: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2220 OF 2008 NOTICE OF MOTION NO.2220 OF 2008 NOTICE OF MOTION NO.2220 OF 2008 IN IN IN SUMMARY SUIT NO.3315 OF 1992 SUMMARY SUIT NO.3315 OF 1992 SUMMARY SUIT NO.3315 OF 1992 Mrs.Polly R.Melwani & Ors. .. Plaintiffs. Versus Harshavardhan J. Shah & Ors. .. Defendants. Mr.Uday Bobde with Ms.Farida Poonawala Tata & Mr.Yatish Pandya i/b.M/s.Pandya & Poonawala for plaintiffs. Mr.Arif Bookwala, Senior Counsel with Mr.G.R.Joshi and Ms.Nima Kapadia i/b.Pandya Gandhi & Co. for defendant Nos.1 to 6. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATE : 29th September, 2008. DATE : 29th September, 2008. DATE : 29th September, 2008. P.C. :- P.C. :- P.C. :- 1. The plaintiffs have instituted the present suit against defendant Nos.1 to 6 for specific performance of the Agreement dated 25.10.1990 in regard to two flats namely, Flat Nos.103 and 104, more particularly, set out in prayer clause (a) of the plaint. 2. The plaintiffs took out a notice of motion after the filing of the suit so as to restrain defendants from creating any third party interest or right in the suit flats being Flat Nos.103 and 104. That motion was : 2 : disposed of by order dated 1/2.2.1993 on the ground that an attachment before judgement passed in favour of present defendant No.7 - State Bank of India in Suit No.3673 of 1990 was prevailing in respect of the suit flats and that is how, the plaintiffs felt satisfied that as a result of continuation of the attachment before judgement, there was no chance that the defendants would create any third party rights or part with the possession etc. 3. It is admitted by the plaintiffs that the said attachment before judgement came to an end on 30.1.2008 as a result of the development in the suit No.3673 of 1990. It is thereafter, the plaintiffs have taken out this notice of motion in the month of January, 2008. 4. On the basis of arguments advanced by learned Counsel for the defendants, the court has understood that as of today, the defendants have not created any third party rights and/or parted with the possession in respect of the suit flats and that defendants are in possession of the suit flats i.e. Flat Nos.103 and 104. 5. I have heard arguments advanced by learned Counsel appearing on both the sides. : 3 : 6. It was principally contended by learned Advocate Mr.Bobde that on account of prevalence of attachment before judgement till 30.1.2008, the plaintiffs felt protected and, therefore, there was no need for plaintiffs to move for interim orders so as to see that the defendants should be prevented from creating any third party rights and/or parting with possession of the suit flats. Learned Advocate Mr.Bobde submitted that after the plaintiffs came to know about the order dated 30.1.2008 passed by Debts Recovery Tribunal, Mumbai (for short "DRT") thereby raising the order of attachment, plaintiffs have moved this court for interim relief in terms of this motion so as to protect the interest of the plaintiffs and to see that the defendants do not create any third party rights and/or part with the possession. Learned Advocate Mr.Bobde had taken me through the pleadings and had submitted that in the interest of justice, the relief in terms of prayer clause (a) is required to be granted. 7. Learned Senior Counsel Mr.Bookwala appearing on behalf of defendant Nos.1 to 6 had submitted that in the year 1993, certain minutes came to be signed by the parties and, in particular, one Mr.Ram Melwani from the : 4 : side of the Plaintiffs and the said minutes has the effect of creating a novatio and that the original Agreement dated 25.10.1990 has been given a go-bye. According to learned Senior Counsel Mr.Bookwala, the plaintiffs have suppressed about these minutes of meeting and have not challenged these developments in the suit and are pressing for relief in terms of original Agreement dated 25.10.1990. It was also contended by the learned Advocate Mr.Bookwala that the order of attachment before judgement prevailing did not have any effect on the main Agreement and it was necessary for the plaintiffs to press for a relief similar to the one asked in the motion and that not having been done, the application for ad-interim relief is belated one and is required to be dismissed. 8. Learned Senior Counsel Mr.Bookwala submitted that today, the plaintiffs have not come out with specific allegations so as to say that defendants are likely to create any third party rights and averments in the entire affidavit-in-support are vague and as such it can be said that the plaintiffs have failed to make out a prima-facie case for grant of an injunction. It was also contended by learned Senior Counsel Mr.Bookwala that the plaintiffs have not exhibited their readiness and willingness in : 5 : regard to the terms of the contract inasmuch as defendants have not complied with payment of balance of consideration set out in Clause 3(2) of the suit Agreement. According to the learned Senior Counsel Mr.Bookwala, no case is made out for grant of interim relief and the motion should be dismissed. 9. I have considered the record and rival submissions. 10. It may be that the order of attachment was prevailing till 30.1.2008 and it was left to the discretion of the plaintiffs so as to feel satisfied but the fact remains that even if the order of attachment dated 30.1.1008 has been vacated, no overact is committed by the defendants so as to manifest their intention to dispose of the property or create any third party rights. The plaintiffs admit that the order of attachment was raised on 30.1.2008. However, in the affidavit-in-support of the notice of motion, nothing is stated as to when the plaintiffs came to know about raising of order of attachment dated 30.1.2008. To that extent, the plaintiffs have not been able to show as to why there has been a delay in taking out the present notice of motion : 6 : i.e. from 30.1.2008 to 6.6.2008. 11. Insofar as stand of the defendants that in the year 1993, there was a novatio and other related aspects which came to be argued by learned Senior Counsel Mr.Bookwala, I am inclined to observe that it will not be proper to express any views on that as in my view, it will be for the respective parties to attend to the said question of novatio at the time of the hearing of the suit. The question whether the minutes said to be signed in the year 1993 had the effect of cancelling the suit Agreement dated 25.10.1990 will be decided at the final hearing of suit. 12. As of today, the court is required to test the case of the plaintiffs whereby they allege that the defendants are likely to create third party rights and/or part with the possession so as to create obstacle in the right of the plaintiffs to obtain a decree. No factual information is provided by the plaintiffs as to when they came to know about the order dated 30.1.2008. This itself is against the interest of the plaintiffs. Apart from that, in the affidavit-in-support of notice of motion except stating in paragraph 10 as under :- : 7 : "In the circumstances, I state that the said suit flats are free from encumbrances and the defendant Nos.1 to 6 are likely to dispose of the suit flats in order to defeat the decree that may be passed by this Hon’ble Court in this suit and to defeat the claims of the plaintiffs". . No specific averments are set out on the basis of which plaintiffs have approached this court with a case that the defendants are likely to create any third party rights. 13. Across the Bar, it was suggested by learned Advocate Mr.Bobde that the plaintiffs came to know through their friends that the defendants are likely to create third party rights in respect of the suit flats and that the plaintiffs have made the averments as disclosed aforesaid so as to seek an order of injunction. 14. The aforesaid is insufficient to come to conclusion that defendants are likely to create third party rights as the averments are vague and lack material particulars. Hence, I hold that plaintiffs have failed to make out a case that defendants are likely to deal with or create third party rights or part with possession. 15. It was argued by learned Advocate Mr.Bobde that : 8 : averments in para 10 are not denied and court should accept them. 16. Insofar as this aspect is concerned, I am inclined to observe that since averments in paragraph 10 are absolutely vague, it was not necessary for the defendants to deal with such vague averments because except putting mere affidavit in reply, denying the averments, nothing could have been stated by the defendants. If there would have been some elaborate averments as to on what basis, the plaintiffs allege that the defendants are likely to create third party rights, then, the defendants would have come out with some kind of explanation and if there would have been no explanation, then, the plaintiffs case would have been accepted. 17. After having gone through the affidavit-in-support and other record, I am inclined to observe that the plaintiffs have not stated before the court specific facts to show that the defendants are likely to create any third party rights at or about the time when the notice of motion was taken out. A notice of motion was taken out by the plaintiffs and ad-interim order sought therein was refused by an order dated 30.6.2008. Today, we are at the : 9 : end of September, 2008 i.e. to say a period of 3 months has elapsed. Till today, the defendants continue to be in possession of the suit flats and claim to have rights over the suit flats. It is clear that right from the beginning i.e. from 25.10.1990 till today i.e. at the end of September, 2008, not a single overact is alleged against defendants which would indicate that the defendants are likely to create any third party rights and/or part with possession. It appears that the attachment before the judgement was because of some loan liability which was incurred sofar as loan transactions between the State Bank of India and some of the defendants. That attachment had no effect sofar as the authority of defendants to dispose of the property. 18. In the circumstances mentioned aforesaid, I am inclined to observe that the plaintiffs have failed to make out a prima-facie case for grant of injunction in terms of the notice of motion and that the plaintiffs’ notice of motion is required to be dismissed. In the facts and circumstances of the case, I am not inclined to saddle the plaintiffs with the costs of this motion. Hence the order :- : 10 : O R D E R O R D E R O R D E R i) Plaintiffs’ notice of motion is dismissed. There shall be no order as to costs. 19. Suit is now set down for framing of issues on 21.10.2008. (R.Y. GANOO,J.) (R.Y. GANOO,J.) (R.Y. GANOO,J.)