JUDGEMENT
D. Y. Chandrachud, J. -
(1.)The appeal before the Court arises out of an ad-interim
order passed by the Learned Single Judge on 22nd November
2006, by which the Court Receiver was appointed as Receiver in
respect of the suit premises, with a consequential direction to the
Receiver to appoint any party as his agent, on the usual terms and
conditions. Both the Plaintiff and the First Defendant were
permitted to bid for the agency. The First Defendant is in appeal.
(2.)The suit premises consist of a tenement (Tenement
No.175, Chawl No.25, situated on plot bearing C.T.S. No.588,
Kuldeep Co-operative Housing Society Limited, C.C.I. Nagar, Near
Rationing Office, Rajendra Nagar, Borivali (East) Mumbai-400 066)
admeasuring about 1400 sq.ft. The premises originally belonged
to the Second Defendant. The Plaintiff and the First Defendant
entered into an agreement on 17th February 2003 with the Second
Defendant by which the Second Defendant agreed to sell the
premises jointly to the Plaintiff and the First Defendant at and for a
consideration of Rs.6 lakhs. An amount of Rs.2,26,100/- was paid
to the owner of which Rs. 1.26 lakhs was paid by the Plaintiff and
the balance by the First Defendant.
(3.)A dispute arose between the Plaintiff and the First
Defendant on the one hand and the Second Defendant on the
other. A suit was filed on the Original Side of this Court1 by the
Plaintiff and the First Defendant to these proceedings jointly for
specific performance. The dispute was resolved amicably and
Consent Terms were filed in the suit on 24th September 2004. The
Consent Terms envisaged that the Second Defendant to the
present suit would sell the premises jointly to the Plaintiff and the
First Defendant to these proceedings for an aggregate
consideration of Rs.9,76,100/-. An amount of Rs.4,26,100/- was
stated to have been paid in pursuance thereof and it is the case of
the Plaintiff that Rs.2,26,100/- came to be contributed by him, the
balance of Rs.2 lakhs being paid by the First Defendant. An
amount of Rs. 5.50 lakhs remained to be paid. Of that amount,
Rs.50,000/- was to be paid at the time of the registration of the
agreement to sell or on compliance by the Second Defendant
herein, of his obligations stated in paragraphs 4, 5 and 6 of the
Consent Terms. Rs.5 lakhs were to be paid within a period of 90
days of the execution of the Consent Terms. Under clause 4 of the
Consent Terms, it was envisaged that an agreement to sell would
be executed in favour of the Plaintiffs, as may be necessary or
required by the Mumbai Housing and Area Development Authority.
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