1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.4098 OF 2007 IN SUIT NO.3019 OF 2007 M/s. Concord Enterprises ..Plaintiff. Vs. Yeshwant Chintamani Sathe and others ..Defendants. .... Mr. Kevic Setalwad with Mr. R.S. Mishra for the Plaintiff. Mr. Rajiv Narula with Ms. Premlata Modani for Defendant No.1. Mr. A.M. Sarogi with Ms. P.M. Dave for Defendant No.2. Mr. N.G. Thakkar, Senior Advocate with Ms. S. John and Mr. Prateek Majumdar i/b M.P. Savla & Co. for Defendant N.3. Ms. M.M. Dave for the Applicant. .... CORAM: DR. D.Y. CHANDRACHUD, J. 13th February, 2008. P.C. : 1. This order would govern a Notice of Motion which has been taken out for interlocutory relief in a suit where the Plaintiff inter alia seeks a declaration that an indenture of conveyance executed on 31st July, 2007 between the Second and Third Defendants be declared as null and void and injunctive relief on the creation of rights in respect of the property described in Exhibit A to 2 the Plaint. The dispute relates to land admeasuring Survey No.424, Hissa No.23, CTS 832 at Santacruz (East) admeasuring 1,760 sq. yds. The Plaintiff traces its title in respect of the land under Consent Terms which were arrived at on 8th March, 1983 in Suit 279 of 1983 on the Original Side of this Court. On 6th April, 1984 an agreement to sell was entered into between the Plaintiff and the First Defendant by which the Plaintiff agreed to sell to the First Defendant the property in dispute at and for a consideration of Rs.8 lacs. An amount of Rs.2 lacs was paid while the balance was to be adjusted in the manner indicated in the agreement. Clause 2 of the agreement stated that the First Defendant was placed in possession of the property and that the Plaintiff would execute an irrevocable general power of attorney; the revocability being subject to the purchaser paying all the amounts due and payable under the agreement. Under Clause 11, the only obligation that remained for the vendor to fulfill on the purchasers paying the full purchase price was the execution of the deed of conveyance in favour of the purchaser or his nominee including a co-operative society. Simultaneously with the execution of the agreement to sell 3 the Plaintiff executed a power of attorney in favour of the First Defendant inter alia empowering the First Defendant to develop the property. The power of attorney empowered the First Defendant to substitute any third party in his place subject to indemnity. 2. The case of the Plaintiff in paragraph 8 of the Plaint is that the First Defendant failed to carry out any development on the property for nearly 17 years until 2001. Consequently according to the Plaintiff the agreement of 6th April, 1984 was terminated in 2001. There is no reference in the Plaint either to the date of the termination or to the letter under which the agreement was cancelled. The Plaintiff, however, claims that on 12th May, 2001 an agreement for development was entered into with the First Defendant. The alleged agreement, it must be noted, acknowledges that the Plaintiff had received full consideration under the agreement dated 6th April, 1984 which the Plaintiff had executed with the First Defendant. The genuineness and authenticity of the agreement of 12th May, 2001 which is relied upon by the Plaintiff is seriously in dispute. This aspect of the case 4 would be dealt with shortly hereafter. 3. On 11th July, 2001 an agreement was purportedly entered into between the First and the Second Defendants by which the First Defendant agreed to sell the property to the Second Defendant for a consideration of Rs.36 lacs. Simultaneously with the agreement the First Defendant executed a power of attorney in favour of the Second Defendant. Thereafter on 7th September, 2001 the Plaintiff executed a power of attorney in favour of the Second Defendant. At this stage, it would be material to note that the power of attorney executed by the Plaintiff in favour of the Second Defendant empowers the Second Defendant in Clause 1 to develop the property; in Clause 36 to sell, transfer and assign to third parties the flats and commercial units in the building and in Clause 40 to execute on behalf of the Plaintiff a conveyance in favour of a purchaser or his nominee including a co-operative society. The Plaintiff has not disputed the genuineness or the execution of the power of attorney dated 7th September, 2001. On 31st July, 2007 a registered deed of conveyance was executed by 5 the Second Defendant in favour of the Third Defendant acting on the strength of the power of attorney executed by the Plaintiff at and for a consideration of Rs.5 Crores. 4. The Plaintiff claims that by a letter dated 22nd April, 2007 addressed to the First and Second Defendants, the agreement dated 6th April, 1984, the power of attorney dated 7th April, 1984 and the second power of attorney dated 7th September, 2001 were cancelled. The suit has been instituted for seeking declaratory relief in respect of the conveyance dated 31st July, 2007 executed by the Second Defendant in favour of the Third Defendant and for injunctive and other relief of which the salient aspects have been noted in the earlier part of this judgment. By consent of Counsel and at their request, the Motion has been taken up for final disposal. 5. The submissions which have been urged on behalf of the Plaintiff at the hearing are : (i) The Second Defendant had no right to alienate the property; the power of attorney dated 7th September, 2001 executed in favour of the Second Defendant was because of 6 the development agreement that was executed by the Plaintiff in favour of the First Defendant on 12th May, 2001; (ii) The affidavit filed by the Second Defendant is to the effect that the Plaintiff had sold the property to the First Defendant who in turn had sold the property to the Second Defendant. If that be so, there was no reason for the execution of a conveyance by the Second Defendant in the name of the Plaintiff in favour of the Third Defendant and (iii) Assuming that the Second Defendant had sold on behalf of the Plaintiff, it would not be permissible for him to retain the proceeds. 6. Before assessing the merits of the rival contentions, it would be necessary to note that on 14th January, 2008 when the application for ad interim relief was argued, the authenticity of the agreement for development dated 12th May, 2001 on which reliance has been placed by the Plaintiff was seriously called into question by the Defendants. In order to enable the Court to consider the correctness of the rival submissions, notice was directed to be issued to Shri M. V. Shinde (Notarial Registration 7 No. 503) the Advocate and Notary who is alleged to have notarized the document. The Court directed the production of the notarial register and other records in the possession of the Notary relating to the notarization of the agreement for development dated 12th May, 2001. The Notary has placed on the record a letter dated 17th January, 2008 in which he states that he had attested the document of 12th May, 2001 which was brought before him by an advocate “generally attached to the Borivli Court and the Additional Metropolitan Court at Borivli”. The Notary has stated that since he knew the advocate for ten years, he had attested the document on 12th May, 2001. However, it has been stated that the parties concerned were not before the Notary and no entry was made in the notarial register. This circumstance itself is sufficient to cast serious doubt on the authenticity of the document. But be that as it may, there are additional circumstances which cast serious doubt prima facie on the authenticity of the alleged agreement dated 12th May, 2001 upon which the Plaintiff relies. The letter of termination which was addressed by the Plaintiff on 22nd April, 2007 (during the course of the hearing it was submitted on behalf of the Plaintiff 8 that the date is wrongly mentioned and should correctly read as 22nd August, 2007) refers only to the agreement dated 6th April, 1984, the power of attorney dated 7th April, 1984 both of which were executed in favour of the First Defendant and the power of attorney dated 7th September, 2001 in favour of the First and Second Defendants. There is merit in the submission urged on behalf of the Defendants that if the agreement dated 12th May, 2001 was in fact a genuine and valid agreement that would also have been the subject matter of the notice of termination which was issued on 22nd April, 2007 (or as the Plaintiff submits now 22nd August 2007). The submission that the letter of termination contains a typographical error in respect of the date of the letter is again prima facie incorrect. The letter purports to be dated 22nd April, 2007. The Second Defendant in his reply dated 18th September, 2007 recorded that the letter was delivered only on 8th September, 2007. Paragraph 2 of the letter dated 22nd April, 2007 refers to a letter of the Plaintiff dated 21st January, 2007 and paragraph 3 then records that three months had passed since the aforesaid letter. Prima facie therefore the explanation that the date 9 on the letter has inadvertently been typed incorrectly cannot be accepted. 7. The agreement between the Plaintiff and the First Defendant dated 6th April, 1984 was an agreement to sell. The agreement records that possession was handed over to the First Defendant on a payment of Rs. 8 lacs of which Rs.6 lacs was adjusted. The power of attorney that was executed in pursuance of the agreement was to become irrevocable subject to the payment of full consideration. The Plaintiff does not dispute the receipt of the entire consideration of Rs.8 lacs and in fact even the alleged agreement dated 12th May, 2001 on which the Plaintiff relies records full consideration. That is also evident from the letter dated 22nd April, 2007 by which the Plaintiff has offered to refund an amount of Rs.8 lacs. In this view of the matter, prima facie all that remained in terms of the obligation of the Plaintiff under the agreement dated 6th April, 1984 was the execution of a conveyance in favour of the purchaser or his nominee including a co-operative society in terms of Clause 11 of the agreement. The Plaintiff 10 executed a power of attorney on 7th September, 2001 in favour of the Second Defendant authorizing the Second Defendant to develop the property, sell the residential and commercial units therein and to execute a conveyance in favour of a third party. On 7th September, 2001 simultaneously with the execution of the power of attorney, the Plaintiff executed a letter in favour of the First and Second Defendants confirming the transaction and an indemnity was furnished by the First and Defendants on the same date. Having regard to all these circumstances, it is evident that the Plaintiff has not come before the Court with a full disclosure of all the material aspects of the transaction. The Second Defendant has executed a conveyance in favour of the Third Defendant acting on the basis of the authority granted to him by the Plaintiff on 7th September, 2001. The alleged agreement dated 12th May, 2001 is prima facie a document which gives rise to serious doubts in regard to the authenticity and credibility thereof. The Plaintiff has for all these reasons failed to establish a prima facie case for the grant of interlocutory relief. The Plaintiff has not come before the Court with a full and candid disclosure of all the material aspects of 11 the transaction. The Motion shall accordingly stand dismissed.