1 rng 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.2122 OF 2008 OF MOTION NO.2122 OF 2008 OF MOTION NO.2122 OF 2008 in in in SUIT SUIT SUIT NO.1803 OF 2008 NO.1803 OF 2008 NO.1803 OF 2008 M/s Harsh Precious Metals Pvt.Ltd.. Plaintiff Vs. GulamDastagir Parkar & 5 ors .. Defendants Mr.K.H.Giri for Plaintiff Mr.S.S.Dube and Mr.Nagendra Dube for Defendants CORAM CORAM CORAM : A.S.OKA, J : A.S.OKA, J : A.S.OKA, J DATE DATE DATE : 23RD OCTOBER, 2008 : 23RD OCTOBER, 2008 : 23RD OCTOBER, 2008 JUDGMENT JUDGMENT JUDGMENT 1. Heard the learned counsel appearing or the plaintiff in support of the Notice of motion and the learned counsel appearing for the 1st defendant. 2. The plaintiff has filed this suit for specific performance of the agreement for sale of the suit premises. The said premises are described in paragraph no. 2 of the plaint i.e.Gala nos.102 and 103 situated on the 1st floor of Vijay Industrial Premises Cooperative Society Ltd, Patel Road, Goregaon (E) Mumbai-63. There is a reference to gala no.104 in the same industrial 2 premises Society Ltd. The said Gala No.104 has been referred to as the said Gala. 3. According to the case of the plaintiffs, one A.B.Joshi an estate broker brought a proposal to the plaintiffs that the 1st defendant who was the owner of Gala nos.102 and 103 was desirous of selling the said galas. According to the case of the plaintiffsthe 1st defendant agreed to sell the suit premises (Gala nos. 102 and 103) for the price of Rs.1,11,11,111/-. According to the plaintiffs, the 1st defendant disclosed that the suit premises (i.e. Gala nos. 102 and 103) has been mortgaged with the 2nd defendant, i.e. the Bank of Baroda and the 2nd defendant had agreed to accept a sum of Rs.52,32,00,000/- by way of settlement. According to the case of the plaintiffs, a sum of Rs.1,11,111/- was paid by them to the 1st defendant by a cheque towards the consideration and a receipt dated 12th January 2008 was issued by the 1st defendant. 4. According to the case of the plaintiffs, the 1st defendant took Vijay D.Gopai one of the Directors of the plaintiffs to a Chartered Accountant Mr.V.L.Shetty who advised the parties 3 that a Memorandum of Understanding should be executed till all the documents of title were released by the 2nd defendant bank. Mr.Shetty advised that the original Memorandum of Understanding would be kept in his safe custody. It is stated that on 12th January 2008 on a stamp paper of denomination of Rs.100/-, a Memorandum of Understanding was drafted by Mr.Shetty and the same was signed by the 1st defendant. It is stated that the document was not signed by anyone on behalf of the plaintiffsas the plaintiffs were told that the Memorandum of Understanding was prepared for the purposes of keeping the same in the custody of Mr.Shetty. 5. According to the case of the plaintiffs, the 1st defendant had agreed to provide to the plaintiff several documents such as NOC of the society, certified copies of the title deeds etc. It is the case of the plaintiffs that the 1st defendant started insisting on the payment of a sum of Rs.17,00,000/- on or before 10th March 2008 on the ground that if the said amount was not paid to the 2nd defendant bank, the said bank was likely to the auction theGala nos.102 and 103. Accordingly, a total amount of Rs.17,00,000/- was 4 paid by the plaintiffs on behalf of the 1st defendant to the 2nd defendant bank by four separate cheques dated 22nd February 2008, 26th February 2008, 29th February 2008 and 10th March 2008 in the amounts of Rs.2,00,000/-, Rs.1,50,000/-, Rs.1,50,000/-, Rs.2,00,000/- and Rs.10,00,000/- respectively. The receipts for the said amountswere executed by the 1st defendant in favour of the plaintiffs. 6. According to the case of the plaintiffs, on 10th March 2008, the 1st defendant supplied a copy of the application dated 7th March 2008 made by them for obtaining the NOC of the society. In the said application the 1st defendant had described the Gala nos. 102 and 104 as the subject matter of sale. When the 1st defendant was questioned by the plaintiffs, he stated that the Gala no.103 was already mortgaged in favour of the 3rd defendant for the sum of Rs.15,00,000/-. The 1st defendant represented that after getting the sale price from the plaintiffs he would pay the mortgage money to the 3rd defendant and get the same released from the 3rd defendant. 7. Copies of the documents supplied to the 5 plaintiffs revealed that the same related to Gala nos. 102 and 104 and there was no agreement in favour of the 1st defendant regarding the acquisition of Gala no.103 by the 1st defendant. Thereafter the 1st defendant handed over a xerox copy of the agreement dated 18th August 1984 in respect of Gala no.103 which was not certified by the 2nd defendant bank. 8. On 11th April 2008, a Director of the plaintiff visited the branch office of the 2nd defendant at Tardeo, Mumbai. At that time the Manager of the 2nd defendant bank stated that he would release the original documents in respect of Gala no.102 provided the plaintiffs pay a sum of Rs.12,00,000/- to the 2nd defendant on behalf of the 1st defendant by the end of April, 2008. According to the case of the plaintiffs, they accepted the said offer of the 2nd defendant and paid a total amount of Rs.12,05,002/- on behalf of the 1st defendant to the 2nd defendant by six different cheques in the amounts of Rs.2,35,000/-, Rs.2,35,000/-, Rs.2,35,000/-,Rs.1,73,000/-, Rs.1,63,501/- and Rs.1,63,501 respectively. It is stated that the 1st defendant issued receipt only for the first cheque in the sum of Rs.2,35,000/- 6 and for the balance amount, receipts werenot issued by the 1st defendant. 9. It is stated that on 28th May 2008 at 8 p.m., plaintiff’s director Mr.Vijay Gopani along with his son attended the meeting called by the 1st defendant in the office of Mr.V.L.Shetty, Chartered Accountant. On the insistence of the director of the plaintiff Mr.V.L.Shetty handed over the orignal Memorandum of Understanding in his custody to the said director. At that time, it was realised that in the Memorandum of Understanding the Gala no.104 was mentioned instead of 103. It is alleged that in the said meeting the 1st defendant forcibly snatched the copies of the bills issued by the society from the hands of the said director of the plaintiffs. It is alleged that the 1st defendant made attempts to snatch the file containing the original receipts and other records. 10. On inquiry being made the plaintiffs, it was learnt that the 1st defendant had already sold Gala no.103 to the 3rd defendant and that he was planning to sell Gala no.102 to the 4th to 6th defendants. It is stated that the plaintiff 7 lodged a police complaint against the 1st defendant, his Chartered Accountant and the estate broker Mr.Joshi. Thereafter, the plaintiffs have filed the present suit for specific performance and for various other reliefs including the relief of mandatory direction to the 1st defendant to execute the agreement and other necessary documents. 11. The learned counsel for the plaintiffs invited my attention to various documents annexed to the plaint and to the receipts at Exhibit C,E, E-2, E-4, E-6, E-8 and Exh K as well as the xerox copies of various cheques issued by the plaintiff either in favour of the 1st defendant or in favour of the 2nd defendants. He also invited my attention to the police complaint lodged by the plaintiffs. He pointed out that the plaintiffs have already parted with a sum of Rs.30,16,113/- including the amount which was paid from time to time by the plaintiffs to the 2nd defendant on behalf of 1st defendant. He also invited my attention to the reply filed by the 1st defendant. He pointed out that the 1st defendant has already purported to transfer the Gala nos.102 and 103 but, Gala no.104 is unalienated and is in 8 possession of the 1st defendant. He submitted that signatures on some of the receipts relied upon by the plaintiffs have been admitted by the 1st defendant. He pointed out that the case made out by the 1st defendant is that the agreement for sale related to Gala no.104 which was agreed to be sold for a sum of Rs.16,11,111/- out of which Rs.1,11,111/- was paid as a token. The case made out by the 1st defendant is that the entire balance was to be paid by 30th January 2008. The learned counsel therefore, submitted that this is a fit case for granting a temporary injunction and appointing the Court Receiver especially in respect of the Gala no.104. 12. The learned counsel appearing for the 1st defendant invited my attention to various assertions made in the affidavit in reply and contended that the plaintiffs have annexed fabricated documents and especially the receipts. He invited my attention to alleged original receipts produced by the counsel for the plaintiffsduring the course of hearing and pointed out that the said receipts show that the plaintiffs have annexed fabricated copies of the receipts. 9 13. The learned counsel for the plaintiffs on instructions stated that when the receipts were produced before the police, the same were not signed by any witness. But, on the suggestion made by the police, the plaintiffs have obtained the signatures of witnesses on the receipts. 14. I have carefully considered the submissions. The first receipt on which reliance is placed is at Exhibit C which purports to be a xerox copy of the original. The said receipt is in respect of cheque no.456958 dated 12th January 2008 in the sum of Rs.1,1,11,111/-. On the said copy of receipt, below the word " WITNESSES " there are no signatures appearing and at the bottom of the receipt there is a revenue stamp on which the alleged signature of the 1st defendant appears. The learned counsel appearing for the plaintiffs has produced for my perusal the original receipt of cheque no.456958 dated 12th January, 2008. On a plain reading of the said original receipt, it appears that what is annexed as Exhibit C is not a xerox copy thereof. The original receipt produced by the learned counsel for the plaintiffs runs into five lines whereas the xerox copy annexed to 10 the plaint runs into seven lines. Moreover, on the original receipt there are signatures of witnesses. Thus the copy annexed as Exhibit C is not a copy of the original but, it is a copy of some other receipt. The same is the case with the copies of receipts at Exhibit E,E-2,E-4 and E-6 and E-8. The Xerox copies which are annexed to the plaint are copies of different receipts and the originals which are produced before the Court are different from the xerox copies annexed to the plaint. The original receipts which are produced before the Court are marked as Q-1, Q-2, Q-3, Q-4, Q-5 and Q-6. The learned counsel for the plaintiff has also produced one more original receipt of cheque no.457148 dated 15th April 2008 in the sum of Rs.2,35,000/-. A xerox copy of a receipt of the same cheque has been annexed as Exhibit K. The original is completely different from the said xerox copy. The said original is marked Q-7 for identification. Apart from this, the learned counsel for the plaintiffs had produced a receipt in the sum of Rs.1,63,501/- by cheque no.565411 dated 29th April 2008. The said original receipt is neither signed by the 1st defendant nor by any witness. The said receipt is marked Q-8 for identification. 11 15. Thus, the plaintiffsareunable to produce the originals of the aforesaid receipts which are annexed to the plaint as Exhibits C,E,E-2,E-4,E-6 and E-8 and K and the original receipts produced before me are are completely different receipts. Therefore, prima facie there is a substance in the contention raised by the 1st defendant that the plaintiffs have annexed forged and fabricated receipts to the plaint. The purported original receipts which are marked as Exhibit Q-1,to Q-8 are taken on record. The said receipts shall be kept in a sealed envelope in the custody of the Prothonotary and the Senior Master of this Court. 16. It is surprising that the plaintiffs have produced a blank receipt of cheque dated 29th April 2008 in the sum of Rs.1,63,501/-. It is obvious that the conduct of the plaintiffs is such that they are not entitled to any equitable relief from this Court. The notice of motion taken out by the plaintiff deserves to be dismissed. Accordingly the Notice of Motion is dismissed. The plaintiff shall pay costs of Rs.10,000/- to the 1st defendant. 12 17. The learned counsel appearing for the 1st defendant states that his reply filed to this Notice of Motion. shall be treated as his written statement. Order accordingly. It will be always open for the 1st defendant to initiate appropriate action against the plaintiffs. 18. On a written application made by the advocate for the 1st defendant xerox copies of the documents marked as Q-1 to Q-8 shall be made available to the advocate for the 1st defendant by the Prothonotary and Senior Master subject to payment of copying charges. Similarly, copies may be also provided to the plaintiffs and other parties to the suit. { A.S.Oka, J } A.S.Oka, J } A.S.Oka, J }