1 nms-3003-09-rep-l-42-09-nms-561-06-s-482-06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi REVIEW PETITION (L) NO. 42 OF 2009 ALONG WITH NOTICE OF MOTION NO. 3003 OF 2009 IN NOTICE OF MOTION NO. 561 OF 2006 IN SUIT NO. 482 OF 2006. Sayed Safar Ali & Ors. ..Petitioners. vs. Kusum Chandrakant More & Ors. ..Respondents. .... Mr. Rushbh Shah, a/w. Mr. Vachan Bodke, i/b. Chitnis Vaithy & Co., for Petitioners. Mr. Zal Andhyarujina, a/w. G.B.Kedia, for Respondent Nos. 1 to 6. Mr. R.R. Sharma, for Respondent Nos. 7 to 12. .... CORAM : S.J. KATHAWALLA, J. DATE : 13TH DECEMBER 2010. P.C. By the above Review Petition, the Petitioners have sought review of the order passed by this Court dated 15th October 2008 and have prayed that the said order be recalled and/or set aside. The Petitioners have by Notice of Motion No.3003 of 2009 prayed for condonation of delay of 210 days in filing the Review Petition. Since the learned Advocates for the parties agreed that the proposed submissions in the Notice of Motion and the Review Petition would substantially overlap, this Court with a view to save 2 nms-3003-09-rep-l-42-09-nms-561-06-s-482-06 some time, without going into the merits of the Notice of Motion informed the parties to treat the delay in filing of the Review Petition as condoned and proceed to directly make their submissions qua the Review Petition to which the parties have agreed. 2. The Petitioners in the Review Petition (hereinafter referred to as the Petitioners) are the original Defendant Nos. 7 to 15 in the above Suit. The Respondent Nos. 1 to 6 in the Review Petition are the original Plaintiff Nos. 1 to 6 in the above Suit (hereinafter referred to as the original Plaintiffs) and Respondent Nos. 7 to 12 in the Review Petition are the original Defendant Nos. 1 to 6 in the above Suit. 3. The original Plaintiffs filed the above Suit No. 482 of 2006 in this Court inter-alia for a declaration that an Agreement for sale dated 2nd October 1989 entered into by and between themselves and the Petitioners herein pertaining to the property described in Exhibit-B to the Plaint (the Suit property) is valid, subsisting and binding, as also for specific performance of the said Agreement against the Petitioners and the Respondent Nos. 7 to 12 (original Defendant Nos. 1 to 6) and for other consequential reliefs. 4. Pending the said Suit, the original Plaintiffs preferred a Notice of Motion being No. 561 of 2006 seeking ad-interim and interim reliefs, restraining the Petitioners and the Respondent Nos.7 3 nms-3003-09-rep-l-42-09-nms-561-06-s-482-06 to 12 from selling and/or disposing of the Suit property and/or parting with the possession of the Suit property, as also for carrying on the construction on the Suit property. No ad-interim reliefs were granted to the original Plaintiffs in the Suit. Thereafter, the Petitioners filed a detailed Affidavit-in-Reply dated 26th September 2006 wherein the Petitioners repeatedly claimed to be the sole and exclusive owners of the Suit property. On 15th October 2008, the Notice of Motion No.561 of 2006 appeared before this Court for hearing and final disposal when the following order was passed : “After arguing for sometime the learned Advocates appearing for the parties agreed that the Notice of Motion be disposed of in the following terms :- (1) Defendant Nos. 7 to 15 through their Advocate undertake to maintain status-quo as of today as regards the suit property. (2) Notwithstanding the order of status-quo as agreed in clause (1), Defendant Nos. 7 to 15 may sell unsold flats in the building constructed on the suit premises which sale of course would be subject to the outcome of the present suit. (3) Defendant Nos. 7 to 15 through their Advocate undertakes to inform the Plaintiffs in writing as and when the flats are sold. (4) The Plaintiff is therefore not pressing for any other reliefs. (5) Order accordingly. Undertakings accepted. The Notice of Motion accordingly stands disposed of in the above terms with no orders as to costs.” 4 nms-3003-09-rep-l-42-09-nms-561-06-s-482-06 5. The Petitioners (original Defendant Nos. 7 to 15) have stated in the Review Petition that the Advocate for the Petitioners on 15th October 2008 on the basis of the Affidavit-in-Reply dated 26th September 2006 submitted before this Court that the Petitioners have completed the construction work on the Suit property and as such, were not carrying out any construction on the Suit property and obtained the aforesaid consent order. Thereafter, a letter dated 12th December 2008 addressed to the Advocate for the Petitioners was received from the Advocate for the original Plaintiffs wherein it was inter-alia recorded that the original Plaintiff No.2 Ravikant C. More visited the Suit property on 10th November 2008 at 4.00 p.m., and at that time noticed that the construction work was going on in the Suit property which is in breach of the order of the Court dated 15th October 2008. The Advocate for the Petitioners was inter-alia called upon to instruct his clients the Petitioners herein to forthwith stop the construction work and comply with the order dated 15th October 2008 passed by this Court to maintain status-quo in respect of the Suit property failing which his clients, the original Plaintiffs will be constrained to take out appropriate contempt proceedings against the Petitioners for deliberate and willful disobedience of the Court order dated 15th October 2008. The letter dated 12th December 2008 written by the Advocate for the original Plaintiffs was replied to by 5 nms-3003-09-rep-l-42-09-nms-561-06-s-482-06 the Advocates for the Petitioners wherein the Advocate for the Petitioners contended that after having received the letter dated 12th December 2008 and after having taken necessary instructions from the Petitioners, they have been informed that the Petitioners by virtue of a registered Agreement dated 10th July 2006 entered into by and between the Petitioners and one M/s. Samarth Erectors and Developers have transferred their rights, title and interest in the Suit property in favour of M/s. Samarth Erectors and Developers on terms and conditions and for consideration, more particularly mentioned in the Agreement under reference. The Advocates for the Petitioners further recorded that the Petitioners all along after filing of the Suit and even till the date of hearing of the Notice of Motion on 15th October 2008, inadvertently failed to inform them (the Advocates) that the Petitioners have already transferred their rights, title and interest in the Suit property in favour of M/s. Samarth Erectors and Developers and accordingly, from the date of the Agreement, the Petitioners were not concerned with the development being carried on over the Suit property. Since the said fact was not known to the said Advocates for the Petitioners, all along and even on 15th October 2008 when the Notice of Motion was heard, the order dated 15th October 2008 came to be passed, wherein the said Advocates appearing on behalf of the Petitioners undertook to 6 nms-3003-09-rep-l-42-09-nms-561-06-s-482-06 maintain status-quo as on that date in respect of the Suit property. 6. According to the Petitioners, the original Plaintiffs through their Advocate once again addressed a letter dated 20th March 2009 to the Advocate for the Petitioners thereby calling upon the Petitioners to stop the construction work on the Suit property. The said letter was replied to by the Petitioners’ Advocate’s letter dated 25th March 2009. Once again, the Advocate for the Petitioners reiterated that the Petitioners had no rights, title and/or interest in the Suit property since the Petitioners had already sold and transferred all their rights in the Suit property in favour of M/s. Samarth Erectors and Developers by an Agreement dated 10th July 2006. 7. The Advocate for the original Plaintiffs by his letter dated 27th April 2009, after setting out how the Petitioners were intentionally disobeying the order and undertaking given to this Court, informed the Advocate for the Petitioners that the Advocate had instructions from the original Plaintiffs to take out appropriate proceedings for contempt of Court against the Petitioners. After receipt of this letter, the Advocate for the Petitioners by his letter dated 6th May 2009 informed the Advocate for the original Plaintiffs that he would be applying to this Court for modification of the order dated 15th October 2008 shortly. However no such application was 7 nms-3003-09-rep-l-42-09-nms-561-06-s-482-06 made. Thereafter, on 16th June 2009 the Petitioners filed the present Review Petition setting out the above facts and praying that the order dated 15th October 2008 be reviewed and the same be recalled and/or set aside. The Petitioners also took out Notice of Motion No. 3003 of 2009 seeking condonation of delay of 210 days in filing the Review Petition. Since in the Review Petition as well as in the Affidavit in support of the Notice of Motion seeking condonation of delay in filing the Review Petition, the Petitioners had not categorically stated as to when the Advocate for the Petitioners informed the Petitioners about the order passed by this Court dated 15th October 2008 and since this Court noted certain contradictions regarding the same in the pleadings and even during arguments being advanced on behalf of the Petitioners, this Court was constrained to direct the Advocate/Solicitor on record for the Petitioners to file his personal Affidavit informing the Court whether the said Advocate had informed the Petitioners about the Notice of Motion being shown on the cause list of this Court on 15th October 2008 and as to when exactly the order dated 15th October 2008 was conveyed to the Petitioners by him. 8. The Advocate/Solicitor for the Petitioners vide Affidavit dated 26th November 2010 has stated that in the morning of 15th October 2008, he had telephonically contacted Petitioner No. 1 8 nms-3003-09-rep-l-42-09-nms-561-06-s-482-06 (original Defendant No.9) and had informed him that the Notice of Motion is placed on board for hearing when Petitioner No.1 informed him that the Petitioners had completed the entire construction work and only few flats remained to be sold. As such, when the matter was heard by this Court on 15th October 2010, he on behalf of the Petitioners agreed to maintain status-quo but obtained a clarification that the Petitioners be permitted to sell the flats in the buildings constructed by them. He was therefore under the impression that the order of status-quo was not at all adversely affecting the interest of his client. The said Advocate has further stated that on 15th October 2008 itself, he telephonically informed the Petitioners about passing of the order when the Petitioners also did not feel that the order affected them in any manner. However, after a period of about 10 days, the Petitioners realized that since they had sold their rights, title and interest in the Suit property, the order might affect the interest of the purchasers. Interestingly, the Advocate in his Affidavit has not categorically mentioned as to when he was informed by the Petitioners that they have transferred their rights, title and interest in the Suit property in favour of M/s. Samarth Erectors and Developers. When this Court pointedly inquired from Shri Vachan N. Bodke, Advocate and Solicitor of M/s. Chitnis Vaithy and Company as to when the Petitioners informed him 9 nms-3003-09-rep-l-42-09-nms-561-06-s-482-06 that they had already transferred their rights, title and interest in the Suit property in favour of M/s. Samarth Erectors and Developers, he informed the Court that he was informed about the same on 25th/26th October 2008. 9. It is therefore, submitted on behalf of the Petitioners that their Advocate and Solicitor Shri Vachan N. Bodke was not aware on 15th October 2008 that the Petitioners by an Agreement dated 10th July 2006 had transferred all their rights, title and interest in the Suit property in favour of M/s. Samarth Erectors and Developers. He therefore, unknowingly agreed on behalf of the Petitioners to maintain status-quo in respect of the Suit property, i.e. not to carry on any construction on the Suit property. It is therefore, submitted that the order dated 15th October 2008 be reviewed and the said order be recalled / set aside. 10. The learned Advocate appearing for the original Plaintiffs submitted that the Petitioners have not only intentionally suppressed from the original Plaintiffs as well as this Court the Agreement dated 10th July 2006 entered into by and between the Petitioners and the said M/s. Samarth Erectors and Developers but have also suppressed from this Court even at the time of filing of the present Review Petition that by another Agreement dated 10th September 2007 entered into by and between M/s. Samarth Erectors 10 nms-3003-09-rep-l-42-09-nms-561-06-s-482-06 and Developers and Atul Developers (to which the Petitioners have been joined as confirming parties) the rights in respect of the Suit property had been further transferred by M/s. Samarth Erectors and Developers to one M/s. Atul Builders. It is therefore submitted that the Petitioners right since the filing of their Affidavit-in-Reply dated 26th September 2006 at all relevant times have intentionally suppressed from the original Plaintiffs as well as this Court the said Agreements so that the original Plaintiffs would not join M/s. Samarth Erectors and Developers and/or M/s. Atul Builders as party Defendants to the Suit and obtain necessary orders against them. The motive of the Petitioners therefore was to willfully and dishonestly suppress the said facts from the original Plaintiffs as well as this Court and to mislead the Plaintiffs and this Court by obtaining a consent order of status-quo against the Petitioners and at the same time allowing M/s. Samarth Erectors and Developers and Atul Developers to carry out construction on the Suit property who were not parties to the Suit and/or to the order dated 15th October 2008. 11. I have considered the submissions made on behalf of the Petitioners as well as the original Plaintiffs. The Petitioners have in the Review Petition dated 16th June 2009 stated that they have no rights, title and/or interest in the Suit property since 10th July 2006 when they transferred all their rights, title and interest in the Suit 11 nms-3003-09-rep-l-42-09-nms-561-06-s-482-06 property in favour of M/s. Samarth Erectors and Developers. However, the Petitioners have not explained in the Review Petition or across the bar as to why the said fact was suppressed from the Affidavit-in-Reply dated 26th September 2006 which was filed after the execution of the Agreement dated 10th July 2006 in favour of M/s. Samarth Erectors and Developers and as to why the Deponent of the said Affidavit who admittedly is well-versed in English language has repeatedly stated in the Affidavit-in-Reply that the Petitioners are the exclusive owners of the Suit property. The Petitioners have also not explained as to why even in the Review Petition they have not mentioned that by an Agreement dated 10th September 2007 M/s. Samarth Erectors and Developers had also transferred their rights in favour of M/s. Atul Builders to which Agreement the Petitioners have been joined as confirming parties. The Petitioners have not even attempted to explain as to why the Petitioners did not inform their Advocates prior to the hearing of the Notice of Motion that they had no rights, title and/or interest in the Suit property in view of the Agreement dated 10th July 2006 and why the same was not conveyed to the Advocates even when the Advocate informed them about the order dated 15th October 2008 which was obtained by consent. In fact, in paragraph 12 of the Review Petition, the Petitioners have stated that their Advocate was 12 nms-3003-09-rep-l-42-09-nms-561-06-s-482-06 not aware of the execution of the Agreement dated 10th July 2006 until 12th December 2008 when he received a letter from the erstwhile Advocate for the original Plaintiffs. The same stand is taken by the Advocate for the Petitioners in paragraph 2 of his letter dated 16th December 2008 addressed to the Advocate for the original Plaintiffs. For the first time, the Advocate for the Petitioners has in his personal Affidavit stated that the Petitioners realized within 10 days from 15th October 2008 that they had sold their rights, title and interest in the Suit property and that the order might affect the interest of the purchasers. Though the Advocate has not mentioned in his Affidavit as to when he was informed by the Petitioners that they had sold their rights, title and interest in the Suit property to M/s. Samarth Erectors and Developers as mentioned hereinabove, the Advocate in response to the direct question put by this Court stated that he was informed by the Petitioners about the same on 25th/26th October 2008. 12. From the aforesaid facts, I am more than satisfied that the Petitioners have all through out deliberately suppressed from the original Plaintiffs as well as this Court, the Agreements executed by the Petitioners dated 10th July 2006 and 10th September 2007 and have obtained an order by consent wherein they have agreed to maintain status-quo in respect of the Suit property i.e. not to carry 13 nms-3003-09-rep-l-42-09-nms-561-06-s-482-06 out any construction on the Suit property, to enable M/s. Samarth Erectors and Developer and/or M/s. Atul Builders to carry out the construction on the Suit property and to prevent the original Plaintiffs from amending the Plaint and seeking necessary restraint orders against them. As pointed out hereinabove, the Review Petition has been intentionally kept vague and the relevant facts such as the execution of the Agreement dated 10th September 2007 is suppressed from the Court even at this stage. The conduct of the Petitioners is therefore dishonest and fraudulent, not only against the original Plaintiffs but also against this Court. No case of review of the order dated 15th October 2008 is therefore, made out. In view thereof, delay is condoned, Notice of Motion is disposed of and the Review Petition is dismissed with costs. [ S.J. KATHAWALLA, J. ]