1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.4933 OF 2007 IN S.C. SUIT NO.3574 OF 2007 Smt. Chhabibai A. Bhandari and another .. Plaintiffs. Vs. Jaiwant Ganpat Bhandari and others Defendants. ..... Mr. Jitendra G. Damani for the Plaintiffs. Mr. S.S. Redij for Defendants 1 to 4. Mr. J. Reis with Mr. Rajesh Kachare for Defendant No.9. Mr. Yatin R. Shah for Defendant No.10. .... CORAM: DR. D.Y. CHANDRACHUD, J. 22nd January, 2008. P.C. : By consent the Notice of Motion has been heard. 2. The Motion for interim relief has been taken out in a suit where the Plaintiffs seek a declaration that a deed of release dated 30th October, 1995 is illegal insofar as the undivided 1/7th share each of the Plaintiffs is concerned and for a declaration that the rights created in favour of the Ninth Defendant by the First and Second Defendants would not bind the share of the Plaintiffs. Other consequential reliefs have been prayed. Interlocutory reliefs 2 have been sought in the Notice of Motion for a direction to the Ninth Defendant to get the 1/7th undivided share of each of the Plaintiffs demarcated; for the appointment of a Receiver and for an order of injunction restraining the Ninth Defendant from carrying on any construction activity in relation to the undivided share of the Plaintiffs. 3. The deed of release executed by the Plaintiffs on 30th October, 1995 has been registered. At this stage, it would be material to note that in paragraph 23 of the Plaint the Plaintiffs claim that a development dated 30th December, 2002 executed by them was validly terminated by their advocate's letter dated 15th February, 2005. Therefore, a perusal of the averments in the plaint would prima facie show that the Plaintiffs themselves rely on the aforesaid letter dated 15th February, 2005. This letter categorically refers to the execution of the deed of release by the Plaintiffs in favour of their brother, the First Defendant to the suit. Evidently, therefore, the Plaintiffs were aware as far back as on 15th February, 2005 of the execution of the deed of release despite which no proceedings were initiated by the Plaintiffs until December 2007 when the suit was filed. 3 4. That apart, from the affidavit filed on behalf of the Ninth Defendant it has emerged before the Court that the Sixth Defendant had also instituted a suit for similar reliefs being Suit 3450 of 2006. The Plaintiffs were impleaded as parties to the suit. On 5th March, 2007 the suit was permitted to be withdrawn and the order of the Court records that the Plaintiffs to the aforesaid suit (the Sixth Defendant) had admitted the execution of the deed of release. The Plaintiffs herein were Defendants 7 and 8 to the earlier suit and the appearance of their advocate is recorded in the order dated 5th March, 2007. The Plaintiffs have in the rejoinder denied that they had engaged the aforesaid advocate. 5. Be that as it may, the Ninth Defendant has stated that by agreements dated 14th October, 2004 he agreed to purchase the suit property from the First and Second Defendants pursuant to which a public notice was issued in the newspapers. The IOD was granted on 18th December, 2004; construction activities started in 2005 and the entire FSI was consumed by carrying out the construction of three buildings at the site. An occupation certificate was issued by the Municipal Corporation in 2006. Thereafter the 4 Ninth Defendant purchased TDR from the market and a fresh IOD was issued on 15th February, 2006. The Ninth Defendant has stated that 95% of the construction work has been completed and 80% of the flats have been sold by registered agreements. 6. The Plaintiffs have stood by when the construction was in progress and the letter of their own advocate dated 15th February, 2005, the correctness whereof they affirmed, itself refers to the execution of the deed of release. In these circumstances, no prima facie case has been made out for the grant of any relief in the Motion. The Notice of Motion is accordingly dismissed.