* 1 * A.O.968.2010 5.5.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 968 OF 2010 M/s. Belden Homes Pvt. Ltd ......... Appellant V/S. Macrocosm Industries Pvt.Ltd and Ors. ....... Respondents. * * * * Mr. Ravi Kadam, Advoccate General with Mr. V. Dhond and Ms. Tanmai Gadre i/by. Mr. Milind More, Advocate for the appellant. Mr. A. Jayakar i/by. M/s. Khaitan and Jayakar, Advocate for respondent no.1. Mr. Bhalwal a/w. Hemalik i/by. Vyas and Bhalwal, Advocate for respondent no. 2. CORAM :- Smt. R.P. SondurBaldota, J. 5th May, 2011. P.C. :- 1. This Appeal is preferred against the order dated 2nd July, 2010 passed by the Joint Civil Judge Senior Division, Panvel allowing the application for interim reliefs filed by respondent no.1 in Special Civil Suit No. 180 of 2010. The appellant is original defendant no.1 and respondent no.2 is original defendant no.2. The impugned order restrains the appellant, inter-alia, from creating any third party rights * 2 * A.O.968.2010 5.5.2011 over the suit property. 2. In the month of April, 2010 respondent no.1 filed the suit seeking declarations that seven deeds of conveyance, all dated 14 “ th December, 2007 Exhibits A-M” executed by respondent no.2 in it’s favour are valid and enforceable and that it is the absolute owner of the suit property covered by Exhibits-A-M having acquired as bonafide purchasers under “ the seven deeds of conveyance . By way of a relief further to the reliefs “ of declaration, respondent no.1 sought a permanent injunction to restrain the appellant and respondent no.2 from claiming any right contrary to it’s rights in the suit lands. This prayer at clause (c) is vague. It is not clear as to what respondent no.1 means by saying claiming any right “ contrary to the rights of the plaintiffs”. No decree can be passed in terms of such a vague prayer and consequently there can be no interim order in the same terms. 3. Paragraph-2 of the plaint states the details of seven deeds of conveyance executed between respondent no.1 and respondent no.2. The details are as under :- DATE OF CONVEYANCE SURVEY NO. HISSA NO. CONSIDERATION (RS) REGISTRATION NO. EXHIBIT 14 December, 2007 58 60 4 0 96,82,000/- 9521/2007 A” “ * 3 * A.O.968.2010 5.5.2011 14 December, 2007 58 3 12 93,69,000/- 9522/2007 B” “ 14 December, 2007 58 61 62 7 2 2 86,95,000/- 9523/2007 C” “ 14 December, 2007 59 77 1 3A 91,22,000/- 9524/2007 D” “ 14 December, 2007 58 2 5 95,25,000/- 8525/2007 E” “ 14 December, 2007 58 59 84-A 8 2 15A 99,36,000/- 8526/2007 F” “ 14 December, 2007 58 9 10 79,72,000/- 9527/2007 G” “ 4. Respondent no.1 claims to have made an aggregate payment of Rs. 6,43,28,000/- to respondent no.2 after ascertaining his title to the property from the 7/12 extracts. This claim of payment of consideration is seen to be reiterated at paragraph-9 of the plaint wherein it is stated that respondent no.1 has become absolute owner of the suit property “ having acquired the same as bonafide transferees for considerable value of Rs.6,43,28,000/-” paid to respondent no.2 under the seven deeds of conveyance. The plaint then refers to the public notices issued by respondent no.1 and the response received from the appellant to the public notices. * 4 * A.O.968.2010 5.5.2011 5. The claim of the appellant, on the other hand, is that the property covered by the seven deeds of conveyance mentioned above was in fact purchased by it by two agreements of sale dated 29th April, 2006 and 4th October, 2006. Both these agreements were at the relevant times registered with the Registrar of Sub-Assurances. The sale came to be completed by execution of deed of conveyance on 7th December, 2007 which was registered on 19th March, 2008. The appellants had paid the entire stamp duty on the transaction of sale at the time of registration of the agreement of sale. According to the appellants, registration of conveyance on 19th March, 2008 relates back to 7th December, 2007, the date of execution of the conveyance. In that case on 14th December 2007, respondent no.2 was no more the owner of the suit properties, it having been vested in the appellant. Hence, the deeds of conveyance relied upon by respondent no.1 are of no consequence. The appellant alleges that the documents of conveyance relied upon by respondent no.1 are got up documents executed by the respondents in collusion with each other, solely to defeat it’s rights. It has also been contended by the appellant that respondent no.1 has suppressed several material facts from the Court, thereby dis-entitling itself to the equitable relief of injunction. Further, a reference has been made to the conduct of respondent no.1 * 5 * A.O.968.2010 5.5.2011 during the hearing of the present proceedings to submit that, it has been dishonest and that such a dishonest person is not to be protected by the Court of law. 6. The application for interim reliefs before the trial Court was not opposed by respondent no.2 who had remained absent despite service of the proceedings. He has however appeared at the appellate stage and has disputed the claim made by respondent no.1. It has been his specific claim that respondent no.1 has not paid the entire consideration under the seven deeds of conveyance and therefore the same stand cancelled for non-payment. He alleges in his reply that the cheques issued by respondent no.1 to him to the extent of Rs.3,68,28,000/- had dishonoured and by his advocate’s letter dated 21st February, 2008 he had called upon respondent no.1 to make good the cheques, with a warning that on failure, action would be taken against it. Thereafter, respondent no.1, had in fact expressed it’s inability to pay the entire amount of consideration and offered to withdraw from the transaction on reimbursement of the amounts paid by it. Respondent no.2 relies upon two communications received from respondent no.1 for the purpose. 7. Mr. Ravi Kadam, the learned Advocate General, points out, that there is a specific claim made by respondent no.1 in the plaint that it * 6 * A.O.968.2010 5.5.2011 paid the consideration of Rs.6,43,28,000/- to respondent no.2 to purchase the suit properties. As per the deeds of conveyance, the entire amount of the consideration was paid by 4 cheques for each transaction. The details of the cheques are mentioned in the deeds of conveyance. Undisputedly, some of the cheques when presented for payment had dishonoured. The total amount under the cheques dishonoured was of Rs.3,68,28,000/-. Respondent no.2 had therefore sent advocate’s notice dated 21st February, 2008 calling upon respondent no.1 to honour the cheques. The reply of respondent no.1 to the notice, however, did not even touch upon the fact of dishonour of cheques. It merely complained that despite payment of Rs.2,25,00,000/- it had not been put in possession of the property. Later, by another communication vide letter dated 8th October, 2008 respondent no.2 expressed its inability to pay the entire amount of Rs.6,43,28,000/- to respondent no.2. It admitted that it had paid part consideration of Rs. 2,75,54,000/- and the expenses for registration of the document totalling to Rs.3,25,00,000/-. Respondent no.1, offered to withdraw from the transaction on refund of Rs.3,25,00,000/- alongwith interest. Respondent no.2 has annexed this correspondence to his affidavit-in-reply. These facts have not been categorically controverted by respondent no.1 in it’s affidavits-in-rejoinder. It merely seeks inspection of the original * 7 * A.O.968.2010 5.5.2011 documents from respondent no.2. On a prima-facie view, this would mean that the claim made by respondent no.1 in the plaint of having made the entire payment as recorded in the conveyances is not correct. In that case, it must be said that respondent no.1 has not come to the court with clean hands. 8. On the background of the above facts, on 20th September 2010 when the appeal was taken up for admission, the learned counsel for respondent no.1 made a statement that respondent no.1 would keep ready the statement of bank account for the relevant period before the next date of hearing. It did not honour it’s statement on the next date i.e. 27th April, 2011 but reiterated the statement by saying that it would file an affidavit annexing the bank statement thereto. It has, thereafter, filed three affidavits, but, has not produced the statement of its bank Account. In the first affidavit dated 28th April, 2010 respondent no.1 sought to give particulars of the payments made to respondent no.2. All the payments are said to have been made by cheques. The first set of payments is by seven cheques issued during the period 25th December, 2007 to 1st February, 2008 totalling to an amount of Rs.1,25,00,000/- The second set of payment is by 4 cheques not from respondent no.1 but from M/s. Magnet Index Pvt. Ltd a sister company, issued during the * 8 * A.O.968.2010 5.5.2011 period 17th December, 2007 to 6th June, 2008 totalling to Rs.1,02,80,000/-. The third set of payments is by 3 cheques issued during the period 16th December, 2007 to 24th March, 2008 paid to a relative of respondent no.2 and to respondent no.2. The payments under the three sets aggregate to Rs.3,53,83,000/-. Every payment claimed to have been made is of a date subsequent to the date of seven deeds of conveyance. Respondent no.1 has neither given particulars of the balance payment, nor, produced any evidence of it before this Court. The above facts, would, prima-facie show that on the date of execution of the seven deeds of conveyance, no consideration had flown from respondent no.1 to respondent no.2. Another circumstance relied upon by the appellant, in support of it’s contention is that respondent no.2 is the erstwhile Director of respondent no.1. He had resigned from the post on 12th August, 2008. There is no denial of the fact by either of the respondents. 9. In an attempt to establish payment of consideration, respondent no.1 seeks to rely upon purported admissions made by respondent no.2 of receipt of the entire consideration. It has annexed copy of Indemnity “ Bond” dated 27th February, 2008 allegedly executed by respondent no.2 recording that respondent no.2 had received full consideration of the land and had no complaint or demand towards the transactions. The * 9 * A.O.968.2010 5.5.2011 document also states that peaceful and vacant possession of the entire land had been handed over to respondent no.1 and that respondent no.2 fully abides by the MOU between him and respondent no.1 dated 10th December, 2007. This document is made on a non-judicial stamp paper of Rs.100/-. It was apparently to be executed before some authority. Significantly, this document executed after the date of conveyances in favour of respondent no.1 does not refer to the deeds of conveyance, but refers to some MOU with respondent no.1. Respondent no.2 has disputed this document by contending that the signature appearing thereon is not his signature. Therefore, this document until it is proved by necessary evidence at the time of trial, cannot come to the rescue of respondent no. 1 to show that it had made the entire payment to respondent no.2. Besides, the other documents in the form of letters sent by respondent no. 1 to respondent no.2, referred to earlier, desiring to withdraw from the transaction of sale, falsify the claim of respondent no.1. 10. The learned Advocate General relying upon decisions of the Apex Court in the case of Oswal Fats and Oils Ltd V/s. Additional Commissioner (Administration), Bareilly Division, Bareilly & Ors. reported in (2010) 4 SCC page 728 and Dalip Singh V/S. State of Uttar Pradesh & Ors. reported in (2010) 2 SCC page 114 submits * 10 * A.O.968.2010 5.5.2011 that the Apex Court has time and again, strongly abhorred the litigants who are dishonest and the litigants who suppress material facts from the Courts of law. It is already seen above that respondent no.1 has suppressed material facts from the Court in the plaint, as well as, in the affidavits filed before this Court. One glaring omission and concealment has been in not producing the statement of its bank account despite making a solemn statement before the Court. 11. Perusal of the impugned order, shows that, the trial Court has completely disregarded the facts noted above. It has also lost sight of the fact that the agreements of sale in favour of the appellant being registered with the Sub-Registrar of Assurances, respondent no.1 had notice of the same. Further, respondent no.1 has not challenged the conveyance in favour of the appellant. Hence, the Appeal from order is allowed with costs. The impugned order is set aside. 12. Mr. Jayakar, learned counsel for respondent no.1, requests for stay of operation of this order. The application is rejected. . All concerned parties to act on authenticated copy of this order. [SMT. R.P. SONDURBALDOTA, J]