, one Nirav Gosaliya. Another complaint in the said list is filed by the said Gosaliya, who carries on business unauthorisedly in the 7 compound of building Ashirwad. 18. The Advocate on behalf of Defendant No.2 meticulously took me through each of the enumerated complaint numbers in Exhibit- D to the Affidavit- in-rejoinder. She also took me through the information obtained under the RTI Act by Defendant No.2. She showed me the difference of how the information with regard to the complaints against Defendant No.2 by others has been freely given, but the information about the complaints made by the said Rajput has been refused to be given in the letter dated 13.2.2007 bearing No.1578. 19. The Advocate for Defendant No.2 further argued that an oral direction came to be passed that no complaint against Defendant No.2 shall be entertained by the Borivali Police Station. Accordingly, it shows that further complaints in Exhibit- D to the Affidavit- in-rejoinder came to be filed by Kandivali Charkop Police Station. 20. Defendant No.2 has made various complaints to the Deputy Commissioner of Police and other authorities even against the hawkers, Hari Om and Harishbhai, who carry on business in the compound of Ashirwad building. They are stated to be inducted by the said Inspector Rajput. No 8 action is taken on such complaints of Defendant No.2. 21. Defendant No.2 has made out a prima case case to show that he has been persecuted under the aforesaid prosecutions. Hence, the Plaintiff's reliance upon a statement enumerating the number of complaints filed against Defendant No.2 to show, prima facie, that Defendant No.2 was on the wrong side of the law cannot beget orders as prayed. As aforesaid, two of these cases have been settled and in one case Defendant No.2 has been discharged. The other cases relate directly or indirectly to the parties to the transaction in respect of the Ashirwad building. 22. The Plaintiff's case that in a residential building criminal activity cannot be permitted and if that is seen a case for Court Receiver is made out would hold good in case of a member or an occupant being prima facie shown to have indulged in criminal activities. That has not been shown. Hence, no case for appointment of the Court Receiver is made out. 23. Prayer (b) in the Notice of Motion is to pass an exparte decree against the Defendants. It must proceed on the footing that the orders in the Notice of Motion aforesaid have been breached. It is only if the willful breach is clearly 9 shown that an ex-parte decree could be passed without considering the defence, if any, of the Defendants in the Suit. Such relief would tantamount to striking off the defence, if already made. The initial ad- interim order dated 21.12.2005 prohibits a transfer of the suit flat. The suit flat is not shown to be transferred to any party. On the Plaintiff's own showing, some parties are found in the suit flat. Some cars are found in the compound of the suit building. This oral statement is not substantiated. In view of Defendant No.2 having shown how numerous criminal complaints have been wrongly filed against him, harassment to Defendant No.2 by other modes cannot be ruled out. Unless the Plaintiff shows on evidence any party being put in possession consequent upon a transfer, the order dated 21.12.2005 cannot be taken to have been breached. Similarly, the order dated 5.2.2008 restraining the Defendants from inducting any third person, encumbering, creating third party rights, etc. in the suit flat is also not shown to have been breached. Hence, the prayer for passing an ex-parte decree in favour of the Plaintiff in the Suit also cannot be granted. 24. It is argued on behalf of the Plaintiff that prayer (b) is pressed as the maintenance amounts are not regularly paid. 25. There is a dispute with regard to the amount of 10 maintenance. There is no prayer with regard to the maintenance amount payable in this Notice of Motion. However, Defendant No.2 has, though delayed, made a payment of Rs.15,000/- after the filing of the Suit. The Plaintiff has given credit for that amount. Defendant No.2 has been paying at the rate of Rs.900/- per month since January 2008. The Advocate for Defendant No.2 concedes that in addition thereto, Rs.45/- are to be paid in respect of the sinking fund and shall be paid. Defendant No.2 shall regularly pay maintenance as directed. 26. Save and except the above direction, the Notice of Motion stands dismissed. [SMT.ROSHAN DALVI, J.]