/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2359 of 2008 IN SUIT NO.1383 OF 2008 Bharat Petroleum Corporation Limited ..Plaintiff Vs. Goolistan Peter Coelho and Ors. ..Defendants --- Mr. P.KJ. Samdhani, Senior Counsel with Mr.Alok Pai i/b. M/s. Udwadia & Udeshi for the Plaintiffs. Mr. Abhay Abyankar with Mr. Kamlesh Sampat i/by K.A. Sampat & Co. for Defendant nos.1 to 3. Mr. I.M. Chagla, Senior Counsel with Mr. F.I. Divitre, Senior Counsel with Ms. Hemlata Jain, Mr. Ameet Hariani, Mr. Amey Nabar, Ms. Dunita Levis i/by Hariani & Co. for Defendant No.4. ---- CORAM: V.M. KANADE J. DATED JULY 22, 2008 P.C. 1. The Learned Counsel appearing on behalf of the Plaintiff submits that the statement made in the Affidavit in support in paragraph 3(j) is incorrect and that he would like to file an affidavit to that effect. The statement stated to have been incorrectly made in para 3(i) of the affidavit in support of Notice of Motion reads as under: “when the appeal filed by the Plaintiffs in the Supreme Court came to be dismissed the Plaintiffs were required to give an undertaking to the Supreme Court to vacate the / 2 / premises to enable the Plaintiffs to seek redress in appropriate court for enforcement of their right of preemption and to ensure that the Plaintiffs are not dispossessed from the said premises pending adjudication of the Plaintiffs' right under preemption .” He also submitted that he does not press for prayer clause (a) of the Notice of Motion at this stage. I, however, pointed out that I would like to hear the Motion finally. Therefore, by consent of parties, the Notice of Motion was taken up for final hearing. 2. The Plaintiff is a Company, incorporated under the Companies Act and is a Government of India Enterprise. The Plaintiff was formerly known as Burmah Shell. The name Burmah Shell was changed to Bharat Refineries Ltd. on or about 12th February, 1977 and thereafter, it changed to Bharat Petroleum Corporation Limited on or about 1st August, 1977. The Defendant nos.1,2 and 3 are the heirs and/or successors of one Gasper Diago Coelho and Defendant no.4 is a company, incorporated under the Companies Act. For the sake of convenience the parties shall be referred to as the “Plaintiffs” and the “Defendants”. The Plaintiff has filed a suit seeking the specific performance of the agreement dated 5th December, 1952 and for a declaration / 3 / that the sale of plot by Defendant Nos.1,2 and 3 in favour of Defendant No.4 be declared as null and void and in the alternative, the Defendants have prayed for damages to the tune of Rs.1 crores with 18% interest p.a. from the date of the filing of the suit till the payment of the said amount. 3. It is the case of the Plaintiff that the suit property was given on lease to the Plaintiff for a period of 20 years from 1st May, 1963 and the lease was renewed for a period of 3 years from 1st May, 1953. The first suit was filed by the Defendant Nos.1,2 and 3 against the Plaintiff in the Small Causes Court, seeking eviction of the Plaintiff from the suit property. In the said suit, inter alia, it was contended by the Plaintiff herein that he had a right of pre-emption and he had exercised the said right in the year 1992 and, therefore, he is the owner of the said property. Small Cause Court decreed the said suit in favour of the Defendants. Against this order, the Plaintiff herein preferred an appeal. In the appeal also a similar ground was raised by the Plaintiff. However, the suit filed by the plaintiff was dismissed. Against this order, the Plaintiff preferred a Civil Revision Application. It was also dismissed on 26th June, 2007. Against this order, the Plaintiff preferred a special leave petition in the Apex Court. This special leave petition was also dismissed by the Apex Court on 10th September, 2007. The Apex Court, however, at a request being made / 4 / by the Plaintiff, granted 1 year's time to the Plaintiff to vacate the premises by giving an undertaking to that effect to the Apex Court. Accordingly, the said undertaking was filed by the Plaintiff in the Apex Court. 4. The Plaintiff, thereafter filed the present plaint on 23rd April, 2008. After the Plaint was affirmed on 6th of February, 2008, the Notice of Motion was taken out on 4th July, 2008 and the affidavit in support was affirmed on 30th June, 2008. It is an admitted position that the copy of the Undertaking, which the Plaintiff has filed in the Apex Court was not annexed to the plaint and in the affidavit in support, the averments which is now sought to be disquoted and deleted was made in the affidavit in reply. Shri Samdhani, the learned Senior Counsel appearing on behalf of the Plaintiff submitted that by virtue of an agreement, which was executed between the parties, a right of preemption was given to the Plaintiff to purchase the said property. He submits that the said right had accrued to the Plaintiff and that it operated in perpectually. He invited my attention to the averments made in on of the clauses of the Articles of Agreement dated 5th day of December, 1952, which reads as under: “AND IT IS HEREBY AGREED by and between the parties that the lease hereinbefore referred to shall be for a period / 5 / of 20 years and on the terms and conditions and covenants contained in the form set out in the third Schedule hereunder written and that the Tenant shall have the first option to purchase the demised premises should the Landlord wish to dispose them off or any part thereof. It will mean that the Landlord shall approach the Tenant and on getting from it a written refusal to purchase shall have the liberty to sell the property. The Tenant shall have 2 months time to exercise the option from the date of the receipt of the notice.” It is submitted that this right of preemption operated in perpectually and the Defendants, in breach of the said right of preemption, had entered into an agreement of sale in 2005 and consent terms were filed on 27th February,2006. It is submitted that the Plaintiff, therefore was entitled to seek a declaration that the said agreement of sale and the consent terms were in breach of the right of preemption, which was exercised by the Plaintiff. It is submitted that the Plaintiff was entitled to challenge the said agreement which was executed in favour of the Defendant No.4 and he wanted to establish that / 6 / it was not bonafide agreement. In support of the said submission, he relied on the judgment of the Apex Court in case of Ran Baran Prasad, Appellant v. Ram Mohit Hazra and others Respondents reported in AIR 1967 Supreme Court page 744. It is further submitted that the proceedings under the Rent Act though had culminated in dismissal of the special leave petition which was filed by the Plaintiff, the Small Causes Court had made an observation in its order that the Plaintiff was entitled to challenge his right of preemption before the appropriate Forum. He submitted that, therefore, the Plaintiff has an independent right to file a suit. He further submitted that even during the pendency of the proceeding under the Rent Act, the parties were negotiating for the settlement and he relied on the correspondence between the parties in support of the said submission. 5. Shri Chagla, the learned Senior Counsel appearing on behalf of the Defendant No.4 submitted that the Notice of Motion was liable to be dismissed, firstly, because issue raised by the Plaintiff in the present suit was raised in the proceeding in the Small Causes Court and was concluded by the order, which was passed by the Apex Court and it was not open now for the Plaintiff to raise the said issue again. It is submitted that the suit itself is barred by limitation. It is submitted that Article 97 of the Limitation Act / 7 / provided that a suit for exercising the right of preemption has to be filed within a period of one year. He submitted that the record indicated that the plaintiff was aware about the agreement of sale, which was executed by the Defendants 1,2 and 3 in favour of Defendant no.4. In spite of that the present suit was filed in 2008. In any case, therefore, the Plaintiff is not entitled to seek any interim relief. He then submitted that the Plaintiff had suppressed the material facts from the Court and had deliberately made a false statement in his affidavit in support of the Notice of Motion. It is submitted that it is now not open for the Counsel appearing on behalf of the Plaintiff to make a statement across the bar that he does not wish to press and wants to delete the statement from the affidavit in support. It is submitted that the notice of motion is liable to be dismissed. 6. I have heard the learned Counsel for the Plaintiff and Defendants 1 to 3 and also the learned Senior Counsel Shri Chagla for the Defendant No.4. He has also relied on the judgments of the Apex Court in the case of Indian Hotel Co. Ltd., Plaintiff v. Mrs. t. Stevenson, Defendant. AIR 1982 Bombay page 160. In my view, no prima facie case is made out for grant of interim / 8 / relief in terms of prayer clause (b). So far as prayer clause (a) is concerned in view of the Undertaking filed by the plaintiff in the Apex Court, he is not entitled to seek interim relief in terms of prayer clause (a). The learned Counsel for the Plaintiff has strongly submitted that he would like to obtain the clarification from the Apex Court in respect of the said undertaking. 7. So far as prayer clause (b) is concerned, third party rights have already been created in favour of the Defendant No.4 in 2005 and, thereafter, consent terms have been filed in 2006. There is a gross delay on the part of the plaintiff in filing this suit. The Plaintiff, in its suit has made the following averments on the point of limitation. “The Plaintiff states that the present suit is primarily for two reliefs viz. (i) for a declaration that the Consent Decree dated 27th February, 2006 in Suit No.1903 of 2002 is null and void, and cancellation and /or setting aside of the said Consent Decree and its registration with the Registrar of Sub-Assurances, Mumbai and (ii) for specific performance of the Agreement dated 5th December, 1952 in particular clause of preemption. The Plaintiff may be said to have deemed notice of the said Consent Decree dated 27th / 9 / February, 2006 (which took the form of an instrument for conveyance of the land at survey No.25) when the same was registered with the Registrar of Sub-Assurances Mumbai. The period of limitation for filing this suit relating to cancellation or setting aside an instrument or a decree is three years from the fact entitling the Plaintiff to have the instrument or decree set aside, first became known to the Plaintiffs. The suit, therefore, within limitation. In as much as the first prayer is concerned. The Plaintiff has also prayed for specific performance of the clause for preemption contained in the Agreement dated 5th December, 1952. However the period of Limitation of suits relating to enforcing a right of preemption, when the right tis founded on a special contract is one year from when the instrument of sale is registered when the subject matter of the sale does not admit of physical possession of the whole and part of the property. In the event the first prayer is granted, the second prayer is also within the limitation. The Plaintiff submits that the suit is not barred by the Law of Limitation.” / 10 / The Plaintiff has stated that the period of limitation for filing this suit regarding cancellation or setting aside of decree is two years after the fact came to the knowledge of the Plaintiff. It is further stated that so far as prayer for specific performance of the clause for preemption contained in the Exhibit A dated 5th December, 1952 is concerned, though the right to file the suit has to be exercised within one year, it is stated that if the first prayer is granted, then the second prayer is also within limitation. From the aforesaid pleadings, it is apparent that the Plaintiff is very well aware that the suit on the ground of its right of preemption is time barred. The pleading in respect of prayer clause (a) is also vague and therefore on the ground of delay and laches, the Plaintiff is also not entitled to seek any interim relief. 6. There is much substance in the submissions made by the Learned Counsel appearing on behalf of the Defendant No.4 that the Plaintiff is guilty of suppression of material facts, apart from laches. The Plaintiff has not annexed the undertaking, which was filed in the Apex Court to the plaint and has made a incorrect statement in the affidavit in support to the Notice of Motion, which statement is now sought to be deleted by making a statement across the bar. Such at attempt made by the Plaintiff itself dis-entitles the Plaintiff from claiming any relief from this Court. Therefore, there is no / 11 / substance in the submissions made by the learned Counsel for the Plaintiff. No prima facie case is made out for grant of interim relief. Notice of Motion is dismissed. V.M. KANADE J.