1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPEAL FROM ORDER NO.637 OF 2009 AND APPEAL FROM ORDER NO.638 OF 2009 WITH CIVIL A.APPLICATION NO.797/2009 IN A.O.NO.638/2009 WITH CIVIL A.APPLICATION NO.796/2009 IN A.O.NO.637/2009 WITH CIVIL A.APPLICATION NO.951/2009 IN A.ONO.637/2009 M/s.R.N.A.Builders (A.A.) ...Appellant Vs. Gopinath Ramchandra Bhoir & Ors. ...Respondents Mr.P.K.Dhakephalkar, Sr. Advocate i/b. Mr. Niranjan P. Shimpi, Advocate for the Appellant Mr.Rafique Dada Sr. Advocate and Mr. L.M.Acharrya i/b. Mr. V.M. Thorat, Advocate for Respondent No.11 Mr.M.S. Lagu, Advocate for Respondent No.12 Mr. Virag Tulzapurkar, Sr. Counsel i/b. M/s. Vimadalal & Co., for Respondent No.13 Mr. V. A. Thorat, Sr. Advocate with Ms.Prachi Tatake i/b. Mr. Hemant S. Deshpande, Advocate for Respdt.8 2 CORAM : SMT.ROSHAN DALVI, J. DATED : 27TH JANUARY, 2010 P.C. : 1. The Appellants initially entered into 2 agreements for sale on 24th December 1990 and 27th May 1991 with Respondents 1 to 10. Under the agreements for sale part payment was made and the balance was to be paid in six equal monthly installments. Respondents 1 to 10 executed a Power of Attorney in favour of one of them to receive payments which fact is recited in clause 9 of the agreement itself. 2. The Appellant was to develop the property. Respondents No.10 executed a Power of Attorney in favour of the Appellant in that behalf. The Appellant was to make payment of further consideration. 3. On the premise that the Appellant did not make payment of further consideration amounts, the agreements came to be terminated on 27th June 1994. The Appellant replied the notice of termination on 1st July 1994 and 5th July 1994. In these replies the Appellant showed various payments made by cheques, cash as well as by way of a flat and a shop given to one of the Respondents by the sister concern of the Appellant by way of adjustment towards the payment of further consideration. The Appellant claims that thereafter the notice came to be waived by the Respondents by receipt of subsequent payments. These payments were accepted in July 3 1994 and October 1994. Hence the Appellant claims that it was again put in possession and sought to develop the property under certain plans got sanctioned by the Appellant. 4. The Appellant further claims that the registered conveyance came to be executed by the Respondents in favour of the Appellant on 18th November 2006. However the Respondents 1 to 10 sold the property to Respondent No.11 under the registered Conveyance of 13th May 2008 and thereafter to Respondent No.13 on 19th June 2008. The Appellant sued on 19th August 2008. Since the agreements of sale were unregistered a registered Deed of Confirmation is stated to have been executed on 14th July 1995. 5. There are 2 tests to determine the bonafides and the truth of the Appellant’s case. One is the payment of consideration amount after the execution of the agreements of sale and the other is the execution of further documents. 6. Consideration amounts are not paid as agreed in the agreement by equal monthly installments. They are stated to have been paid in various other modes. 7. One receipt relied upon by the Appellant shows payments made to 3 of the Vendors who are 3 of the Respondents. The receipt is type-written. The payments are made in July 91. The Respondents state that the receipts are fabricated and they have not signed the receipt. The xerox copy produced in the compilation does not show any signatures or the stamp as could be 4 compared to the admitted signatures of the Respondents in the agreements for sale. These payments are made soon after the second agreement was entered into and years prior to the notice of termination which has been given on 29th June 1994. Hence even if these payments were made, since further payments were not made, the agreement was sought to be terminated 4 years after the agreements were entered into between the parties. 8. In reply to the notice of termination the Appellants claim to have made further payments by adjustments by providing a shop and flat to some of the Vendors. The 2 agreements which are produced in respect of one shop and one flat show an endorsement at the foot of the agreement that a specific amount is to be adjusted against the property purchased by the Appellant under the agreement of purchase in this Suit. These endorsements are not signed by any of the Respondents though the execution clause bears the signatures of some of the Vendors who are some of the Respondents. Such unsigned endorsements cannot be taken to be receipts. The Respondents state that the amounts paid as reflected in the agreement has been separately paid by the Vendors to other purchasers shown in the agreement who are stated to be sister concern of the Appellant. The bank account of the Respondents shows the debit entry. Hence that endorsement is prima facie seen to be fabricated. 9. The agreement was terminated in June 1994. The Appellant replied to the notice of termination in July 1994. Further amounts are stated to be made in July and October 1994. It is essential to see the payments shown to 5 have been made after the notice of termination which would reflect the continuation of the rights of the Appellant. The xerox copy of the Bank account statement of the Appellant, which is not certified by the Appellant’s Bankers under the Bankers Book Evidence Act, shows 2 entries of Rs.4 lakhs under cheque Nos.375 and 376 issued in October 1994 which are stated to be credited to the accounts of the Vendors, some of the Respondents in this Suit. The entries do not correspond with the credit balance prior to and after those debit entries in the bank account. Mr. Tulzapurkar specifically took me through the arithmetical calculations. The credit entry in the account immediately prior to 5 debit entries, of which 2 are of the cheques of Rs.4 lakhs each, is Rs.10.66 lakhs. After debiting the amounts of the 2 cheques constituting Rs.8 lakhs and a further sum of Rs. 1.7 lakhs by 3 other debit entries, the credit balance in the bank account is still shown to be 7.39 lakhs. Even after further debits, the credit balance is Rs.7.51 lakhs. 10.Mr.Tulzapurkar argued that if these 2 entries are read as Rs.1 lakh each The next balance would come to Rs.7.39 lakhs. This arithmetical calculation is correct. 11.Prima facie, therefore, the entries are fabricated. Prima facie no further consideration amount is paid by the Appellant as the purchaser under the agreements of sale dated 24th December 1990 and 27th May 1991 to the Vendors mentioned in those agreements who are some of the Respondents. Since no consideration is shown to be paid, the notice of termination cannot be challenged. 6 12.The agreement for sale remained unregistered. The Appellants had the Power of Attorney of the Vendors. Under the Power of Attorney the Appellants got a Deed of Confirmation registered. It is registered unilaterally. It shows the same signature of the 2 parties. The same is the case with the registered Conveyance. Both the documents do not show that they have been executed by both the parties to the agreement. Consequently, on the date of confirmation of the agreement by the Deed of Confirmation the Vendors have not admitted execution of the agreements for sale. Consequently, there can be no conveyance to the Appellants. 13.The Appellants have not made out any prima facie case to grant any injunction. In fact they have disentitled themselves to claim the equitable relief of interim injunction by virtue of the fabrication of documents prima facie seen. 14.Both the A.Os are dismissed. All the C.As are also disposed off in terms of the order in the above A.Os., accordingly. 15.The status-quo order shall be continued for 2 weeks. (SMT.ROSHAN DALVI, J.)