1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.261 OF 2006 IN NOTICE OF MOTION NO.3272 OF 2003 IN SUIT NO.54 OF 1997 ... Fattaram Parihar ...Appellant v/s. Babubhai Jaishnakar Trivedi and anr. ...Respondents WITH APPEAL NO.262 OF 2006 IN NOTICE OF MOTION NO.3273 OF 2003 IN SUIT NO.54 OF 1997 ... sohanlal Meghwali ...Appellant v/s. Babubhai Jaishnakar Trivedi and anr. ...Respondents WITH APPEAL NO.263 OF 2006 IN 2 NOTICE OF MOTION NO.2050 OF 2003 IN SUIT NO.54 OF 1997 ... Ajay Bardhan & anr. ...Appellants v/s. Babubhai Jaishnakar Trivedi and anr. ...Respondents WITH APPEAL NO.264 OF 2006 IN NOTICE OF MOTION NO.2089 OF 2003 IN SUIT NO.54 OF 1997 ... Shri Rajkumar Chawla ...Appellant v/s. Babubhai Jaishnakar Trivedi and anr. ...Respondents ... Mr.Rajiv Kumar a/w Ms. Rubia Taneja & Ms.Shama Taneja for Appellants. Ms.V.J.Tamhane i/b R.D.Suvarna for Respondent No.1. ... CORAM: D.K.DESHMUKH & V.R.KINGAONKAR,JJ DATED: 1st April, 2010 3 P.C.: 1. All these Appeals are directed against the common order. Hence, all these Appeals are conveniently disposed off by a common order. 2. The facts relevant for deciding these Appeals are, Suit No.54 of 1997 filed by the Plaintiffs praying for declaration that the agreement dated 25-11-1987 and the power of Attorney dated 9-05-1989 have been validly terminated and cancelled and that the Defendants have no right whatsoever to enter into Flat No.3 and/or building No.3 situated at Radha Krishna Nagar Co.op. Hsg.Society Ltd., Andheri (East), Bombay and other consequential reliefs. In that suit, a Notice of Motion was taken out praying for certain interim reliefs. An ad-interim order was 4 passed in that Notice of Motion on 9-11-1997. The suit was essentially between the owners of the land the developers to whom the development rights were given in relation to the rights of the Plaintiffs. By ad-interim order, the Defendants were restrained from transferring the flats. It appears that a Contempt Petition was taken out being Contempt Petition No.149 of 1998 claiming that Flat Nos.104, 401, 402, 501, 502 in Building No.3 have been sold in violation of ad-interim order dated 9-1-1997. That Contempt Petition was decided by order dated 21-1-2000 by the learned single Judge of this Court, where the learned single Judge held thus: I am satisfied with the defence of the respondent No.1 (original defendant) that the said flat nos. 104,401,402,501 and 502 were booked and sold prior to the order dated 9-1-1997 was passed and particulars 5 thereof were furnished to the plaintiff within one week as directed in the orer dated 9-1-1997. I am satisfied that the respondents cannot be held guilty of civil contempt for disobedience of the order dated 9-1-1997. The Contempt petition is therefore dismissed. No costs. 3. Admittedly, ad-interim order in relation to which Contempt was alleged was passed in Notice of Motion which was taken out in Suit No.54 of 1997 being Notice of Motion No.161 of 1997. That Notice of Motion was decided by order dated 18th October, 2002 by consent of parties, by one of us (D.K.Deshmukh, J.). In so far as flats which are subject matter of these Appeals are concerned, the Court Receiver was appointed on those flats. The Court Receiver was asked to call upon the occupants of the flats to submit the documents on the basis of which they are in possession of the flats and 6 thereafter the Court Receiver was to submit a report to the Court and secure from the court appropriate orders in relation to occupation of those flats. That was to be done within a period of eight weeks from the date of the order. It is an admitted position that nothing was done by the Receiver within the period allowed by the order dated 18th October, 2002 and that even today the Report which the Receiver was directed to make by order dated 18th October, 2002 has not been made. In the mean time the Appellants took out Notices of Motion for discharging the Receiver. Those Notices of Motion have been disposed off by the learned single Judge of this Court by order dated 17-1-2006. The learned single Judge by that order has directed that in order to continue in possession of the flats, the Appellants have to enter into agency agreement with the 7 Receiver and they also have to pay royalty. The Appellants are aggrieved by this order and have approached this Court. . The submission of the learned Counsel appearing for the Appellants is that in a Notice of Motion taken out by the Appellants there was only prayer made that the Receiver appointed by this Court in relation to their flats should be discharged. The learned single Judge could have either discharged the Receiver or declined to do so. The learned single Judge in the Notice of Motion taken out by the Appellants could not have made an order which is adverse to their interest. In the submission of the learned Counsel such an order could have been made only in the proceedings arising out of the report to be submitted by the Receiver pursuant to the order dated 18th October, 2002. The learned 8 Counsel further submitted that the learned single Judge could not have recorded a finding that the transfer of the flats in favour of the Appellant is in breach of the ad-interim order, in the face of the finding recorded by the learned single Judge in the Contempt Petition. 4. We have heard the learned Counsel appearing for the Plaintiff/Respondent No.1. It is clear from the record that that there was only one prayer in the Notice of Motion taken out by the Appellants and that prayer was for discharge of the Receiver in relation to their flats. By the order impugned in the Appeal, the learned single Judge not only declined to discharge the Court Receiver but he has issued directions against the Appellants in their Notices of Motion which was not sought by them. In our opinion, such 9 an order obviously could not have been made by the learned single Judge. We also found considerable substance in the submission made by the learned Counsel appearing for the Appellants that the observations in the order passed in Contempt Petition dated 21-1-2000 to the following effect Since Notice of Motion is pending, the observations made herein shall not influence the disposal of notice of motion , were in relation to the Notice of Motion, which was pending before the Court at that time, taken out by the Plaintiffs seeking interim order against the Defendants. They do not relate to a Notice of Motion which may be taken out subsequently by persons who are not yet parties to the suit. In our opinion, therefore, the learned single Judge was not justified in totally ignoring whatever was said by the learned single Judge in his order in the Contempt Petition. 10 5. Taking overall view of the matter, therefore, in our opinion, following order would meet the ends of justice: O R D E R (i)The order dated 17-1-2006 passed by the learned single Judge impugned in these Appeals is set aside; (ii)Those Notices of motion are remitted back to the learned single Judge for denovo consideration and decision in accordance with law. (iii)The Receiver appointed by this Court is directed to submit his report in relation to the flats which are subject matter of these Appeals within a period six weeks from today. (iv)The Appellants shall serve a copy of 11 this order on the Receiver immediately. (v)The Notices of Motion, which are being remitted back to the learned single Judge by this order shall be heard alongwith the report of the Receiver, which we have directed to be submitted. (vi)Appeal disposed off. (D.K.DESHMUKH, J.) (V.R.KINGAONKAR,J.)