1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOTION NO.792 OF 2008 IN SUIT NO.550 OF 2008 Nicholas Alphonso ..Plaintiff. Vs. Nitin K. Gandhi and Others ..Defendants. .... Mr. Bhavesh Parmar for the Plaintiff. Mr. Y. Divekar i/b M/s. Divekar & Co. for Defendant Nos.1 and 2. .... CORAM : DR.D.Y.CHANDRACHUD, J. 13th March, 2008. P.C. : 1. The Notice of Motion has been taken up for hearing and final disposal at this stage since both the learned counsel are agreed to a final disposal. 2. The Plaintiff had entered into a development agreement with the First and Second Defendants on 4th April, 1992 and a power of attorney was executed on 6th April, 1992. On 27th March, 1996 a deed of assignment was entered into by the Plaintiff by 2 which the Plaintiff assigned his 1/3rd share in the property to the First and Second Defendants for consideration. The deed of assignment was registered. On 20th August, 2001 a public notice was issued by the Plaintiff terminating the power of attorney dated 6th April, 1992. The suit has been instituted for the recovery of the amount of Rs.3.41 Crores with interest. Declaratory reliefs have inter alia been sought to the effect that the First and Second Defendants are not entitled to utilize the power of attorney dated 6th April, 1992 which has been terminated. 3. The relief that has been sought in the Notice of Motion is for a direction to the Defendants to maintain the status quo on the property; an order of injunction restraining the First and Second Defendants from using the power of attorney; a similar injunction against the Third Defendant which is a co-operative society restraining it from allowing the First and Second Defendants from using the power of attorney and an injunction restraining the Defendants from carrying on construction on the basis of the development agreement, the power of attorney, the deed of 3 assignment and a deed of rectification entered into subsequently. 4. At this stage, prayer clause (a) which seeks an order of status quo and prayer clauses (d-iii) and (d-iv) under which an injunction has been sought restraining the Defendants from acting on the deed of assignment and the deed of rectification have not been pressed. 5. From the material which has been produced before the Court, prima facie at this stage it has emerged that the Plaintiff had executed a deed of assignment on 27th March, 1996. Recital 6 to the deed of assignment contains a statement that there were three co-sharers and recital 8 states that the Plaintiff as the assignor had a 1/3rd undivided share. Recital 10 provides that the 1/3rd undivided share of the Plaintiff is being assigned. The deed of assignment was entered into for consideration by the Plaintiff and has been registered. Prima facie, therefore, the Plaintiff has transferred his right, title and interest in respect of the property to the First and Second Defendants. The contention of the Plaintiff is that he in 4 fact held a one half share in the property together with his brother and that his sister Claudine had no right, title or interest whatsoever. This contention cannot be accepted prima facie in the face of the deed of assignment in which the Plaintiff has acknowledged a 1/3rd share in the property and has agreed to assign that share to the First and Second Defendants. The Plaintiff having assigned his share cannot now be heard to seek an injunction on the construction. In fact as already noted above, the Plaintiff has not pressed prayer clause (a) of the Notice of Motion seeking status quo in respect of the construction or prayer clauses (d-iii) and (d-iv). The Court has been informed by counsel appearing for the Defendants that the construction of one building has already been completed and possession has been handed over to the flat purchasers while the eighth slab has been cast of the second building. 6. However, it would be necessary to record the statement of counsel appearing for the First and Second Defendants that the First and Second Defendants have no intention to and are not 5 acting on the basis of the power of attorney dated 6th April, 1992 or the development agreement since the First and Second Defendants claim to have acquired full rights in respect of the property in pursuance of the assignment which has been entered into by the Plaintiff and the other co-sharers. The statement is accepted. In view thereof no further reliefs can be granted in the Motion. The Motion is disposed of. ******