1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2673 OF 2007 IN SUIT NO.1995 OF 2007 Bank of India & Anr. ....Plaintiffs V/s. M/sSpectrum & Ors. ....Defendants And Pancharatna Co-Op. Hsg. Soc. Ltd. ....Respondent Mr.Ajay Khaire i/b M.S. Bodhanwala & Co. for the Plaintiffs. Ms.K.K. Daviervala i/b Mulla & Mulla & C. B. & Co. for Defendant No.4. Mr.Rajesh Maravoor /b Maravoor Wamorkar & Co. for the Respondent. CORAM : S.J. VAZIFDAR, J. DATE : 23RD NOVEMBER, 2009. P.C. :- 1. The suit is filed for a declaration that an alleged agreement dated 21.11.2006 entered into between Defendant Nos.1, 4 and 5 is null and void. According to the Defendants, Defendant No.5 sold the property which is the subject matter of the said agreement to Defendant No.1 by an agreement dated 22.10.2005. Defendant No.1 in turn purported to sell the said property to Defendant No.4 by the said agreement dated 21.11.2006. Defendant No.5 is a confirming party to this agreement. 2. Defendant No.1 is a partnership firm of which Defendant Nos.2 and 3 are the partners. The Plaintiff filed proceedings before the D.R.T. for 2 recovery of the dues of Defendant Nos.1, 2 and 3. The Plaintiff made an interim application. Orders were sought in respect of the said agreement dated 21.11.2006. It was contended on behalf of the Defendants that the Tribunal did not have jurisdiction to entertain a challenge to the said agreement. The Plaintiff thereupon stated that they decided to file appropriate proceedings. Defendant No.4 had also intervened before the D.R.T. 3. It is in these circumstances, that the above suit is filed. The maintainability of this suit has not been challenged at this stage. The Plaintiff’s case is that in order to secure the repayment of the amounts due by Defendant Nos.1 to 3, Defendant Nos.1 to 3 offered to create an equitable mortgage in respect of the said property and forwarded a xerox copy of the registered deed of sale dated 22.10.2005. The same was done by 22.4.2006 i.e. prior to the agreement that is challenged in this suit which is dated 22.11.2006. By a letter dated 16.8.2006, the Plaintiff requested the society in which the said property is situated to register the lien. 4. Thus the security created in favour of the Plaintiff is prior to the agreement in favour of Defendant No.4 dated 21.11.2006. The only question is whether Defendant No.4 .is a bona-fide purchaser for value without notice. This issue must await the trial of the suit. On the basis of the evidence on record, it is not possible to express a conclusive view in this regard. For instance, recital No.4 of the agreement dated 21.11.2006 states that Defendant Nos.1 to 3 and 5 had not offered to create any charge, mortgage or lien of the premises to any party and that they had not delivered the original title papers to anybody including the Plaintiff where 3 they had credit facilities. The recital is curious. It does not state that a xerox copy was forwarded to the Plaintiff as aforesaid. On the other hand, it is pertinent to note that there is no explanation as to why the bank did not insist on the original document itself being deposited with a view to create an equitable mortgage. The matter is thus not free from doubt and can only be decided after the evidence is led. The interest of all the parties must therefore be protected in the meantime. 4. The Notice of Motion is therefore disposed of by the following order :- i). Pending the hearing and final disposal of the suit, the Defendants shall not dispose of, alienate, encumber, part with possession of or create any third party right, title and interest in, to, upon or in respect of the suit property except with the leave of the Court. This order shall however, operate only from today and shall therefore not affect any encumbrances that may have been created earlier including the alleged mortgage in favour of ABN Amro Bank Ltd. by Defendant No.4.