NIRANJAN A RAWAL Vs. PAWANKUMAR SARAF

JUDGEMENT

(1.) THE plaintiffs have filed the suit for specific performance of the agreement for sale dated 22.6.82 Exhibit "B" to the plaint for disputed unit nos.1 and 2 admeasuring 810 sq. ft. situate on ground floor at Bindal Udyog Bhavan, Village Tungawa, Saki Vihar Road. Andheri (E), Bombay, against the defendants have also prayed and for possession and other consequential reliefs. The plaintiffs have averred in the plaint that by an agreement dated 22.6.82 entered into by and between the plaintiffs and the defendants, the defendants agreed to sell to the plaintiffs and the plaintiffs agreed to purchase from the defendants industrial premises being unit nos.1 and 2 admeasuring 810 on ground floor at Bindal Udyog Bhavan, situated on survey no. 42, Hissa No.6, C.T.S. No. 106/1, 106/2, 106/3, 106/4, 106/5, CTS No. 106 and Survey No.42, Hissa No.1 part of Village Tungawa, Andheri (E), Bombay, details of which have been described in the plaint for a total consideration of Rs.88,200/- on the terms and conditions mentioned in the agreement. The plaintiffs have paid substantial consideration to the defendants for the purchase of the disputed gala and remaining amount is to be paid by the plaintiffs to the defendants upon delivery of possession to the plaintiffs. The possession of the disputed premises were to be delivered to the plaintiffs when building was to be ready for occupation provided all the dues were paid by the plaintiffs to the defendants. Other terms of the agreement include that plaintiffs would pay to the defendants prevailing charges of municipal and other taxes and out-goings in respect of the said gala and the said gala be used for small scale industrial purpose or such other purpose. The defendants would form a co-operative society/limited company of all the holders of the industrial galas and plaintiffs was to become member thereof. According to the plaintiffs, they have repeatedly called upon the defendants to give possession of the disputed gala to the plaintiffs but the defendants have not handed over the possession of the disputed gala nor have they completed the sale on one pretext or the other. The plaintiffs have taken out a notice of motion in the suit praying that pending the hearing and final disposal of the suit, the Court Receiver, High Court, Bombay, or some other fit and proper person be appointed as Receiver in respect of the disputed gala unit nos.1 and 2 with all powers under Order XL Rule 1 of the Civil Procedure Code with a direction to appoint the plaintiffs as its agent in respect of the said gala without any security and/or compensation. It is also prayed by the plaintiffs in the notice of motion that pending the hearing and final disposal of the suit, the defendants be restrained by an order and injunction from in any manner dealing with, disposing or, encumbering or creating third party rights and/or alienating and/or parting with possession of the disputed gala to anybody whosoever on any basis whatsoever. In the affidavit in support of the notice of motion, facts stated in the plaint are reiterated. In opposition to the notice of motion, an affidavit in reply has been filed by the defendant no.1. The defendants have not disputed the agreement entered into with the plaintiffs for sale of disputed gala nor have they disputed the receipt of consideration as averred in the plaint by the plaintiffs. The defendants have, however, submitted that the construction of the building has been made over the piece of land which is excess vacant land under the Urban Land (Ceiling & Regulations) Act, 1976 (for short Ceiling Act) and that though an application has been made by the plaintiffs for exemption of the said land under the Ceiling Act, no order of exemption has been passed by the government and in this view of the matter, the Bombay Municipal Corporation is also not granting any completion certificate and till the completion certificate is granted by the Bombay Municipal Corporation, the plaintiffs cannot be put in possession of the disputed Gala. Various other pleas have also been set out in the affidavit in reply which are not relevant at this stage. In the premises aforesaid it is prayed that notice of motion be dismissed.

(2.) MR .Devarshree, the learned counsel appearing for the plaintiffs urged that in view of the admitted facts viz., agreement of sale of disputed gala in favour of plaintiffs by the defendants and substantial payment of consideration having been made over to the defendants, and the fact that the defendants have not completed the contract for sale nor have they put the plaintiffs in possession, notice of motion deserves to be made absolute in terms of prayers (a) and (b) in as much as the Court Receiver should be appointed with all powers under order XL rule 1 CPC over the disputed gala and plaintiffs be put in possession as its agent and defendants be restrained from alienating transferring, creating any third party right in any manner whatsoever in the disputed gala. Mr. Devashree also relied upon two orders of this Court passed in the notice of Motion No. 217 of 1997 in Suit No. 200 of 1992 on 15.1.1997 and 17.3.1997. On the other hand, the learned counsel appear in for the defendants reiterated that no exemption has been granted by the State Government under Ceiling Act and till that exemption is granted by the State Government under the Ceiling Act the defendants shall not be able to get completion certificate from the Bombay Municipal Corporation and unless the completion certificates is granted by Bombay Municipal Corporation,the plaintiffs cannot be put in possession of the disputed gala nor the Court Receiver deserves to be appointed. According to the learned counsel for the defendants, none of the conditions for appointment of Receiver under Order XL rule 1 are satisfied and, therefore, question of appointment of Receiver over the disputed Gala does not arise. The learned counsel for the defendants submits that the defendants have already stated in the affidavit in reply that they would not transfer alienate or create any third party interest in the disputed gala in any manner whatsoever during the pendency of the suit.

(3.) ACCORDINGLY , the prayer for appointment of Court Receiver made in the notice of motion is rejected. Notice of motion is made absolute in terms of the and interim order passed by this Court on 25.9.1996. No costs.