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 ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION NOTICE NOTICE NOTICE OF OF OF MOTION NO.2682 OF 2002 MOTION NO.2682 OF 2002 MOTION NO.2682 OF 2002 IN IN IN SUIT SUIT SUIT NO.867 NO.867 NO.867 OF 2000 OF 2000 OF 2000 Bhupat Bhupat Bhupat T.Vora T.Vora T.Vora ...... Plaintiff Plaintiff Plaintiff vs vs vs Jiten Jiten Jiten M.Busa & anr M.Busa & anr M.Busa & anr ...... Defendants Defendants Defendants Mr.B.A.Vora Mr.B.A.Vora Mr.B.A.Vora for for for Plaintiff Plaintiff Plaintiff Mr.V.G.Mehta Mr.V.G.Mehta Mr.V.G.Mehta for for for Defendants. Defendants. Defendants. CORAM CORAM CORAM : : : A.M.KHANWILKAR, J A.M.KHANWILKAR, J A.M.KHANWILKAR, J DATE DATE DATE : : : 2nd April, 2007 2nd April, 2007 2nd April, 2007 P.C. P.C. P.C. 1.1.1. Heard counsel for the parties. Perused the Heard counsel for the parties. Perused the Heard counsel for the parties. Perused the relevant relevant relevant pleadings and documents on record. pleadings and documents on record. pleadings and documents on record. 2.2.2. This motion is for setting aside ex parte order This motion is for setting aside ex parte order This motion is for setting aside ex parte order passed passed passed against against against the defendants by this court on 19th the defendants by this court on 19th the defendants by this court on 19th April, April, April, 2007 2007 2007 in Notice of Motion No.901 of 2000. By in Notice of Motion No.901 of 2000. By in Notice of Motion No.901 of 2000. By the the the said said said Notice of Motion, the plaintiff had prayed Notice of Motion, the plaintiff had prayed Notice of Motion, the plaintiff had prayed for for for appointing appointing appointing Court Receiver in respect of several Court Receiver in respect of several Court Receiver in respect of several properties. properties. properties. In the alternative to restrain the In the alternative to restrain the In the alternative to restrain the defendants defendants defendants from transferring the suit properties from transferring the suit properties from transferring the suit properties and/or and/or and/or from creating any third party right, title from creating any third party right, title from creating any third party right, title or or or interest thereunder. This court on 19th April, interest thereunder. This court on 19th April, interest thereunder. This court on 19th April, 2001 2001 2001 opined that it is not a case for appointment opined that it is not a case for appointment opined that it is not a case for appointment of of of receiver. However, directed the defendants to receiver. However, directed the defendants to receiver. However, directed the defendants to pay pay pay an an an amount of Rs.1500/- towards interest portion amount of Rs.1500/- towards interest portion amount of Rs.1500/- towards interest portion of of of the amount advanced. It is not in dispute that the amount advanced. It is not in dispute that the amount advanced. It is not in dispute that 2 the the the defendants defendants defendants are depositing that amount regularly are depositing that amount regularly are depositing that amount regularly inin in this Court. Besides, it is seen that the this Court. Besides, it is seen that the this Court. Besides, it is seen that the present present present Notice of Motion is taken out on 25th Notice of Motion is taken out on 25th Notice of Motion is taken out on 25th September, September, September, 2002. Indeed, there is delay in taking 2002. Indeed, there is delay in taking 2002. Indeed, there is delay in taking out out out the present motion. But the circumstances in the present motion. But the circumstances in the present motion. But the circumstances in which which which it it it has been taken out for recall of the order has been taken out for recall of the order has been taken out for recall of the order dated dated dated 19th April, 2001 is set out in the affidavit 19th April, 2001 is set out in the affidavit 19th April, 2001 is set out in the affidavit inin in support support support of the motion. Today, before this Court of the motion. Today, before this Court of the motion. Today, before this Court counsel counsel counsel for the defendants submits that if the for the defendants submits that if the for the defendants submits that if the Notice Notice Notice of Motion No.901 of 2000 was to be heard and of Motion No.901 of 2000 was to be heard and of Motion No.901 of 2000 was to be heard and decided decided decided on merits, the defendants are willing to on merits, the defendants are willing to on merits, the defendants are willing to abide abide abide by the directions given in the said impugned by the directions given in the said impugned by the directions given in the said impugned order order order by depositing the amount of Rs.1500/- p.m. by depositing the amount of Rs.1500/- p.m. by depositing the amount of Rs.1500/- p.m. as as as well as would give an undertaking to this court well as would give an undertaking to this court well as would give an undertaking to this court that that that they will not create third party right, title they will not create third party right, title they will not create third party right, title or or or interest in the disputed property till the interest in the disputed property till the interest in the disputed property till the motion motion motion is is is finally decided and/or till such order is finally decided and/or till such order is finally decided and/or till such order is passed passed passed by this Court. Although this motion is by this Court. Although this motion is by this Court. Although this motion is opposed opposed opposed by counsel for the plaintiff, in my by counsel for the plaintiff, in my by counsel for the plaintiff, in my opinion, opinion, opinion, no prejudice will be caused to the no prejudice will be caused to the no prejudice will be caused to the plaintiffs plaintiffs plaintiffs if if if ex parte order dated 19th April, 2001 ex parte order dated 19th April, 2001 ex parte order dated 19th April, 2001 isisis to be recalled on accepting the undertaking to be recalled on accepting the undertaking to be recalled on accepting the undertaking given given given by the defendants before this Court. by the defendants before this Court. by the defendants before this Court. Accordingly, Accordingly, Accordingly, this motion is made absolute in this motion is made absolute in this motion is made absolute in terms terms terms of prayer clause (a) on two conditions : of prayer clause (a) on two conditions : of prayer clause (a) on two conditions : (i) (i) (i) The defendants shall not create third The defendants shall not create third The defendants shall not create third party party party rights on the properties in question. rights on the properties in question. rights on the properties in question. (ii) (ii) (ii) The defendants shall continue to pay The defendants shall continue to pay The defendants shall continue to pay amount amount amount of Rs.1500/- p.m. towards interest of Rs.1500/- p.m. towards interest of Rs.1500/- p.m. towards interest 3 portion portion portion in terms of order dated 19th in terms of order dated 19th in terms of order dated 19th April,2001 April,2001 April,2001 till further orders to be passed till further orders to be passed till further orders to be passed by by by this court. this court. this court. Notice Notice Notice of Motion No.901 of 2000 be placed for of Motion No.901 of 2000 be placed for of Motion No.901 of 2000 be placed for hearing hearing hearing under appropriate caption on 20th April, under appropriate caption on 20th April, under appropriate caption on 20th April, 2007. 2007. 2007. (A.M.Khanwilkar, (A.M.Khanwilkar, (A.M.Khanwilkar, J) J) J)