1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL (STAMP) NO. 8417 OF 2009 WITH CIVIL APPLICATION NO.1635 OF 2009 Chintamani Nagari Sahakari Pat Sanstha, Mydt. ....Appellant V/s. M/s.Shastri Construction Pvt. Ltd. & Ors. ....Respondents Mr.N. C. Walimbe for the Appellant. Mr.G. S. Godbole i/b Ms.Manjiri Parasnis for Respondent No.1. Ms.Surekha D. Dhamapurkar with Mr.Ramesh Dube – Patil i/b Jay & Co. for Respondent No.2. CORAM : B.H. MARLAPALLE & S.J. VAZIFDAR, JJ. DATED : 24TH APRIL, 2009. P.C. : 1. With the consent of the parties we have heard this First Appeal finally after condoning the delay in filing it. 2 2. This First Appeal has been filed by defendant no. 2. Respondent no. 1 is the original plaintiff and respondent no. 2 is original defendant no.1. 3. The trial court decreed the suit inter-alia by declaring that the agreements in respect of the suit shops bearing nos. 3 and 4 between the plaintiff and the first defendant are lawfully terminated and directing the defendants to deliver vacant possession of the said shops to the plaintiff within one month from the date of the decree. 4. At the outset we must clarify that we restrict this order and judgment to the disputes between the appellant i.e. original defendant no. 2 and the first respondent i.e. the original plaintiff. In other words we are concerned only with that part of the impugned order and judgment directing the appellant to deliver vacant possession of the said shops to the first respondent. We clarify further that we have not dealt with the rights between the respondents inter-se i.e. between the plaintiff and original defendant no.1. It was stated that defendnat no.1 intends filing an appeal against the impugned order and judgment. This order and judgment does not reflect upon the rights between the respondents inter-se in any manner whatever. If and when the first defendant files an appeal the same will be decided on its own merits. 3 5. By two identical agreements, both dated 22.12.2000, respondent no.1 agreed to sell to respondent no.2 shop nos. 3 and 4 respectively. On the basis that respondnet no.2 had committed breaches of the said agreements inter-alia by failing to pay the entire consideration respondent no.1 terminated the said agreements and filed the suit inter- alia for a declaration that the termination is valid and for a decree directing the defendants to deliver vacant possession of the said shops. As noted above we are not dealing here with the disputes between the plaintiff and the first defendant. 6. The appellant's only case is that it was put in possession of the said shops by respondent no. 2 under a leave and license agreement and that respondent no. 2 had also mortgaged the said shops in its favor. According to the appellant a sum of about Rs. 5,13,350 is still due and payable by the second respondent to the appellant and that it is entitled to recover the same inter- alia by enforcing the mortgage. 7. We will presume that the said amount is in fact due and payable by respondent no. 2 to the appellant and that the repayment thereof was purported to be secured by the alleged mortgage. We will also presume that respondent no. 2 had executed a leave and license agreement in respect of the said premises in favor of the appellant. The same would make no difference to the appellant's case. 4 8. Admittedly the term of the leave and license agreement has expired by efflux of time. Secondly respondent no. 2 was not entitled in law to either enter into the leave and license agreement in favor of the appellant in respect of the said shops or to put the appellant in possession thereof or to mortgage the said property in favor of the appellant. There admittedly were no title deeds in favor of respondent no. 2 in respect of the said premises. The only documents in favor of respondent no.2 were the said agreements of sale dated 22.12.2000. The said agreements expressly prohibited respondent no. 2 from creating any of the aforesaid rights in favor of the appellant or any other party. Clause 10 (i) of each of the agreements reads as under :- "10. The Shop Purchaser covenants with the Promoter and Builder as follows :- i) That Shop Purchaser shall not let, sub-let, transfer, as sign or part with the Shop Purchasers interest of benefit factor of this Agreement or part with the possession of the Shop until all the dues payable by the Shop Purchaser to the Promoter and Builder under this agreement are fully paid-up and the Deed of Apartment is executed by the Vendor conveying the apartment in his/her favor under the Maharashtra Apartment Ownership Act, 1970." 9. Further admittedly there was no privity of contract between the appellant and respondent no.1. It was not contended before us that the plaintiff had agree to or acquiesced in any transaction between the appellant and respondent no.2. Any alleged rights created by 5 respondent no. 2 in favor of the appellant or any agreement between them cannot affect the rights of the plaintiff i.e. Respondent no. 1. The appellant therefore has no right whatsoever to remain in possession of the said shops. It is clearly a trespasser in the said shops. The learned Judge therefore had no option but to decree the suit against the appellant. 10. The learned counsel appearing on behalf of the appellant was unable to offer any explanation to the above submissions. Faced with this however it was contended that the appellant is entitled to adopt proceedings in accordance with law for the purpose of recovering its alleged dues from respondent no. 2. That it is certainly is entitled to do. There is nothing in the impugned judgment which prevents the appellant from doing so. The appellant is at liberty to do so. 11. It appears that an order had been passed earlier denying the appellant an opportunity of filing a written statement. This order too has been challenged in the present First Appeal. This point however had not been pressed before us in view of our having permitted the appellant to raise the contentions noted above. 12. With the above clarifications the First Appeal is dismissed. The parties shall however maintain status quo in respect of the suit premises up to and including 31.7.2009 to enable the appellant to adopt 6 proceedings for recovery of their alleged dues from respondents no 2. There shall be no order as to Costs. (S.J. VAZIFDAR, J.) (B.H. MARLAPALLE, J.)