IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO. 6 OF 2008 NO. 6 OF 2008 NO. 6 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO. 3685 OF 2005 OF MOTION NO. 3685 OF 2005 OF MOTION NO. 3685 OF 2005 IN IN IN SUIT SUIT SUIT NO. 3212 OF 2005 NO. 3212 OF 2005 NO. 3212 OF 2005 Nalin Pratapsinh Thacker ] .. Appellant Ori.Defendant Versus Multiplex Collapsible Tubes Ltd. ] .. Respondent Ori.Plaintiff Mr. Vijay Thorat, senior counsel with Mr. Chetan Kapadia, Mr. S.H. Merchant, Ms. Chaitra Rao and Mr. Lijan P.P. i/b M & M Legal Ventures for the appellant. Mr. Navroze Seervai, senior counsel with A. Das and Rajiv Narula i/b M/s. Jh. Narula & Associates for the respondent. CORAM: S.B. MHASE & SMT.NISHITA MHATRE, JJ. DATED: 7TH JULY, 2008 P.C. : 1. Heard both sides at length. 2. This is an appeal against the Notice of Motion No.3685 of 2005 in Suit No.3212 of 2005. By the said Notice of Motion, the learned single Judge has granted relief in favour of the respondent herein-original plaintiff in terms of prayer clause (b), except the bracketed portion viz. "or otherwise dealing with the : 2 : premises", subject to the condition of the plaintiff filing an undertaking with this court within a period of six weeks. The said six weeks time was further extended by order dated 1st November, 2007. 3. The respondent filed a Suit for specific performance of the property described in the Plaint and has taken out the above referred Notice of Motion. In the said Notice of Motion, the interim relief in the nature of a prohibitory order i.e. prohibiting the defendant-appellant herein from transferring the property during the pendency of the suit in any manner, has been granted. 4. We have gone through the impugned order of the learned single Judge and we find that in a lengthy order, the learned single Judge has considered each and every aspect in regard to grant of interim relief viz. the prima facie case, balance of convenience and irreparable loss. The learned single Judge has found that there is a strong prima facie case and, therefore, the property requires to be protected till the final disposal of the suit. 5. The learned senior counsel appearing on behalf of the appellant submitted that the relief granted by : 3 : the learned single Judge vide the impugned order is too wide. He further submitted that by such an order, the defendant-owner of the property is precluded from using the property for his personal use. He submitted that the property is a commercial property and the appellant is entitled to use the property by himself and/or in conjunction with some others and that such permission should have been granted in the order. He further submitted that he and the third party are ready and willing to give an undertaking to this court that they will not claim any right in the property in case the suit is decided in favour of the plaintiff-respondent herein. The appellant has further shown an inclination to file an undertaking that the third party will not claim any right either as licencee or tenant or any other right and thus he prayed for modification of the impugned order. 6. The learned senior counsel appearing on behalf of the respondent vehemently opposed this submission. According to him, having found that there is a strong prima facie case in favour of the respondent, it will not be open for the defendant to use the said property, commercially. He stated that in fact, he is ready and willing to pay the price agreed and complete the transaction so that the original defendant-appellant : 4 : gets the total amount of sale price. He further submitted that the defendant-appellant is trying to use the property for his own gain, keeping the respondent- plaintiff out of the said property and thus he is only interested in protraction of the litigation when, in fact, the respondent-plaintiff is ready to pay the price and have the conveyance of sale executed in his favour by the appellant herein. He pointed out that the appellant is not interested in the price offered by the respondent and instead, he is trying to find out purchasers who can offer him the price which is more than what is offered by the respondent. Therefore, he submitted that in order to maintain the sanctity of the contract, such efforts on the part of the defendant-appellant should not be allowed. At one point of time he submitted that the Court Receiver may be appointed and then through the Receiver the property may be dealt with so that anyone who is in possession of the property can be immediately removed from such possession in case the suit is decreed. However, he seriously objected to allowing any third party to enter the suit property while it is in possession of the defendant-appellant herein. 7. We have considered the rival submissions of the learned senior counsel. We do not find any fault : 5 : with the observations and the findings recorded by the learned single Judge. These are orders usually passed by the court to protect the property. The property, admittedly, is being used by the appellant for residential purposes and, therefore, it is not, atleast on the date of the suit, in commercial use as submitted by the learned senior counsel for the appellant. Converting the use of the property with the help of a third party is as good as lifting the prohibitory order passed by the learned single Judge, without disturbing the reasoning adopted by the learned single Judge. 8. After hearing both the sides and especially the appellant, we do not find that there is any serious challenge to the finding recorded by the learned single Judge. In the result, we find that there is no substance in the Appeal and the Appeal is rejected. Sd/- Sd/- [SMT.NISHITA [SMT.NISHITA [SMT.NISHITA MHATRE, J.] MHATRE, J.] MHATRE, J.] [S.B. [S.B. [S.B. MHASE, J.] MHASE, J.] MHASE, J.]