1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2119 of 2009 IN SUIT NO.2870 of 2007 S. Paul Mathew Chettiar ..Plaintiff versus M/s. Brickswork Trading Pvt. Ltd. & Anr. ..Defendants Mr.S.N.Vaishnava i/b.N.N.Vaishnava & Co. for the plaintiff Dr.Birendra Saraf i/b.I.C.Legal for the defendant No.2 CORAM: S.J.VAZIFDAR, J. DATE : 7th SEPTEMBER, 2009. P.C: 1. This is the plaintiff s notice of motion for appointment of a Court Receiver to the suit flat with a direction to the Court Receiver to appoint the plaintiff as his agent without security, royalty or compensation. 2 2. The suit is for specific performance of an agreement to sell the suit flat for a consideration of Rs.28,27,350/- and on the other terms and conditions which are not material for the purpose of this notice of motion. 3. The plaintiff had earlier taken out Notice of Motion No.3861 of 2007 also for the appointment of Court Receiver and for an injunction. The notice of motion was disposed of by an order and judgment dated 6.4.2009 granting an injunction restraining the defendant from selling, disposing off, alienating or encumbering the said flat. The learned Judge however observed that no ground had been made out for the appointment of the Court Receiver at that stage. The learned Judge, therefore, permitted the prayer for receiver to be withdrawn with liberty to apply for the same if cause arose in future. It is pertinent to note that the learned Judge came to the conclusion that prima facie atleast the termination of the agreement by the defendant was invalid. I have therefore proceeded on the basis that the termination 3 is bad in law. 4. When the order and judgment dated 6.4.2009 was passed, the building in which the flat is situated was not ready. Admittedly, today the building is ready and several flats therein have been occupied. The suit flat is expected to be ready for occupation within about four to eight weeks. The plaintiff, therefore, is justified in exercising the liberty granted by the said order by applying for a Court Receiver by this notice of motion. 5. Normally, in a suit for specific performance, the plaintiff cannot be put in possession of the property without any terms and conditions. However strong the plaintiff s case may appear to be, today I cannot presume that it is bound to be decreed. The grant of the relief of specific performance is discretionary. Thus, even if the plaintiff s case on merits/facts is upheld, it is open to the court at the trial either to grant specific performance or compensation in lieu thereof. If, I permit the 4 plaintiff to occupy the flat without any terms and conditions whatsoever, it would work unfairly to the defendant in the event of the suit being dismissed for any reason or even in the event of specific performance not being granted. 6. However, in the facts and circumstances of this case, I am inclined to permit the plaintiff to occupy the suit flat by granting him a substantial benefit by reason of his having paid almost 50% of the total consideration over three years ago. The plaintiff has admittedly paid Rs.12,90,880/-. Even if I were to calculate interest at the conservative rate of 10% per annum for the past three years the amount would stand increased by 4 lakhs. The defendant has had the benefit of the use of this money throughout and continues to have the benefit thereof. There is a strong prima facie case for holding that even if the suit is dismissed, the least that the plaintiff would be entitled to is refund of this amount of Rs.13 lakhs. There is nothing on record which indicates that the defendant would be entitled to retain the 5 said amount even if the plaintiff is not entitled to the benefit of the agreement. 7. I intend therefore, while directing the Court Receiver to appoint an agent, to permit the plaintiff to bid for the agency of the Court Receiver, and in the event of the plaintiff matching the highest bid to permit him to occupy the flat along with the car parking as an agent of the Court Receiver, but after giving the plaintiff credit of 9% per annum on the sum of Rs.17 lakhs. In this manner the equities between the parties would stand balanced irrespective of the nature of the order passed at the final hearing of the suit. 8. The notice of motion is therefore disposed of with the following order: ORDER a) The Court Receiver, High Court, Bombay is appointed as Receiver of the suit flat. 6 b) The Court Receiver shall appoint an agent in respect of the suit flat along with the car parking, on the basis of the amount payable on a leave and license basis. c) The plaintiff is at liberty alongwith third parties to bid for the agency of the Court Receiver. In the event of the plaintiff matching the highest bid, the Court Receiver shall in the first instance appoint the plaintiff as his agent. Further, in that event the plaintiff shall be entitled to credit at the rate of Rs.1,53,000/- per annum. In other words the royalty payable by the plaintiffs would be the difference between the highest bid and Rs.1,53,000/- per annum. d) The license agreement shall initially be for a period of 3 years. Liberty to the parties to apply thereafter. 7