Partly allowed

Brickwork Trading Pvt. Ltd. v. Andrew Chettiar

Bombay HC26 Apr 2010APP/486/2009

Case brief

AI extract

What is this about?

Two appeals challenging the Single Judge's order appointing a Receiver in specific performance suits. The High Court allowed appeals with modifications, confirming the Receiver's appointment but ordering no royalty or security for plaintiff-agents, provided they deposit the balance consideration.

What did the court decide?

Appeals allowed with modifications; Receiver confirmed; Plaintiffs appointed as agents without security or royalty upon deposit of balance consideration.

Brickwork Trading Pvt. Ltd. Vs Andrew Chettiar — Specific Performance | Bombay HC (2010)

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IN THE HIGH COURT JUDICATURE AT BOMBAY

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ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL NO.486 OF 2009
IN
NOTICE OF MOTION NO.2120 OF 2009
IN
SUIT NO.2871 OF 2009

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1.Brickwork Trading (PVT) Ltd.
and another.

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...Appellants.

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Vs.

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Mr.Andrew Chettiar.

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...Respondent.

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AND

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APPEAL NO.487 OF 2009
IN
NOTICE OF MOTION NO.2119 OF 2009
IN
SUIT NO.2870 OF 2009

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1.Brickwork Trading (PVT) Ltd.
and another.

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...Appellants.

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Vs.

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Mr.S.Paul Mathew Chettiar...Respondent.

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Mr.Janak Dwarkadas, Sr. Advocate with Mr.Gaurav Joshi
& Ms.Pooja Kshirsagar i/b. M/s.I.C.Legal, for
Appellants.

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Mr.S.N.Vaishnawa i/b. M/S.N.N.Vaishnawa & Co., for
Respondent.

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CORAM: D.K.DESHMUKH & R.V.MORE,JJ.

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DATED:26th April, 2010

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P.C.:

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1.Admit. Heard finally by consent of the

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parties. Both the appeals can be disposed of by
common order because the appellants in both the
appeals are same. The following can be taken as
admitted facts:-

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The appellants are builder with whom the
Respondent in the appeal had entered into an
agreement to purchase two flats, one each. Part of
the consideration was paid. Suits were filed for
decree of specific performance. Notices of motion
were taken out. The defence of the builder was that
the agreements have been terminated. The learned
Single judge who has decided the notices of motion

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has found the prima facie case in favour of the
plaintiffs and has granted temporary injunction and

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also granted liberty to apply for Receiver as and

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when construction of the building is completed.
Pursuant to that liberty, notices of motion were

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taken out for appointment of Receiver. Those notices

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of motion have been decided by the learned Single

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Judge by orders dated 7.9.2009. These appeals are
directed against that order. The learned Single Judge

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has appointed Receiver on both the flats and has

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directed appointment of plaintiffs as agent of the
Receiver on payment of royalty without security. For
the royalty, he has directed bids to be invited. But

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he has also permitted plaintiffs to bid. But he has

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directed that whatever may be the bid amount, in case
the bid of the plaintiffs is accepted, he should be
given credit of the amount that is paid by him as
also amount of interest on that amount.

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2.The learned Counsel for appellants submits

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that the learned Single Judge was not justified in
making order for appointment of Receiver without

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recording a finding that the property is likely to be
waisted. The order of temporary injunction is
already operating. The learned Counsel submits that

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admittedly, the plaintiffs have not paid full amount
of consideration. The learned Counsel further submits

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that the order of the learned Single Judge for giving
credit at the time of his appointment as an agent, of
the amount of interest on the amount that he has paid
is also unjust. The learned Counsel appearing for
original plaintiffs-respondents in the appeal submits
that there is already a prima facie finding recorded
that the agreement between the parties for sale of
the flats subsists. The plaintiffs have paid
substantial amount, the flats are ready, they are
also willing to pay the balance amount. He submits
that the plaintiffs are willing to be appointed as
agent of the Receiver and they are ready to deposit
the amount which in balance in the Court and have no
objection to the defendants withdrawing that amount.
They are also willing to pay all the outgoings of the
flats once they start occupying the flats as agent of
the Receiver.

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3.We have perused the record. We find that

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there is clear finding recorded in the earlier order

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that there is a strong prima facie case in favour of
the plaintiffs and an order of temporary injunction

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has been granted restraining the defendants from
alienating the flats and creating third party
interest therein, as also restraining them from
handing over possession of the flats to anybody. It

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is also clear that the plaintiffs have paid
substantial amount to the defendants. In our
opinion, therefore, nobody�s interest will be served
by keeping the flats unoccupied during the pendency

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of the suit. In our opinion, in this situation, no

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exception can be taken to the order of the learned
Single Judge appointing Receiver. However, in our
opinion, without requiring the plaintiffs to deposit
the balance amount of agreed consideration, an order

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for plaintiff�s appointment as agent of Receiver
should not have been made by the learned Single
Judge. The plaintiffs are willing to deposit the
agreed amount of consideration in this Court and they

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have also no objection to this Court permitting the
defendants to withdraw the amount. In our opinion,
therefore, if the plaintiffs deposit the entire

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amount of consideration, there should be no
justification for requiring the plaintiffs to pay any

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royalty. In our opinion, taking overall view of the
matter therefore, the following order would meet the
ends of justice:-

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The appeals are disposed of. The orders

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passed by the learned Single Judge is confirmed
subject to the following modification:-

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(i)Within a period of four weeks from today,

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the plaintiffs shall deposit an amount of Rs.
21,00,000/- (Rupees Twenty one lacs only) in Suit no.
2870 of 2007 and also an amount of Rs.21,00,000/-
(Rupees Twenty one lacs only) in suit no.2871 of
2007, with due intimation to the defendants.

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(ii)On the amount being deposited, the Receiver
shall take possession of the flats which are subject
matter of these suits and appoint the plaintiffs as
his agent to be in possession of the flat on usual

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terms and conditions but without security and

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royalty. It shall be the responsibility of the
plaintiffs to pay outgoings of the flats.

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(iii)The plaintiffs shall remain in possession of
the flats themselves. The plaintiffs shall not be
entitled to hand over possession of the flats to
anybodyelse. The defendants shall be at liberty to

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withdraw the amount without prejudice to their rights
and contentions in the suit.

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(iv)In case the amounts are not withdrawn within

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the period of Eight weeks from today, it be
invested in fixed deposit in a nationalised bank to
the credit of the suit.

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(v)At the request of the appellants, it is

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directed that though the plaintiffs are free to
deposit the amount as directed above, the Receiver
will not take possession though the amount is
deposited, for a period of six weeks from today.

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In view of the aforesaid order, Notice of

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motion no.3804 of 2009 in Appeal no.486 of 2009 and
Notice of motion no.3805 of 2009 in Appeal no.487 of

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2009 do not survive for consideration, they are
disposed of.

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 (D.K.DESHMUKH,J.)

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 (R.V.MORE,J.)

Brickwork Trading Pvt. Ltd. v. Andrew Chettiar

Case brief

What is this about?

What did the court decide?

Brickwork Trading Pvt. Ltd. v. Andrew Chettiar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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