K.J. IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APEAL NO.204 OF 2009 APEAL NO.204 OF 2009 APEAL NO.204 OF 2009 IN NOTICE OF MOTION NO.495 OF 2007 IN SUIT NO.3417 OF 2003 Samta Builders Pvt.Ltd., )..Appellants Vs. Shetty Associates Pvt.Ltd., & Ors.)..Respondents ---- Mr.Janak Dwarkadas Sr.Advocate with P.N.Mody i/by Narayanan & Narayanan for the appellants. Mr.S.U.Kamdar Sr.Advocate i/by Purnanand & Co. for respondent no.1. Mr.Ravi Kadam Advocate General with Mr.B.B.Saraf Mrs.Pranita Mhatre & Tejas Joshi i/by Shaunak Satpute & Co. for respondent nos.2 to 4. ---- W I T H APPEAL (LODGING) NO.321 OF 2009 APPEAL (LODGING) NO.321 OF 2009 APPEAL (LODGING) NO.321 OF 2009 IN NOTICE OF MOTION NO.495 OF 2007 IN SUIT NO.3417 OF 2003 Dhananjay B.Morarji & Ors. )..Appellants Vs Shetty Associates Pvt.Ltd., & Anr.)..Respondents ---- Mr.Ravi Kadam Advocate General with Mr.B.B.Saraf, Ms.Pranita Mhatre & Tejas Joshi i/by Shaunak Satpute & Co. for the appellants. Mr.S.U.Kamdar Sr.Advocate i/by Purnanand & Co. for respondent no.1. Mr.Janak Dwarkadas Sr.Advocate with P.N.Modi i/by Narayanan & Narayanan for respondent no.2. ---- : 2 : Coram : D.K.Deshmukh & Coram : D.K.Deshmukh & Coram : D.K.Deshmukh & R.S.Mohite,JJ R.S.Mohite,JJ R.S.Mohite,JJ Date : 6.5.2009. PC 1. In both these appeals, same order viz. order dated 23.3.2009 passed in Notice of Motion No.495 of 2007 is challenged. Therefore, both these appeals can be conveniently disposed of by this common order. 2. Admit. By consent of parties, the appeals are being heard finally. 3. It is common ground before us that one of the defences raised on bahelf of the defendants who are appellants was that the suit is barred by law of limitation. The submission of the appellants is that in view of this contention raised, in view of the provisions of section 9-A of the Code of Civil Procedure and a judgment of the Division Bench of this Court dated 13.1.2009 in Appeal No.113 of 2008 and other connected appeals to which one of us (D.K.Deshmukh,J) was a party. It was obligatory on the part of the learned single Judge to frame preliminary issue as to limitation and then after deciding that issue, depending upon the decision, : 3 : proceed to consider the Notice of Motion. We have gone through the record as also the judgment referred to above. In our opinion, in view of the judgment of the Division Bench referred to above and the provisions of Section 9-A of Code of Civil Procedure, the learned single Judge was not at all justified in not framing the preliminary issue as to jurisdiction of the Court to entertain the suit in view of the plea raised that it is barred by the law of limitation. In our opinion, therefore, the order of the learned single Judge will have to be set aside and Notice of Motion will have to be remitted back to the learned single Judge for fresh decision in accordance with law. 4. However, question arises as to what ad-interim order should operate during the pendency of Notice of Motion. It is common ground that during the pendency of the Motion i.e. from 23.10.2003 to 21.11.2003 an order restraining the defendants from creating any third party rights was in operation. It is common ground that thereafter there was no adinterim order made by the Court either continueing that order or making any other order. However, there is dispute between the parties whether there was any understanding between the parties about the operation of ad-interim order. By the order impugned in the appeal the learned single Judge has restrained the defendants from putting up any : 4 : construction on the land as also restrained them from creating any third party rights. Learned single Judge has however, noted that till the date of making of the order third party rights have already been created by defendant no.1. The principal dispute in the suit is between the plaintiff and the defendant no.1. According to the plaintiff he is entitled to develope 50% of the property and that the defendant no.1 is entitled to develope the balance 50% of the property. According to the defendant no.1, at the most the plaintiff may be entitled to develope 20% of the property. 5. It is common ground that the property can be divided in three parts. There is a map produced on behalf of the defendant no.1 which is taken on record and marked "X" for identification. Portion shown in yellow colour in the map at "X", according to the defendant no.1 who is appellant, is presently vacant and it approximate 50% of the area. It was previously occupied by some other person but according to defendant no.1 he got the land vacated and the defendant no.1 has already started construction on that land. As far as portion shown in orange colour is concerned, according to defendant no.1 it represent approximate 30% of the area, presently there is a "gaushala" on the land. However, according to the trust that "gaushala" shall be removed somewhere else as early as possible : 5 : in any case within a period of one year. So far as portion shown in green colour is concerned, according to defendant no.1 it represent approximate 20% the area, the structures on the green portion are neither in possession of the plaintiff nor in possession of the defendant no.1. Therefore, there is no question of presently anybody carrying on construction on the green portion. Similar is the case about the orange portion. Undisputed amount paid by the plaintiff to the trust is only Rs.4 lakhs. We have gone through the record. We find that there is a settlement between the trust and the defendant no.1, the defendant no.1 has paid substantial amount to the trust. According to defendant no.1 he has paid full consideration to the trust. Defendant no.1 has also created encumbrances/third party rights to the extent of 2,25,000 square feet of built up area, till the order was passed by the learned single Judge viz. 23.3.2009. The defendant no.1 has also started making construction on the land which is shown in yellow colour in the map. Therefore, taking overall view of the matter and in order that rights of the parties are protected as far as possible, in our opinion, following ad-interim arrangement will serve the interest of justice:- (a) The defendant no.1 to file affidavit and documents giving details of the encumbrances created : 6 : by defendant no.1 till 23.3.2009 ; (b) The defendant no.1 shall be free to create further encumbrances/third party rights. However, defendant no.1 shall be under an obligation to inform the person in whose favour further third party rights are created about the pendency of the litigation and that further third party rights created in favour of those persons are subject to the result of this litigation and that neither the defendant no.1 nor the person in whose favour further third party rights are created would be entitled to claim any equity on the basis of creation of third party rights. (c) Within a period of one month of creation of further third party rights, the defendant no.1 shall file affidavit in this Court disclosing encumbrances created. The defendant no.1 shall be free to carry out construction on the land shown in yellow colour in the map. However, defendants shall not be entitled to claim any equity on the basis of the construction made by the defendant no.1 on the yellow portion at the disposal of this suit. (d) So far as portion shown in orange colour is concerned, the trust will get its "gaushala" shifted from that portion as early as possible in any case within a period of one year from today. The : 7 : possession of that portion shall be delivered to the defendant no.1. However, the defendant no.1 shall keep that portion vacant and shall neither create any further encumbrances nor defendant no.1 shall carry out any construction on that portion. The plaintiff shall deposit an amount of Rs.3 crores within a period of two weeks from today in this Court with due intimation to defendants. (e) In case the amount is not deposited within the above stipulated period, this ad-interim order shall stand vacated. The amount on being deposited, shall be invested in a fixed deposit in any nationalised bank to the credit of the suit. (f) The learned single Judge is requested to dispose of the Notice of Motion in accordance with law as expeditiously as possible. (g) Learned Counsel for the defendant no.1 has stated before us that the third party rights that have been created before the date of the order of the learned single Judge also take into consideration the FSI available on the orange portion. He further states that no further encumbrances or third party rights will be created in relation to any further FSI on orange portion. : 8 : (D.K.Deshmukh,J) (D.K.Deshmukh,J) (D.K.Deshmukh,J) (R.S.Mohite,J) (R.S.Mohite,J) (R.S.Mohite,J)