ASN 1 NMS-1428.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1428 OF 2008 IN SUIT NO. 2890 OF 1993 Anwar Ishaqu Shailk and ors. ..Plaintiff. Vs Sudhir Kantilal Doshiand ors. ..Defendants. Mr.M.L.Palan along with S.Shamim i/by Shamim & Co. for Plaintiff. Mr.Z.A.Jariwalla i/by Thakore Jariwala & Associates for Deft.No.1. Mrs. Uma Shah i/by K.D.Shah for Decendant Nos.2 and 6. Mr. Tushar Bhavsar i/by Manoj Bhat for Defendant Nos.8 & 9. CORAM : R.M. SAVANT , J. DATE : 18th April, 2011 PC : By the above Notice of Motion the plaintiffs seek the following reliefs. (a) That pending the hearing and final disposal of the suit, the Defendant Nos. 8 and 9 be restrained by an order and injunction of this Honourable Court from dealing, disposing, encumbering, creating 3rd party rights, transferring, collecting rent, occupation charges, municipal charges etc. creating tenancies, transferring tenancies, creating or transferring sub ASN 2 NMS-1428.sxw tenancies, giving on Leave and Licence, induct 3rd party or deal in any manner whatsoever, in respect of suit property; (b) That pending the hearing and final disposal of the suit, the Defendant Nos. 8 and 9 be restrained by an order and injunction of this Honourable Court from adopting any proceedings against any of the tenants/occupants/persons and or proceeding further with the cases, if any, filed against any of the tenants or occupants or any other person/s in respect of any premises or any portion thereof in the suit property; (c) That pending the hearing and final disposal of the suit, Court Receiver, High Court be appointed as receiver of the suit property with all the powers under order 40, Rule 1 of C.P.C., 1908. 2 The above suit has been filed by the plaintiffs seeking specific performance of the agreement of sale dated 30.4.1991 in respect of the suit property being the fully tenanted building situated at 180/184, Yusuf Meherali Road, Mumbai 400003. The plaintiffs and their predecessors i. e. their deceased parents were occupying the first, second and third floors of the said property. It is the case of the plaintiffs that by an agreement of sale entered into with defendant No.1 acting on behalf of the defendant Nos. 2 to 6 and the plaintiff dated 30.4.1991 the said ASN 3 NMS-1428.sxw property was agreed to be sold to the plaintiffs. The plaintiffs in pursuance to the said agreement had paid to the defendant No.1 a sum of Rs.2,90,000/-. 3 After the said agreement with the plaintiffs, the defendants by an agreement dated 29.4.1992 have conveyed the said property to the defendant Nos. 8 and 9. The said document has been registered and the consideration amount mentioned is Rs.1,90,000/-. The above suit has been filed by the plaintiffs on coming to know that the defendant Nos. 1 to 6 are not agreeable to perform their part of the said agreement though the plaintiffs have always been ready and willing to perform their part. In support of their case for the reliefs sought in the motion, the plaintiffs seek to rely upon a letter dated 30.,4.1992 addressed by defendant Nos.8 and 9 to Defendant No.1. It is mentioned in the said letter as follows. “We are aware of the agreement dated 30/4/1991 entered into by M/s. Kantilal Doshi and Co. and five others with Anwar Isaq Shaikh and Mrs. Batul Salim Shaikh for the sale of the above property, on the terms and conditions mentioned therein. We have been provided copies of the correspondence exchanged between the Advocate for both the said parties. Subject to the said agreement as claim of the said Anwar Isaq Shaikh and Mrs. Bahal Salim Shaikh, we have purchased the above property from you. However, at our request you have executed ASN 4 NMS-1428.sxw Declaration and Indemnity Bond without referring the said agreement dated 30.4.1991 in our favour but we not not act upon it against you”. 4 The learned counsel for the plaintiffs sought to rely upon the said paragraphs to buttress his submission that the Defendants Nos. 8 and 9 were aware of the transaction between the plaintiffs and Defendant No.6 and inspite of the same had chosen to enter into a transaction with the Defendants 1 to 6. 5 The plaintiffs also seek to rely upon the stand taken by defendant No.1 in the written statement filed by defendant No.1 in the above suit in the context of document executed in favour of the plaintiffs. Though it is mentioned in the agreement of sale dated 30.4.1991 by which the document, the defendants had agreed to sell the suit property to the plaintiffs that the defendant No.1 has signed on behalf of himself and the other defendants. In the written statement in Paragraph 7(a) to 7(d) the stand taken by defendant No.1 is that he was not so authorized by the other defendants. The plaintiffs also relied upon Paragraph (e) of the written statement wherein it has been stated that by letter dated 27.1.1992 the defendants sought to terminate the agreement and refund amount of Rs.2,90,000/- by demand draft dated 6.2.1992 of the Union Bank of India, Mumbai. Relying upon the said averments, it is the contention of the learned counsel for the plaintiffs that it is unbelievable and unusual that draft of a subsequent date was annexed to the letter dated 27.1.1992. The plaintiff also sought to rely upon the ASN 5 NMS-1428.sxw written statement filed on behalf of defendant Nos. 8 and 9 to exemplify the dishonest conduct of the defendants. It is the contention of the learned counsel appearing for the plaintiffs that inspite of the letter dated 30.4.1992 it is sought to be contended in the written statement filed on behalf of the defendant Nos. 8 and 9 that they are not aware of the transaction between the plaintiffs and the defendant Nos. 1 to 6 and that, the said letter dated 30.4.1992 is an internal correspondence between defendant Nos. 8 and 9 and defendant Nos. 1 to 6. 6 The plaint has been amended in pursuance to the leave granted by this court and by way of amendment Paragraph-9(f) has been introduced wherein receipt of the letter dated 27.1.1992 has been denied and averment has been made as to how the termination by the said letter dated 27.1.1992 is illegal. 7 Per contra, it is submitted by the learned counsel appearing for defendant No.1 Mr. Jariwala that the conduct of the plaintiffs is such that they are not entitled to the discretionary and equitable relief sought for in the motion. The learned counsel drew my attention to the list of documents which is annexed to the plaint. In the said list document at item No.11 a mention is made of the said letter dated 27.1.1992 and at item No.15 the reply to the said letter i. e. dated 18.2.1992 finds mention. The learned counsel also tendered a copy of the reply dated 18.2.1992. In the teeth of the documents which are appearing in the list of documents, the averments made in Paragraph 9(f) are not in keeping with the record and to say the least are false. The learned counsel for defendant No.1 ASN 6 NMS-1428.sxw Shri. Jariwala also drew my attention to the affidavit in reply filed by defendant No.1 in Notice of Motion No.3185/1993 which was filed by the plaintiffs in the above suit. The said affidavit is dated 21.6.1995 and in the said affidavit in reply in Paragraph 5(g) thereof the factum of the defendant Nos.1 to 6 entering into an agreement with defendant Nos.8 and 9 on 29.4.1992 has been specifically averred. It is significant to note that though the plaintiffs had acquired the knowledge of the said fact in the year 1995, in the instant suit a chamber summons for impleading the defendant Nos. 8 and 9 was filed only in 2007 and thereafter the instant Notice of Motion has been filed on 11.4.2008. It appears that in the past also Notice of Motion filed by the plaintiffs claiming identical reliefs has been rejected by this court. Though the learned counsel appearing for the plaintiffs tried to draw some mileage from the inconsistency in the pleadings of the defendants in my view the same would not make any difference or further the case of the plaintiffs in so far as the grant of equitable and discretionary reliefs is concerned, the facts as stated herein above are more glaring which dis-entitles the plaintiffs from being granted reliefs sought in the Motion. The Notice of Motion is accordingly dismissed. R.M. SAVANT, J.