:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO. 3039 OF 2007 OF MOTION NO. 3039 OF 2007 OF MOTION NO. 3039 OF 2007 IN IN IN SUIT SUIT SUIT NO. 1758 OF NO. 1758 OF NO. 1758 OF 2003 2003 2003 Jayesh Naavalshankar Joshi. ... Plaintiff. V/s. Shantaram V. Karnik & Ors. ... Defendant. And Mrs. Shailaja Shankarsinh Rajput. ... Applicant. Mrs. Divya Trivedi for the Plaintiff. Mr. O.R. Tiwari for Defendant No.1. Mr. I.S. Thakur for Defendant Nos. 2 to 4. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 27TH 27TH 27TH JANUARY 2009. JANUARY 2009. JANUARY 2009. P.C. P.C. P.C. : : : . This is a application for interim relief. Interim reliefs are sought in terms of prayers (b) and (c) of the Notice of Motion. 2. The Plaintiff claims the relief of specific performance of an agreement for sale dated 12th January 1995. It is stated that under this agreement, the Suit property has been agreed to be sold to the Plaintiff on the terms and conditions more particularly set out therein. In the affidavit in support, the plaint allegations are re-iterated and in para 8 thereof, the apprehension about alienation is set out. 3. However, it is pointed out on affidavit by Defendant No.1 that the agreement dated 12th January 1995 :2: allegedly claimed to be an Agreement for Sale is not a genuine but a forged and fabricated document. A reference is made to the proceedings which have been initiated in the Criminal Court. It is stated that the Criminal Court is seized of the matter after investigations were conducted by the Police and a charge-sheet is filed. In fact, it is stated that the evidence is going on in the Criminal case. In paras 2 and 4 of the Affidavit-in-reply of Defendant No.1, the following statements are made :- "2. At the outset the present Notice of Motion taken out by the Plaintiff as well as the Suit filed by the Plaintiff is not maintainable and tenable in law or in facts and the same is based on false forged fabricated and bogus document i.e. alleged Agreement dated 12.1.1995 in respect of which the Defendant No.1 has already lodged written complaint with Sr. Inspector of Police Borivali Police Station in July, 2002 and thereafter filed Criminal complaint in the Court of Metropolitan Magistrate’s 26th Court at Borivali, Mumbai and the same was referred to Sr. Inspector of Police, Borivali Police Station for investigation U/s. 156(3) of Cr.P.Code and pursuant to the said order the same was registered vide MICR No.1 of 2002 by Borivali Police Station U/s. 465, 467,471,420,406,34 I.P.C. and the said case was investigated by the said police station and the :3: Investigating Officer filed Chargesheet vide CC No.351/PW of 2004 and in the said case, Charges has been framed and recording of evidence of prosecution witnesses are in progress. In the said case during investigating officer had sought opinion from handwriting expert and it is opined that the said alleged Agreement dated 12.1.1995 was not executed by Defendant No.1. I will crave leave to refer to and rely upon the said Criminal Case when produced. In view thereof the Notice of Motion taken out by the Plaintiff deserves to be dismissed with compensatory costs. And the Plaintiff is not entitled for any interim or ad-interim reliefs as prayed for in any manner whatsoever. 4. I say that after the said Notice of Motion was withdrawn by the Plaintiff and since there was no prohibitory order against Defendant No.1 and since the health of Defendant No.1 was deteriorating day by day and he had no issues therefore he decided to dispose of the suit property to Defendant No.2 and Respondent abovenamed in the interest of justice and accordingly Defendant No.1 by virtue of Deed of Conveyance dated 29th August, 2006 lodged for registration with Joint Sub Registrar of Assurances vide Registration No.7129 of 2006 dated 2.9.2006 :4: pursuant to terms and conditions recorded in the Agreement for Sale dated 4th day of February 2005 sold the entire suit property to them and put them in exclusive possession of the suit property along with the existing tenants/occupants in respect thereof. I say that even earlier also I have already pointed out Defendant No.1 has never entered into any Agreement for Sale as alleged in favour of Plaintiff and the alleged Agreement for Sale dated 12.11.1995 relied upon by Plaintiff is false forged, fabricated and bogus documents and Defendant No.1 has already initiated criminal proceedings against the same and the same are pending for hearing and final disposal therefore the said alleged Agreement dated 12.1.1995 is not binding upon Defendant No.1 in any manner whatsoever. I say that entire suit property is already transferred in the name of Defendant No.2 and Respondent. I will crave leave to refer to any rely upon the said Deed of Conveyance executed by Defendant No.1 in favour of Defendant No.2 and Respondent and Property Register car abovenamed when produced." 4. Further, the First Defendant has stated that he has sold the suit property and he relies upon a Conveyance Deed dated 29th August 2006 in favour of Defendant Nos. 2 and 4. It is stated that there are various proceedings :5: which were taken out for interim relief but as of now, there are no interim orders in the Suit. 5. On a perusal of the Notice of Motion and the affidavit filed in reply and rejoinder, I am of the view that no prima-facie case is made out by the Plaintiff to grant an interim relief as more particularly prayed for in the Notice of Motion. The Plaintiff does not dispute pendency of the Criminal proceedings launched upon the very agreement which is the basis of this Suit and of which the specific performance is claimed. Secondly, it is not disputed that the evidence is being recorded in Criminal Court. Thirdly, the factual position about the Deed of Conveyance being executed by Defendant No.1 in favour of Defendant Nos. 2 and 4 is also not disputed. This being the position, unless and until the Plaintiff proves the case on the basis of the Agreement for Sale in his favour and further satisfies the Court that he has been ready and willing to perform and has indeed performed his obligations there under, it will not be possible to hold that any prima-facie case is made out. It is only when the Plaintiff proves his case then, the question arises of a declaration about the Deed of Conveyance. Until then, no interim reliefs can be granted. Notice of Motion is dismissed. No costs. 6. The First Defendant is a senior citizen aged 85 years. He prays that considering his age, the hearing of :6: the Suit may be expedited. Considering that the Plaintiff has also registered lis pendens, it would be desirable and in the interest of justice, if the hearing of this Suit is expedited. 7. Accordingly, it is expedited. Place the Suit for framing of issues on 9th February 2009. It is clarified that all observations are made only for the purpose of the disposal of the Notice of Motion and are tentative and prima-facie. They shall not influence the trial of the Suit. (S.C. (S.C. (S.C. DHARMADHIKARI,J.) DHARMADHIKARI,J.) DHARMADHIKARI,J.)