1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.881 of 2007 In Suit No.627 of 2006 Shri Shashikant D. Chandarana & anr. .. Plaintiffs v/s. Shri Abhay S. Chandarana .. .. Defendant Mr.Chirag Shah with Mr.S.R. Rawal for Plaintiffs. Defendant in person, present. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 15 th October, 2008 P.C. : 1. The Suit is filed essentially for a declaration that certain cheques issued by the Plaintiffs upon the Defendant are validly cancelled, for impounding the cheques, for a declaration that the Defendant has no right over those cheques and by injunction against the Defendant from depositing the cheques. The Plaintiffs have also claimed payment of Rs.40 Lakhs from the Defendant with interest @ 21% per annum. In this Notice of Motion, the Plaintiffs claim impounding of the cheques and injunction restraining the Defendant from depositing them and presenting them for payment. 2. Plaintiffs 1 and 2 are father and son. The Defendant is the 2 younger son of Plaintiff No.1. The parties have made various transactions with regard to their family relationship. Admittedly, there has been a Memorandum of Understanding [MOU] executed between the parties on 4.3.2002, which has not been disclosed in the Plaint. But it has been fairly admitted as having been executed after it has been disclosed in the Affidavit- in-reply of the Defendant. 3. It appears that the Plaintiffs aided the Defendant in the purchase of a flat for the Defendant. A loan came to be obtained from the bank. The Plaintiffs had to pay off the loan by way of the Agreement between the parties. The loan was to be paid off by monthly installment of Rs.11,825/- , for which several post- dated cheques have been issued. At the inception the name of the payee was not mentioned. The cheques were given to the Defendant. They were meant for being paid as installments for the purchase of the flat. The Plaintiffs contend misuse of the cheques. Thereafter certain cheques in the name of the bank have been issued. The Defendant is stated to have paid over whatever was amount payable after certain cheques were uitlized by the bank to clear off the loan. The Defendant has sold the flat. Since the flat has been sold, the Plaintiffs claim that the cheques shown in Exhibit- C to the Plaint with the name of the payee left blank could not be presented by the Defendant for 3 payment. It is the contention on behalf of the Plaintiffs that that is because the purpose of the transaction was not served since the cheques were paid only to obtain the flat in the name of the Defendant. 4. The Plaintiffs have shown payments of Rs.20,61,230/- also to the Defendant under Exhibit- D to the Plaint. Bank Account Statements of the Plaintiffs are relied upon to show the amount paid. How and why the payment of Rs.20 Lakhs further came to be made to the Defendant has not been shown. 5. The Defendant contends that there were some family settlements. In view of the relationship between the parties and in view of the fact that the Defendant has been paid the aforesaid sums shown in Exhibit- D to the Plaint, it becomes apparent that there was some family settlement. 6. The Plaintiffs also contend that a further sum of Rs.2,13,000 /- came to be paid to the Defendant. This amount of Rs.2,13,000 /- is paid pursuant to certain Consent Terms filed in the Criminal Court between the parties. The criminal complaint came to be instituted for Rs.9 Lakhs. The Plaintiffs were directed to pay some amount to the Defendant pending the complaint. The Plaintiffs paid 4 Rs.1 Lakh to the Defendant. The Plaintiffs have also paid ten installments of Rs.11,250 /- constituting the total amount of Rs.1,12,500 /- in the Criminal Court. The Plaintiffs have to pay further amount of installments till January 2009. 7. This complaint has been filed on account of certain cheques contained in Exhibit- C, which have been presented prior to the filing of this Suit. 8. It can be seen that upon presentation of those cheques they have been dishonoured. Upon dishonour of those cheques, criminal complaint has been filed. Upon filing of the criminal complaint, the matter has been sought to be settled and part payment has been made and further installments of payment have been made. The entire criminal proceeding is consequent upon the same cheques contained in Exhibit- C to this complaint. 9. Several of the post- dated cheques given by the Plaintiffs to the Defendant having been so presented were dishonoured. The Plaintiffs have filed this Suit to terminate their liability under the remaining post- dated cheques. 10. The contention of the Plaintiffs essentially is that purpose of giving the cheques has been frustrated as the Defendant has 5 sold out that flat by payment of the remainder of the loan to the bank. In fact after the cheques, Exhibit- C, were issued, the Plaintiffs claim to have issued the cheques in the name of the bank themselves. Hence several of those cheques have not been honoured as the loan came to be paid off earlier and the flat came to be sold. 11. The Court must consider not only the frame- work of the cheques being issued but also the substance of why they came to be issued in the first place. The parties are family members. It is the Plaintiffs' contention that the Defendant is a black- sheep of the family. Whatever that be, the Defendant would be entitled to his rights in the family properties. Such rights have been countenanced. Consequent upon acknowledgment of such rights, the Defendant was sought to be given a flat. It would in substance constitute a partition. It would be to give the Defendant his share in the family property so that he would separate from the family. Hence, the Defendant would be entitled to the amount agreed upon between the parties consequent upon which it was decided that the Defendant would have a separate flat. What the Defendant does with the property that comes to his share is not required to be censored or supervised to decide whether the Defendant's right and entitlement would come to be terminated upon the 6 Defendant's act in respect of the property that came to be purchased for him to separate him from the joint family. 12. In fact, the Plaint itself shows that payment of further sum of Rs.20,61,230 /- is made to the Defendant from time to time. The basic right of the Defendant as a member of the joint family is reflected in such payments themselves. The Defendant has not to be punished for selling out the property by making payment to the bank prematurely. Of course, the Defendant would not be entitled thereafter to any part of the joint family property. 13. The MOU executed in 2002 determines the Defendant's share on partition at Rs.12,50,000/- , out of which Rs.2,50,000 /- were to be paid immediately by Plaintiff No.2 to the Defendant. The Defendant cannot and has not sued for partition of his share thereafter. 14. In view of the various Agreements between the parties, oral and in writing reflected in the payments made themselves as also in the MOU executed between the parties, it can be seen that the Defendant has been sought to be paid of his share from his family properties. 15. The Defendant has contended that there is an ancestral 7 house belonging to his grand- father and he has a share therein. The Plaintiffs admit the said property. The grand- father had four sons. Plaintiff No.1 was one of them. The grand- father is stated to have 10 children. Plaintiff No.2 and the Defendant are two of them. In the normal circumstances, the Plaintiffs' father would have been entitled to 1/4 th share in his father's property unless it was otherwise bequeathed. The grand- father is stated to have executed a registered Deed of Gift, gifting the property to 3 sons who are 3 brothers of Plaintiff No.1 and to Plaintiff No.2. Hence, Plaintiff No.2 is seen to have been gifted the share which otherwise would have come to Plaintiff No.1. In the normal circumstances, this share would have been the ancestral property as regards Plaintiff No.1. It would devolve by survivorship to his 2 sons, Plaintiff No.2 and the Defendant. There has been an acceleration of interest in favour of Defendant No.2 by the grand- father himself who is stated to have self acquired the said property. 16. Mr.Shah on behalf of the Plaintiffs informs the Court that Plaintiff No.2 has given of his share to his 3 uncles in consideration of certain help when Plaintiff No.2 was in financial difficulties. Hence it is seen that Plaintiff No.2 also has dealt with and disposed of the share which came to him. 8 17. It cannot be accepted that the Defendant cannot deal with the property which would come to his share upon the family settlement, if Plaintiff No.2 can deal with his property. 18. The Plaintiffs have issued the cheques for a property which would be given to the Defendant to obtain a flat. That would constitute the Agreement between the parties for separating the Defendant from the joint family property. The cheques are in consideration of that Agreement. If the Defendant is not allowed to present the cheques, it would constitute an allowance by the Court to the Plaintiffs to resile from the Agreement to give the Defendant a separate flat so as to separate him from the family properties. 19. The Suit is filed after some of the cheques so issued were presented and dishonoured and the criminal complaint came to be filed under Section 138 of the Negotiable Instruments Act in that behalf. The Suit is, therefore, essentially to prevent the Defendant from prosecuting a further judicial proceeding by institution of criminal complaints under Section 138 of the Negotiable Instruments Act in respect of other cheques. The Application for injunction, therefore, essentially falls within the mischief of Section 41(a) of the Specific Relief Act, 1963. No party can be injuncted from prosecuting a criminal prosecution or a Civil Suit by way of 9 injunction issued by the Court unless it is necessary to prevent multiplicity of proceedings. The fact that several criminal prosecutions would have to be filed under each of these cheques would not tantamount to the “multiplicity of proceedings” contemplated under Section 41(a) of the 1963 Act. The proceedings contemplated under the said sub- section can only be contemporaneous proceedings if the related proceeding is either disposed of by an order of the Court or by agreement between the parties. 20. In this case if the dispute with regard to the family property is otherwise settled between the parties, the Defendant may agree not to present these cheques or the Court may injunct the Defendant from presenting the cheques since the consideration thereunder would otherwise be effectuated. If that is not done and in view of the relationship between the parties if the cheques were given specifically for separating the Defendant from the family properties, it would be improper for the Court to issue an injunction and thereby prevent the prosecution by the Defendant under the cheques. 21. Of course, the Plaintiffs would have their defence in the criminal prosecution under Section 138 of the Negotiable Instruments Act. It would be open to the Plaintiffs to show 10 criminal Court how the Defendant is not entitled to the amount under the cheques. An issue of injunction would pre- judge such complaint. Hence such injunction cannot be granted. 22. There shall be no order on the Notice of Motion. No order as to costs. The ad- interim order shall continue till 14 th November 2008. 23. All the cheques produced by the Defendant are returned to him. [SMT.ROSHAN DALVI, J.]