- 1 - 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. jmi COURT RECEIVER’S REPORT NO.124 OF 2008 IN CHAMBER SUMMONS NO.934 OF 2008 IN SUIT NO.3058 OF 2005. Canara Bank. ..Plaintiff. vs. Ashok R.Pandey & Ors. ..Defendants. .... S.N.Malik, i/b. Singhania & Co., for the Plaintiff. Mr.Onkar Warange, for the Applicant. Mr.K.L.Vyas, Court Receiver. Ms.Rajani V.Awade, third party, present in person. .... CORAM CORAM CORAM: S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. S.J.KATHAWALLA, J. DATE DATE DATE : 24TH FEBRUARY,2009 : 24TH FEBRUARY,2009 : 24TH FEBRUARY,2009. P.C.: P.C.: P.C.: . This report is submitted by the Court Receiver seeking permission of this Court to take forcible possession of the suit flat bearing no.A/6-304 in the building known as Sai Vaibhav Apartment, Shanti Park, behind Shree Prasth, Nalasopara (West), District Thane (the said flat), from whomsoever found in possession by breaking open the lock/locks with the help of police. 2. The Court Receiver was appointed in respect of the said flat in the suit filed by the plaintiff-Bank against the defendants for recovery of a sum of - 2 - Rs.4,94,746/- as per the particulars of claim at Exhibit-Q to the plaint with further interest @ 12.5% from the date of filing of the suit till payment and/or realisation. Reliefs have been claimed in respect of the mortgage of the said flat. By an order of this Court dated 28th September 2007 [Coram :- A.S.Oka, J.], notice of motion was made absolute in terms of prayer clause (a) excluding the bracketed portion starting from the words "including power" till the words "the claim". The Court Receiver was directed to appoint the first defendant as his agent of the suit flat on usual terms and conditions subject to the said defendant agreeing to act as his agent. It was clarified that in case, the first defendant is not inclined to act as agent of the Court Receiver, it will be open for the plaintiffs to apply for further interim reliefs or further directions to the Court Receiver. 3. Pursuant to the said order,the representative of the Court Receiver visited the said flat on 16th February 2008 when he found one lady by name of Rajni V. Awade residing in the said flat. The said Rajni V. Awade informed the representative of the Court that she is the owner of the said flat and she is residing in the - 3 - said flat since 1996 alongwith her family members. He further informed the representative of the Court Receiver that she has taken the said flat from Vaibhav Constructions, a partnership firm through partner Shri Y.S. Naik. It was informed to the representative of the Court Receiver that the name is displayed on the society’s name board, which is affixed at the entrance of the said society. The representative of the Court Receiver, pursuant to the order of this Court dated 28th September 2007, demanded formal possession of the said flat from Ms.Rajni V. Awade, but she refused to give formal possession of the said flat. The Court Receiver therefore, could not implement the order of this Court dated 28th September 2007 and has filed his report. 4. The said Ms.Rajni V. Awade has thereafter taken out chamber summons no.934 of 2008 seeking to be joined as party defendant no.4 to the suit which chamber summons is also before this Court for hearing. In the affidavit in support of the chamber summons, the said Ms.Rajni Awade has made a false statement that she is not aware as to who the said defendant no.1, Shri Ashok R. Pandey is, which false statement is exposed by the registered Agreement for Sale entered into by and - 4 - between the said Ms.Rajni Awade and defendant no.1 Shri Pandey. On the basis of this false statement, normally this Court would have directed forcible possession of the said Ms.Rajni Awade from the suit flat. However, in the instant case, the plaintiff-Bank had prior to the filing of this suit had written a letter dated 7th September 2004, informing the Sai Vaibhav Co-operative Housing Society about the flat sold by Ms. Rajni V. Awade to Shri Ashok Pandey which is mortgaged by Shri Ashok Pandey to the plaintiffs. The said Society by its letter dated 20th October 2004 had informed the plaintiff-Bank that the said flat belongs to Ms.Rajni V.Awade and the said flat is mortgaged against the housing loan taken from the LIC Housing Finance by her. The plaintiff-Bank was also informed that the Society is not aware of any agreement between Ms.Rajni Awade and Shri Ashok R.Pandey, who is defendant no.1. 5. Admittedly, this letter was received by the Bank from the Society. Despite this, the plaintiff-Bank at the time of filing the above suit on 17th November 2005 did not disclose the correspondence between the Bank and the Society more particularly the letters dated 7th September 2004 & 20th October 2004. The order passed by - 5 - this Court dated 20th September 2007 [Coram : A.S.Oka, J.], appointing Court Receiver of the said flat and directing the Court Receiver to appoint defendant no.1, Shri Ashok R. Pandey as agent of Court Receiver was in the absence of the knowledge of the fact that the flat was already mortgaged to LIC Housing Finance and the same stood in the name of Ms.Rajni V.Awade and not in the name of the defendant no.1, Shri Ashok R. Pandey, on the date of the filing of the above suit. 6. In view thereof, the following order is passed on the Court Receiver’s report :- (1) The Court Receiver shall on 2nd March 2009 take symbolic possession of the said flat no.A/6-304 in the building known as Sai Vaibhav Apartment, Shanti Park, behind Shree Prasth, Nalasopara (West), District Thane. (2) Ms.Rajni V.Awade, who is present in Court undertakes not to obstruct the Court Receiver from taking symbolic possession of the said suit flat. She further undertakes that pending the taking over of symbolic possession of the suit flat by - 6 - the Court Receiver, she shall not part with possession or create any third party rights in respect of the said flat. The said undertaking is accepted. (3) Court Receiver’s Report is accordingly, disposed of. 7. Chamber Summons No.934 of 2008 is disposed of by the following order :- (1) The plaintiff shall join the applicant Ms.Rajni V.Awade as party defendant no.4 to the suit, within a period of three weeks from today. (2) The plaintiff after verification with LIC Housing Finance and the said Sai Vaibhav Co-operative Housing Society Limited about the mortgage of the said flat created in favour of the LIC Housing Finance Ltd, shall be at liberty to move for amendments to the plaint and also to take out a notice of motion seeking reliefs against the newly added defendant no.4, Ms.Rajni V. Awade. - 7 - (3) Court Receiver’s Report as well as Chamber Summons are accordingly disposed of. [S.J.KATHAWALLA, [S.J.KATHAWALLA, [S.J.KATHAWALLA, J.] J.] J.]