1 nms851-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.851 OF 2011 IN SUIT NO.90 OF 2007 Chandulal Popatlal Patel & Ors .. Plaintiffs versus Nutan Krishnarao Raut & Ors .. Defendants Mr.F.D’Vetre, Sr.Adv a/w Mr.D.D.Madan, Sr.Adv, Mr.Kirit Mody, Mr.Chirag Mody i/by DSK Legal for plaintiff No.1. Mr.Shailesh Shah a/w Mr.Lalitkumar Jain for defendant Nos.1 to 5. Ms.Priti S. Shah for defendant No.10. Mr.P.K.Samdani, Sr.Advocate a/w Mr.Pankaj Thatta for defendant Nos. 12 to 21. Mr.R. Narula i/by J.Narula & Associates for defendant Nos.22 to 24. CORAM : S.C.DHARMADHIKARI, J. 5th October 2011. P.C.: . Heard Mr.D’Vetre, learned senior counsel appearing on behalf of the plaintiff. Perused the plaint and annexures thereto. I have perused the affidavits filed in support and reply to this notice of motion. 2 Mr.D’Vetre appearing on behalf of the plaintiffs submits that the suit is filed seeking firstly, a declaration that the Agreements for Sale dated 19th September 1992, 12th April 1993, 10th April 1993, 21st April 2 nms851-11.doc 1992, 6th June 1992, copies of which are annexures ‘B’, ‘D’, ‘F’, ‘H’, ‘J’, ‘L’ and ‘N’, of the property described at Annexure A to the plaint, are valid, subsisting and binding upon the respective defendants and they be directed to specifically perform the same. 3 Upon a query from the Court as to how when the Agreements are stated to be executed way back in the year 1992-93, that the suit is filed on 27th November 2006, Mr.D’Vetre invites my attention to the averments in the plaint and states that these Agreements have never been denied nor disputed and the plaintiffs were informed that one Mr.Lalji Laxamndas was claiming certain rights in the suit property. When the repeated request of the plaintiffs for performance of the suit agreements met with such replies, that the plaintiffs decided to wait for the outcome of the litigation which has been initiated by the said Lalji. My attention is invited to paras 32 to 34 of the plaint and it is stated that Suit No.3573 of 1990 filed by Lalji Laxamndas against the defendants was dismissed by an order passed by the City Civil Court, Bombay. Mr.D’Vetre submis that this dismissal is in the year 2006 and that is how the suit filed cannot be stated to be barred by law of limitation, particularly when performance is refused after the suit instituted by Lalji 3 nms851-11.doc Laxamndas came to an end. 4 It is not possible to accept this contention because prima facie firstly, the defendants and particularly those who are owners of the property and with whom there are initial agreements, clearly disputing and denying the Agreements themselves and it is pointed out that the plaintiffs have not taken any steps after execution of the alleged agreements inasmuch as they cannot in the case of a joint family property merely allege that the performance was denied or refused. There is nothing in the affidavit in support or in the averments of the plaint which would go to show that the plaintiffs were following up the matter. A perusal of the affidavits would indicate that the property has been dealt with further and today there is conveyance in place. Unless and until the plaintiffs succeed in proving the existence of the Agreements which have been denied by the defendant Nos.1 to 5 vehemently in their affidavit and intervening rights in the property claimed through these defendants, it will not be possible to grant any interim relief. 5 Prima facie, the suit is instituted after more than fourteen years of 4 nms851-11.doc the date of the Agreements for Sale. Secondly, there is a serious doubt and dispute raised about execution of the same. Thirdly, rights have been created subsequent to the said Agreements in favour of third parties. Merely because the construction was noticed in the year 2010 that by itself and without anything more will not permit or entitle the plaintiffs to seek any interim reliefs. The plaintiffs have admittedly registered a lis pendence. Therefore, any apprehension that the properties or any portions thereof will be dealt with further would be taken care of inasmuch as in the light of the pendency of the suit and notice of which has been duly registered in terms of the relevant provision of the Transfer of Property Act, 1882, the apprehension that the plaintiffs’ suit would be rendered infructuous, cannot be said to be well founded at this stage. In my view, no prima facie case is made out for grant of any interim injunction as claimed. Further the balance of convenience cannot be said to be in favour of the plaintiff as well. There is no question of any irreparable harm and injury because of inordinate delay in approaching this Court. For all these reasons, the notice of motion is devoid of any merits and the same is dismissed. No costs. (S.C.DHARMADHIKARI, J)