1 MSS 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 APPEAL NO. 64 OF 2008 IN NOTICE OF MOTIONS NO. 2005 OF 2007 IN SUIT NO. 1451 OF 2007 WITH NOTICE OF MOTION NO. 466 OF 2008 WITH APPEAL NO. 65 OF 2008 IN NOTICE OF MOTION NO. 2311 OF 2007 IN SUIT NO. 1451 OF 2007 WITH NOTICE OF MOTION NO. 464 OF 2008 WITH APPEAL NO. 66 OF 2008 IN NOTICE OF MOTION NO. 3061 OF 2007 IN SUIT NO. 1451 OF 2007 WITH NOTICE OF MOTION NO. 465 OF 2008 2 SUSHIL GUPTA HUF & ORS. .. APPELLANTS Vs. BHANU VIJAY GANDHI & ORS. .. RESPONDENTS WITH APPEAL (L) NO. 314 OF 2008 IN NOTICE OF MOTION NO. 2005 OF 2007 IN SUIT NO. 1451 OF 2007 BHANU VIJAY GANDHI & ORS. .. APPELLANTS Vs. SUSHIL GUPTA & ORS. .. RESPONDENTS WITH APPEAL (L) NO. 315 OF 2008 IN NOTICE OF MOTION NO. 1339 OF 2007 IN SUIT NO. 1052 OF 2007 BHANU VIJAY GANDHI & ORS. .. APPELLANTS Vs. S. M. BUILDERS & ORS. .. RESPONDENTS Mr. Rohit Kapadia i/b Pandya Gandhi & Co. for appellants (64/08, 65/08, 66/08). Mr. Kevick Setalwad i/b Tyabji Dayabhai for R-1 & 4 (64/08, 65/08, 66/08) & for Appellants in Appeal 3 (L) Nos. 314/08 & 315/08) Mr. D. D. Madon i/b V. V. Mishra for R-4 in Appeal (L) No. 315/08. CORAM:SMT.RANJANA DESAI & K. K. TATED, JJ. DATE: 7/10/2008 P.C. . In these appeals order dated 11/12/07 passed by learned Single Judge disposing of four notices of motion is under challenge. 2. Before we go to the facts of the case, we must state that here we are basically concerned with two suits. Suit No. 1451 of 2007 is filed by Sushil Gupta HUF through its Karta and Manager Sushil Gupta & Ors. against Bhanu Gandhi & M/s. Blue Estate Pvt. Ltd. & Ors. Plaintiffs in this suit are the appellants in Appeal Nos. 64, 65 & 66 of 2008. We shall refer to them as "the Guptas" for convenience. Defendant 5 M/s. Blue Estate Pvt. Ltd. shall be referred to as "Blue Estate". Suit No. 1052 of 2007 is filed by Bhanu Gandhi & Ors. against S. M. Builders & Ors.. They are appellants in Appeal (L) Nos. 314 and 315 of 2008. We shall refer to them as "Gandhis" for convenience. Defendant S. M. Builders shall be referred to as "S.M. Builders". In Notice of 4 Motion No. 1339 of 2007 taken out in Suit No. 1052 of 2007 Golden Acres Co-operative Housing Society Ltd. was made a party. That society shall be also referred to as "the Society" for convenience. 3. It is necessary to have a look at the facts of the case. Suit property involved in this litigation is Plot No. 1, admeasuring 1000 square yards i.e. 6836.2 sq. mtrs. with Bungalow No. 18 called "Gurukripa" standing thereon. The suit property is a part of a larger plot comprising plot Nos. 1 to 17 forming part of Ruia Park Estate, Juhu (Property-A). There is no dispute that Property-A was acquired by M/s. S.M. Builders from original owners. It was divided into property B & C to construct two bungalow type colonies on ownership basis. Property-B comprises "Golden Beach Bungalow Scheme". Property-C comprises "Golden Acres Bungalow Scheme". Suit property forms part of property-C. Suit property was sold by M/s. S. M. Builders to Mira Janak Trust. Gandhis claim to be absolute owners of suit property pursuant to conveyance deed executed in their favour by Mira Janak Trust along with bungalow and unutilized F.S.I. under conveyance 5 deed dated 8/2/1994. 4. Gandhis filed Suit No. 1052 of 2007 against M/s. S. M. Builders claiming to be absolute owners of the suit property pursuant to conveyance deed executed in their favour dated 8/2/94 by Mira Janak Trust along with bungalow and unutilized F.S.I. They inter alia prayed for a declaration of ownership. In that suit they took out Notice of Motion No. 1339 of 2007. Society was not a party to the suit, however it was made a party to this motion. In this motion Gandhis prayed for an order of temporary injunction restraining the defendants from dealing with the suit property either pursuant to the undertaking recorded in order dated 13/3/07 or in any other manner. Order dated 13/3/07 is passed in Contempt Petition No. 108 of 2003 in Suit No. 4655 of 1994 filed by the Society against S. M. Builders and others. In this order statement made by counsel for S. M. Builders that S. M. Builders shall execute conveyance in favour of the Society was recorded and accepted by learned Single Judge of this court. Thus this notice of motion sought to restrain S. M. Builders from executing the conveyance deed in favour of the Society in respect of larger plot, Property-A. It 6 appears that on 12/4/07 ad-interim order was passed in favour of the Gandhis restraining the defendants from dealing with the suit property. Gandhis claim that they entered into conveyance deed with M/s. Blue Estate for Rs.3,75,00,000/- on 19/4/07, conveying the suit property to them. 5. Guptas filed Suit No. 1451 of 2007 against Gandhis and Blue Estate claiming that in relation to the suit property they have a prior agreement with Gandhis executed on 29/12/2000 and, therefore, Gandhis could not have dealt with the suit property. They inter alia prayed for a declaration that agreement dated 29/2/2000 is subsisting. They prayed for specific performance of the said agreement and in the alternative they prayed for damages. In this suit they took out Notice of Motion No. 2005 of 2007 for interim relief. They prayed that Court Receiver be appointed and Gandhis be restrained by an order of injunction from dealing with the suit property. On 24/7/04 on behalf of Blue Estate a statement was made that they would not create third party interest or part with possession of the suit property and maintain status quo. The said statement was recorded and accepted by learned Single Judge. He observed that 7 no ad-interim order was necessary. This motion was directed to be heard with Notice of Motion No. 1339 of 2007. 6. Guptas took out Notice of Motion No. 2311 of 2007 making a grievance that Blue Estate has committed breach of the assurance given by them on 24/7/04 and, therefore, they may be proceeded against under Order XXXIX Rule 2(A) of the Code of Civil Procedure, 1908 ("the Code" for short). 7. Blue Estate took out Notice of Motion No. 3061 of 2007 contending that they had committed no breach of the assurance given by them. They contended that statement made on 24/7/04 does not preclude them from repairing the bungalow. They sought clarification as regards repairs and renovation work of Gurukripa bungalow which they wanted to carry out. 8. By the impugned order learned Single Judge has dismissed Notice of Motion No. 1339 of 2007 taken out by the Gandhis making it clear that S. M. Builders will be free to execute the conveyance deed in favour of the Society. Learned Single Judge rejected the prayer for appointment of Court 8 Receiver made by Guptas in their Notice of Motion NO. 2005 of 2007. He, however, restrained the defendants from selling, alienating, transferring, developing or creating third party rights in respect of the suit property. He made it clear that Blue Estate would be free to possess and enjoy Bungalow No. 18 (Gurukripa) for which purpose they will be entitled to carry out repairs renovation and decoration without altering original structure and they shall incur the expenditure at their risk without claiming equity at a later stage. Learned Single Judge observed that prayer seeking that possession of the suit property should not be handed over to Blue Estate has been worked out because Blue Estate has already been put in possession of the suit property. Learned Single Judge dismissed notice of motion taken out by Blue Estate making it clear that Blue Estate shall not create any third party rights and interest in Bungalow No. 18 and they shall carry out only tenantable repairs. Notice of Motion No. 2311 of 2007 taken out by the Guptas for initiating action against Blue Estate under Order XXXIX Rule 2(A) of the Code was dismissed. This order is challenged in these appeals by the Guptas and the Gandhis. 9 9. We have heard learned counsel for the parties. In our opinion, no interference is necessary with the impugned order as it protects all parties and hence, in our opinion, should continue to operate during the pendency of the suit. Gandhis claim to have purchased the suit property from Mira Janak Trust vide agreement dated 8/2/1994. We have on record letter dated 27/11/95 addressed by M/s. S. M. Builders to Janak Patel HUF and Mira Patel of Mira Janak Trust stating that Mira Janak Trust has been allotted Plot No. 1 (suit property) for constructing bungalows. This plot forms part of a larger plot and the building constructed by Mira Janak Trust shall form part of the scheme known as "Golden Beach and Golden Acres Bungalow Scheme". The letter further states that Mira Janak Trust has been allotted Plot No. 1 (suit property) for constructing bungalows. The letter further states that Mira Janak Trust shall become a member of the Co-operative Society which shall be formed by bungalow holders. Thus the suit property was purchased by predecessor of Gandhis with above understanding. 10. Gandhis, who claim to have purchased the suit property from Mira Janak Trust or anyone claiming 10 through Gandhis cannot claim more rights than the rights which Mira Janak Trust had as reflected in letter dated 27/11/95. Therefore, anyone claiming through Gandhis can only become a member of the society which shall be formed by bungalow holders. Gandhis cannot claim to be absolute owners of the suit property. As learned Single Judge has rightly observed that as the society is not claiming ownership of the suit property Gandhis can at the most claim to be owners of the bungalow standing on the suit property. Gandhis claim that they have entered into a conveyance deed dated 19/4/07 with Blue Estate conveying suit property to Blue Estate for Rs.3,75,00,000/-. Blue Estate are in possession of the suit property. Blue Estate also cannot claim more rights than the rights of Gandhis. Learned Single Judge is also right in observing that after 19/4/07 Gandhis cannot claim any rights over the suit property. We have also no reason to take a different view from the view taken by learned Single Judge after perusing the terms recorded in the documents executed between the predecessor of Gandhis and by the Gandhis inter se that larger plot will have to be conveyed to the Society. Execution of conveyance deed by S. M. Builders in favour of the Society pursuant to the 11 order dated 13/3/07 passed in Contempt Petition No. 108 of 2003 in Suit No. 4655 of 1994 filed by the Society against S. M. Builders and others wherein statement of counsel for S.M. Builders that S.M. Builders shall execute conveyance in favour of the Society was recorded and accepted cannot be interdicted. As observed by learned Single Judge this would be in consonance with Consent Decree dated 1/10/2001 passed in the said suit. Learned Single Judge has, therefore, rightly made it clear that S. M. Builders will be free to execute the conveyance deed in favour of the Society. 11. In the facts of the case, in our opinion, learned Single Judge has rightly rejected the prayer of Guptas made in Notice of Motion No. 2005 of 2007 for appointment of Court Receiver. But it is pertinent to note that at the same time he has restrained the defendants which includes Blue Estate who are in possession of the suit property from dealing with the suit property or creating third party rights therein. Morever he has made it clear that Blue Estate is free to possess and enjoy Bungalow No. 18 and can carry out repairs, renovation and decoration without altering original structure. Learned Single Judge has also made it 12 clear that Blue Estate shall incur expenses at their risk and shall not claim any equity at a later stage. He has directed that Blue Estate shall not create any third party rights and interest in Bungalow No. 18 and Blue Estate can carry out only tenantable repairs. This, in our opinion, completely protects the contesting parties. We, therefore, feel that no interference is necessary with the impugned order. 12. It is not necessary to say the obvious that all observations made and findings recorded by learned Single Judge on the merits of the case and similarly all observations made and finding recorded by us while confirming learned Single Judge’s order are prima facie observations which do not finally decide the rights and contentions of the parties. 13. Mr. Kapadia learned Senior Counsel for the appellants in Appeal Nos. 64, 65 & 66 of 2008 states that Blue Estate who is defendant No. 5, in Suit No. 1451 of 2007 has not abided by the directions issued by learned Single Judge in paragraph 42 of the impugned order. This is denied by Mr. Madon, learned Senior Counsel for Blue M/s. 13 Estate Pvt. Ltd. 14. In our opinion, it is not possible for us to go into this disputed question on the basis of photographs which are shown to us in the court today. However, it is necessary to examine whether grievance of the appellants is true. If the Guptas so desire, they may adopt appropriate proceedings making the aforesaid grievance. At this stage Mr. Madon learned Senior Counsel for Blue Estate says that without prejudice to the rights and contentions of Blue Estate, Blue Estate will not carry out any further work on the suit property for two weeks from today. This statement is recorded and accepted by the court. 15. In the view that, we have taken, appeals are liable to be dismissed and are dismissed as such. JUDGE JUDGE