1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Amk NOTICE OF MOTION NO. 3557 OF 2008 IN SUIT NO. 2940 OF 2008 Manoj Omprakash Suri & 2 Ors. .. Plaintiffs Vs. The Maharashtra Housing and Area Development Authority, Mumbai & Anr. .. Defendants Mr. Shailesh Shah i/b S. Ashwinkumar & Co. for the Plaintiffs. Mr. G. W. Mattos AGP for Defendant No.1. Mr. Bapoo M. Malcolm for Defendant No.2. CORAM : MRS. R. S. DALVI, J. DATE : 7th April, 2010. P.C. 1. The plaintiffs have inter se entered into a transaction with regard to the suit premises. The suit premises is a bungalow constructed on the land belonging to the MHADA. The land was leased by MHADA to defendant No.2 under a Indenture of Lease dated 13.10.1993. The original Indenture Agreement is produced by the plaintiffs. It is stated to have been given to plaintiff Nos.1 & 2 by plaintiff No.3 at the time they entered into the transaction with regard to the suit property. The document has been sent for adjudication of stamp duty. Stamp duty of Rs. 46,770/- has been adjudicated and paid on 15.09.1993. 2 The Indenture of Lease has been registered before the Registrar of Sub Assurances at Bandra on 09.04.1996. A duplicate Indenture of Lease has been certified by the Joint Registrar on 18.04.1996. 2. This shows that the Indenture of Lease remained with the Sub-Registrar of Assurances until 18.04.1996. The plaintiffs have relied upon a xerox copy of the original Indenture of Lease annexed with the plaint as Exh.B. 3. The Lease was of 90 years. Defendant No.2 commenced construction on the suit property. 4. Plaintiff No.3 claims to have got an assignment of the suit property from defendant No.2 executed through her constituted Attorney one Namdeo Krishna Kude. The Power of Attorney, stated to have been executed by defendant No.2, is dated 20th July, 1994. The specimen signature of Kude has also been put at the foot of the Power of Attorney. The Power of Attorney is a general Power of Attorney. It is executed on a stamp paper dated 13th April, 1994 and is marked Exh.C to the plaint. 5. The signatures of defendant No.2 on every page of Indenture of Lease as well as in the execution clause of the Indenture and the signatures of defendant No.2 on every page of the Power of Attorney are completely different. 6. The Power of Attorney recites that defendant No. 2 is in exclusive use, occupation and possession of the suit premises and is not able to manage day to day affairs and hence has appointed the Attorney to manage the affairs, 3 use, occupy, hold and possess the suit premises, pay all dues, charges, taxes and demands of the authorities, execute the Deed of Assignment, apply for and obtain valid transfer to the name of the Attorney in the relevant records, safeguard right, title, interest and claim of defendant No.2, represent her before various authorities, prosecute action and proceedings in court of law, act, appear and plead for defendant No.2, appoint Advocate on her behalf and to pay his fees and to do all acts, deeds, things and matters required to be done in all respects. 7. The Power of Attorney is, therefore, a general Power of Attorney, as the title shows to do various acts including to execute the Deed of Assignment. Kude could have this Power of Attorney in his possession and control. The plaintiffs have instead obtained the original Power of Attorney, relied upon it and marked Exh.C to the plaint. 8. Mr. Shailesh Shah plaintiffs’ Advocate specifically stated to court upon the court inquiry about how these two documents which would have otherwise been in the power, possession, control and custody of defendant No.2 and the said Kude respectively came to be in the plaintiffs’ possession. He stated that the original Title Deed, the original Power of Attorney were given by Kude to plaintiff No.3. Plaintiff No.3 handed over these documents to plaintiff Nos.1 & 2. 9. This is under two separate and distinct transactions relating to the transfer of the suit property under separate documents. 4 10. The plaintiffs have relied upon the Deed of Assignment stated to have been executed between defendant No.2 and plaintiff No.3 showing MHADA as the Confirming Party on 6th November, 2007. This document is executed on behalf of defendant No.2 by Kude. The MHADA has been made a Confirming Party consequent upon the permission granted by MHADA for transfer of the suit property subject to the payment of the charges and rent levied by MHADA which came to be paid and has been receipted in the name of plaintiff No.3 on 20.09.2007 prior to the execution of the assignment. 11. It may be mentioned that MHADA would grant permission to transfer any plot of land subject to payment of the charges. Consequently MHADA has become a Confirming Party. 12. After the suit property came to be assigned to plaintiff No.3, there has been a further transfer in favour of plaintiff Nos.1 & 2. A similar permission has been given by MHADA upon payment of the required charges. Prior to the second transaction, the plaintiffs have shown a receipt in the name of plaintiff No.1 for Rs.50,000/- paid to MHADA on 29.02.2008. Plaintiff Nos.1 & 2 have issued a public notice on 20th December, 2007 to see if any party claims the property sought to be sold/assigned. 13. The Deed of Assignment is executed between plaintiff No.3 and plaintiff Nos.1 & 2 on 14.03.2008 which is similarly confirmed by MHADA. 14. The transfer of title in favour of plaintiff Nos.1 & 5 2 has been thus shown by the plaintiffs. 15. Soon after the transfer to plaintiff Nos.1 & 2, defendant No.2 complained to MHADA that there has been a fraudulent transfer of the suit property which was leased and allotted to her. She stated that she had never signed any document with regard to any transfer in favour of any party and that the transfer has been executed on the basis of false documents and her forged signatures. This statement is seen to be substantiated by the very Power of Attorney allegedly executed by her in favour of Kude to execute, amongst various other acts and deeds in respect of suit property, the Deed of Assignment bearing a completely different signature of defendant No.2 than the signatures shown in the Indenture of Lease. 16. On 20.04.2008 she is shown to have requested the Chief Officer (W) of the MHADA to issue her a copy of the affidavit which was forged in her name in the records of the MHADA. 17. On 6th May, 2008 she is shown to have requested copies of Indemnity Bond, Affidavit and the letter requesting duplicate documents again to MHADA. 18. It appears that MHADA called upon plaintiff No. 1 to reply to the complaint filed by defendant No.2 and hence on 8th May, 2008 the plaintiff is shown to have filed his reply addressed to MHADA that he has purchased the suit plot from plaintiff No.3 for his benefit, use and occupation of the bungalow. He stated that, he had constructed the bungalow at the cost of more than Rs. 6 25,00,000/-. He stated that he verified the title of his lessor prior to the purchase. Further MHADA had also given permission to transfer the plot to his name. He had published the public notice and taken search and found no encumbrances. Thus, he completed the procedure of registered document. He refuted the claim of defendant No. 2 simplicitor because she has not used the plot leased to her. He claimed that the complaint of defendant No.2 made 14 years after the lease was executed, could not be entertained. 19. The aforesaid facts show that the initial Assignment between defendant No.2 and plaintiff No.3 was itself executed in 2007 and the further transfer to plaintiff Nos.1 & 2 was made in 2008 soon after which defendant No. 2 lodged the complaint. 20. Considering the complaint of defendant No.2 and the reply of plaintiff No.1, the MHADA issued a show cause notice upon all the plaintiffs calling for their explanation. The Deputy Chief Officer (W), Mumbai Board of MHADA stated in the notice that the suit plot was not sold or transferred to anybody by the original beneficiary defendant No.2 and that the transfers were effected on the basis of false papers. He also stated that defendant No.2 had not applied her signature to her Power of Attorney or transfer papers. He, therefore, notified the plaintiffs that the permission given by him to the transfer be treated as cancelled. 21. Thereafter notice under Section 66 of the 7 Maharashtra Housing and Area Development Act, 1976 (the MHADA) came to be issued upon plaintiff No.1 showing that he was in unauthorized occupation of the suit property as the original beneficiary has not given her consent and trespassed upon and occupied the same. It also stated that he violated the terms and conditions of the Lease dated 13.10.1993. He was called for personal hearing on 04.04.2009. 22. The Court is informed that hearing is in progress. That hearing is with regard to eviction of plaintiff Nos.1 & 2 from the suit premises upon the Competent Authority of the MHADA under Section 65 of the Act. An appeal from the order of the Competent Authority passed under Section 66 of the Act would be before the Appellate Authority specified in Section 70 of the Act. The Civil Courts jurisdiction under Section 71 of the Act is, therefore, barred. 23. The Authority has followed the procedure established by the Law. The occupation of the plaintiffs in the suit premises would be considered by that Authority. A charge-sheet has also been filed against each of the plaintiffs. 24. In this suit the title of the plaintiffs is essentially required to be seen for the grant of equitable reliefs. The plaintiffs must make out a prima facie case of their title. As aforesaid the plaintiffs’ title is not seen at all. The very Power of Attorney is not seen to be executed by defendant No.2. Not only are her signatures on the Indenture of Lease completely different from that on the Power of Attorney but 8 her specimen signature obtained by MHADA and produced from their records are also completely different from the signatures of the Power of Attorney relied upon by the plaintiffs. The very foundation of the plaintiffs’ case crumbles to the ground. Further documents executed by Kude as the constituted Attorney of defendant No.2 are to no avail. 25. This Court is informed that Kude was one of the employees of MHADA. He has since absconded. The plaintiffs have not obtained any affidavit of Kude to show how the transaction took place from the authority that he derived from defendant No.2. 26. Mr. Shailesh Shah on behalf of the plaintiffs argued that though the two signatures on the Deed of Lease and the Power of Attorney are indeed completely different, Defendant No.2 signs differently at different places. To show that fact, he drew my attention to a letter dated 16.04.2007 of defendant No.2 annexed at Exh.7 to her written statement. The letter dated 16.04.2007, written 13 years after the documents of the plaintiffs were executed, does not show the address of the author. It requests for the issue of a duplicate document which has been lost. It states that it was misplaced during the rain of 26.07.2005. This is not one of the signatures which plaintiff No.3 would have seen as yet another signature of defendant No.2 at that time he executed his document with Kude as the constituted Attorney of defendant No.2 under the Power of Attorney showing a completely different signature. 9 27. Mr. Malcolm Advocate for defendant No.2 stated that the letter dated 16.04.2007 is also not a letter written by defendant No.2 to MHADA. It has been written by someone and had been brought to the notice of defendant No.2. Whatever be the contents of this letter and whoever may have written this letter, it is not one of the signatures that could have been taken by defendant No.2 to pass of her signature in the alleged Power of Attorney because the letter is executed 13 years after the Power of Attorney was executed. 28. It is wondrous as to how the plaintiff got into possession of the original Lease Deed as well as the Power of Attorney. The constituted Attorney of defendant No.2, Kude was required to do a number of acts on behalf of defendant No.2 under the General Power of Attorney. The execution of the Deed of Assignment was only one of the many such acts. He would require the Power of Attorney to be in his possession to do all other acts which defendant No.2 appointed him to do as defendant No.2 was unable to manage her affairs. Defendant No.2 had not terminated his Power of Attorney (if it was executed in the first place). Why would he give the Power of Attorney itself to plaintiff No.3 ? 29. Plaintiff No.1 claims to have taken “search”. Search is required to be taken of the Revenue Records. There are none shown which have been searched. The only two documents that he could have seen or inspected are the Deed of Lease and the Power of Attorney both containing two entirely different signatures. All the plaintiffs must be 10 taken to have been put on notice of the fraudulent act of the Attorney claiming to act under the powers given to him. The slightest rational inquiry would reveal that he was a fraudster. The plaintiffs have executed their Deed of Lease after being put to notice of the dubious design of Kude claiming to be the Attorney of defendant No.2. 29. The true test of the transaction is the payment of consideration. The consideration amount paid by plaintiff No.3 to defendant No.2 is not shown at all. The consideration that was payable by plaintiff Nos.1 & 2 to plaintiff No.3 is not mentioned in the Deed of Assignment. In the affidavit in rejoinder, the plaintiffs have shown payment made by 10 cheques aggregating to Rs.81.5 lacs and payment made of further 18.05 lacs in cash. The plaintiffs have relied upon certain bank certificates. The plaintiffs have not produced their bank accounts certified under the Bankers Book Evidence Act which is the only mode of substantiating payment stated to have been made by cheques. 30. Defendant No.2 has instead produced extracts of two accounts of plaintiff Nos.1 & 2 and of plaintiff No.3, both in Union Bank of India. The account of plaintiff No.3 has been opened on 25th March, 2008. It shows zero balance on that day. It shows an entry of Rs.27 lacs credited thereto from plaintiff No.1. There is a transfer entry to the account of plaintiff No.1 on 31.03.2008. There is further debit entry on 08.04.2008 followed by a further transfer entry to the account of plaintiff No.1 on 02.05.2008. Consequently it is 11 seen that the amount allegedly paid by plaintiff Nos.1 & 2 to plaintiff No.3 has been substantially returned to them. The corresponding entries are reflected in the accounts of plaintiff Nos.1 & 2 on these days. In addition to this there have been two other entries on 13.03.2008 which are shown to be not transfer entries but cash withdrawals by plaintiff No.3. In all, therefore, plaintiff No.3 has been paid Rs.12 lacs as reflected in these entries. Such an amount can be charged to help create a fraud. 31. The Advocate on behalf of defendant No.2 who also appears for defendant No.2 before the Competent Authority under the Act stated to the Court that the Competent Authority has called upon the plaintiffs to produce their bank accounts to show the consideration paid as claimed by the plaintiffs. None has been produced. 32. The plaintiffs have not made out any prima facie case whatsoever on merits. They do not deserve any reliefs. 33. It may be mentioned that Mr. Mattos on behalf of defendant No.1 has taken exception to the maintainability of the suit itself for want of statutory notice under Section 173 of the Act. That aspect shall be dealt in the suit. 34. Since at present no prima facie case is shown, and a fraudulent case is revealed, the Notice of Motion is dismissed with costs fixed at Rs.25,000/-. Ad interim order, if any passed, shall continue to two weeks. (R. S. DALVI, J.)