* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.592 OF 2008 WITH CIVIL APPLICATION NO.687 OF 2008 IN APPEAL FROM ORDER NO. 592 OF 2008 Sudhir Sunil Bodke & Ors. .... Appellants Vs. Bhanuprasad Chaturbhai Patel .... Respondents & Ors. Mr. C.G. Gavnekar, Advocate for Applicants. Mr. N.V. Walawalkar, Senior Counsel with Mr. Sanjay Gawade for respondent no. 1. Mr. R.D. Soni i/by M/s Ram & Company for respondent no.2. Coram : SMT. R.P. SONDURBALDOTA,J Date : 19th September, 2008 P.C. 1. This Appeal arises out of the order dated 24th April, 2008 passed by the Court of Civil Judge, Senior Division, Nasik granting the application at Exhibit 5 filed by the respondents No. 1 and 2 for interim reliefs. 2. Respondents no. 1 and 2 filed the suit, inter alia, for specific performance of Memorandum of Understanding dated 16th January, 2002 and declaration that the development agreement dated 20th October, 2007 executed in favour of the appellants no. 6 to 9 in respect of the same property is illegal and not binding on * 2 * them. By the impugned order, the trial Court has accepted the contention of respondents no. 1 and 2 and granted interim relief to restrain the appellants from creating any third party rights over the suit property. The parties to the proceedings will hereinafter be referred to by their original nomenclature. 3. One Jagdish Thatte and Manish Thatte the original owners executed Development Agreement dated 20th March, 1992 in respect of the properties described at paragraph-1 of the plaint in favour of plaintiff no.1 (respondent no.1) and defendants no.6 to 16 (respondents no.3 to 13). On the same day, they executed a General Power of Attorney in favour of defendants no.8, 10, 13 and 16 for implementation of the Development Agreement. The agreement granted rights of development as well as sale and possession of land to the developers. Thus with the agreement, the original owners moved out of the picture. 4. By the agreement dated 21st October, 1992, the defendants no.6 to 9 assigned their rights in the above Development Agreement in favour of plaintiff no.1 and defendants no.10 to 16. With this agreement, defendants no.6 to 9 also went out of picture leaving plaintiff no.1 and defendants no.10 to 16 as developers. 5. Out the said land, the developers assigned development rights in respect of the portion of the land admeasuring 5373.60 sq.mts in favour of * 3 * M/s. Nirman Builders by executing development agreement dated 21st October, 1992. 6. By another development agreement dated 27th June, 1992 executed in favour of defendants no.17 to 20 (appellants no.6 to 9) the developer assigned developments right in respect of the land admeasuirng 3977.52 sq.mts. Defendants no.17 to 20 then by their internal arrangement fixed their respective shares in the development rights. Under that arrangement, share of defendant no.19 (appellant no.8) was of 50%. 7. Plaintiff no.1 and defendant no.19 are builders by profession. They had been jointly carrying on the business. As regards their joint transactions, they entered into a Memorandum of Association dated 16th January, 2002 in respect of several properties including the above property in which defendant no.19 had 50% share. The agreement was witnessed by three other reputed builders. Pursuant to the same, plaintiff no.1 was to pay Rs.18 lacs to defendant no.19 and in consideration one of the property to be received by him was 50% share of defendant no.19 in the above mentioned properties. On 31st March, 2005 plaintiff no.1 paid Rs.10 lacs to defendant no.19 by transferring the same to his Bank Account in Jankalayan Bank, Nasik leaving balance of Rs.8 lacs. Plaintiff no.1 then executed further Development Agreement dated 11th July, 2007 in favour of plaintiff no.2 in respect of the property. Later both * 4 * filed the instant suit for specific performance of the Memorandum of Understanding between plaintiff no.1 and defendant no.19. 8. The plaintiffs allege that in order to avoid the Memorandum of Understanding defendant no.19 prepared false documents and got the same registered. On 19th October, 2007 he executed a Deed of Declaration stating that the Development Agreement dated 27th June, 1997 which was between plaintiff no.1 and defendants no.10 to 16 on the one hand and defendants no.17 to 20 on the other, was lost from his custody. Despite earnest efforts, the original document could not be found, and hence he had made a complaint to the police on 15th October, 2007 about the loss of the document which complaint was registered under Missing Register No.1595 of 2007. The declaration states that defendants no.10 to 16 and plaintiff no.1 had already received consideration under the Development Agreement and have acknowledged the same. It further specifically mentions that plaintiff no.1 is out of country in connection with his business and he had received the consideration in the year 1997. 9. The plaintiffs allege that the said deed of declaration is an out and out a false declaration because the original of the development agreement dated 27th June, 1997 was not in the custody of defendant no.19. After execution of the memorandum of understanding dated 16th January, 2002, the same was * 5 * handed over by defendant no.19 to plaintiff no.1. The plaintiffs have produced the same before the court. Defendant no.19 also prepared deed of confirmation which was executed on 24th September, 2007 by defendants no.10 to 16 in favour of defendants no.17 to 20. This document purportedly confirms the development agreement dated 27th June, 1997 allegedly lost from the custody of defendant no.19. It records the payment received by plaintiff no.1 and defendants no.10 to 16 under the development agreement. As per the deed of confirmation, plaintiff no.1 is supposed to have received amounts of Rs.33,750/-, Rs.1,12,500/-, Rs.45,000/-, Rs.33,750/- and Rs.2,00,000/- from defendants no.16 to 20. This document has not been signed by plaintiff no.1. The plaintiffs dispute the above payment. On the basis of the above mentioned deed of declaration and the deed of confirmation, defendant no.19 got the xerox copy of the ` missing' development agreement stamped and registered by paying stamp duty of Rs.3,42,820/-. 10. Thereafter, defendant no.19 executed four documents on 20th October, 2007. The first document is Supplementary Development Agreement which was registered vide no. 7623 of 2007. This agreement is said to have been executed between defendants no.17 to 20 on the one hand and on the other hand the original owners, defendants no.6 to 16 and plaintiff no.1. The document records several payments made to plaintiff no.1 and defendants no.6 * 6 * to 16. It bears the signatures of all the persons except the original owners and plaintiff no.1. 11. The next document is the General Power of Attorney registered vide no. 7624. This is also supposed to have been executed by the original owners , defendants no.6 to 16 and plaintiff no.1 in favour of defendants no.17 to 20. The document does not bear signatures of the original owners and plaintiff no.1. 12. Next, defendant no.19 got executed sale deed dated 20th October, 2007 in respect of part of the suit properties in favour of defendant no.1 and registered it vide number 7627 of 2007. The sale deed is said to have been executed by the original owners, defendants no.6 to 16 and plaintiff no.1. Perusal of the document shows that the same is not signed by any of these persons. Defendant no.17 has signed it as constituted attorney of these persons on the strength of the above defective power of attorney rendering, the document of sale also defective. It is not signed by the original owners and plaintiff no.1. Another sale deed in favour of defendants no.2 to 5 in respect of the balance portion of the suit property has been executed in identical manner. 13. The entire defence on merit of defendants no.1 to 5 and 17 to 20 is based on the above defective documents. They have not been able to justify any of the said documents. On a prima-facie view such documents do not * 7 * confer any right on these defendants. The other defendants are non-contesting defendants. 14. The contesting defendants who are the appellants before this court have however taken up some technical objections to the suit. They contend that there is considerable delay in filing the suit for specific performance. They further contend that the original owners are necessary parties to the suit. 15. As regards, the contention of defendants no.1 to 5 and 17 to 20 that there is a delay in filing the suit for specific performance is concerned, the plaint avers that the plaintiffs learnt about the disputed documents for the first time in October 2007 when relatives of plaintiff no.1 informed him about the public notice dated 16th September, 2006 issued by defendant no.19. At the relevant time, plaintiff no.1 was residing in America which fact has always been in the knowledge of defendant no.19. The instant suit has been filed on 5th March, 2008 and therefore on a prima-facie view, the same is within time. As regards the original owners being necessary parties, it is already seen that they actually moved out of picture on execution of the first development agreement dated 20th March, 1992. Besides, the suit is essentially for specific performance of the memorandum of understanding between plaintiff no.1 and defendant no.19. Thirdly, original owners are not signatories to the disputed documents. * 8 * 16. It is lastly contended that the impugned order exhibits non-application of mind, as the same does not give sufficient reasons. There is no doubt that the impugned order is not happily worded. However, it does consider the fact that the document of Declaration and the other documents by which defendants no.1 to 5 and defendants no.17 to 20 claim exclusive rights to the properties, are prima-facie not believable. He has further observed that the object of temporary injunction is to preserve the status of the suit property so that at the time of final decision when the rights of the parties are established, appropriate orders can be passed. It is patent from the record, that the documents relied upon by defendants no.1 to 5 and 17 to 20 are doubtful in nature, whereas, there is no dispute as regards execution of the documents relied upon by the plaintiffs. Therefore, they are entitled to the interim reliefs of preservation of status-quo as on the date of the filing of the suit. This justifies the order passed by the learned trial judge. Hence, there is no need to interfere with the impugned order. Hence, the order. O R D E R 1. The Appeal from Order is dismissed, in limine. 2. With the dismissal the Appeal from Order, the Civil Application does not survive. The same is accordingly disposed off. * 9 * [SMT.R.P.SONDURBALDOTA,J]