ORDER
P.S. Patankar, J.
1. This Notice of Motion is taken out by the plaintiff praying for appointment of the Court Receiver and for injunction during the pendency of the suit.
2. The suit is filed for specific performance of the agreement entered into under letter of allotment dated 7-5-1989 and 27-5-1989 and revised on 27-3-1990, in respect of Flat No. 2, B-Wing, Daya Sarita, Gokuldham, Malad (East), Bombay 400 063.
3. The defendant No. 1 is a firm of developers and builders. Defendant Nos. 2 to 6 are partners thereof. Defendant Nos. 7 to 10 are owners of the plot of land on which the building Daya Sarita was to be built.
4. The plaintiff booked flat No. 2 admeasuring about 560 sq. it. on 27-5-1989. Consideration agreed was fixed at Rs. 3,30,555/-. It was subsequently revised to Rs. 3,36,560/-in view of increase in area. However it was shown as Rs. 2,06.250/- (Rs. 1,37,500/- for flat and Rs.68,750/- for extra-amenities) in the original letter of allotment dated 27-5-1989. According to the plaintiff the plaintiff has paid an amount of Rs. 2,52,560/- mentioned in para 10 of the said agreement – 3 times by cash and 3 times by cheques. Out of the said amount, Rs. 50,000/- which was paid on 6-4-1990 by cash came to be refunded on 6-6-1990, by defendant Nos. 1 to 6 in cash. Thus plaintiff paid Rs. 2,02,560/- to defendants 1 to 6. From time to time letters were written to defendant No. 1 lo furnish copies of agreements. But there was no reply. Finally the plaintiff, has lodged the letter of allotment for registration by payment of stamp duty under Amensty Scheme on 29-3-1995.
5. According to the plaintiff defendant Nos. 1 to 6 were not carrying out the construction as agreed and they were delaying the same on one or the other ground deliberately. On 3-11-1992 defendants 1 to 6 by making a false averments that payment was not made has agreed terminated the allotment agreement. Thereafter the correspondence followed between the parties and the plaintiff requested this defendants 1 to 6 to withdraw the same. The plaintiff thereafter filed the suit for specific performance on 4-3-1993. On 13-7-1993 the plaintiff registered lis pendense with respect to the suit flat.
6. Defendants on 12-3-1994 issued notice in the newspaper for the in respect of this flat and again on 19-3-1994. The plaintiff on 28-11-1993, thereafter gave public notice in Mumbai Samachar requesting the purchaser to be aware that this flat was purchased by the plaintiff. However, again on 16-4-1994, defendants 1 to 6 published an advertisement for selling of the said flat.
7. The contentions raised on behalf of the defendants Nos. 1 to 6 are two folds. It is first contended that the plaintiff was not prepared to pay the agreed installments and hence there was proper termination of the agreement and cannot seek specific performance. It is further submitted that the plaintiff has not averred that he is ready and willing to comply with the obligations imposed upon her under the agreement/ letters of allotment. It is not possible to accept any of these contentions. No doubt defendant Nos. 1 to 6 written letters and calling upon the plaintiff to make the payments. However, these payments were depending upon the completion of slabs of the building as envisaged under the letter of allotment Exh.A to the plaint. It is not the case of the defendant Nos. 1 to 6 that they have demanded the payment aftercomple-
tion of the work as contemplated by it. It that was so, the defendant Nos. 1 to 6 had no right to make the demands without making the necessary progress in the construction. In fact it is the contention of the plaintiff that the work was deliberately delayed and plaintiff was not given any access to watch it. No letter of the defendants 1 to 6 mentions about progress of the construction. As far as the second contention is concerned, I find that in para 15 of the plaint, there is clear averment made that the plaintiff has already paid substantial amount to the extent of 75% of the total consideration and she is ready to pay the balance amount as mentioned in the letter of allotment and the defendant Nos. 1 to 6 have no right to cancel the allotment of agreement.
8. It is to be noted at this stage that defendant Nos. 1 to 6 have not only dealt with the plaintiff in this manner but there are other 5 persons with whom they have dealt in the similar manners. Those 5 persons filed suits and taken out Notices of Motion for interim orders. They were placed before my brother A.Y. Sakhare, J., for orders. The orders passed by A.Y. Sakhare, J., were also challenged by filing appeals by defendant Nos. 1 to 6. But all those appeals came to be dismissed by the Division Bench. I am just making a reference to one of them which is passed in Notice of Motion No. 2995 of 1994 in Suit No. 1440 of 1993, as even in that case the flat was transferred to third party, defendant No. 11 and contention was raised that she was bonafide purchaser and no sic order be passed affecting her rights. In the said case also there was termination letter written by the defendants 1 to 6 termination the agreement. It was held that the defendant Nos. 1 to 6 were trying to deprive the bona fide purchasers of the flats. They were unable to complete the building within the schedule time and were trying to take disadvantage of their own wrong. It was prima facie held that defendant No. 11 was set up by the defendant Nos. 1 to 6 and not a bonafide purchase. On the very day of termination of the agreement, the agreement was entered into with defendant No. 11 i.e. without giving 15 days notice. This order was challenged by filing Appeal No. 1108 of 1997. This Division Bench approved the observations made and reasoning given by the learned Single Judge and dismissed the said appeal on 11-11-1998. I find that the position in the present matter is similar.
9. It has been pointed out that there is affidavit filed on behalf of the defendant No. 11 contending that it is a bonafide purchase for value without notice. It has been stated that there was a letter of allotment issued on 3-11-1992 to it and the agreement was entered into with defendant No. 1 to 6 on 22-2-1993 and the consideration amount of Rs. 3,25,000/- was paid and possession was given in August, 1993. It is further mentioned that the suit premises were given on license basis to the licensee.
10. There is further affidavit dated 4-12-1997 sworn by the Advocate for the defendant No. 11 stating that date of allotment i.e. 3-11-1992 has been wrongly mentioned. Hence he has withdrawn the same. It is to be noted that the said affidavit has not filed by the party. It is difficult to accept that without any letter of allotment straight way the agreement for sale was entered into with defendant No. 11 on 22-2-1993. It seems that defendant No. 11 is a firm and nothing is produced to show that the amount of Rs. 3.25 lakhs was paid It is not even mentioned how the amount was paid. Further it is to be noted that said agreement was alleged to have been submitted for registration on 14-10-1997. No reason whatsoever is given why it was not submitted earlier when the possession was alleged to have been given to the defendant No. 11 in August 1993. Secondly the plaintiff has already registered the lis pendens with respect to the suit flat on 3-7-1993. It is clear that in order to give go bye to this, this agreement has been produced. I further find that there was advertisement issued by the defendant Nos. 1 to 6on 12-3-1994, 19-3-1994 and 16-4-1994 regarding this flat. If three agreement was already entered into this would not have been, there would not have been such advertisements. Moreover, the defendant No. 11 in
the affidavit has not even mentioned the name of the licensee to whom license was given or the date on which it was given. All vague averments are made to suit the purpose of defendant Nos. 1 to 6. In my opinion, therefore, prima facie defendant No. 11 has been set up by defendant Nos. 1 to 6. Prima facie I feel that the defendant Nos. 1 to 6 are trying to deprive the plaintiff of her right by hook or crook. Defendant No. 11 cannot be called a bonafide purchaser for value without notice. In fact the alleged termination letter dated 3-11-1992 does not give 15 days notice as required by the model agreement and admittedly consideration was not also refunded. This was noticed by my brother Sakhare, J., while passing the other orders as mentioned above and which came to be confirmed by the Division Bench.
11. The learned Counsel for defendant No. 11 now states that defendant No. 11 is in possession of the said flat. However in the affidavit dated 10-11-1997 it is stated that licensee of defendant No. 11 is in possession.
12. The plaintiff has made out a prima facie case and it is necessary to protect the plaintiff’s interest. I pass the following orders :-
i) The Court Receiver, High Court, Bombay, is appointed in respect of flat No. 2, 4th floor, B wing, Daya Sarita, Gokul Dham, Malad (East), Bombay 400 063 as Court Receiver and Court Receiver to take forcible possession from whomsoever is in possession of the said flat, if necessary with the help of Police.
ii) The plaintiff to deposit in this Court a sum of Rs. 1,04,000/- within 6 weeks from today. If the plaintiff makes the deposit as stated above, the Court Receiver to put the plaintiff in possession of the suit flat without payment of security and royalty.
iii) If the plaintiff fails to make the deposit as above, then defendant No. 11 be appointed as Agent of the Court Receiver, on usual terms and conditions in respect of royalty and payment of security and execution of Agency Agreement.
iv) If the plaintiff deposits the amount, the prothonotary and Senior Master, High Court, Bombay is directed to invest the same in nationalised bank for a period as he deems just and proper.
13. The Court Receiver to act on the basis of the ordinary copy of this order duly autentiated by the Associate.
14. The learned Counsel for the defendant No. 11 prays for stay of this order for 4 weeks. Order stayed for 4 weeks.