1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2250 OF 2008 IN SUIT NO.1877 OF 2008 M/s. Rizvi Land Development Pvt. Ltd. ...Plaintiffs Vs. Louis Thomas Jacinto & Ors. ...Defendants Mr.A.K.Kohli with Mr. A. Moghe for Plaintiffs Mr. D. Chitnis for Defendant Nos.1 to 10 Mr. Mr. G.S.Godbole with Muley for Defendant No.27 CORAM: SMT.ROSHAN DALVI, J. DATED: 28 TH AUGUST, 2008 P.C. 1. The Plaintiffs have applied for an injunction against the Defendants restraining them from transferring, or dealing with the suit property or carrying out development work on the suit property in this Notice of Motion. 2. The suit is filed for a declaration that the Conveyance Deed between Defendant No.1 to 26 and Defendant No.27, Exhibit- H, to the plaint is fraudulent and for consequential reliefs against these parties based upon the said transfer. 3. The Plaintiffs are stated to have entered into certain 2 development agreements with various groups of Defendants, between Defendants 1 to 26. These are marked Exhibit- B1 to B6, in the plaint. These documents are identical. They are on stamp papers dated 8th June, 2006 and in respect of only one set of Defendants dated 3rd August, 2006. These stamp papers are issued in the name of Plaintiffs. They are notarized , but not registered documents. Under these documents Defendants 1 to 26 have sought to transfer their right, title and interest in the suit premises at village Kolhe- Kalyan, Kalina, Taluka Andheri bearing several CTS numbers mentioned therein on “as is, where is” basis for certain amounts of consideration mentioned therein. The consideration is shown to be paid by cash/Demand Draft as reflected in the receipt clauses. 4. A Deed of Conveyance is registered between Defendants 1 to 16 and the Plaintiffs on 18 th June, 2007 and registered on that date. This Deed of Conveyance, though stated to be conveying the properties of these Defendants is actually executed by their Constituted Attorney. The Constituted Attorney is a representative of the Plaintiffs' Company and appears to be a family member of one of the Directors of the Plaintiffs' Company. The Conveyance is not witnessed as mandatorily required. The receipt clause in the Conveyance do not show the passing of any consideration. 3 5. To the Conveyance is annexed several General Powers of Attorney executed by Defendants 1 to 26 in favour of the said representative of the Company who is shown to be a family member of one of the Directors of the Company as their Constituted Attorney. 6. A look at these Powers of Attorney is required. They are undated. The stamp papers are issued in the name of the Plaintiffs who are not parties to the Powers of Attorney and not in the names of those Defendants who have given the power thereunder. Several Powers of Attorney are thumb impressed. The dates in the Execution Clauses are not mentioned. Some Powers of Attorney bear certain photographs. The photographs are not identified. One Power of Attorney bears the photographs of various members of the family of one Peerzada. The Powers of Attorney are notarized, an effort which is not required in law. Though they bear the stamp of the Registration Office on their last page, that stamp only shows the serial number of Registration of the Conveyance, since the Powers of Attorney are mere annexures to the Conveyance. The most striking fact is that the stamp papers of the Powers of Attorney show the date of purchases similar to those in the Defendants' Development Agreement. Hence, all except one Powers of 4 Attorney are dated 8th June, 2006; all except one Development Agreements are also dated 8th June, 2006. The serial numbers of issue of these Development Agreements and the Powers of Attorney are Nos. 9012, 9013, 9014, 9015, 9016, 9017, 9018, 9019,9020 and 9021 mixed- up and used for any of the groups of Defendants. 7. One Power of Attorney and one Development Agreement of one group of Defendants from amongst Defendants 1 to 26 are both dated 3rd August, 2006. These two documents are on stamp papers bearing numbers 5713 and 5714. 8. This leads to an unmistakable conclusion that the Powers of Attorney and the Development Agreements are executed on stamp papers purchased by the Plaintiffs on the same day and are executed on the same day. Though the Plaintiffs are a party to the Development Agreements, they are not parties to the Powers of Attorney. The stamp paper of the Powers of Attorney are, therefore, not purchased by the Executents as specifically required under Section 34 of the Bombay Stamp Act. 9. The Powers of Attorney are not executed in favour of a person of the confidence of the Defendants 1 to 26, who would represent the interest of Defendants 1 to 26. They are 5 executed in favour of a Representative of the Plaintiffs, who is expected to see only the interest of the Plaintiffs. After getting the Powers of Attorney executed on the same day as the Development Agreements, the Plaintiffs have sought to ignore the interests, claims or rights of Defendants 1 to 26 who are the owners of the suit property. By putting their own representative as the representative of Defendants 1 to 26 in the name of he being their Constituted Attorney, the Plaintiffs have got the Conveyance executed not by Defendants 1 to 26 or their Representative, but by the Plaintiff's own Representative. No consideration is shown to be paid by the Plaintiffs to Defendants 1 to 26 at the time of execution of the Conveyance. The receipt clause in the Conveyance has various blanks. The execution clause in the Conveyance shows it being signed by Abis Akhtar Rizvi and Sakib Rizvi dealing with the entire immovable property of Defendants 1 to 26. 10. The contention on behalf of the Plaintiffs that since the date of Conveyance has been registered and stamp duty is paid thereon, the Power of Attorney need not be registered and no stamp duty is required to be paid thereon aside from the fixed stamp duty of Rs.100/- is entirely misconceived. It is based upon such Powers of Attorney that the Plaintiffs have had no barrier in dealing with the land of Defendants 1 6 to 26 without any obstruction from these Defendants and without heeding their claims and rights. The very Power purportedly given by Defendants 1 to 26 is void and non est. It grants no right upon the Constituted Attorney to deal with the property as an Agent of Defendants 1 to 26. The Powers of Attorney cannot be looked into at all to grant the Plaintiffs any rights thereunder. 11. The arguments on behalf of the Plaintiffs that these Powers of Attorney are irrevocable as they are Agencies coupled with interest and hence the Plaintiffs rights under Section 202 of the Indian Contract Act also cannot apply to a case such as this, when the documents are wanting in all material requirements of law and are mere annexures to a Conveyance made by one arm of the Plaintiffs to another arm of the Plaintiffs. 12. The Plaintiffs have sought to overreach the law. No rights, let alone equitable rights of injunction in the interim application can be granted. 13. From the aforesaid transactions it can be seen that the Constituted Attorney stated to be of Defendants 1 to 26 would, on his own account, be developing the property of the Defendants without the consent of the defendants. The 7 Defendants as the principals would then be entitled to repudiate such a transaction under section 215 of the Indian Contract Act. Similarly if the attorney were to exceed authority in developing the property without the knowledge of Defendants 1 to 26. Defendants 1 to 26 would not be bound by such access of authority under section 227 and 228 of the Indian Contract Act. 14. In fact it can be seen from the total lack of bonafides in this case that the prime duty of the Agent under section 211 of the Indian Contract Act in acting as per the directions of the principals would be given a complete go-by. The very nature of the Power of Attorney shows and suggests that the Constituted Attorney of Defendants 1 to 26 shown in the Powers of Attorney is actually a representative of the Plaintiff Company and would not represent the interest of the Defendants 1 to 26. 15. The Defendants 1 to 26 have entered into a Conveyance of their property with Defendant No.27. The Conveyance is registered and adequately stamped. It shows adequate consideration given to the Defendants. The Advocate for Defendants 1 to 26 states that, whereas only the token consideration of Rs.24 lakhs was given to them by the Plaintiffs for the property which was valued at Rs.75 lakhs, 8 and no consideration was given to them after the execution of the Development Agreement and at the time of the execution of the Conveyance, Defendant No.27 have paid Defendants 1 to 26 the proper market price of their property which is valued at Rs.75 lakhs. The Plaintiffs have sought a declaration that, that transfer is fraudulent, whereas it is seen that the Plaintiffs' transaction itself is fraudulent. The Plaintiffs cannot be granted the relief of injunction sought. 16. The Notice of Motion is dismissed with costs as stated hereinafter. 17. The Advocate for Defendants 1 to 26 makes a statement before the Court and has shown the statement of the Defendants in paragraph 49 (j) of their affidavit in reply that Defendants 1 to 26 are ready and willing to deposit the entire amount received by them in this Court. 18. Defendants 1 to 26 shall deposit the amounts received by them from the Plaintiffs in this Court to credit to this Suit. 19. The Plaintiffs shall be entitled to apply for the withdrawal of the said amount upon acceptance by them that their transaction with Defendants 1 to 26 has ended. 9 20. If such an application is made the Prothonotary and Senior Master (O.S.) of this Court shall deduct Rs.10,000/- payable in respect of each group of Defendants, who have received amounts under the aforesaid Development Agreements Exhibits- B1 to B6 as costs of this Notice of Motion. 21. The Prothonotary and Senior Master (O.S.) of this Court shall return the remaining amount to the Plaintiffs upon the Plaintiffs, applying for withdrawal/dismissal of the Suit. 22. Upon such payment being applied for and made, the Suit shall stand dismissed. 23. The amounts of costs deducted by the Prothonotary and Senior Master shall be credited/ handed over to the High Court Legal Services Authority. 24. If the amount is not withdrawn within three months of the deposit, it shall be invested in any Nationalised Bank pending the Suit. (SMT. ROSHAN DALVI, J.)