1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Notice of Motion No.3807 of 2009 IN Suit No.719 of 1982 Hasmukh N. Malkan ... ... Plaintiff v/s. Mrs.Seema R. Kohli & ors. ... ... Defendants Ms.Rajani Iyer, Senior Advocate with Ms.Saumya Srikrishna with Sushma M. Dave for Plff. Mr.N.C. Parekh i/by Mansukhlal Hiralal & Co. for Deft. Nos. 1, A1 & 1A3. Mr.Snehal Shah with Mr.P.K. Samdhani i/by Viraj Maniar Asso. for Deft.No.6. Mr.A. Dasgupta i/by J. Narula & Asso. for Deft.Nos.3 to 5. Mr.Anil A. Desai for Deft.No.2. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 30th June, 2010 P.C. : 1.This Notice of Motion is taken out for modifying the order dated 18.11.2008 passed by my brother Judge R.M. Savant recording that the order came to be passed inter alia upon consent of / No Objection given by the 2 Plaintiff. The Notice of Motion is also for stay of that order and for Notice of Motion No.1396 of 2007 in which that order came to be passed to be heard afresh. This Notice of Motion is also for stopping forthwith the construction which is stated to have started at the suit site by Defendant No.6. 2.A chronology of what has transpired in this Suit, which has been filed about two decades ago in 1982, is required to be understood. The Suit is for specific performance of an Agreement dated 11.2.1981. The Suit has been filed on 5.5.1982. The Suit was initially filed against Defendant No.2 only. Written Statement of Defendant Nos.1 and 2 has been filed since 11th October 1982. The first ad-interim order of injunction came to be passed by His Lordship Mr.Justice Cazi, as he then was, on 6.1.1990, restraining alienation and transfer of the suit property, 8 years after the filing of the Suit. The Suit was dismissed for default on 31.1.2002. It came to be restored on 17.3.2004. The ad-interim / interim order passed in the Suit came to be restored on 27.4.2004. 3.The original Defendant Nos.1 and 2 entered into an agreement with the present Defendant Nos.3, 4 and 5 on 29.4.1994, 2 days after the ad-interim order was restored, transferring and alienating the suit 3 property. Defendant Nos.3, 4 and 5 came to be joined in the Suit. Pursuant to such transfer, which is stated to have come to the notice of the Plaintiff, he applied for reliefs and sued those defendants also. 4.Much later, Defendant Nos.3, 4 and 5 transferred the suit property to Defendant No.6 on 2.9.2006. Defendant Nos.3, 4 and 5 entered into a further agreement with Defendant No.6 on 27.12.2005 followed by the Deed of Confirmation on 12.10.2006. Defendant No.6 came to be made a party to this Suit on 19.4.2007. 5.Consequent upon the alienation and transfer after the order of injunction, which is stated to be in breach of the order of injunction, the Plaintiff sought relief under Notice of Motion No.1856 of 2005 before this Court. The ad-interim relief came to be refused on 3.8.2005 on the ground of gross delay in a Suit of 1982 when rights were created in 1994 and the application was moved in 2005. An appeal filed from that order by the Plaintiff came to be withdrawn on 3.10.2005. The Notice of Motion as well as the Suit came to be expedited. The Notice of Motion was directed to be disposed of, preferably within 3 months. 6.The Notice of Motion came to be withdrawn when it came up for hearing as Defendant Nos.3 to 5 had created 4 further rights in favour of Defendant No.6 in the meantime. Thereafter Notice of Motion No.1396 of 2007 came to be taken out. The order passed in that Notice of Motion is sought to be stayed and that Notice of motion is sought to be heard afresh on the ground that a consent, which came to be recorded by the Plaintiff s Counsel as the consent of the Plaintiff, was not recorded correctly, that consent not having been given by the Plaintiff to his Counsel. 7.The ad-interim application came to be moved in that Notice of Motion on 27.4.2007. Counsel for Defendant No.6 made a statement that Defendant No.6 will not commence construction or create further third party interest in the suit property. Hence on 27.4.2007, no ad-interim order was passed. 8.The ad-interim application came to be considered on 26.6.2007. Counsel for the Plaintiff submitted that Defendant No.6 should not be permitted to start construction activities on the suit property. Defendant No.6 submitted that the construction would be subject to the outcome of the Suit and that he would not claim any equity at a later stage. Consequently, an ad- interim order in those terms came to be passed. This was not upon consent of the Plaintiff recorded by his Counsel. This was only upon Defendant No.6 volunteering 5 to state before the Court that the construction to be put up by him would be subject to the Suit without claiming equity. Hearing of the Notice of Motion was expedited. 9.Even prior to this, the hearing of the Suit was already expedited by the Division Bench on 3.10.2005. 10.The Notice of Motion reached hearing on 18.11.2008. An order came to be passed essentially and only confirming the ad-interim order. The Suit was observed to also have been appearing on Board for framing issues. The statement of Counsel of Defendant No.6 came to be recorded that construction, which was being put up by Defendant No.6, would be subject to the result of the Suit. It was to that statement alone that Counsel for the Plaintiff stated that he had no objection. Consequently, the ad-interim order dated 26.6.2007 came to be confirmed with the rider that the construction, which was then to be put up would be allowed to be put up subject to the result of the Suit. The Suit was listed for framing issues after 2 weeks. 11.This Notice of Motion came to be taken out for staying the order dated 18.11.2008 in Notice of Motion No.1396 of 2007 on the ground that the Plaintiff s consent was wrongfully recorded, which was required to be modified 6 on 7.11.2009, about a year after the order came to be passed. Pending this Notice of Motion, an application for speaking to the minutes of the order of my brother Judge R.M. Savant came to be moved. That application came to be withdrawn on the ground that this Notice of Motion is pending. This Notice of Motion is itself in the nature of an application for speaking to the minutes of the order dated 18.11.2008. 12.It is argued on behalf of the Plaintiff that upon the restoration of the interim order on 27.4.2004, the ad- interim order initially passed by His Lordship Mr.Justice Cazi, as he then was, became operative. The Defendants were restrained from alienating and transferring the suit property. Nevertheless 2 days thereafter the suit property was transferred. The transfer was void ab initio as being in breach of the order of injunction as held in the case of Surjit Singh vs. Harbans Singh, AIR 1996 SC 135 and Kishrimal Jivji Shah vs. Bank of Maharashtra 2004 Maharashtra Law Journal 893. Defendant Nos.3, 4 and 5 to whom the suit property came to be agreed to be transferred would have no right, title and interest as the transfer was in breach of the order of injunction. They, therefore, could not transfer any right to Defendant No.6. Defendant No.6, therefore, cannot act upon that transfer and seek to put up any construction on the 7 suit property. This argument would have been attractive when the ad-interim relief was sought to be pressed in Notice of Motion No.1856 of 2005 in 2005 as well as when the ad-interim relief was sought to be pressed in Notice of Motion No.1396 of 2007 on 26.6.2007. It appears not to have been taken up. Besides, under the circumstances in which the events have transpired, Defendant No.6 has sought to put up construction only subject to the outcome of the Notice of Motion and then the Suit and without claiming any equity. Upon such construction being put up on the ground that there was gross delay and on the ground that Defendant No.6 was not to put up construction unconditionally but subject to the outcome of the Notice of Motion and then the Suit and without claiming equity he was permitted to put up construction. Those orders have not been challenged in appeal. This application is in the nature of appeal for pressing the relief of restraining the construction to be put up on the suit property. It is, therefore, made in the wrong forum. It is far too delayed. 13.The argument of Ms.Iyer on behalf of the Plaintiff is that the Court would be putting a premium on the breach committed by parties if the construction is allowed to be put up. Such act should not be countenanced by the Court. It is contended that this Court must restrain 8 the construction, the orders in the previous Notices of Motion passed on 7.8.2005, 26.6.2007 and 18.11.2008 notwithstanding. This argument would be apt in the Suit if Defendant Nos.3, 4 and 5 or Defendant No.6 were to claim any legal rights in the Suit pursuant to the agreements entered into by them after restoration of the ad-interim order of injunction on 27.4.2004. The Plaintiff would legitimately claim as held in the case of Surjit Singh and Kishrimal Jivji Shah (both supra) that they would have no title pursuant to such transfers and that such transfers would not give them any legal right. 14.This, however, would be only subject to the Plaintiff proving his claim of specific performance in the Suit. If that is not proved, nothing further would remain with regard to the acts of the Defendants in the Suit, pending the Suit. 15.An interim order, which would hold sway only pending the Suit and would be required for protection of the suit property and the Plaintiff s rights till the final hearing can be passed upon various statements made by parties to the Suit at the interim stage. It would not determine the legal rights of the parties at the final hearing. This is one such Suit in which two such orders have come to be passed, one confirming the 9 other. The ad-interim as well as interim orders dated 26.6.2007 and 18.11.2008 have not considered the Plaintiff s prima facie case. They have only considered the statements made by Defendant No.6 upon the acts of parties subsequent to the filing of the Suit. These orders, therefore, would not prejudice the Plaintiff s legal rights, if shown at the final hearing. The subsequent transfers would be to no avail. The fact that construction has been put up would not, therefore, be considered as an equity arising in favour of Defendant No.6, if the Plaintiff was to succeed upon its cause of action, and in this Suit if the Plaintiff was to show that he was entitled to specific performance of the Agreement dated 11.2.1981. 16.This position would hold good whether or not the Plaintiff or his Counsel consented to the statement made by the Defendants Counsel and whether or not he had any objection thereto as well as whether or not the Plaintiff had instructed him to give his consent or his No Objection . Such No Objection or consent is, therefore, wholly innocuous. It does not prejudice the Plaintiff. It is not that a consent order was passed on 18.11.2008. A similar order came to be passed on 26.6.2007 without recording the Plaintiff s Counsel s consent or his No Objection . 10 17.The Plaintiff s Suit alone is required to be proceeded upon framing issued as directed on 18.11.2008. No case is made out for grant of any relief in this Notice of Motion. 18.The Notice of Motion is dismissed. No order as to costs. (SMT.ROSHAN DALVI, J.)