- (1.) THIS Notice of Motion is taken out by the Plaintiff. The Plaintiff has filed this suit for a decree of specific performance of the agreement dated 16th October, 1997. By that agreement, the defendant No.1 sold flat No.A7 in the building of the Defendant No.5/society for a consideration of Rs.60,00,000/-. According to the agreement, the full amount of consideration was paid on the date of the agreement. However, possession of the flat was not given, because some internal changes had to be made so that the flat No.A7 is separated from the adjoining flat No.A8 and separate entrance can be made to flat No.A7. According to the Plaintiff, the Defendant No.1 undertook to do that within a period of 15 days from the date of the agreement.
(2.) BY this Notice of Motion the Plaintiff prays for appointment of the Receiver on the suit flat. The defence of the Defendants is that there were some business dealings between the Plaintiff and the husband of the Defendant No.1; that at the relevant time the husband of the Defendant No.1 was arrested, the Defendant No.1 needed money to get her husband released and therefore, she approached the Plaintiff and the Plaintiff agreed to pay the amount of Rs.60,00,000/- to her, out of the total amount of Rs.10,00,00,000/- (rupees Ten Crores) that was paid by the Plaintiff to the husband of the Defendant No.1, and just to justify the payment in the account book the agreement was signed by her. I have heard the learned Counsel for both sides. So far as transaction is concerned, the signature on the document is not denied. That the Plaintiff paid an amount of Rs.60,00,000/- to the Customs Authorities on behalf of the husband of the Defendant No.1 is also not denied. The only defence is that the nature of the transaction was not a sale of flat. According to the Defendant No.1, she signed the document because her husband was in jail and her son was in hospital. But perusal of the document shows that the son of the Defendant No.1 has also signed the document and the husband was released in November, 1997. According to the Defendant No.1, she did not take any steps to have the document cancelled because she was told by the Plaintiff that he will not act upon that document. But the plaintiff actually issued a notice dated 27th March, 1998 calling upon the Defendant No.1 to complete the transaction and to hand over the physical possession of the flat. There is no dispute that this notice was received by the Defendant No.1. There is no reply to this notice. Even, thereafter, the Defendant No.1 has not taken steps to get the agreement cancelled or to tell the Plaintiff that he cannot act upon this agreement. I also do not find any explanation given by the Defendant No.1 for not taking any steps in this regard. It is further to be seen here that it is the case of the Defendant No.1 in the affidavit in reply that this amount of Rs.60,00,000/-, which was paid by the Plaintiff was part of the amount of Rs.10 crores that the Plaintiff owes to the husband of the Defendant No.1. The learned Counsel for the Plaintiff submits that though the Defendant No.1 was called upon to give the details of this amount of Rs.10 crores, no details have ever been given, nor as the Defendant No.1 or her husband filed any proceedings in any court of law for recovery of the amount of Rs.10 crores, which according to the Defendant No.1, was due from the Plaintiff to her husband. I also do not find any explanation given in the affidavit filed in reply for not taking steps to recover the balance amount from the Plaintiff, if really the Plaintiff owes an amount of Rs.10 crores to the husband of the Defendant No.1.
(3.) TAKING overall view of the matter, it appears that the defence put up by the Defendant No.1 at least prima facie cannot be accepted. On the other hand, there is an agreement of sale duly signed by the Defendant No.1 and her son. The receipt of Rs.60 lakh is also admitted by the Defendant No.1. In these circumstances, therefore, in my opinion, it would be appropriate to appoint the Receiver on the property. Notice of Motion is, therefore, granted in terms of prayer clause (a) excluding bracketed portion. It is directed that the Receiver shall only take symbolic possession of the suit flat. The Receiver may appoint the Defendant No.1 as his agent to be in possession of the flat on usual terms and conditions including royalty. It is further directed that in case the Defendant No.1 does not come forward to execute the agency agreement within the period of six weeks from the date on which the offer is made to her, the Receiver shall take physical possession of the suit flat from the Defendant No.1. Thereafter, after securing the permission from the Defendant No.5/ Society, the Receiver shall take steps at the expenses of the Plaintiff to have the flat separated as contemplated by agreement between the parties and then place the Plaintiff in possession of the flat in possession as agent of the Receiver on usual terms and conditions without any royalty and security. Till the Receiver takes possession, ad-interim order in terms of prayer clause (b) shall operate. At the request of the learned Counsel for the Defendant No.1, it is directed that the Receiver shall not take even symbolic possession of the flat for a period of four weeks from today. Receiver & parties to act on simple copy of the order duly authenticated by the Associate/ Personal Secretary of the Court as a true copy.;