1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.57 OF 2008 WITH CIVIL APPLICATION NO.60 OF 2008 Kuldeep Umraosingh Ostwal and anr. ..Appellants. Vs, Chandrakant N. Patel and ors. ..Respondents. Mr.Aspi Chinoy with V.R.Dhond, T.N.Tripathi and Sapna Rachure i/by T.N.Tripathi & Co. for the Appellants. Mr. V.B. Naik i/by S.D.Patil for the Respondent No.9. Mr. Atul Rajadhakshaya, Sr. Advocate i/by Sunil Jadhav for the Respondent Nos. 1 to 7. Mr.Mandar Limaye with Mahendra Agavekar for the Respondent No.10. CORAM : R.S. MOHITE, J. DATE : 5th October, 2009 PC : 1 This is an appeal filed by the original plaintiffs who have filed a suit for declaration of their title and for injunction being Regular Civil Suit No.69 of 2007 in the court of Civil Judge, S.D., Thane. 2 In their suit, the plaintiffs have taken out an application for grant of interim relief at Exhibit-5. The interim reliefs sought by the plaintiffs are temporary injunction restraining the defendant Nos. 1 to 9, their agents, servants, employees, contractors and anybody claiming through them from claiming any right, title or interest in the suit property representing themselves jointly, severally as owners creating any sort of objection or obstruction prejudicial to the rights, title and interest of the plaintiffs, creating any third party interest and developing the property. An injunction is also sought against the authorities who are made parties to the suit from granting N.A. use in respect of the property. 2 On perusal of the record, it is an admitted position that the defendant Nos. 1 to 5 along with defendant Nos. 7/1 to 7/4 were the original owners of the property. The defendant No.1 acting under power of attorney of the other co owners executed a gift deed in 3 favour of a trust by name Pancham Mahadeo Varmaji Foundation Trust of which the defendant Nos. 1 and 2 are said to be the trustees. The trust mortgaged the said suit property to Pen Co. Operative Bank and obtained a loan of Rs.2.30 Crores. The defendant No.1 is said to be the guarantor in respect of the said transaction. Ultimately, since the amount was not repaid, after resort to provisions of Securitisation Act, the bank sold the property by tender and the plaintiffs were the purchasers of this property for an amount of Rs.3.35 Crores. They were put in possession of the property under a possession receipt dated 11.6.2005 and ultimately the bank entered into an registered conveyance with the plaintiffs on 13.6.2006. 3 On the basis of the aforesaid facts, the plaintiffs filed the aforesaid suit and took out an application for grant of interim injunction as aforesaid. 4 4 In due course, a reply came to be filed on behalf of the defendant No.9 and it was the case of the defendant No.9 that they derived title to the land from two sources, firstly, it is their contention that the original owners assigned their rights by a deed dated 24.10.2005 in favour of the defendant No.8 and defendant No.8 further assigned their rights in their favour by a further deed of assignment dated Nov.2006. The defendant No.9, however, contended that they had yet another independent source of their right to develop the property because the plaintiffs had by an agreement of sale dated 9.10.2006 agreed to sell the property to them for an amount of Rs.3.75 Crores, out of which an amount of Rs.25.00 lacs had been paid by defendant No.9 to the plaintiffs by two cheques of Rs. 12.50 lacs each signed by the defendant No.9 and which cheques have been duly encashed. It was further case of the defendant No.9 that on 9.10.2006 two other documents were executed, one being a General Power of 5 attorney and the other being letter of possession. It was their case that both these documents were signed by the plaintiffs. It was contended by the defendant No.9 that the plaintiff have not approached with clean hands and therefore, they were not entitled for equitable relief as claimed. 5 On the disclosure of such facts pertaining to the three documents dated 9.10.2006, the plaintiffs filed a rejoinder contending that these documents were forged and bogus. In their affidavit they contended that the payment of Rs.25/-lacs by two cheques of Rs. 12.50 lacs each pertained to a different transaction relating to property other than properties which were the subject matter of the present suit and in respect of which two suits bearing Special Civil Suit No.361 of 2006 and R. C. S. No.303 of 2007 were pending in the civil court at Thane. 6 In the course of this appeal, I had permitted 6 the appellants to file an additional affidavit in order to substantiate their contention that the payment of Rs.25/- lacs was received in respect of a different transaction which formed the subject matter of a different suit. Accordingly, an additional affidavit of plaintiff No.2 dated 5.10.2009 is filed in this court along with an additional compilation of documents. 7 After hearing all the parties, in my view, there is no substance in this appeal and the same deserves to be dismissed subject to the acceptance of a concession which was made by the counsel appearing for the respondent No.9 to the effect that he was ready and willing to deposit the entire consideration amount of Rs.3.75 Crores (including the disputed amount of Rs. 25.00 lacs) in the trial court within a period of four weeks from today. The reason why I am not inclined to entertain the plaintiffs appeal is that on the bare glance of three documents dated 9.10.2006. I find that several signatures on these documents tally with the 7 signatures of the same signatories on admitted documents. In so far as the agreement dated 9.10.2006 is concerned, prima facie, I find that the signatures of the plaintiffs on the said documents, even to the naked eye tallies with their signatures on the conveyance deed by Pen Co. Operative Bank Ltd. executed on 11.6.2006. On this document, there is a signature of a witness by name Sanjay Punmiya. On behalf of the plaintiffs, a document which is admitted by them, being consent terms in R. C. S.No.303 of 2007 has been produced on record along with compilation of documents. Prima facie, I find that the signature of Sanjay Punmiya who has admittedly signed consent terms tallies with his alleged signature as a witness on the agreement of sale dated 9.10.2006. Similar is the case of the signature of the plaintiffs power of attorney and the possession receipt. I find that the power of attorney and the possession receipt also contains photographs of the plaintiffs. I find that it is no where denied that these photographs are not of 8 the plaintiffs and in fact Advocate on record at the stage of hearing admitted that these were the photographs of the plaintiffs. It is seen that these documents are notarized and there is seal of the notary which over laps the photographs. The plaintiffs have not contended that the signature of the witnesses on the agreement dated 9.10.2006 are forged. It is seen that the consent terms were filed in R. C. S. No.303 of 2007 and these consent terms were entered into between the plaintiffs and Mr. Sanjay Punmiya who was acting on behalf of the defendants in that suit i. e. M/s. Tirupati Balaji Enterprises. If consent terms are filed in the year 2006, it would not have been difficult for the plaintiffs to get an affidavit from this witness stating that his signature on the agreement was forged. 8 Counsel appearing for the plaintiffs then contended that an amount of Rs.25.00 lacs was paid in respect of a separate transaction. According to them, these two cheques were paid for purchase of land from 9 Tirupati Balaji Enterprises and this transaction was the subject matter of R. C. S. No.303 of 2007. On perusal of the plaint in the said suit, I find that the said cheques are not the part and parcel of the payments of the earnest money which were paid by a specified cheque. It was therefore, contended that these amounts were paid as subsequently due payment under the suit agreement of that suit being an agreement dated 27.6.2006. Prima facie, I am unable to accept this argument because these cheques are not signed by or on behalf of the Tirupati Balaji Enterprises. It was contended that these cheques were issued by the respondent No.9 Mr. Shyam Sunder Agarwal who had a close association with Tirupati Balaji Enterprises. Counsel for the plaintiffs admits that these cheques were received without any covering letter. To me, it appears more probable that these cheques were issued in respect of the suit property because they are signed by defendant No.9 himself. It may be stated that the defendant No.9 was not a party 10 to R. C. S. No.303 of 2007 and one would expect that a person who was making the payment on behalf of the third party would normally record the said fact by a covering letter while effecting payment of such large amounts. 9 Counsel for the plaintiffs then contended that the defendant No.9 had also not come with clean hands and had, in their reply stated that apart from the payment of Rs.25.00 lacs, he had made certain payments by cash. He stated that, in rejoinder filed on behalf of the plaintiffs the factum of making cash payments was denied. A perusal of the agreement of sale dated 9.10.2006 as well as notarized documents, I find there is some indication that stamp was paid in cash. This fact is seen from the document itself. 10 In the net result, prima facie, though I am not inclined to give much weightage to the claim of the defendant No.9 in respect of deed of assignment dated 11 24.4.2005 in favour of defendant No.8 and further assignment deed dated Nov.2006 in his favour, I find that there is much material to support their contention that the plaintiffs themselves had executed three documents on 9.10.2006 which formed the basis of their right to deal with and develop the suit property. Once it is held that, these documents prima facie appear to be genuine, then it must necessarily follow that the plaintiffs have failed to establish a prima facie case. Reliefs claimed by the plaintiffs therefore, have been rightly refused. I may however, add that at the stage of arguments, counsel for defendant No.9 states that, his clients are willing to deposit the entire consideration of Rs.3.75- Crores as contemplated by the agreement dated 4.10.2006 within a period of four weeks from today. Acceptance of this statement would also tilt the balance of convenience in favour of the defendant No.9 since rights of the plaintiffs would stand secured. It must be noted that just four months prior to the execution of the alleged 12 agreement of sale dated 9.2.2006, the plaintiffs had purchased the land for an amount of Rs.40.00 lacs less. Deposit of amount of Rs.3.75 Crores in the trial court which is 40.00 lacs more than the purchase price paid by the plaintiffs, in my view, would balance equities further. 11 In this view of the matter, appeal is dismissed. Statement made by the counsel appearing for the defendant No.9 is accepted and the defendant No.9 is directed to deposit an amount of Rs.3.75 Crores in the trial court within a period of four weeks from today. If there is any default in payment of aforesaid amount, then the plaintiffs will be at liberty to move this court for further reliefs. If however, amount is paid, the trial court will invest the same in fixed deposit in nationalized bank initially for a period of one year and the said amount will be renewed from time to time till the final decision of the suit. Deposit of the said amount will be subject to the result of the 13 said suit. 12 At this stage, the Advocate for the plaintiffs states that they would like to approach the Apex Court and requests for continuation of Status quo order granted earlier. It is therefore, directed that Status quo order granted earlier to continue for a period of six weeks from today. The order of Status quo will however, not prevent the trial court from accepting the amount payable by the defendant No.9. The Trial Court to act on a copy of this order duly authenticated by the registry of this court. (R.S. MOHITE, J.) CIVIL APPLICATION NO.60 OF 2008 1 As the main appeal has been dismissed on 14 merits, civil application for stay does not survive. Accordingly, the same is also dismissed. ( R.S.MOHITE, J. )