1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.558 OF 2004 IN NOTICE OF MOTION NO.3527 OF 2002 IN SUIT NO.4007 OF 2002 Credence Property Developers Pvt. Ltd. ...Appellant. vs. 1.Chaudhary Abdul Majid Shahadat and others. ...Respondents. --- Mr.Prasad Dhakephalkar with Mr.G.V.Bhagat i/b. Divekar & Co., for Appellant. Mr.Kirit Modi with Mr.Jayesh Bhatt, for Respondent no.18. Mr.Z.Jariwala, Ms.Jyoti Ghag i/b. Thakore, Jariwala & Associates, for Respondent nos. 1 to 3. Mr.S.K.Shah i/b. M/s.Bilawal & Co., for Respondent nos.10 to 13, 15 to 17, 19, 20,30, 31 & 34. Mr.M.V.Holamagi, for Respondent nos.5A & 5B and 13A & 13B. 2 CORAM: D.K.DESHMUKH & A.A.SAYED, JJ. DATED: 17th January, 2009. P.C.:- 1. This appeal arises out of the order dated 6.5.2004 passed by the learned Single Judge of this Court in notice of motion no.3527 of 2002 in Suit no.4007 of 2002. It is common ground before us that after the order dated 6.5.2004 was made by the learned Single Judge, certain developments have taken place in that suit in the form of settlement being reached by some of the plaintiffs with the contesting defendants who are appellants in this appeal, and death of one of the plaintiffs as also transfer of interest by some of the plaintiffs. These developments definitely have bearing on the type of interim order that should operate during the pendency of the suit. The appellant has also placed on record consent terms arrived at between the appellant and the respondent no.3 who was plaintiff no.3 in the suit, they are taken on record and marked “X” for identification. In our opinion, in view of these subsequent developments which are significant so far 3 as the type of interim order that should operate during the pendency of the suit is concerned, requires re-consideration of notice of motion which has been decided by the learned Single Judge. It is also common ground that this Court has made an ad- interim order in this appeal dated 21.10.2004 which is presently operating. 2. Taking overall view of the matter, therefore, in our opinion, the following order would meet the ends of justice:- (I) The order dated 6.5.2004 passed by the learned Single Judge of this Court in notice of motion no.3527 of 2002 in suit no.4007 of 2002 is set aside. That notice of motion is remitted back to the learned Single Judge for fresh consideration and decision. The appellant shall file an affidavit in that notice of motion within a period of two weeks from today bringing on record subsequent developments that, according to the appellant, have taken place during the pendency of the appeal. Office shall also place on the record of the learned Single Judge the consent terms at “X” for the consideration of the learned Single Judge. During the pendency of the 4 notice of motion before the learned Single Judge, ad- interim order dated 21.10.2004 passed in notice of motion no.2708 of 2004 in this appeal, shall continue to operate with the following additions: (i) The Receiver of this Court will continue to function as before the ad-interim order dated 21.10.2004. (II) We have been informed that in Wing “G” and Wing “H” there are total 56 flats. According to the learned Counsel appearing for appellant, out of 56 flats, 40 flats have been agreed to be sold and substantial consideration has been received from the purchasers. According to the parties, therefore, there is no reason as to why possession of those 40 flats cannot be given to the purchasers. This position is not disputed before us presently. However, in our opinion, it will not be appropriate to make blanket order for delivery of possession. In our opinion, the following order would meet the ends of justice:- (a) The appellant and the flat purchasers may produce before the Receiver material to establish 5 that full consideration has been received by the defendant no.6 from the flat purchasers and proper agreements have been entered into in their favour in respect of the flats and also the documents to show that the Corporation has granted occupation certificate for occupation of those flats. In short, the defendant no.6 and the flat purchasers have to satisfy the Receiver that they are bonafide agreements to sell the flats and substantial consideration has been paid. Possession of the flats may be given to such purchasers as agent of the Receiver on usual terms and conditions except royalty and security. This order will not come in the way of the Corporation granting occupation certificate, if otherwise, the defendant no.6 is entitled to the occupation certificate in accordance with law. (III) This order will operate during the pendency of the notice of motion before the learned Single Judge, with liberty to the parties to apply for modification of the same, in case there are any subsequent developments. It is made clear that the occupation of 40 flats would be as the agents of the Receiver without royalty and security and they will 6 have to abide by all other conditions as agents. (IV) The learned Single Judge is requested to dispose of the notice of motion as expeditiously as possible. (D.K.DESHMUKH, J.) (A.A.SAYED,J.) ---