: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.543 OF 2008 IN L.C. SUIT NO.640 OF 2008 WITH CIVIL APPLICATION NO.623 OF 2008 M/s.Sweta Developers Pvt. Ltd. ..Appellant. Vs. Melville Joseph D’Mello & Ors. ..Respondents. Mr.P.K. Dhakephalkar, Senior Counsel with Mr.Rajesh N. Kachare for the Appellant. Mr.S.M.Sakhardande i/b.Mr.P.H.Dharmadhikari for Respondent No.5. Mr.G.S.Godbole for Respondent Nos.8 and 9. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. DATED : 4TH JULY, 2008 DATED : 4TH JULY, 2008 DATED : 4TH JULY, 2008 P.C. : P.C. : P.C. : Admit. Heard finally. 2. The impugned order warrants only a modification to safeguard interest of the Appellants, if any, pending the decision on the Notice of Motion. 3. The Appellants/Plaintiffs claims a right in the property from one Kazi. The property originally belonged to one Lucy D’Mello. According to the Plaintiff, the said Lucy D’Mello sold the property to Defendant Nos.6 and 7 by a registered conveyance : 2 : dated 8.5.1989. The usual power of attorney in this regard was also executed in their favour by the said Lucy D’Mello. Defendant Nos.6 and 7 entered into an agreement to sell dated 20.1.1989 in favour of one Ramesh Gaikwad. The said Gaikwad in turn entered into an agreement to sell dated 19.10.1991 in favour of the said Kazi. The said Kazi ultimately entered into an agreement to sell dated 4.9.1995 with the Appellants. 4. Mr.Godbole, the learned counsel appearing on behalf of Respondent Nos.8 and 9 on the other hand, submits that the said Lucy D’Mello entered into a development agreement dated 25.5.2004 through her power of attorney one Vadilal Shah (Respondent No.8) with Respondent 9. A usual power of attorney was also executed between Respondent Nos.8 and 9. 5. Pursuant to the alleged disputes and differences, Lucy D’Mello through Respondent No.8 as their constituted attorney, filed Suit No.3345 of 2004 in the Mumbai City Civil Court, Mumbai, challenging the said conveyance dated 8.5.1989 by which the said Lucy D’Mello had transferred the property to Defendant Nos.6 and 7. It was contended therein that the conveyance was fraudulent. : 3 : The suit was decreed by a order and judgment dated 11.8.2005. 6. The decree dated 11.8.2005 prima-facie cannot bind the Appellants who were neither a party to the suit nor aware of the same. Prima-facie again, the decree cannot affects the rights of the Appellants. In that the Appellants ultimately pressed their rights through the said Kazi, the said Gaikwad and Defendant Nos.6 and 7 to the conveyance dated 8.5.1989. 7. However, Mr.Godbole submitted, with considerable force, that the Appellants have not been diligent in establishing or even protecting their rights qua the alleged agreement for sale dated 4.9.1995 entered into by them with the said Kazi. 8. The present suit has been filed only in the year 2007. The Appellants have contended that due to the recession in the market and as the entire property was occupied by the illegal occupants they could not proceed with the development thereof. They further state that it was only in the month of February, 2007 that they noted that some development : 4 : activities have been going on in the suit property. Admittedly, all acts to protect their rights have been adopted only after February, 2007. I will presume that therefore there is no delay after February, 2007. 9. The fact remains however that substantial work has been done by Defendant Nos.8 and 9 pursuant to their agreements on the suit property. For instance, the commencement certificate was obtained in the year 2004. No doubt the Appellants contention regarding the proceedings in Suit No.3345 of 2004 being collusive, will have to await further consideration at the hearing of the Notice of Motion in view of various circumstances including the fact, as Mr.Dhakephalkar pointed out, that the commencement certificate was obtained prior to the decree dated 11.8.2005 and the work had commenced pursuant thereto, also prior to the said decree. 10. Mr.Godbole stated that from 2004 atleast the Appellants had done nothing to protect their rights upto February, 2007. The Appellants themselves are developers. It is difficult to believe that they came to know about the construction activities only in the year 2007. In these circumstances, any : 5 : injunction against third parties in whose favour rights have been created, is not warranted. At the highest, at the ad-interim stage, the Appellants would be entitled to protection of their rights, if any, only for the future. The ends of justice will be met by protecting the Appellants only to this limited extent. 11. In the circumstances, the Appeal from Order and the Civil Application are disposed of by the following order :- i) (a) Defendant Nos.8 and 9 will on or before 21.7.2008 file an affidavit disclosing third party rights, if any, created upto today. They will also disclose the details thereof. (b) Copies of any documents or agreements in respect of such third party rights shall be forwarded to the Appellants Advocates in this Court on payment of costs by the Appellants. (c) There shall be no order against such third parties, if any. The Appellants are at liberty to adopt such proceedings as they : 6 : desire, against such third parties. ii) No further third party rights shall be created without Defendant Nos.8 and 9 informing such third parties about the pendency of the suit and without such third parties agreeing to be bound by the outcome of the suit. A clause to this effect shall be inserted in the agreements with such third parties. ***