IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1285 OF 2002 IN SUIT NO.1503 OF 2002 M.M.Corporation, a partnership firm registered under the provisions of the Indian Partnership Act, 1932 having its office at 117, Kamla Nivas, TPS IV, Bajaj Road, Vile Parle (W), Mumbai 400 056. ...Plaintiffs Versus 1.Jagdish Jayanand Vyas, 2.Yogesh Balvantrai Vyas, 3.Kishor Balvantrai Vyas, all Indian Inhabitants of Mumbai, residing at 54, Tejpal Scheme Road No.1, Surajben Compound, Vile Parle (E), Mumbai 400 057. 4.Gayatri Rajit Trivedi, Indian Inhabitant of Mumbai, residing at Bhagwati Niwas, Natwar Nagar, Road No.4., Jogeshwari (East), Mumbai 400 060. 5.Kunkum Kirit Dave, Indian Inhabitant of Mumbai, residing at Municipal Bldg., Nana Chowk, Grant Road, Mumbai 400 007. 5A.Mr.Kirit Khelshankar Dave (Widower) 5B.Ms.Avani Kirit Dave (daughter) 5C.Mr.Vikram Kirit Dave (son), : 2 : all of Mumbai, Indian Inhabitants, having their address at 33, Municipal Building, Jobanputra Compound, Nana Chowk, Grant Road, Mumbai-400 007. 6.Haresh Sanmukhram Vyas, Indian Inhabitant of Mumbai, residing at 5, Popat Chawl, Gogate Wadi Road, Goregaon (E), Mumbai - 400 063. ...Defendants WITH NOTICE OF MOTION NO.742 OF 2007 IN SUIT NO.528 OF 2007 Jagdish Jayanand Vyas, of Mumbai, Indian Inhabitant, residing at 54, Tejpal Scheme Road No.1, Surajben Compound, Vile Parle (E), Mumbai 400 057. ...Plaintiff Versus 1.M.M.Corporation, a partnership firm registered under the provisions of the Indian Partnership Act, 1932 having its office at 117, Kamla Nivas, TPS IV, Bajaj Road, Vile Parle (W), Mumbai 400 056. 2.Mukund Mohan Garodia, 3.Mohammedali Aziz Gheewala, both of Mumbai, Indian Inhabitants, carrying on business at 117, Kamla Nivas, TPS IV, Bajaj Road, Vile Parle (W), Mumbai 400 056. 4.Yogesh Balvantrai Vyas, : 3 : 5.Kishor Balvantrai Vyas, both of Mumbai, Indian Inhabitants, residing at 54, Tejpal Scheme Road No.1, Surajben Compound, Vile Parle (E), Mumbai 400 057. 6.Gayatri Rajat Trivedi, of Mumbai, Indian Inhabitant, residing at Bhagwati Niwas, Natwar Nagar, Road No.4., Jogeshwari (East), Mumbai 400 060. 7.Kirit Khelshankar Dave, 8.Avani Kirit Dave, 9.Vikram Kirit Dave, all of Mumbai, Indian Inhabitants, residing at 33, Municipal Building, Jobanputra Compound, Nana Chowk, Grant Road, Mumbai-400 007. 10.Haresh Sanmukhram Vyas, of Mumbai, Indian Inhabitant, residing at 5, Popat Chawl, Gogate Wadi Road, Goregaon (E), Mumbai - 400 063. ...Defendants ....... Mr.Z.A.Jariwala i/b Thakore Jariwala & Associates for the Plaintiffs in N/M 1285/02 & for Defendants 1, 2 & 3 in N/M 742/07. Mr.D.H.Mehta, Sr.Counsel with Mr.H.C.Mehta & Mr.S.Nagvadaria i/b M/s.Mehta & Co. for Defendants 2 to 5C in N/M 1285/02 & for Defendants 4 to 9 in N/M 742/07. Mr.Jayprakash Dhanuka for Defendant No.6 in NM 1285/02. ...... : 4 : CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. JUNE 18, 2007. JUNE 18, 2007. JUNE 18, 2007. ORAL ORDER: ORAL ORDER: ORAL ORDER: 1. This common order will dispose of both the Notices of Motion as parties as well as suit properties in both these Motions are common. 2. The Defendants in the former Suit (Suit No.1503/2002) are the owners of a property bearing Plot No.58, C.T.S.No.428, final Plot No.20-A and 20-B of Town Planning Scheme IV situated at Tejpal Scheme, Vile Parle (East), Mumbai - 400 057. The property is owned by three sets of co-owners (hereinafter Defendant No.1 is referred to as ‘the first set of co-owner’, Defendants 2 to 5C are referred to as ‘the second set of co-owners’ and Defendant No.6 is referred to as ‘the third set of co-owner’). The second set of co-owners together have 1/3rd share in the suit property, whereas, the first and the third set of co-owners in the said Suit have 1/3rd share each. The Plaintiffs (hereinafter referred to as ‘the Purchasers’ for : 5 : the sake of convenience), in the former Suit, claim to have purchased the suit property from all co-sharers (Defendants in the said Suit). The property contains several structures. Some of the structures are stated to be illegal (hereinafter referred to as ‘the suit property’). 3. According to the purchasers, the suit property is fully encroached by tenants and trespassers, more than sixty in number, which admeasures about 2796 square yards. The said property was mortgaged by the Defendants. The mortgagee had created encumbrance on the suit property by allowing trespassers, illegal repairing, subtenancy. The suit property was mortgaged to Lohana Kanya Chatralaya Dwarka Trust under two mortgages. The Defendants/owners were not in a position to repay the mortgage debt and redeem the property. The Trust was in possession and management of the suit property and collecting the rent from occupants. It is the purchasers who came forward to help the owners to redeem the suit property from the mortgage with the Trust. The Purchasers caused the owners to file a Suit for : 6 : redemption of the property against the Trust being Suit No.309 of 1983. During the pendency of the said Suit, the Trust, exercising the power of sale under the mortgage, had agreed to sell the property to one M/s.Sangeeta Construction Company for a sum of Rs.3,51,000/- (Rupees Three Lakhs Fifty-one Thousand). The said M/s.Sangeeta Construction Company, in turn, filed Suit being Suit No.1471 of 1989 and registered a Lis Pendens notice. Only with the help and guidance of the purchasers, the owners could pursue the said litigation. The purchasers claim that they managed to settle all issues with the Trust and also got the property redeemed and came out of litigation by paying a sum of Rs.5,15,000/- (Rupees Five Lakhs Fifteen Thousand). This amount was financed by the purchasers. It is the case of the purchasers that if the purchasers had not come forward to help the Defendants/owners, the property would have been permanently lost to the owners. The purchasers claim that the purchasers extended logistical as well as financial assistance to the owners, as they (Purchasers) wanted to purchase the suit property. : 7 : 4. After the property was redeemed and came out of litigation, an Agreement was executed between the purchasers and all the owners/Defendants; whereby, the purchasers agreed to purchase the property for a sum of Rs.8,99,920/- (Rupees Eight Lakhs Ninety-nine Thousand Nine Hundred Twenty) to be paid in instalments as mentioned in the Agreement reduced into writing. This amount was fixed as consideration for FSI up to 6426 square feet of built up area. As per the understanding, the parties executed Agreement for Sale on 4th November 1985. Simultaneously, the owners executed Power of Attorney in favour of the purchasers permitting the purchasers to construct and develop the suit property. Later on, in 1987, the suit property was declared as slum by the appropriate Authority. That declaration was contested by filing Appeal by the owners with the assistance of the purchasers. It is the case of the purchasers that because of the declaration of the suit property as slum area, the purchasers were unable to develop the property and instead, the purchasers spent large amounts of money over the suit property to preserve the same. The Suit : 8 : preferred by the owners being Suit No.309 of 1983 for redemption of the property was finally settled on 20th September 1989 by filing Consent Terms. The Purchasers financed payment of monies as per the Consent Terms and got the property released from the Trust. After the filing of the Consent Terms in the said Suit, the Court Receiver handed over possession of the suit property to the purchasers. The fact that purchasers were allowed to take over possession of the suit property from the Court Receiver is not in dispute. The purchasers’ claim that since then they are in lawful possession of the suit property. 5. According to the purchasers, they have paid full consideration of Rs.8,89,920/- (Rupees Eight Lakhs Eighty-nine Thousand Nine Hundred Twenty Only) which was payable by the purchasers as per the Agreement dated 4th November 1985. However, the parties entered into another Agreement on 23rd October 1989, to modify and alter the terms of the earlier Agreement to the extent that the purchasers agreed to pay consideration at the rate of Rs.140/- per square feet on additional FSI : 9 : available over and above 6428 square feet upon issuance of I.O.D. in respect of the suit property by the appropriate Authority. This change was brought about as it transpired that FSI in respect of the suit property, in view of the extant regulations, would be much more than the original area of FSI referred to in the Agreement dated 4th November 1985. It is not in dispute that the Advocates for the owners have had handed over original title deeds in respect of the suit property to the Advocate for the purchasers on 17th November 1989. It is the case of the purchasers that after the suit property became free from mortgage and litigation, the co-owners started demanding additional consideration inspite of the supplementary agreement dated 23rd October 1989. The owners now started demanding ownership of residential flats in the suit property in lieu of the premises occupied by them on the property. The purchasers state that even this unjustified demand of the owners was conceded by the purchasers. Nevertheless, one of the co-owner Shri Sanmukhram J.Vyas who had no premises on the property and was staying at Goregaon, raised dispute about the right : 10 : of other two branches to get alternative premises and insisted that even he should be offered residential flat in the suit property after it is developed. The purchasers state that the owners executed another Power of Attorney in favour of the partner of Plaintiffs on 30th October 1991 for the purpose of collection of rent on behalf of the owners and other matters referred to therein against their undertaking to render full, free and complete account of collection of rent and expenses made therefrom and to hand over the balance amount to the owners. 6. That the said Sanmukhram J.Vyas (since deceased)/the father of Defendant No.6, however, lateron, proceeded to terminate and revoked the Agreement dated 4th November 1985 and Power of Attorney which was executed in favour of the purchasers. This happened on 13th November 1995. This drastic step was taken by the third set of co-owner on account of refusal by the purchasers to succumb to his unfair demand of alternate premises though he was not occupying any premises in the suit property, unlike the other co-owners. : 11 : Significantly, the action of said Sanmukhram J.Vyas was expressly disowned by the first set of co-owner. Besides issuing letter of termination, the said Sanmukhram J.Vyas filed Suit in this Court being Suit No.1626 of 1996 against the purchasers. During the pendency of the Suit, prayer for interim relief was pressed which, however, came to be rejected initially by the Single Judge and lateron, by the Division Bench of this Court in Appeal. In the said proceedings, the first and the second sets of co-owners filed two separate affidavits supporting the purchasers and disputing the termination and have also confirmed the fact that the purchasers were in possession of the suit property. 7. The purchasers state that on 29th July 1999, the Defendant Nos.1 and 2, by intimation sent in writing to the purchasers, terminated the Agreement dated 4th November 1985 as also the Supplementary Agreement dated 23rd October 1989. The purchasers have filed the present Suit being Suit No.1503 of 2002 to question the said action and for a declaration that the Agreement for Sale : 12 : dated 4th October 1985 read with Supplementary Agreement dated 23rd October 1989 is valid, subsisting, binding and effective upon the owners; and the purchasers were entitled to relief of specific performance thereof. The reliefs claimed in the present Suit No.1503 of 2002 read thus: "a) for a declaration of this Hon’ble Court that the agreement for sale dated 4th November, 1985 (being Ex."B" hereto) read with the supplementary agreement dated 23rd October, 1989 (Ex."F" hereto) is valid, subsisting, binding and effective upon the Defendants and that the Plaintiffs are entitled to the specific performance thereof; b) that the Defendants and each of them be ordered and decreed to specifically perform their respective obligations under the said agreement for sale dated 4th November, 1985 (being Ex."B" hereto) read with the supplementary agreement dated 23rd October, 1989 (Ex."F" hereto) and to do all necessary acts, deeds, matters and things for the due observance and performance thereof and in addition thereto to pay to the Plaintiffs the sum of Rs.50,00,000/- (Rupees fifty lacs only) as and by way of damages together with interest thereon at the rate of 18% per annum from the date of the Suit till payment and/or realisation; c) that pending the hearing and final disposal of the Suit the Court Receiver, High Court, Bombay be appointed as Receiver in respect of the suit property, a more particular description whereof is : 13 : given in Ex."A" hereto, with all powers under Order XL Rule 1 of the Code of Civil Procedure, 1908 including the power to collect rents/compensation from all the tenants/occupants in the suit property; d) that pending the hearing and final disposal of the Suit the Defendants and each of them be restrained by and order and injunction of this Hon’ble Court by themselves, their servants and/or agents: i) from transferring and/or encumbering and/or alienating and/or in any manner dealing with and/or disposing of the suit property or any part thereof; ii) creating any right, title or interest in favour of any person/s in respect of suit property or any part thereof and/or in any manner disturbing and/or altering the status quo with regard to suit property or any part thereof; iii) from creating any fresh tenancy in respect of any premises which may fall vacant and/or from creating any new tenancy of and/or transfer any tenancy and/or altering or permitting to be altered the status quo regarding the existing occupancies and any right thereto; e) that pending the hearing and final disposal of the Suit the Defendants and each of them by themselves and/or through their servants and/or agents be restrained by an order and injunction of this Hon’ble Court from disturbing and/or interfering with the Plaintiffs’ possession of the suit property; : 14 : f) for ad-interim reliefs in terms of prayers (c) and/or (d) and/or (e) above; g) for the costs of and incidental to this Suit; h) for such further and other reliefs as the nature and circumstances of the case may require." 8. During the pendency of this Suit, the purchasers have taken out Notice of Motion No.1285 of 2002 praying for interim relief in terms of prayer clauses (d) and (e) above. In addition, relief of appointment of Court Receiver is also claimed. While this proceedings were pending, sincere attempt was made by the purchasers to amicably settle the matter with the owners. The purchasers succeeded in finalising the terms of settlement. It is not necessary to elaborate on this, as the same will have no bearing on the points in issue. Suffice it to observe that eventually it is only the second set of co-owners/1/3rd owners agreed to execute the Consent Terms with the purchasers. Accordingly, second set of co-owners in Suit No.1503 of 2002 (1/3rd owners) executed Consent Terms on 18th : 15 : December 2006 in favour of the purchasers in respect of their 1/3rd undivided share in the suit property. As a result of this development, the purchasers now claim to have become owners in respect of the 1/3rd undivided share in the suit property to represent the share of second set of co-owners. 9. The first set of co-owner has now filed a Suit being Suit No.528 of 2007, challenging the Consent Terms entered into between the purchasers and the said second set of co-owners in Suit No.1503 of 2002, praying for following reliefs: "a) This Hon’ble Court be pleased to adjudge the Consent Terms dated 18th December 2006 entered into by the Defendant Nos.1 to 9 (being Exhibit B to the Plaint) as void and/or voidable, and order that the said Consent Terms be rescinded and be delivered up and cancelled. b) This Hon’ble Court, as a consequence to prayer (a) above, be pleased to set aside the Order dated 18th December 2006 (being Exhibit B-1 to the Plaint); c) This Hon’ble Court be pleased to pass and order of permanent injunction to restrain the Defendant Nos.1 to 9 by themselves or through their servants and : 16 : agents and/or through any person acting for or on behalf of the Defendant Nos.1 to 9 from in any manner acting pursuant to and/or in furtherance of the Consent Terms dated 18th December 2006/the Order dated 18th December 2006 (being Exhibits B and B-1 to the Plaint). d) Pending the hearing and final disposal of the Suit this Hon’ble Court be pleased to pass and order of temporary injunction to restrain the Defendant Nos.1to 9 by themselves or through their servants and agents and/or through any person acting for or on behalf of the Defendant Nos.1 to 9 from in any manner acting pursuant to and/or ion furtherance of the Consent Terms dated 18th December 2006/the Order dated 18th December 2006 (being Exhibits B and B-1 to the Plaint). e) Pending the hearing and final disposal of this Suit this Hon’ble Court be please to issue a mandatory order and injunction to direct the Defendant Nos.1 to 3, their servants, agents, security guards and/or any person acting for or on behalf of the Defendant Nos.1 to 3 to remove themselves from the Suit property; f) For interim and ad-interim reliefs in terms of prayers (d) and (e) hereinabove; g) For costs; h) For such further and other reliefs as the nature and circumstances of the case may require". 10. The first set of co-owner Jagdish J.Vyas has also taken out Notice of Motion being Notice of Motion No.742 of 2007 for interlocutory relief in : 17 : the following terms: "a) Pending the hearing and final disposal of the Suit this Hon’ble Court be pleased to pass an order of temporary injunction to restrain the Defendant Nos.1 to 9 by themselves or through their servants and agents and/or through any person acting for or on behalf of the Defendant Nos.1 to 9 from in any manner acting pursuant to and/or in furtherance of the Consent Terms dated 18th December 2006/the Order dated 18th December 2006 (being Exhibits B and B-1 to the Plaint). b) Pending the hearing and final disposal of the Suit this Hon’ble Court be pleased to pass an order of temporary injunction to restrain the Defendant Nos.1 to 9 by themselves or through their servants and agents and/or through any person acting for or on behalf of the Defendant Nos.1 to 9 from in any manner: (i) Interfering with the Plaintiff’s possession in respect of the suit property. (ii) Placing their security guards on the suit property. (iii) Collecting and/or attempting to collect rent from the tenants/occupants of the suit property in respect of their respective premises and/or taking any action/proceedings against the tenants/occupants on the said property and/or dealing with them in respect of their tenancy rights in any manner whatsoever. : 18 : (iv) Carrying out any construction and/or development on the suit property. (v) Putting up or having sanctioned any plans for development of the said property before any concerned authorities and/or taking any steps for development of the said property. c) Pending the hearing and final disposal of this Suit this Hon’ble Court be pleased to issue a mandatory order and injunction to direct the Defendant Nos.1 to 3, their servants, agents, security guards and/or any person acting for or on behalf of the Defendant Nos.1 to 3 to remove themselves from the Suit Property; d) For interim and ad-interim relies in terms of prayers (a) to (c) hereinabove; e) For costs; : 19 : f) For such further and other reliefs as the nature and circumstances of the case may require". 11. Both sides have filed reply affidavit contesting the claim of the opposite party in the respective proceedings. Insofar as the Suit filed by the purchasers, Counsel for the first set of co-owner has opposed interim relief claimed by the purchasers essentially on four counts. He has argued that the Suit filed by the purchasers is barred by Law of Limitation. Secondly, that the Suit was not maintainable. As the Suit is founded on the doctrine of part performance, it is not open for the purchasers to assert title. Further, as the purchasers have no title in the suit property, they are not entitled for any interim protection. It is next contended that assuming the purchasers’ case that they have become owners by purchasing the 1/3rd undivided share in the suit property of the second set of co-owners is accepted, the purchasers would become entitled for any interim relief only after the suit property is partitioned and the property which has gone to the respective co-owner : 20 : is earmarked, only to that extent. It is lastly argued that the suit agreement dated 4th November 1985 is frustrated on account of the subsequent development of suit property having been declared as slum area in 1987. 12. The second set of co-owners, however, have supported the claim of the purchasers. The third set of co-owners would support the argument of first set of co-owner and submit that the purchasers are not entitled for any interim relief. 13. Insofar as the Notice of Motion taken out by the first set of co-owner Jagdish J.Vyas is concerned, the outcome thereof will much be dependent on the view that is taken in respect of the argument canvassed on his behalf to oppose grant of any interim relief to the purchasers. I shall address this aspect a little later. 14. Having considered the rival submissions and going through the pleadings and documents on record, I have no hesitation in taking the view that there was concluded contract between the parties which is : 21 : recorded in the Agreement in writing dated 4th November 1985 which was modified and altered to the limited extent of further consideration amount in terms of Agreement in writing dated 23rd October 1989. There is also no doubt that the purchasers have been put in possession of the suit property on 20th September 1989, albeit, by the Court Receiver, in view of the disposal of the Suit No.309 of 1983 filed by the co-owners against Trust for redemption of the suit property. Indeed, some dispute has been raised by the first and third set of co-owners about the factum of possession, however, there is no substance in the said stand of first and third set of co-owners. This is so because in the first place, the claim of the purchasers that they have been put in possession of the suit property by the Court Receiver is substantiated by documents on record; and the third set of co-owner/Haresh Sanmukhram Vyas has conceded the factum of possession of the suit property with the purchasers as back as in April 1996 as can be discerned from the legal notice sent by his Advocate dated 22nd April 1996. In Paragraph 15 of the said legal notice, it is clearly asserted on his behalf that he was conscious of the fact that the other two co-owners may not join the : 22 : first set of co-owner in filing the proposed suit for declaration that the Agreement dated 4th November 1985 is void, "for return of possession", for partition, for accounts and for means profits, for injunction and for such other reliefs. Suffice it to note that the fact that the co-owners were not in possession of the suit property, is conceded by mentioning that the proposed Suit to be filed by him would also be for relief of return of possession of the suit property. Insofar as first set of co-owner Jagdish J.Vyas is concerned, in para 2 of the affidavit dated 24th September 1988 filed by