IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2192 OF 2002 IN SUIT NO.4574 OF 2000 Rukmini C. Kewalramani ..Plaintiff V/s. Mehfuza Yakoob Patrawala & Ors. ..Defendants Mr.Kumar T. Kukreja, Advocate, i/b. Kukreja & Co., for the Plaintiff. Mr.A.J. Dholakia a/w. Ms.R.C. Shukla, Advocates, for the Defendant Nos.8 and 9. Mr.A.L. Thakkar a/w. Mr.Saroia, Advocates, i/b. Thakkar & Co., for Defendant No.7. CORAM : A.V. NIRGUDE, J. JUDGMENT DELIVERED ON : 26TH SEPTEMBER, 2008. JUDGMENT PRONOUNCED ON : 6TH OCTOBER, 2008. ORAL JUDGMENT :- 1. This Notice of Motion is taken out for an order of temporary injunction to restrain the Defendants from alienating the suit flat, for appointment of Court Receiver and for seizure of certain documents. The case of the Plaintiff in short can be narrated as under :- 2. The MHADA allotted a plot at Juhu to one Mr. Nand Gurnani for development. He acted as the Chief Promoter of a proposed Co-operative Housing Society and enrolled certain members. One of them was the Defendant No.2 Mrs.Kiran Mankodi who deposited share capital etc. She also deposited part of the cost of construction of the building. An application for reservation of certain name for the proposed Housing Society was made under signatures of ten promoter members who included the Defendant No.2 Mrs. Kiran Mankodi. 3. Thereafter Mr.Nand Gurnani resigned as Chief Promoter and one Mr. S.T. Hariramani took over as the Chief Promoter of the Society who also resigned subsequently and original the Defendant No.4 Mr. Kashyap Baxi took over as the Chief Promoter of the Society w.e.f. 29th September, 1988. The proposed building of the Society was under construction from 1988 onwards. In 1994 while it was still incomplete, the Society made application for registration along wtih the affidavit of ten members under the signatures of the ten promoters which included the name and signature of the Defendant No.2 Mrs. Kiran Mankodi. An application for registration was made on 29th August, 1994. On 1st September, 1994, the Society was registered. The original Defendant No.4, the Chief Promoter of the Society was brother of the Defendant No.2 Kiran Mankodi and also of the Defendant No.3. The Defendant No.3 was not amongst the promoter members. She became member of the Society after 25th September, 1994 i.e. after the registration of the Society. The Society developed the building and constructed 14 flats. The Society on 29th November, 1995 issued allotment letters to its members. The Defendant No.2 received her allotment letter in respect of Flat No.201 on the second floor, so also the Defendant No.3 received allotment letter in respect of the Flat No.601 on the 6th floor. On 1st December, 1995 the Plaintiff agreed to buy the Flat No.201 from the Defendant No.2 (hereinafter referred to as "the suit flat") whereas the Plaintiff' s husband, the Defendant No.6 herein, agreed to buy Flat No.601 from the Defendant No.3. Both of them had obtained agreements in writing showing payment of consideration as well as delivery of possession. The Defendant No.2 surrendered the allotment letter referred to above to the Plaintiff and it is the case of the Plaintiff that on that day she was put in possession of the suit flat. (Similar is the claim of the Defendant No.6 in respect of the Flat No.601.) At that time the flats required lot of internal work and were not habitable. The Municipal Corporation had not issued completion and occupation certificate for the building. It is the case of the Plaintiff that she continued her possession of the suit flat and kept it locked. On 20th May, 1996, the Plaintiff and her husband received information that the locks of the suit flat were tampered with. They rushed to the building and verified the same. They also reported this incident to the police. The police visited the suit flat and recorded the event. The police, however, did not find any miscreant in the flat. Thereafter, on 19th June, 1996, the Defendant No.1 recorded a complaint with police alleging that the Plaintiff's husband was trying to interfere in her possession of the suit flat. The Plaintiff on the same day learnt that the Defendant No.1 had entered the flat forcibly. She rushed to police and lodged her complaint on the same day. The police then visited the suit flat and made inquiry. During the inquiry they recorded the statements of several persons including the Plaintiff, the Defendant No.1, the Defendant No.2, the Secretary of the Society and the society's watchman. 5. The police then registered an offence under Sections 380, 451 and 454 of the I.P.C. against the Defendant No.1. However, the Defendant No.1 filed Suit No.3397 of 1996 in the City Civil Court, Bombay, against the Defendant No.6 for permanent injunction restraining him from dispossessing her from the suit flat without following due process. She also applied for ex-parte ad-interim relief through Notice of Motion No.3085 of 1996. The Court granted her protection and also appointed of a Court Commissioner and asked him to visit it and submit a report. The Court Commissioner in absence of the Defendant No.6 visited the suit flat and submitted his report. Subsequently, the Plaintiff herein appeared in the suit as the principal Defendant and defended the Notice of Motion. The Notice of Motion was disposed of on 13th August, 1998 and was made absolute. The plaintiff here filed an Appeal against the said order. On 3rd May, 2000, the Appeal (No.1050 of 1999) was allowed and the order on the said Notice of Motion was set aside. The Notice of Motion was remanded back for fresh hearing. 6. This Court while remanding the Notice of Motion No.3085 of 1998 specifically directed the lower Court to consider the statements recorded by the police during police inquiry referred to above. On 13th March, 2000 the Plaintiff filed this Suit for possession of the suit flat. In March, 2000, the Plaintiff did not apply for temporary injunction etc. immediately after filing the suit. In January, 2002, the Plaintiff learnt that the Defendant No.1 had created third party rights in respect of the suit flat. Due to this Court's order in Notice of Motion No.1102 of 2002 (taken out in this Suit) passed on 23rd April,2002, the Defendant No.7 - the Co-operative Housing Society informed the Plaintiff on 7th May, 2002, that the Defendant Nos.8 and 9 had purchased the suit flat. Soon thereafter the Plaintiff made application for joining the Defendant Nos.8 and 9 to the Suit and on 6th August, 2002, they were made parties on 9th August, 2002 by effecting necessary amendment. After they were made parties, the present Notice of Motion was taken out. 7. The case of the Defendant No.7 - the Co-operative Housing Society is as under :- The Co-operative Housing Society admitted in their affidavit-in-reply that initially there were ten promoter members including the Defendant No.2. They admitted that the Society was registered in 1994. They further admitted that the Defendant No.3 was made member after registration of the Society. They also admitted that the suit flat was initially allotted to the Defendant No.2 and allotment letter was issued. (They even admitted that the Flat No.601 was allotted to the Defendant No.3.) They, however, pleaded ignorance as to what happened between the Defendant No.2 and the Plaintiff qua the suit flat. The Society mentioned that in December, 1998, the Defendant Nos.2 and 3 approached the Society with a request that the allotment of their flats should be inter-changed. They pleaded with the Society that initially the suit flat was allotted by the Chief Promoter to the Defendant No.3 in 1989.The Society rejected their application but ultimately in January 2000 the Society agreed to inter change the flats and the Society by their resolutions etc. effected the change in their record. Due to the change, in the record of the Society, the suit flat stood allotted to the Defendant No.3 and the Flat No.601 was allotted to the Defendant No.2. The Society also recognized the transaction that the Defendant No.3 had agreed to sell the suit flat to the Defendant No.1 in February, 1989. The Society admitted the Defendant No.1 to membership and took cognizance of the further transaction between the Defendant No.1 and Defendant Nos.8 and 9. The Society admitted the Defendant Nos.8 and 9 as joint members qua the suit flat. 8. The Defendant No.1' s affidavit is not on record although she is served with the Notice of Motion. But her case can be culled out from the narrations in the affidavits of the other Defendants namely the Defendant No.7 and the Defendant Nos.8 and 9. It appears her case starts in 1989 when she agreed to purchase the suit flat from the Defendant No.3. An agreement for sale was executed between these two parties on 27th February, 1989. At that time admittedly the suit building was not constructed but the Defendant No.3 assuming that she was allotted Flat No.1 on the second floor of the building and agreed to sell the same to the Defendant No.1. There is no clear statement on affidavit as to the date on which the Defendant No.1 was put in possession of the suit flat by the Defendant No.3 or any other party but from the other circumstances narrated above, it appears, she has been claiming possession since prior to the Plaintiff's claim of possession. As said above, she claimed that she was in possession since prior to 19th June, 1996 and lodged the complaint to police in respect of the alleged interference at the hands of the Defendant No.6. As narrated in the case of the Plaintiff she filed her Suit No.3397 of 1996 in the City Civil Court etc. It is also clear that during the pendency of that suit and during the pendency of this suit she sold away her rights in respect of the suit flats to the Defendant Nos.8 and 9. The transaction between them took place on 17th May, 2000 by a registered document and thereafter she stopped attending her Suit in the City Civil Court and ultimately, I am told, the Notice of Motion as well as the Suit was dismissed for non-prosecution. As said above, the Defendant No.1 did not care to appear before this Court and file any affidavit etc. 9. The case of the Defendant No.2 is as under :- The Defendant No.2 also did not file her appearance although the Notice of Motion is properly served on her. Her case can be culled out from the affidavits of Defendant Nos.7, 8 and 9 and it can be stated as under :- 10. She was one of the promoter members of the Society since beginning. She was allotted the suit flat on 29th November, 1995. She impliedly denied the transaction qua the suit flat with the Plaintiff. She then applied to the Society for inter change of her flat with that of her sister the Defendant No.3 The Society accepted her request and effected the change in view of the resolution of the Society dated 26th January, 2000, and she became member qua Flat No.601. 11. The case of the Defendant No.3 is as under :- She too did not appear before the Court although the Notice of Motion is properly served. Her case can be culled out from the affidavits of the Defendant Nos.7 and 8. She became member of the Society after registration of the Society in 1994. She was allotted Flat No.601 and allotment certificate was issued to her on 29th November, 1995. (She is silent about the Defendant No.6 and his claim of having purchased the Flat No.601 from her.) In view of the resolution of the Society in January, 2000, she became member qua the suit flat. She agreed to sell the suit flat before construction of the building to the Defendant No.1 way back in 1989 through a document dated 27th February, 1989, which was subsequently registered on 10th January,1997, under her signature. There is silence as to when she purportedly put the Defendant No.1 in possession of the suit flat. She and her sister the Defendant No.2 applied to the Society for inter change of their flats and the Society effected such change by a resolution dated 26th January, 2000. She lost connection to the suit flat as soon as the Society admitted the Defendant No.1 as member qua the suit flat. 12. The case of the Defendant Nos.8 and 9 is as under :- They stated that they were not aware of the dispute between the Defendant No.1 and the Plaintiff and her husband and also of the Suit No.3397 of 1996 which was pending in the City Civil Court. They said they agreed to purchase the suit flat from the Defendant No.1 on 17th May, 2000. Before entering into such transaction, they made enquiry with the Society about the title of the suit flat. They received information that the suit flat was belonging to the Defendant No.3 who had transferred the suit flat to the Defendant No.1. Having thus convinced of the Defendant No.1's title, they agreed to purchase the same from her for valuable consideration and under a registered document they paid consideration of Rs.33 lac. They received possession of the suit flat in May, 2000. The Society admitted them to membership on the same day after having completed the formalities and since then they are in possession. They are bonafide purchaser of the flat for valuable consideration and having no knowledge of the Plaintiff's claim. 13. Now the questions before the Court are as under :- (a) Whether the Plaintiff prima-facie proves her title to the suit flat ? (b) Whether the Plaintiff prima-facie proves that she was put in possession of the suit flat prior to 19th June, 1996 ? (c) Whether the Plaintiff prima-facie proves that she was dispossessed forcibly by the Defendant No.1 ? (d) Whether the Plaintiff further prima-facie proves that the Defendant Nos.8 and 9 were aware of her claim to the suit flat at the time of their transaction ? (e) Whether the Defendant Nos.8 and 9 prima-facie prove that they are bonafide purchasers etc. of the suit flat ? 14. The answers to these questions are in favour of the plaintiff. One of the most important circumstances is the Defendant No.2 was the original allottee of the suit flat. The allotment as mentioned above was made through a valid allotment letter dated 29th November, 1995. This fact has gone unchallenged on record. Even the Society admitted this in their affidavit-in-reply. It is impliedly challenged by the Defendant No.3 whose case is already mentioned above who suggested that the Chief Promoter agreed to handover this flat to her in 1989. There is a letter on record to that effect. This letter is at Exhibit "Y" to the plaint. It is dated 20th January, 1989. It is signed by the Chief Promoter the Defendant No.4 Kashyap Bakshi. Now the question is how much importance can be given to this document. In my view this document is of no value. In 1989 the building was not even completed. Admittedly the Defendant No.3 was not even member of the Society. Besides the Chief Promoter Bakshi was her own brother. Giving such letter was clearly an unauthorized act having no legal force. It is certainly not binding on the Society. Even the Society does not admit this transaction as binding to them. It is thus clear that the genesis of the Defendant No.3's so called title to the suit flat is not at all acceptable. Prima-facie it is clear that the Defendant No.3 had no concern with the suit flat since beginning. The natural consequences of this is that she was unable to sell the suit flat to the Defendant No.1. So the Defendant No.1 could not have purchased the suit flat from her. The Defendant No.1 thus cannot be said to be the owner of the suit flat by any stretch of imagination. Even the Society initially did not accept her as member qua the suit flat. Although the Defendant No.1 was in the flat at-least since 19th June, 1996 and continued her occupation, till year 2000, the Society did not recognize her as lawful occupant of the suit flat. 15. In this background one has to appreciate the case of the Plaintiff. As mentioned above, there is no dispute about the fact that the Defendant No.2 was a member of the Society and was allotted the suit flat lawfully on 29th November, 1995. It is the case of the Plaintiff that thereafter on 1st December, 1995 the Plaintiff agreed to purchase the suit flat from her. The transaction was recorded in an agreement dated 1st December, 1995. Mr. Dholakia, the learned Counsel appearing for Defendant Nos.8 and 9, attacked the trustworthiness of this document. He said from the tenor of this document it is seen that it could not have been executed on 1st December, 1995. Few of his objections were quite pertinent. But these objections to the genuineness of this document cannot be given undue importance in the light of the fact that the Defendant No.2 was always the allottee of the flat and was in a position to transfer it to any party. It is no one's case that the Defendant No.2 agreed to sell this flat to any other party. Neither the Defendant No.2 came before this Court and filed an affidavit denying the transaction. Even otherwise she has not challenged in any other proceedings the said transactions. So the case of the Plaintiff that she acquired rights of the suit flat since 1st December, 1995 cannot be seriously doubted. As mentioned above, the claim of the Defendant No.1 qua the suit flat through the document executed by the Defendant No.3 is still worst and so comparatively the case of the Plaintiff stands on stronger footings and deserves to be accepted at this stage. 16. As regards the claim of the Plaintiff in respect of possession, there is hardly any document to show that the Plaintiff occupied the suit flat for residential purpose. At that time the suit flat was not habitable. The Plaintiff on her own kept the suit flat under lock and key. So the question is whether the Defendant No.1 could trespass on it as alleged on 19th June, 1996. This in my view is one of the most important questions of fact in this Notice of Motion. This has to be answered in affirmative. The circumstances are quite strong in its support. There is no dispute about the fact that the dispute between the Defendant No.1 and the Plaintiff reached the police station on the very day of the alleged trespass. The police made detail inquiry before registering the offence. During the inquiry they recorded statements of various persons including the Plaintiff, the Defendant No.1, the Defendant No.2, Honorary Secretary of the Society and the society's watchman. True copies of these statements are on record which are annexed to the plaint at Exhibit "FF", Exhibit "GG", Exhibit "HH", Exhibit "II" and Exhibit "II-1". The Society' s Secretary in his statement stated that it was the Defendant No.2 who was the original allottee of the suit flat, but he said that not only the Defendant No.2 but all other members of the Society took possession of their respective flats unauthorizedly without permission of the Society. He further stated that he had learnt about the transactions of the Plaintiff and the Defendant No.2. The Defendant No.2 stated in her statement that she sold her flat to the Plaintiff. [A.V. NIRGUDE, J.] Notice of Motion No. 2192 of 2002 in Suit No. 4574 of 2000 R.C. Kewalramani Vs. Mehfuza Yakoob Patrawala and others DICTATED IN CHAMBER AT AURANGABAD AT 2:30 PM. DT. 6.10.2008 Advocates present : Mr. K.T. Kukreja, Advocate for the Plaintiff : Mr. A.J. Dholakia i/b. Ms. Rekha Shukla for the Defendant nos. 8 and 9 Before I could start dictating the further part of the order, my Sheristedar showed me the fax message received from the Prothonotary and Senior Master, High Court, Bombay. On perusal of the same I realised that Defendant no.8 has taken objection for continuing the dictation at Aurangabad. I showed this letter to Shri Dholakia the learned counsel appearing for the defendant nos. 8 and 9. He stated, he is not aware of this letter and that it is not on his instructions, this letter was sent. He however, said that he has come to attend the matter as per the earlier direction and he said that he would leave the matter with my discretion. I think this objection deserves no further attention because it was agreed between the parties and the Bench earlier that due to exigency of situation, the course which is now adopted is inevitable and in order to complete the partly dictated order, it was necessary to continue with the work as decided earlier. The defendant no.8 also insisted in his letter that as per my earlier direction I should have perused and allowed the parties to peruse the R. & P. of City Civil Court Suit no. 3397 of 1996 and if necessary make their submissions. This was of-course contemplated earlier but after completing hearing of the arguments and before I started dictating my order, I expressed my view that I would not require perusal of the proceedings of that suit. This I said because the factual aspects of the case were fully clear to me by then. Therefore, I am not insisting on perusal of the proceedings of City Civil Court Suit no. 3397 of 1996. Dictation..continued.. 17. She also said there that she had put the plaintiff in possession of the suit flat. She further stated that her sisters Rekha, the defendant no.3, had at the same time handed over possession of flat no. 601 to the plaintiff's husband, defendant no.6. 18. In this background I have to appreciate the case of the defendant no.1 which is already quoted above that she agreed to purchase the suit flat from the defendant no.3, etc. But having regard to the facts mentioned above especially the contents of the statements recorded by the Police and that the suit flat was originally allotted to the defendant no.2, there is no substance in her case that she could purchase the suit flat from the defendant no.3. Her intrusion in the suit flat was rightly been considered as unauthorised entry by the Police, who registered an offence of criminal trespass against her. Prima facie it is clear that it was an unauthorised entry in the suit flat for which the plaintiff's complaint is fully justified. The sum and substance of this is that the Police believed then the case of the plaintiff rather than the case of the defendant no.1. I am aware that thereafter despite the fact that the offence was registered the defendant no.1 was neither arrested nor any chargesheet was filed. I have no hesitation to record my prima facie finding that the plaintiff could prove her title to the suit flat and that she was put in suit flat prior to 19th June, 1996 and that she was forcibly dispossessed by the defendant no.1. 19. The next important question of fact in this notice of motion is, do the defendants 8 and 9 prove that they were bonafide purchasers without notice of the plaintiff's transaction. Before a finding on this can be given, one must mention the events that took place after the enquiry held by the Police. On one hand the plaintiff lost control over the suit flat and the defendant no.1 consolidated hers. On the other hand, the defendant nos.2 and 3, it appears, invented a device to support the defendant no.1. The defendant nos. 2 and 3 are sisters inter-se and they approached defendant no.7, the Co- operative Housing Society, with an application saying that it was the defendant no.3 who should have been allotted