1 IN THE HIGH COURT OF JDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTIONLNO. 926 OF 2006 IN SUIT NO. 698 OF 2006 Dinesh Prakash Gaikwad & Anr. ... Plaintiff. Vs. Vishal RohidasRathod ... Defendant. Mr. Thorat for the plaintiff. Mr. Kirit Hakani for the defendant. CORAM : A.A.SAYED, J. DATE : October 9, 2009. P.C. 1. The above Notice of Motion has been filed by the plaintiffs inter-alia to restrain the defendant, his family members, agents, servants and heirlings from assigning, transferring or creating any third party rights in respect of the suit premises namely Flat No. B-47, 4th floor, Naik Nagar Co-op. Housing Society Limited, Shivshrushti Road, Kurla (East), Mumbai 400 024. 2. The suit is filed by the plaintiffs for a declaration that the Sale Deed dated 1.2.2003 executed between the plaintiffs and defendant is valid and subsisting and for possession of the suit premises being Flat No. B-47. The case of the plaintiffs is that they are bona fide purchasers of the suit premises. There were two adjoining flats being Flat No. B-47 (suit premises) and Flat No. B-48 in the building. It also appears that the suit premises which belonged to the defendant was agreed to be sold to the plaintiffs for a sum of Rs. 3,50,000/- and flat No. B-48 which belonged to the brother of 2 the defendant was agreed to be sold for Rs. 3,85,000/- to the plaintiffs. The plaintiffs have relied upon a registered sale deed alongwith Index II in respect of the suit premises, which is annexed as Exhibit "A" to the plaint. Plaintiff has also paid stamp duty and registration fee in respect of the sale deed of the suit premises. According to the plaintiff, though possession of Flat No. B-48 was given to them, possession of suit premises viz. Flat No. B-47 was not given, as the defendant requested time of one and half month to arrange for alternate accommodation, and in good faith, the plaintiffs agreed to the same. However, inspite of repeated reminders and Advocate's notice since the defendant did not hand over possession of the suit premises, the above suit came to be filed. 3. Defendant has filed affidavit-in-reply to the Notice of Motion, wherein he has admitted that it was agreed that the suit premises viz. Flat No. B-47, as well as Flat No. B-48 were agreed to be sold to the plaintiffs. It is his case that the plaintiffs have made part payment jointly only to the tune of Rs. 3,75,000/- and were not able to make payment of balance amount of Rs. 3,50,000/- being the consideration of the suit premises and hence, only the possession of one flat (Flat No. B-48) was given to the plaintiffs. It was agreed that the original Sale Deed in respect of the suit premises would remain in the custody of Advocate Mr. Ghorpade. Relying on the said arrangement, defendant signed the Agreement to Sale in respect of the suit premises before the Sub-Registrar of Assurances and the Original Sale Deed in respect of the suit premises has therefore remained in custody of Advocate Mr.Ghorpade. It is the further case of the defendant that the plaintiffs did not arrange to make payment and orally requested him to treat the Agreement for Sale of the suit premises viz. Flat No. B-47 to be 3 cancelled and treat the amount of Rs. 80,000/- paid, as payment towards balance consideration of Flat No. B-48 and, therefore, the said Agreement in respect of the suit premises was cancelled. It is the further case of the defendant that on or about 12th October, 2004 he has raised a loan of Rs. 4 lacs on security/ mortgage of the suit premises from Yashomandir Sahakari Patpedhi Maryadit. The said loan was taken by the defendant as well as the defendant's brother to enable the defendant's brother Prashant Rathod to refund sale price of the Flat No. B-48 to plaintiff No. 1's brother Mr. Avinash Gaikwad as he wanted to cancel agreement in respect of Flat No. B-48. It is further stated in the reply that the plaintiff for the first time issued notice in January, 2006 demanding possession of the said flat. According to defendant, the two cheques mentioned in the receipt clause of the agreement were adjusted towards sale consideration of flat No. B-48. According to defendant he is a young unexperienced boy, who has studied upto 12th standard and he had been cheated by the plaintiffs and obtained his signature without any payment. 4. The learned Counsel for the plaintiff drew my attention to the Sale Deed and submitted that the said Agreement is a registered agreement and the same has been signed by the plaintiffs and defendant and under the said agreement, the entire amount has been paid by the plaintiffs to the defendant and the cheque amounts of Rs. 45,000/- and 35,000/- were paid and the balance consideration was paid in cash. He submitted that the defendant cannot now resile from the agreement and the rights of the plaintiffs are required to be protected till the hearing and final disposal of the suit. Learned Counsel for the plaintiff stated that he is pressing only prayer clause (c) to the Notice of Motion, which is for an order restraining the defendant 4 from creating any third party right and/or interest in the suit flat and that he is not pressing for the other reliefs. 5. The learned Counsel for the defendant on the other hand submitted that plaintiff has not come with clean hands to the court and therefore does not deserve any relief. He pointed out that the the alleged Sale Deed is infact an Agreement for Sale and not a Sale Deed. He pointed out that defendant has been taken for a ride by the plaintiffs. He submitted that under the agreement only an amount of Rs. 80,000/- has been paid and the balance amount remained to be paid. He submitted that as the defendant has not received the entire consideration, the Sale Deed was kept in escrow with Advocate Mr. Ghorpade and possession of the suit flat was not handed over to the plaintiffs for the said reason. He submitted that this fact should have been mentioned by the plaintiffs in the plaint and this fact alone is enough to deny the reliefs to the plaintiffs as the plaintiffs have suppressed this material fact from the court. He submitted that the Agreement to Sale incorrectly mentions that vacant possession of the suit premises has been handed over to the plaintiffs, when infact admittedly possession of the suit premises always remained with the defendant and this fact also shows as to how defendant has been taken for ride in the matter and that the defendant had completely relied upon the plaintiffs. 6. The learned Counsel for the defendant further pointed out that the agreement incorrectly mentions that the entire amount towards the consideration of the flats was paid and that the plaintiffs have admitted that certain amounts remained to be paid. The defendant has filed an affidavit of witness in support of his case. An additional reply has also been 5 filed. In the affidavit it is stated out that there is typographical error in the total at page 8 (i.e. the receipt of payment). The total payment comes to Rs. 80,000/- and not Rs. 3,50,000/-. Similarly statement as to handing over of the vacant and peaceful possession recorded on the rear side of the receipt at page 9 of the sale deed is factually incorrect as is evident from the averments and prayer in the plaint of the suit. 7. I have heard the learned Counsel for the parties and perused the material on record. Insofar as the document in question i.e. sale deed in respect of the suit premises viz flat No.B-47 is concerned, the same is a registered document which shows that the certain amounts have been paid under the said agreement. There is nothing on record to show that the defendant had infact revoked the sale deed and that the amount which has been paid in respect of the suit premises has been treated as part consideration in respect of the flat No.B-48 and that the sale deed in respect of the suit premises would be treated as cancelled, as is suggested by the defendant. No doubt it is true that the fact that the original sale deed was kept in escrow with Advocate Mr. Ghorpade has not been mentioned in the plaint which infact ought to have been mentioned. However, taking over all view of the matter, in my view the plaintiffs have made out a prima facie case. Balance of convenience is in their favour and irreparable loss would be 6 caused to them if the rights of the plaintiffs are not protected during the pendency of the suit. 8. At the ad-interim stage, by an order dated 10th April, 2006, this Court had granted ad-interim relief in terms of prayer clause (c) to the Notice of Motion. I see no reason not to continue this order until the hearing and final disposal of this suit. 9. In the circumstances, in my view the plaintiffs have made out a case for confirmation of the ad-interim relief granted in the Notice of Motion. Consequently, the ad-interim relief in terms of prayer clause (c) of the Notice of Motion granted vide order of this court dated 10th April, 2006 is confirmed and Notice of Motion is made absolute in terms of prayer clause (c) to the Notice of Motion. 10. Notice of Motion to stand disposed of accordingly [A.A.Sayed, J.]