( 1 )

( 2 ) THIS is an appeal by the 1st defendant against the order of the learned Single Judge dated 8. 9. 94 in IA No. 7909 of 1994 in Suit No. 2828/93 appointing a Receiver in an application filed by the plaintiff-lst respondent, without service of the notice in the IA on the appellant.

( 3 ) THE appellant - 1st defendant Mr. Ravi Kumar is admittedly the owner of a flat with commercial space measuring 1106 sq. ft. on the first floor of a multi- storied building, namely, hansalaya , 15, Barakhamba Road, New Delhi. The appellant states that he is a non-resident Indian (NRI) and ha had earlier purchased this property by paying sale consideration in foreign exchange after taking the required permission from the Reserve Banit of India. The plaintiff-lst respondent Misha Vadhera is said to be a builder of the multi- storied building hansalaya and according to the appellant, the plaintiff is carrying on business in real-estate through respon dent 3, a real-estate agent (M/s Satish Pandit and Associates ). It is said that the appellant is carrying on business in names of respondent 2 (Hote- Hans Pvt. Ltd.) and respondent 4 (M/s Hansalaya Properties ). Appellant admits that he entered into an agreement of sale with respondents 1,2 for a consideration of Rs. 90 lacs in respect of the above property, and the terms are that Rs. 1 lakh be paid on 28. 10. 1993, Rs. 8 lakhs within 7 days of signing the agreement and balance of Rs. 81 lakhs in 60 days of obtaining of the permission by the appellant from the competent authority under Chapter XX-C of the Income-Tax Act. The appellant was to apply for the clearance from the I. T. authorities within 10 days after the signing of the agreement i. e. after receipt of Rs. 8 lakhs. It is also admitted that appellant received Rs. 1 lakh on 28. 10. 93. But, it is the case of the appellant that the plaintiff failed to pay Rs. 8 lakhs within 7 days of the signing of the agree ment on 28. 10. 93 and therefore the plaintiff committed breach of contract. The appellant says he, therefore, revoked the contract by a FAX message on 6. 11. 1993 sent to the plaintiff (FAX No. 3314830) and he also sent a registered letter in that behalf on 7. 11. 1993. He also says that he returned the amount of Rs. 1 lakh by a registered letter dated 16. 12. 93 in the form of a Bank Demand Draft No. 110013014 on 16. 12. 1993 drawn on Bank of India. These letters are filed as Annexures I and II. Appellant says he also took out a public notice and sent a legal notice dated 31. 1. 1994 to the respondents by regd. post as per Annexures III and IV. According to him, no reply was received.

( 4 ) THE Suit No. 2828/93 was filed for specific performance by the 1st respondent and IA No. 10881/93 was filed under Order 39 Rules 1 and 2 CPC to restrain the appellant from alienating the property to others, etc. A learned Single Judge ordered notice on 20. 12. 93 for 1. 2. 94. The plaintiff filed FAO (OS) 4/94-against the order notice issued by the learned Judge. In that appeal, a Division Bench of this Court passed an order on 6. 1. 94 permitting the appettant-therchi (i. e. plaintiff) to deposit Rs. 89 lakhs and said that if the amount is deposited, there shall be temporary injunction as prayed against the 1st defendant (appellant in the present appeal ). Later the said order was modified on 25. 1. 94 into an order to furnish bank-guarantee and the interim injunction was continued. These orders were passed without the present appellant who was respondent in FAO (OS) 4/94 being served in the appeal. The said appeal FAO (OS) 4/94 came up before a Division Bench later, on 4. 5. 94 and even by that time the 1st. defendant (lst respondent therein) was not served in that appeal or suit. Inasmuch as earlier an order was passed by the Bench on 6. 1. 94 granting injunction without the 1st defendant (lst respondent therein) being served, the Bench, when the matter came before it on 4. 5. 94, was not in a position to eit