1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3243 OF 2007 IN SUIT NO.2434 OF 2007 Jasvantlal S. Gabhawala ....Plaintiff V/s. Kirty N. Parikh & Anr. ....Defendants Mr.J.P. Sen i/b Mr.A.G. Shah for the Plaintiff. Mr.Vivek Kantawala i/b M/s.Vivek Kantawala & Co. for Defendant No.2. CORAM : S.J. VAZIFDAR, J. DATE : 13TH NOVEMBER, 2009. P.C. :- 1. The suit is filed for specific performance of an agreement dated 4.1.1991 entered into between the Plaintiff and Defendant No.1. Defendant No.1 had agreed to sell the suit property for a sum of Rs.1,50,000/-. The Plaintiff claims to have paid the entire consideration in the year 1991 itself. 2. Pursuant to the said agreement, Defendant No.1 addressed the letters of attornment to the tenants. The building is entirely tenanted. Since then, the Plaintiff has been paying the property taxes and collecting the rent from all the tenants. In effect the Plaintiff has been in possession of the said building. None of these averments have been denied by Defendant No.1. The Plaintiff has produced a compilation of documents evidencing inter-alia the payment of property tax and the collection of rent to indicate his possession of the property over these years. 2 3. Under the agreement, the Plaintiff was entitled to consider the documents to be a conveyance. That however was only the Plaintiff’s entitlement. Defendant No.1 was for instance under clause 20 bound and liable to execute the conveyance pursuant to the Plaintiff’s direction. 4. Had this been a case of an agreement merely having been executed and nothing more, the Plaintiff may not have been entitled to the interlocutory reliefs. However, in this case, the agreement has been virtually fully implemented inter-alia by Defendant No.1 receiving the entire consideration and the Plaintiff having not only been in possession of the property but having managed the property throughout as the owner thereof. 5. It appears that around the year 2005, Defendant No.1 sought to deal with the property contrary to his obligation under the agreement dated 4.1.1991. For instance, Defendant No.1 addressed a letter dated 24.5.2005 to the tenants claiming payment of arrears of rent from 1991. He also addressed a letter dated 30.4.2005 to some of the tenants calling upon them to vacate the premises in their possession. It is important to note that the tenants in turn by their letter dated 23.6.2005 informed Defendant No.1 that he had transferred his entire interest in the property and was therefore, not entitled to make the said demand. 6(A). The Plaintiff came across a public notice dated 8.11.2006 issued by an advocate on behalf of an undisclosed purchaser. The Plaintiff responded to the same by his letter dated 28.11.2006 setting out his interest in the said property. Thereafter a further public notice was issued again on behalf of an undisclosed purchaser on 16.12.2006. 3 (B). Defendant No.2 claims to have acquired the property from Defendant No.1 under an agreement dated 16.12.2006 which incidentally is on the same date as the second public notice. (C). Thereafter on 20.4.2007, Defendant No.2 filed suit No.1352 of 2007 against Defendant No.1 for specific performance of the said agreement dated 16.12.2006. The suit was compromised in terms of the consent terms dated 27.6.2007. The same have also been challenged in this suit. 7. The consent decree between Defendant Nos.1 and 2 cannot affect the rights of the Plaintiff in any manner whatsoever as the Plaintiff was not a party to the suit. 8. Defendant No.2 was fully aware of the Plaintiff’s case. The agreement between Defendant Nos.1 and 2 was subsequent to the suit agreement. Defendant No.2 is therefore not a bona-fide purchaser for value without notice. 9. In the circumstances the rights of all the parties require to be protected. 10. The Notice of Motion is made absolute in terms of prayer (a-i).