1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.972 OF 2008 WITH CIVIL APPLICATION NO.1178 OF 2008 WITH CONTEMPT PETITION NO.158 OF 2009 Shri Ashok Balwant Patil ..Appellant V/s. Mr.Shyamsunder Radheshyam Agarwal & ors. ..Respondents Shri Y. S. Jahagirdar Senior Counsel with K.S.Dewal for the appellant. Mr.A.A.Kumbhakoni with S.D.Patil for respondent no.1. Mr.S.K.Chaturvedi i/by M/s.Chaturvedi & Associates for respondent no.2. Mrs.G.P.Mulekar AGP for the State. Mr.P.K.Dhakephalkar with Mr.Niranjan Shimpi for respondent no.4. ---- Coram : R.S.MOHITE,J Date : 4th August, 2009. PC 1 This is an appeal filed by the original plaintiff impugning an order dated 14.8.2008 passed by the Civil Judge, Senior Division, Thane below Exhibit-5 in Special Civil Suit No. 433 of 2007. By the impugned order the trial Court has rejected the plaintiff’s application seeking temporary injunction. There were several interim reliefs which were prayed for in Exhibit-5 including interim mandatory injunction for revocation of building permission 2 issued to defendant no.1, from dispossessing the plaintiff from the suit property, restraining defendant no.1 from carrying out any construction on the suit property, restraining defendant nos.1 to 4 from giving effect to, disposing off or acting upon the deed of conveyance dated 19.12.2006 or dealing with or disposing off the suit property restraining defendant no.4 from executing any document in favour of defendant no.1, restraining defendant no.2 from granting any further permission of any nature for construction of any structure on the suit property and restraining defendant no.3 from granting any permission to defendant no.1 in the suit property. 2 The brief facts of the case are as follows :- (a) By an agreement of sale/development dated 21.11.2003 the plaintiff and defendant no.1 jointly agreed to purchase the suit property from defendant no.4. The suit property was a plot of land admeasuring 27904 square yards situated at village Bhayander Taluka & District Thane. The consideration agreed was Rs.1,11,67,600/-. As contemplated in the said agreement, a power of attorney dated 21.11.2003 was also executed by defendant no. 4, jointly in favour of the plaintiff and defendant no.1. Since all the agreed terms had not been incorporated into the aforesaid agreement, there was a supplementary agreement dated 25.11.2003 executed by defendant no.4 in favour of the plaintiff and defendant no. 1. (b) According to the plaintiff, that sometime in 2007 through a relative, he came to know that defendant no.1 had submitted a plan for construction upon the suit property. The plaintiff made enquiries and filed an application under Right to Information Act and learnt that defendant no.1 relied upon a release deed alleged to have been executed by the plaintiff. They were furnished a copy of this release deed by the Corporation. They also 3 learnt that after the said release deed, defendant no.1 was claiming to have become the owner by virtue of a registered conveyance dated 19.12.2006. (c) According to the plaintiff on coming to know of the aforesaid facts, he filed the present suit being Special Civil Suit No.433 of 2007 in the Court of the Civil Judge, Senior Division, Thane. Though there are several prayers made by the plaintiff, the basic challenge in the suit is for the declaration that the alleged release deed is a forged, fabricated and manipulated document. There are also prayers that a declaration dated 16.5.2004 is a forged and fabricated document and also there are prayers for quashing the conveyance deed alleged to have been executed between defendant no.4 and defendant no. 1. The other declarations which are sought pertaining to the various permissions granted by defendant no.2 for construction in favour of defendant no.1 are void. There is also an alternate prayer for a decree of damages to the tune of Rs.8,20,00,000/-. 3 After hearing both sides, I find that the order under challenge is liable to be confirmed subject to a modification which would be required for protecting the interest of the plaintiff. 4 It can be seen from the plaint that though admittedly the entire sale price Rs. 1,11,67,600/- has been paid to and received by the original owner defendant no.4, which is not disputed by defendant no.4, the plaintiff has not averred about making any contribution in the payment made to defendant no.4 Relying upon the conveyance deed dated 19.12.2006 it was sought to be contended that though there is no averment in the plaint, the conveyance deed indicated that payment of Rs.1,65,400/- was made to defendant no.4 and learned Counsel argued that this cheque was actually issued by the 4 plaintiff. In the application at Exhibit-5 also the plaintiff has not contended that he made any contribution to the sale price. 5 There is a dispute raised by the plaintiff in respect of the release deed and he claims that he has not signed the release deed. He further claims that his signature under receipt clauses are also forged and fabricated. It is noticed that at this stage, no affidavit has been filed on behalf of 3 Advocates and Notary who have signed below the release deed. In my view, determination of the validity of this release deed will require further evidence which was not before the Court when the impugned order was passed. On the documents as produced, no conclusive statement can be made as to whether the release deed dated 26.12.2005 and the conveyance dated 19.12.2006 are forged and fabricated documents. In my view, it could not be proper to give a very detailed finding in the absence of full evidence because that may affect the interest of the parties in the trial. In the course of this appeal, on behalf of the plaintiff/appellant, a further affidavit was filed claiming that he had paid an amount of Rs.24 lakhs to get possession from some of the occupants. It is noticed that this payment has admittedly been made after the suit has been filed. Making of such payment is seriously disputed. In my view, making of such payment after filing of the suit will have no bearing on the question required to be decided at this interim stage. It may only be mentioned here that prima facie, under the supplementary agreement dated 25.11.2003 the obligation to settle the disputes with the persons occupying the suit premises was cast upon both the purchasers and not upon the plaintiff alone. 6 Taking an overall view of the matter, in my view, no fault can be found with the order impugned except that some provision could have been made to protect the plaintiff’s 5 interest and claim in the suit. I have noticed that the plaintiff has claimed damages to the extent of Rs.8,20,00,000/-. On perusing the plaint, I find that there is no foundation in the plaint for claiming such an amount. In my view, based upon the averments made by the plaintiff, he may be entitled to ½ share of the property valued at approximately Rs. 55,00,000/- in the year 2003 and the reasonable interest thereon. This is particularly so as in the agreement dated 21.11.2003 there was no specific clause in the sharing of the property after development. In my view, the ends of justice would suffice if defendant no.1 is directed to secure the claim made by the plaintiff by furnishing a bank guarantee to the tune of Rs.1 crore. Learned Advocate for the defendant no.1 states that he has no objection for giving such a bank guarantee and that such a bank guarantee will be furnished in the trial Court within a period of four weeks from today. The statement is accepted. Subject to the acceptance of this statement, Appeal from Order stands dismissed. There will be liberty to parties to apply in case there is a failure to furnish a bank guarantee within a period of four weeks. Counsel for the plaintiff/appellant states that they would like to approach higher court and the status-quo which is running, may be extended for a period of four weeks. Status-quo is therefore, extended for a period of four weeks. It is made clear that the grant of status-quo will not preclude the Collector from acting in accordance with law. 7 As the Appeal from Order itself has been dismissed, Civil Application No.1178 of 2008 does not survive and stands disposed off accordingly. 8 Counsel appearing on behalf of the appellant states that in view of the oral apology tendered by the Government Pleader, he does not press the Contempt Petition. Contempt 6 Petition No.158/2009 is therefore, dismissed as not pressed. It is clarified that the Collector will be entitled to proceed further in accordance with law and pass such orders as he deems fit and proper in the matter in dispute. (R.S.MOHITE,J)