Case: Ramesh Vajabhai Rabari Vs. Pratiksha Real Estate Pvt. Ltd. & Others

Gyan Sudha Misra, J. 1. These special leave petitions assail the judgment and order dated 18.6.2013 passed by the Division Bench of the High Court of Bombay in Appeal No. 683 of 2012 arising out of Notice of Motion No. 16783 of 2007 in Suit No. 1280 of 2007 which has reversed the judgment and order of the learned Single Judge who was pleased to grant an order of injunction in favour of the petitioner Ramesh Vajabhai Rabari. 2. The special leave petitions are still at the admission stage and the entire dispute between the parties essentially revolves around the scrutiny of factual dispute and there is hardly any question of law much less substantial question of law involved in these special leave petitions so as to entertain the same under the parameters of Article 136 of the Constitution. In spite of this and in order to obviate any possibility of miscarriage of justice to either of the contesting parties on account of vacating the order of injunction, we granted liberty of hearing at some length to the counsel for the parties and hence thought it appropriate to assign the reasons substantially. 3. In order to examine the merits and demerits of the case of the contesting parties, we have examined even the factual dispute so as to consider whether the High Court was justified in reversing the order of injunction granted by the Single Judge in favour of the plaintiff/petitioner herein to his prejudice. On scrutinising the same, it appears that an unregistered agreement was signed by one Edmond Dmello - deceased predecessor-in-interest of the vendor of respondent No.1 on 25.7.1973 to sell the suit land comprising an area of 11,733 sq.mtrs. situated at Village Ambivally, Taluka Andheri I, Mumbai and a Suburban District in favour of Shantilal Prabhubhai Patel but the execution of this agreement was to be completed within a period of two years. Subsequently, Shantilal Prabhubhai Patel assigned his rights in favour of M/s. Kirti Constructions Company vide agreement dated 7.8.1975. Thereafter, M/s. Kirti Constructions Co. also assigned its rights in favour of V.B. Patel & Co. vide the 3rd agreement dated 21.9.1975. All these agreements admittedly were unregistered agreements which at one point of time had also been challenged by the successor/owner of the suit land Betram DMello as the original owner Edmond DMello had expired on 25.3.1976 leaving behind two sons namely Betram DMello and Arhtur DMello since deceased and two daughters Diana Mary Rita Chamorette and Elaine Mery Teresa DMello. As already referred to hereinbefore, one of the heirs of deceased Edmond DMello, namely, Betram DMello filed a suit in the City Civil Court, Bombay bearing Suit No. 7584/2000 on 24.12.2000 wherein it was averred that neither the plaintiff Betram DMello nor during the lifetime of his deceased father Edmond B. DMello had executed any document creating any right, title or interest in favour of the defendant No.1 V.B. Patel and Co. and the said company did not have any right, title or interest of any nature in respect of the suit land. However, this suit did not proceed further as the plaintiff Betram DMello did not pursue the same and the suit land remained with V.B. Patel & Co. 4. But it appears that a fresh development agreement much later was executed in favour of the petitioner herein by the defendant Nos. 1 to 8 on 30.12.2005 for the suit land for a consideration of?1 crore in favour of the plaintiff/petitioner Ramesh v. Rabari. Of this amount,?15 lac was payable by the petitioner by way of earnest money at the time of execution of the agreement, whereas the balance was payable to the owners after making out a clear and marketable title as and when the petitioner/developer obtained IOD/Intimation of Disapproval and CC/Commencement Certificate. The document was adjudicated upon by the Collector of Stamps on 21.12.2005 to have a value of?21.25 crores. The agreement that was entered into between the petitioner with defendant Nos. 1 to 8/respondents herein required the owner to make out a marketable title to the property free from encumbrance and was not subject to lis pendense or attachment. On the same date i.e. 30. 12.2005, a supplementary agreement was further executed between the plaintiff and defendant Nos. 5 to 8 stating (i) that the developer plaintiff had inspected the premises and had made all necessary enquiries (Clause 1); (ii) the plaintiff/petitioner had accepted the title of the co-owners and shall not raise any question on the title or call upon the co-owners to make out a marketable title (Clause (i) and (iii); the co-owners had agreed to assign the development rights on as is where is basis (Clause 2). The supplementary agreement according to the plaintiff was entered into as defendant Nos. 5 to 8 had insisted upon such an agreement. 5. It further transpires that on 21.1.2006, a notice was published in the Free Press Journal on behalf of the plaintiff/petitioner recording that defendants 1 to 8 had entered into an agreement allowing the plaintiff/petitioner to develop the property. This was responded to on 23.1.2006 by the advocate for V.B. Patel & Co. (VBP for short) stating that VBP had already entered into agreement of sale with Edmond DMello through the intermediaries - Shanti Patel and Kirti Construction and this was reflected even in the Will which was executed by the deceased Edmond DMello which was duly probated as a consequence of which VBP was in possession of the suit land for more than 30 years and hence the petitioner had no right to purchase this land through any heir of Edmond DMello as the interest had been created on VBP. In fact, in January 2006 VBP had also filed a suit before the City Civil Court for an injunction restraining defendants 1 to 8 from dealing with the suit land or entering into any agreement regarding the suit land. In the said suit, defendants 1 to 3 through their constituted attorney filed an affidavit contending that the suit was barred by limitation and that a mere suit for injunction without a claim for specific performance was not maintainable. The plaintiff/VBP to these proceedings confirmed that he had introduced defendants 1 to 8 for defending the suit instituted by VBP. However, this suit was withdrawn in April 2006 in order to file a substantive suit. Thereafter in April 2006, VBP filed a suit against the defendants 1 to 8 and the plaintiff for a declaration that his agreement for purchase of the suit property was valid, subsisting and binding and for specific performance of the agreement. The plaintiff/VBP in this suit also challenged the legality of the development agreement entered into between the petitioner and defendant Nos. 5 to 8 dated 30.12.2005. 6. It further transpires that the petitioner - Ramesh Vajabhai Rabari did not take any step in pursuance of the agreement for development of the property and hence the original owner of the property/defendant Nos. 5 to 8 terminated the agreement executed in favour of the petitioner on 2.4.2007 and a notice of termination was issued by their advocate communicating that the defendant Nos. 5 to 8/co-owner of DMello family sought to terminate the agreement entered into by them with the plaintiff/petitioner since the petitioner/Ramesh Vajabhai Rabari, did not take any steps in pursuance to the development agreement executed in his favour and hence defendants 5 to 8 terminated the development agreement on 2. 4.2007 wherein it was stated that the petitioner was aware of the transaction with VBP and its continuous possession on the suit land for 30 years, although the petitioner represented that he had settled the dispute with VBP. This however, had been alleged by the petitioner but was found to be false. 7. After the termination of this agreement, the 9th defendant/VBP entered into a development agreement in respect of the suit land with the 1st defendant /respondent No.1 herein Pratiksha Real Estate Pvt. Ltd. in his capacity as the only surviving executor of the Will of Edmond DMello who was the original owner of the suit land and had executed a Will in favour of his four children and also incorporated therein expressly that the suit property had been sold off to VBP. The agreement executed in favour of 9th defendant recites that it is in pursuance of the transaction dated 25. 7.1973 which had been entered into between the original owner Edmond DMello and VBP, although in between the property had changed hands vide unregistered agreement of sale with Shantilal Bhai Patel and Kirti Constructions. 8. On 19.6.2007, an ad interim order was passed by the learned single Judge directing the parties to maintain status quo but liberty was granted to the 9th defendant to negotiate with tenants/occupants and to get their premises vacated. Permission was also granted to the 9th defendant to get the plans sanctioned subject to the condition that prior permission of the court shall be obtained even before actual construction was carried out. The learned single Judge was pleased to allow the application for injunction and restrained the defendants from selling, alienating or transferring the suit property besides which the 9th defendant was also restrained from carrying out further development of the property. 9. The petitioner herein on the other hand also felt seriously aggrieved of the termination of agreement dated 2.4.2007 executed between the petitioner and defendant Nos. 1 to 8 on 30.12.2005 and, therefore, filed a suit bearing Suit No. 1280/2007 in the High Court of Judicature at Bombay on its original side and an application for injunction by way of a Notice of Motion No. 1673/2007 was also filed seeking the relief of injunction against the defendants from selling, alienating, transferring and creating any 3rd party rights etc. during pendency of the suit. In this suit, it is an admitted position that Edmond DMello was the original owner of the suit property who had executed a Will in favour of his four children and VBP/VB Patel & Co. secured an agreement of sale in its favour in regard to the suit property and possession of the same was also delivered by the original owner in its favour which finds mention in the Will executed by Edmond DMello in the Will executed by him which was subsequently probated. Subsequent events do indicate that some of the successors of Edmond DMello executed another agreement of sale in favour of the petitioner which was a development agreement executed on 30.12.2005 whereby the petitioner had agreed to take the property for development on as is where is basis for which?15 lac was also plaid to the owners by way of earnest money but the same was later terminated on 2.4.2007. 10. But it is worthwhile to recollect that the deceased predecessor in title of the defendants respondents had already executed a sale deed in favour of Shanti Patel, Kirti Construction and then to VBP and possession also was delivered to VB Patel & Co. who is found to be in possession of the property for the last 30 years. It is no doubt true that the title and possession of VB Patel & Co. has been questioned by the petitioner as also the cancellation of the agreement of sale in his favour is further under challenge in the suit bearing Suit No. 1280/2007 which is pending trial in the High Court of Bombay. But mere pendency of the suit where the plaintiff/petitioner has failed to establish even his prima facie title as also actual physical possession on the suit land which was not proved, obviously could not establish as to how the plaintiff/petitioner in that event could be allowed to secure an order of injunction in his favour specially when he is yet to secure a decree of specific performance for the land in question and the agreement of sale in his favour itself had been cancelled on 2.4.2007 by the Defendant/Vendor. When the petitioner is yet to acquire the property in question by virtue of a decree of specific performance in order to develop it, he obviously has no semblance of title to the suit property and he is also not in possession of the property in question even as per his own case as he had accepted the agreement for the landed property on `as is where is basis which was not in occupation of even the Defendants/Vendors. Thus, the 3rd ingredient for grant of injunction which could be considered was the balance of convenience. But when the petitioner has not yet taken possession as per agreement nor any steps to develop the property for which he merely had agreement of sale which also was cancelled and had agreed to purchase the disputed property on `as is where is basis could not take possession so as to retain the property from VBP, he could not possibly claim injunction in his favour as he is still to acquire title to the property since he is yet to get a decree of specific performance. 11. It is further clear that the suit which the petitioner has filed against termination of his agreement, is yet to record a finding in favour of the petitioner that the termination of agreement was bad in the eye of law and the decree of specific performance which he has sought by way of relief in the suit is clearly an eventuality. In that view of the matter the respondent No.1 who is claiming the property in question through VB Patel & Co. at least is at an advantage to the extent that VB Patel & Co. has been able to prima facie establish that an agreement of sale had been executed in his favour by the erstwhile deceased owner Edmond DMello and possession also was delivered to him in pursuance thereof he also adduced evidence in support of his plea regarding his possession on the same for the last 30 years. 12. The petitioner in any case has neither established his prima facie title to the suit property as the agreement of sale stands cancelled and a decree of specific performance is yet to be passed in his favour, nor he is in possession of the property in spite of the development agreement in his favour who has not taken any steps to develop the property from 2005 to 2007 due to which the development agreement itself was terminated. The petitioner therefore cannot be conferred the benefit of an order of injunction in his favour in absence of any ingredient which can be held to be the determining factor for grant of an order of injunction. Consideration for awarding an order of injunction in favour of a party claiming it, is too well settled to be reiterated or discussed herein; suffice it to say that the three basic ingredients while considering an application for grant of injunction which are establishment of prima facie case, actual physical possession of the property in question and last but not the least balance of convenience and hardship are the three determining factors to claim an order of temporary injunction in the pending suit. The petitioner although failed to prove any of the three prime factors to claim injunction succeeded in obtaining an order of temporary injunction which the Division Bench of the High Court has reversed and rightly so as the petitioner obtained a development agreement from some of the successors of Edmond DMello which however was also terminated apart from the fact that the original owner Edmond DMello had already executed an agreement of sale in favour of VB Patel & Co. to whom the possession was also delivered and the respondent No.1/Pratiksha has obtained an agreement in its favour from VBP. 13. However, the decree of specific performance as already stated is yet to be passed in favour of the petitioner whereas the respondent No.1 is claiming through VBP in whose favour the erstwhile owner Edmond DMello had executed the agreement of sale in pursuance of which possession was also delivered 30 years ago. The petitioner having entered into an agreement of sale 30 years later from some of the co-sharers which agreement too was terminated on 2.4.2007 obviously cannot be granted an order of injunction restraining the respondent No.1 from claiming the property through VBP which prima facie not only has got interest in the property but also actual physical possession of the same. On the contrary, the petitioner as of now has neither any semblance of title nor has possession on the property nor prima facie case nor balance of convenience in his favour as he is yet to take possession and develop the property. 14. In view of these existing facts and circumstances of the matter, we are of the view that the learned single Judge was not justified in granting an order of injunction in favour of the petitioner and the same has rightly been reversed by the Division Bench of the High Court by assigning valid reasons.

Decision:
0[ds]12. The petitioner in any case has neither established his prima facie title to the suit property as the agreement of sale stands cancelled and a decree of specific performance is yet to be passed in his favour, nor he is in possession of the property in spite of the development agreement in his favour who has not taken any steps to develop the property from 2005 to 2007 due to which the development agreement itself was terminated. The petitioner therefore cannot be conferred the benefit of an order of injunction in his favour in absence of any ingredient which can be held to be the determining factor for grant of an order of injunction. Consideration for awarding an order of injunction in favour of a party claiming it, is too well settled to be reiterated or discussed herein; suffice it to say that the three basic ingredients while considering an application for grant of injunction which are establishment of prima facie case, actual physical possession of the property in question and last but not the least balance of convenience and hardship are the three determining factors to claim an order of temporary injunction in the pending suit. The petitioner although failed to prove any of the three prime factors to claim injunction succeeded in obtaining an order of temporary injunction which the Division Bench of the High Court has reversed and rightly so as the petitioner obtained a development agreement from some of the successors of Edmond DMello which however was also terminated apart from the fact that the original owner Edmond DMello had already executed an agreement of sale in favour of VB Patel & Co. to whom the possession was also delivered and the respondent No.1/Pratiksha has obtained an agreement in its favour from VBP13. However, the decree of specific performance as already stated is yet to be passed in favour of the petitioner whereas the respondent No.1 is claiming through VBP in whose favour the erstwhile owner Edmond DMello had executed the agreement of sale in pursuance of which possession was also delivered 30 years ago. The petitioner having entered into an agreement of sale 30 years later from some of thes which agreement too was terminated on 2.4.2007 obviously cannot be granted an order of injunction restraining the respondent No.1 from claiming the property through VBP which prima facie not only has got interest in the property but also actual physical possession of the same. On the contrary, the petitioner as of now has neither any semblance of title nor has possession on the property nor prima facie case nor balance of convenience in his favour as he is yet to take possession and develop the property14. In view of these existing facts and circumstances of the matter, we are of the view that the learned single Judge was not justified in granting an order of injunction in favour of the petitioner and the same has rightly been reversed by the Division Bench of the High Court by assigning valid reasons.