1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 107 OF 2009 IN NOTICE OF MOTION NO. 2192 OF 2002 IN SUIT NO. 4574 OF 2000 WITH NOTICE OF MOTION NO. 901 OF 2009 AND CHAMBER SUMMONS NO. 942 OF 2009 1. Mukesh Chimanlal Kapadia and anr. .. Appellants Vs. Mrs. R.C. Kewalramani and ors. .. Respondents Mr. A.B. Dholakia a/w Ms. Rekha C. Shukla for appellants. Mr. K.T. Kukreja i/by Devang Shah for respondent no.1. Mr. Deepak Lulia for respondent nos.7(a) to 7(c). Mr. A.L. Thakkar i/by Thakkar and Co. for respondent no.8. CORAM: B. H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ. January 13, 2010. P.C. 1. We have heard Mr. Dholakia the learned counsel for the appellants- 2 original Defendant Nos.8 and 9 in Suit No. 4574 of 2000. The said suit has been filed by the present respondent no.1 on the Original Side of this Court and for a declaration that she is the lawful owner of the suit flat i.e. Flat No. 201 located in Juhu Kishank Co-operative Housing Society Ltd. on the basis of an agreement dated 1/12/1995. She has also prayed for a declaration that the agreement dated 17/5/2000 signed between defendant no.1 and the present appellants in respect of the suit flat be declared as illegal, bad in law, void and not binding upon her. 2. In the said suit, the plaintiff took out Notice of Motion No. 2192 of 2002 and it has been allowed by the learned Single Judge by the impugned order dated 6/10/2008. By the said order the Motion came to be allowed in terms of prayer clause (b) and (c) and the Court Receiver, so appointed, was directed to appoint the present appellants as his agents subject to payment of Rs.10,000/- per month by way of royalty to the Court Receiver from the date of the Notice of Motion. The royalty amount has been directed to be invested in a nationalized bank as fixed deposit initially for a period for three years. 3. There is no dispute that the plaintiff is in possession of Flat No. 601 3 in the very same society and she claims that she has, in fact, purchased Flat No. 201 in the very same society, located on the 2nd floor vide the agreement dated 1/12/1995 which has been registered. The present appellants claim their title to the suit flat on the basis of the Confirmation Deed registered on 17/5/2000 and they claim to have purchased the said flat from defendant no.1 and defendant no.1, in turn, claims to have purchased from defendant no.3. Mr. Dholakia the learned counsel for the appellants referred to the first and second pages of the agreement dated 1/12/1995 and alleged that the stamp papers could not have been used lawfully to sign the said agreement. As per him the stamp paper, which is forming page no.1 of the agreement, was purchased in the name of the Advocate who is not enrolled with the Bar Council of Maharashtra and Goa and the stamp paper, which forms second page of the agreement, was purchased by one Advocate Pirjada who had no concern with the dispute between the parties or the transaction dated 1/12/1995. 4. The impugned order has been passed on the basis of the prima facie considerations and, as noted earlier, the plaintiff claimed her title to the suit flat on the basis of the registered agreement dated 1/12/1995. Whereas the present appellants claim their title on the basis of the Transfer Deed 4 registered on 17/5/2000 i.e. after the suit was filed on 23/3/2000. The learned counsel for the respondent no.1-plaintiff referred to letters dated 29/11/1995 and pointed out that as per the society the predecessor of the plaintiff was allotted Flat No. 201, whereas defendant no.3 was allotted Flat No. 601. In any case, the appellants have been directed to be appointed as the agents of the Court Receiver and thus they could continue to occupy the said flat but on payment of royalty at Rs.10,000/- per month, which amount is going to be invested as fixed deposit in a nationalized bank. We do not find any reason to interfere with the prima facie view taken by the learned Single Judge and while protecting the possession of the appellants on payment of royalty. Hence, the appeal must fail at the threshold. 5. The appeal is hereby dismissed. 6. Notice of Motion No. 901 of 2009 and Chamber Summons No.942 of 2009 do not survive and same shall stand disposed as such. 7. Mr. Dholakia moved an oral application so as to stay the operation of this order for some time. It was pointed out by the learned counsel for the 5 plaintiff that the royalty amount has not been paid to the Court Receiver from the date of the Notice of Motion. We allow the oral application and stay the operation of this order for a period of six weeks, subject to the condition that the appellants shall deposit with the Court Receiver an amount of Rs.5,00,000/- (Rupees Five Lakhs Only) within a period of three weeks from today. (SMT. V.K. TAHILRAMANI,J.) (B. H. MARLAPALLE,J.)