1 app311.284 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 311 OF 2011 IN NOTICE OF MOTION NO.1173 OF 2011 IN SUIT NO.354 OF 2011 WITH NOTICE OF MOTION NO.1630 OF 2011 IN APPEAL NO.311 OF 2011 IN NOTICE OF MOTION NO.1173 OF 2011 IN SUIT NO.354 OF 2011 WITH APPEAL (L) NO.284 OF 2011 IN NOTICE OF MOTION NO.653 OF 2011 IN SUIT NO.354 OF 2011 WITH NOTICE OF MOTION (L) NO. OF 2011 IN APPEAL (L)NO.284 OF 2011 IN NOTICE OF MOTION NO.653 OF 2011 IN SUIT NO.354 OF 2011 Gaurav G. Rajpurohit. .. Appellant. vs Bharat M. Parekh & ors. .. Respondents Mr. Aniket Nikam a/w. Ms. Bharti Bheda i/by M/s. S. Ashwinikumar & Co., advocates for the appellant. Mr. Devanshu Desai, advocate for respondent nos. 1 and 2. 2 app311.284 Mr. Harshad Bhadbhade with Anwar Landge i/b. Swati Sawant, advocates for respondent no.3. CORAM: MOHIT S. SHAH, C. J. AND GIRISH GODBOLE, J Thursday, 9th June, 2011 P.C. Both these appeals are filed against the orders passed in Suit No. 354 of 2011 and are therefore being heard together and disposed of by this common order. 2. Issue notice. Mr. Devanshu Desai, learned counsel waives notice for respondent nos. 1 and 2. Mr. Harshad Bhadbhade, learned counsel waives notice for respondent no. 3. Since no relief is claimed against the respondent no. 4, no notice is being issued to respondent no. 4. By consent of the learned counsel for appellant and respondents no. 1 to 3, appeals are heard forthwith. 3. Appeal (st.) no. 284 of 2011 is directed against the order dated 3rd March, 2011 of the learned trial Judge declining to grant ad-interim relief in Notice of Motion No. 653 of 2011 taken out by the appellant/plaintiff for appointment of Court Receiver in respect of suit bunglow and also to restrain the respondent nos. 1 and 2 3 app311.284 (defendant nos. 1 and 2) from transferring, alienating, parting with or encumbering suit bunglow. The suit is filed for specific performance of two Memoranda of Understanding both dated 16th February, 2011 under which the plaintiff had agreed with defendant nos. 1 and 2 to take over the liabilities of the defendant no. 3 – bank and also all other amounts due and payable by partners of the firm to the trade creditors within the time limit stated in the said Memoranda of Understanding. At the hearing of the Notice of Motion the plaintiff contended that he had paid Rs. 55 Lakhs to trade creditors of the partnership firm. This statement was disputed by the defendant nos. 1 and 2. The learned trial Judge gave liberty to the plaintiff to give particulars to show as to how the amount of Rs. 55 Lakhs was paid by him to the debtors of the partnership firm. On failure of the plaintiff to file an affidavit indicating necessary particulars regarding the payment of the aforesaid amount, the learned trial Judge held that the plaintiff has failed to establish that he has performed his part of the contract and therefore declined to grant any ad-interim relief. Aggrieved by the said order, the plaintiff has filed appeal being Appeal (St.) No. 284 of 2011. After failure of the plaintiff in getting ad-interim relief in his favour, he filed another notice of motion being Notice of Motion No. 1173 of 2011 relying on an affidavit purported to be giving details of the 4 app311.284 payment of Rs. 55 Lakhs to the creditors of the partnership firm. The learned trial Judge hearing this Notice of Motion refused to grant ad-interim relief after observing that the plaintiff had already filed Notice of Motion being Notice of Motion No. 653 of 2011 wherein the Coordinate Bench had declined to grant ad-interim relief. Aggrieved by the said order order dated 21st April, 2011, the plaintiff has filed an appeal being Appeal No. 311 of 2011. 4. At the hearing of the appeals, learned counsel for the appellant submitted that when ad-interim relief was refused on 3rd March, 2011 only on the ground that the plaintiff has not mentioned how and when he had paid Rs. 55 Lakhs to the creditors of the partnership firm and that since such an affidavit was subsequently filed, plaintiff’s case was required to be further decided on merits and the reliefs as prayed for in the Notice of Motion should have been granted. It is further submitted that as the plaintiff had already paid Rs. 55 Lakhs to the creditors of the partnership firm and if injunction is not granted against the auction sale of the plant and machinery held by the respondent no. 3 bank and if defendant nos. 1 and 2 are not restrained from transferring the suit bunglow, the plaintiff’s suit will become infructuous despite payment of Rs.55 Lakhs already made by the Plaintiff to the creditors of the 5 app311.284 partnership firm. 5. Learned counsel for the respondent nos. 1 and 2/defendants 1 and 2 has opposed these appeals and submitted that when the plaintiff failed to perform part of his contract and the amounts were not paid to the respondent no. 3, the defendant nos. 1 and 2 had to pay monthly installments for the loan of the suit bunglow and therefore the plaintiff cannot be granted any relief at this stage. It is further stated that the defendant nos. 1 and 2 are ready and willing to continue to pay monthly installments to respondent no. 3 bank for repayment of loan taken on the suit bunglow, for which the suit bunglow was offered as a prime security. 6. The learned counsel for the respondent no. 3 bank has filed on record a statement giving particulars of outstanding dues of loan account through Cash Credit and Term Loan, of partnership firm M/s. Sangita Prints. The total amount payable for the said accounts is Rs. 1,03,52,788.44. The learned counsel for the respondent no. 3 bank submitted that if this amount is paid to the bank, the bank will not proceed with the auction of the plant and machinery of the partnership firm. It is further stated that if the said amount is paid to the bank, the bank is ready to hand over possession of the factory 6 app311.284 alongwith plant and machinery to whoever pays the said amount to the bank. 7. The learned counsel for the defendant nos. 1 and 2 states that his client is not in a position to pay the aforesaid amount to the respondent no. 3 bank but has vehemently submitted that the loan transaction for which the suit bunglow; was given as prime security is a different transaction altogether and therefore, no orders be passed with regard to the said bunglow, that the defendant nos. 1 and 2 are ready to give undertaking that they will not transfer, alienate, part with possession or encumber the suit bunglow during the pendency of the suit, provided, the plaintiff discharges his liability arising from this two accounts of cash credit and term loan taken by M/s. Sangita Prints. 8. In response to the specific query put forth by the Court whether the plaintiff/appellant is ready and willing to pay the aforesaid amount to respondent no. 3 bank, the learned counsel for the plaintiff/appellant submits that his client is not in a position to pay the aforesaid amount to the respondent no. 3 bank, but the appellant would like to participate in the auction sale of the plant and machinery. In view of the above, no case is made out for grant 7 app311.284 of ad-interim relief, as prayed for in the Notice of Motion. Therefore, both the appeals are dismissed with costs quantified at Rs.10,000/- for defendant nos. 1 and 2 in one set and for defendant no. 3 in the another set. 9. In view of dismissal of both the appeals, nothing survives in the Notice of Motions taken out in the respective appeals. The same are disposed of. CHIEF JUSTICE GIRISH GODBOLE, J