:1: IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO. 3905 OF 2008 OF MOTION NO. 3905 OF 2008 OF MOTION NO. 3905 OF 2008 IN IN IN COUNTER COUNTER COUNTER CLAIM (L) NO. 1313 OF 2005 CLAIM (L) NO. 1313 OF 2005 CLAIM (L) NO. 1313 OF 2005 IN IN IN SUIT SUIT SUIT NO. 41 OF 2003 NO. 41 OF 2003 NO. 41 OF 2003 Mr. Max Cajetan Travasso & Ors. ... Plaintiffs. (Orig. Defendants) V/s. Mr. Lal Bherumal Laungani. ... Defendant No.1. (Orig. Plaintiff) and Mr. Thomas Rajan & Ors. ... Defendants. Mr. Vijay Thorat, Sr. Counsel a/w. Mr. Vaibhav Sugdare i/b. Pankaj Thatte for the Plaintiffs (Orig.Def.). Ms. Rajni Iyer, Sr. Counsel a/w. Mr. G. Joshi, Mr. Niranjan Lopashia i/b. Niranjan & Co. for Defendant No.1 (Orig.Pltff.). Mr. Nitin Thakker, Sr. Counsel with Mr. Satyan Vora i/b. Markand Gandhi & Co. for Defendant Nos. 2 to 4. ..... CORAM CORAM CORAM : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. : S.C. DHARMADHIKARI,J. 31ST 31ST 31ST MARCH 2009. MARCH 2009. MARCH 2009. P.C. P.C. P.C. : : : . Heard Mr. Thorat, learned Senior Counsel in support of this Notice of Motion, Ms. Iyer, learned Senior Counsel appearing for the Original Plaintiff and Mr. Thakkar, learned Senior Counsel appearing for Defendant Nos. 2 to 4. 2. This is a Notice of Motion in a Counter-claim. the Counter-claim is in the Original Suit. However, the description of parties in the Counter-claim is adopted for the present Judgment. Suit No.41 of 2003 is filed by the :2: First Defendant to the Counter-claim. The First Defendant - Original Plaintiff is impleaded as a Defendant to the Counter-claim by them (i.e. Plaintiffs to the Counter-claim). 3. In other words, this is a Notice of Motion in the Counterclaim filed by the Defendants in Suit No.41 of 2003. 4. The Counterclaim that is filed by them seeks the relief of payment of Rs.11,27,20,000/- for non-performance of the Contract dated 8th January 1984 and Writing dated 16th November 1994, for failing allegedly to abide by these documents and hand over to the Defendants to the Suit the following :- (i) 10,500 sq.ft. built up area; (ii) 2 Shops to be selected by the Defendants; (iii) Lease rent @ Rs.15,000/- for 18 months from 16.11.1994 and subsequently lease rent @ Rs.20,000/- per month; (iv) Possession of two additional rooms of an area of 180 sq.ft. each for the Defendants’ tenants; and :3: (v) Rs.3 Lacs for repair of the Terrace structure on the Defendants’ Bungalow. 5. The further reliefs are of declaration that the action of the Original Plaintiff including filing of the Suits in the Court of Small Causes in pursuance of the above Agreement and Writing is bad in law, illegal and liable to be set aside and the Plaintiff is not entitled to recover Rents from the Tenants. 6. Mr. Thorat, learned Senior Counsel appearing in support of this Motion contended that the Motion prays for modification and/or variation of the Interim orders passed by this Court in the Suit in favour of the Original Plaintiff. He submits that the Original Plaintiff had filed the Suit challenging the Termination of the Agreements referred to above by a letter/Notice of termination dated 16th December 1999. 7. After taking me through the plaint and the description of the Suit property, it is contended by Mr. Thorat that the Plaintiff had moved Notice of Motion No. 325 of 2003 in the said Suit and an ad-interim order was made thereon dated 17th February 2003. The Motion was disposed off by final order dated 18th February 2005. The Counterclaim having been filed, now, the Original Defendants to the Suit and the Plaintiffs to the Counterclaim are seeking variation and modification of :4: these interim orders in the Suit also on account of changed circumstances. He submits that the changed circumstances are that by an Agreement dated 9th June 2005, the Original Defendant No.1 has assigned his right, title and interest in the Suit property and more particularly, under the Agreements dated 16th January 1984 and 16th November 1994 in favour of Defendant Nos. 2 to 4 to this Counter-claim. This is a subsequent development. Having assigned his right, title and interest in favour of Defendant Nos. 2 to 4, it is clear that the Original Plaintiff has relinquished his right, title and interest in the Suit property so also waives his rights under the Agreements in question. In other words, he is no longer entitled to any reliefs, more particularly on the basis that the original Defendants to the Suit, who are Plaintiff Nos.1 to 6 in the Counter-claim, have deposited a sum of Rs.4 crores in the Court. In these circumstances, all earlier orders need to be varied and set aside. 8. He has invited my attention to the prayers in the Notice of Motion No.325 of 2003, the ad-interim order dated 17th February 2003 and the order dated 18th February 2005. He submits that on the basis of the ad-interim orders and holding himself as a landlord/owner of the property, the Original Plaintiff has filed Suits in the Court of Small Causes against the tenants. He has further contended that the Suits are being proceeded after giving :5: notices to the tenants. These notices and the proceedings themselves cannot be now proceeded with on account of the Deed of Assignment dated 9th June 2005. Mr. Thorat has contended that the Original Plaintiff was permitted to collect rent not as a owner but on behalf of the Plaintiffs to the Counter-claim. The Taxes were to be apportioned between the Original Plaintiff and the Defendants. Now, the Original Plaintiff is threatening the tenants and calling upon them to make payment of exorbitant sums. He has invited my attention to the cheque payment dated 18th February 2008 whereunder a sum of Rs.1,36,000/- towards Municipal Corporation and repairs has been paid. Mr. Thorat has, then, invited my attention to a letter dated 28th August 2008 addressed by the Original Plaintiff to a tenant of the structure known as Girgaonkar Wadi. He submits that after the interim orders in the Suit, the Plaintiff to the Counter-claim made enquiries and has learnt that Tenancies have been transferred by Defendant No.1 to the Counter-claim, that is the Original Plaintiff in breach of the order dated 13th October 2006. Details of such transfer are set out in para 15 of the affidavit in support. It is contended that in the light of these developments and as the Original Plaintiff is not ready and willing to perform his obligation under the Suit Agreement, then, this is a fit case wherein all interim orders be vacated and the Court Receiver, High Court, Bombay or any other fit and proper person be appointed as a Receiver of the Suit property and :6: structures in occupation of the newly inducted persons/occupants. However, their occupancy need not be disturbed. 9. Mr. Thorat has handed in a list of dates and events and has thereafter, relied upon a decision of the Supreme Court reported in 1995 (5) SCC 115 (N.P. Thirugnanam (Dead) by LRs. V/s. Dr. R. Jagan Mohan Rao & Ors.) 10. Ms. Iyer, appears for the Original Plaintiff Lal Bherumal Laungani. The said Laungani has filed the above-mentioned Suit. She submits that the Defendants to the Suit and the Plaintiffs to the Counter-claim have not approached this Court with clean hands. She has contended that in the affidavit filed in support of the Notice of Motion so also the further affidavits, the Original Plaintiff has clearly stated that he is collecting rent from the tenants. He is paying property taxes and outgoings in respect of the Suit property. He is in possession, management and control of the Suit property. He has already taken steps in pursuance of the development agreement and in the light of the right created in his favour. He has accepted surrender of Tenancy rights, recognized transfer of tenancy rights and further, he has transferred tenancy Rent Receipts in favour of the Heirs of deceased - tenants. He has also taken steps to protect the Suit property by adopting appropriate proceedings. In :7: the light of the entitlement under the Suit Agreement and considering that the termination has been challenged, interim orders have been passed in the Suit. That apart, the said Laungani is still ready and willing to provide the area, mentioned in para 12 of the Counter-claim, in or around vicinity of the suit property, provided the Plaintiffs to the counterclaim will transfer and convey the property to the said Laungani and/or his Nominee. Contending that in terms of the Maharashtra Rent Control Act, the said Laungani is a landlord, Ms. Iyer submitted that there is no substance in the plea that the interim orders need to be varied or vacated. There is no breach of the order dated 13th October 2006. The tenancies have not been transferred in breach of the said order. All allegations to this effect, have been denied. 11. Further, she submits that the interim order passed on 18th February 2005 was challenged in Appeal which was preferred by the Original Plaintiff. The Assignees, so also the Defendants to the Suit and the Plaintiffs to the Counter-claim were parties to the same. This Appeal was placed before a Division Bench of this Court and she submits that the said Appeal was not pressed because what the Original Plaintiff sought was extension of time to deposit the amount of Rs.4 crores in Court. However, this very interim order was challenged by the Plaintiffs to the Counter-claim and they filed Appeal before a Division Bench being Appeal No. 552 of 2005. That Appeal was :8: placed before a Division Bench of this Court on 29th August 2005. That Appeal was lodged on 18th March 2005 but was not moved until the disposal of the Appeal preferred by Laungani. Therefore, the Original Plaintiff Laungani objected to the Appeal of the Plaintiff to the Counterclaim and the Defendants to the Suit. That objection was upheld and therefore, the Appeal came to be dismissed. Thus, the interim order dated 18th March 2005 has been completely complied with. Once, it is so complied with, then, the Plaintiff to the Counterclaim cannot be heard to say that the same requires any modification or variation. Merely because there is a Counterclaim that does not entitle them to move the instant Notice of Motion. Further, she submits that the execution of the Deed of Assignment dated 9th June 2005 was very much to the knowledge of the Plaintiffs to the Counter-claim. They were parties to the Notice of Motions which were disposed off by this Court. Ms. Iyer has invited my attention to an order passed by a learned Single Judge of this Court in Notice of Motion No.1412 of 2005. She submits that this Notice of Motion was moved by the Plaintiffs to the Counter-claim in 2005. That Motion later on appeared before a Single Judge of this Court on 18th October 2006 and on the said Notice of Motion, all that was pressed was the request that the property should not change hands during pendency of the main proceedings. In these circumstances, a statement of the Original Plaintiff that he will not create third party rights or :9: transfer or sell or enter into a further agreement with regard to the suit property and/or any part thereof is recorded. The Motion was disposed off in the light of the same. Having pressed only this relief, now, the Plaintiffs to the Counterclaim cannot seek any modification or variation of the interim orders in the Suit. It was open to them to urge before this Court on 13th October 2006 itself that the property has been dealt with by the said Laungani and therefore, interim orders in the Suit must be vacated. That having not been done, it is not permissible now to seek any relief in this Notice of Motion and it deserves to be dismissed. 12. While adopting her arguments, Mr. Thakkar, learned Senior Counsel appearing for the Assignees, Defendant Nos. 2 to 4 to the Counter-claim invited my attention to a Notice of Motion bearing No. 2192 of 2005 moved in this Suit. He submits that this was a Notice of Motion was moved by the very same parties, viz. the Plaintiffs to the Counterclaim and Defendants to the Suit. He submits that in this Notice of Motion, the Plaintiffs to this Counter-claim claimed Identical relief. He has invited my attention to prayer clause (a) of the Notice of Motion which reads thus :- "(a) That the Order dated 17.2.2003 of His Lordship Mr. Justice Kochar in Notice of Motion No.325 of 2003 in Suit No.41 of 2003 and :10: confirmed/continued by Order dated 18th February 2005, by Justice Mr. Karnik be set aside/vacated." 13. Mr. Thakkar submits that the fact that such a Motion was moved but no relief was granted in terms of the aforesaid prayer, is suppressed from this Court. Such suppression is fatal inasmuch as no discretionary or equitable relief can be granted in favour of such a party. Once the Court is satisfied that his conduct itself is such that equitable reliefs cannot be granted in his favour, then, the Motion be dismissed on this ground alone. Relying upon the decision of the Supreme Court, in the case of Gujarat Bottling v/s. Coca Cola Company, AIR 1995 S.C. 2372, Mr. Thakkar submits that now the Plaintiff cannot seek identical relief. Moreso, when there are no changed circumstances and the very pleas were raised in the affidavit in support of earlier Notice of Motion No. 2192 of 2005. He submits that, that Notice of Motion appeared before a Single Judge of this Court on 18th October 2006 and all that was granted by this Court was prayer clause (b) of the Notice of Motion No.2192 of 2005. Even that relief was granted on the basis of the statement of the Assignees who were impleaded as Respondents to the Notice of Motion. Therefore, the interim order passed in the Suit cannot be vacated or set aside. Therefore, the Motion be dismissed. 14. Having perused the present Notice of Motion and the :11: affidavits filed in Reply, Rejoinder and sur-Rejoinder, I am of the view that no case for setting aside the interim orders in the Suit so also for appointment of Receiver is made out. 15. There is much substance in the contention of Mr. Thakkar that the Plaintiffs to the Counter-claim have not approached this Court with clean hands. They have suppressed vital and material facts. In this regard, if the affidavit in support of the present Notice of Motion is perused, it is clear that the Plaintiffs to the Counter-claim have referred to all orders passed in the Suit. They have referred to an interim order passed on 13th October 2006 in Notice of Motion No.1412 of 2005 (See para 9). However, the entire affidavit in support is silent about Notice of Motion No. 2192 of 2005 moved by the very same parties and the order made therein. It is not that the error is inadvertent but appears to be prima facie intentional. If prayer clause (a) of the present Notice of Motion is perused, it is apparent that it is identical to prayer clause (a) to the Notice of Motion No.2192 of 2005. That the said Notice of Motion is on the file of this Suit is clear. I have called for the original file and I found that the very same relief has been claimed in Notice of Motion No. 2192 of 2005. The said Notice of Motion has been moved by the Original Defendant Nos. 1 to 6 to the Suit and the Plaintiffs to this Counter-claim and it is moved through the same :12: Advocate. That Notice of Motion was registered by this Court and numbered as above in August 2005. Not only this, prayer clause (c) of that Notice of Motion seeks appointment of a Court Receiver in respect of the Suit property that all powers under Order 40 Rule 1 of the C.P.C. including Power to collect rent from the tenants, pay Municipal taxes and statutory outgoings so as to protect and safeguard the property. Affidavit in support of Notice of Motion No. 2192 of 2005 is by one Max Cajetan Travasso. As far as the present Notice of Motion is concerned, this very gentleman has filed the affidavit in support. 16. It is, therefore, not a mere co-incidence that this Court is not informed about the earlier Notice of Motion for identical relief being moved on self-same grounds. The present Notice of Motion therefore must fail on the ground of suppression of material and relevant facts which are very much germane to the present relief. 17. In Gujarat Bottling (Supra), the Hon’ble Supreme Court observes thus :- "50. In this context, it would be relevant to mention that in the instant case GBC had approached the High Court for the injunction order, granted earlier, to be vacated. Under Order 39 of the Code of Civil Procedure, jurisdiction of the Court to :13: interfere with an order of interlocutory or temporary injunction is purely equitable and, therefore, the Court, on being approached, will, apart from other considerations, also look to the conduct of the party invoking the jurisdiction of the Court, and may refuse to interfere unless his conduct was free from blame. Since the relief is wholly equitable in nature, the party invoking the jurisdiction of the Court has to show that he himself was not at fault and that he himself was not responsible for bringing about the state of things, complained of and that he was not unfair or inequitable in his dealings with the party against whom he was seeking relief. His conduct should be fair and honest. These considerations will arise not only in respect of the person who seeks an order of injunction under Order 39 Rule 1 or Rule 2 of the Code of Civil Procedure, but also in respect of the party approaching the Court for vacating the ad-interim or temporary injunction order already granted in the pending suit or proceedings." 18. Thus, it is well settled that not only the conduct of the party seeking interim relief must be such as would entitle him to apply for discretionary and equitable relief but equally one who comes to Court and applies for vacating the interim order must be honest and truthful to the Court. A litigant cannot suppress vital and relevant :14: facts and seek discretionary and equitable reliefs in his favour. If the Court finds that there is a suppression of material facts, then, the Party/Applicant must be denied the relief on that very ground, without anything more. Applying this test to the facts before me, I am of the view that the Notice of Motion deserves to be dismissed on this ground alone. 19. Apart from this additionally, I find that the Plaintiffs to the Counter-claim have sought appointment of a Court Receiver in respect of the Suit property. That relief could have been pressed by them earlier as same grounds, including execution of the Deed of Assignment was pressed in Notice of Motion No.2192 of 2005. Yet, when that Notice of Motion was placed for hearing and final disposal before a learned Single Judge, all that the Plaintiffs to the Counter-claim pressed, was a relief restraining Defendant Nos. 2 to 4 to this Counterclaim from taking any steps pursuant to the Agreement/Deed of Assignment dated 9th June 2005 and a Power of Attorney executed in their favour. They were satisfied after this Court recorded a statement of the above Defendants’ Counsel. They were satisfied with the following order :- " The learned Counsel appearing for the Respondents states that the Respondents are not interested in taking any steps pursuant to the agreement that the original Plaintiff has entered into with them as :15: also the power of attorney that he has executed in their favour. Statement is accepted. In view of that statement, by consent of parties, motion is granted in terms of prayer clause (b). Motion disposed of." 20. In the light of this, it is clear that the Plaintiffs to the Counter-claim were denied other reliefs or rather they did not press for the same on 13th October 2006. Nothing has been pointed out by Mr. Thorat, between 13th October 2006 to the date of the filing of the present Notice of Motion, which could be termed as changed circumstances enabling variation or modification of the interim orders in the Suit. 21. Having perused the affidavit in support and the annexures to the present Notice of Motion, it is clear that the said affidavit is nothing but reiteration of the contents of the affidavit in support of Notice of Motion No.2195 of 2005. Save and except referring to a letter dated 3rd November 2008 and contending that there is no reply received to the same, nothing has been pointed out which could be termed as a subsequent development or changed circumstances. It is not as if the Plaintiffs to the Counter-claim were unaware of the transfer allegedly :16: effected by the said Laungani. That is clear from the averments and statements in the affidavit in support of the present Notice of Motion. If it is clear from the same that on 13th October 2006 itself, the Plaintiffs to the Counter-claim had voiced their apprehension and made a complaint with regard to the alleged transfer of tenancy by the said Laungani. It is not clear to me as to why the relief of appointment of Court Receiver or interim injunction seeking restraint on Transfer of Tenancies was not claimed. These are not matters which can be re-agitated. Moreso, when the Plaintiffs to the Counterclaim had every opportunity to raise the issue of alleged transfer of tenancies earlier. They had contested one Notice of Motion moved by the Plaintiffs. They had moved two Notices of Motion themselves. During the course of the same, they could have very well sought the relief of protection of the Suit property. Having not sought this and rather not pressed the prayers in that behalf, it would not be open for the Plaintiffs to the Counter-claim to seek them in the fresh Notice of Motion. For these reasons as well, the present Notice of Motion deserves to be rejected and is accordingly dismissed. 22. Reliance placed by Mr. Thorat on the decision of the Supreme Court reported in 1995 (5) SCC 115 is misplaced. That was a decision rendered by the Hon’ble Supreme Court on a Special Leave Petition, which was preferred by the Legal Representatives of the Deceased :17: Plaintiff. The Single Judge of the High Court upon perusal of the entire evidence on record found that the Plaintiff was not ready and willing to perform his part of the contract. Hence, the Suit came to be dismissed. The Appeal preferred was also dismissed by the Division Bench. It is this order of dismissal of the Suit and Appeal which was challenged before the Hon’ble Supreme Court and in that context and referring to the evidence on record, that the observations relied upon have been made. That apart, the observations are reiteration of the settled principles. They are equitable as is clear from Section 20 of the Specific Relief Act, 1963 itself. If relief of specific performance is equitable and discretionary and that is clear but the principle cannot be applied at this stage. Therefore, the decision is distinguishable on facts. 23. Having found no substance in either of the contentions, there is no alternative but to dismiss this Notice of Motion. It is, accordingly, dismissed. At this stage, Mr. Thakkar, learned Senior