gopi 1 app-lodg.758-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL LODGING NO.758 OF 2011 IN NOTICE OF MOTION NO.1083 OF 2011 IN SUIT NO.771 OF 2011 Vijay Karamsingh Rana ...Appellant V/s. Pyarelal Jagan Kanojia & Ors. ...Respondents. Mr. Zal Andhyarujina with Ms. Duhita Leuis with Savina Bangera i/b. Anil R. Mishra for the appellant. Mr. Digvijay Singh for respondents. CORAM: MOHIT S. SHAH, C.J., & MRS. ROSHAN DALVI, J. DATED : 16 November 2011. P.C. This appeal is directed against the interlocutory order dated 5 October 2011 of the learned Single Judge of this Court disposing of the respondents-plaintiffs’ Notice of Motion in the suit for possession under Section 6 of the Specific Relief Act, 1888. According to the respondents-plaintiffs, the appellant-defendant forcibly dispossessed them from the suit premises being residential apartment on 18 February, 2011. According to the appellant-defendant the plaintiffs voluntarily handed over quiet, vacant and peaceful possession of the apartment to the defendant on 15 February 2011 pursuant to a sale deed dated 25 October 2011. gopi 2 app-lodg.758-11 The learned Single Judge has examined in detail the rival contentions. 3. The plaintiffs’ case is that the plaintiffs had purchased the suit flat in the year 2003 for a consideration of Rs.14,00,000/-, for which the plaintiff nos.2 and 3 had obtained a loan of Rs.13,00,000/- from a Co-operative Bank to pay the purchase price. In November, 2009 the plaintiff was desirous of selling the suit flat and under an agreement one Dinesh had offered to purchase the suit flat for a consideration of Rs. 62,00,000/- and as per the agreement a token amount of Rs.1,00,000/- was also paid. The transaction, however, had not gone through as the intending purchaser failed to make payment of balance amount. Thereafter the plaintiff No.2 was introduced to the defendant and the defendant advised the plaintiffs not to sell the flat and offered to arrange for a mortgage loan of Rs.30,00,000/- to repay the dues of the bank. For this purpose the plaintiffs were required to hand over the xerox copies of the documents to the defendant to forward the same to Dinesh, who according to the defendant was in the business of arranging bank loans. In the first week of October 2010 the defendant informed plaintiff No.2 that he had arranged for a loan from a private financier and that the plaintiffs were required to register a mortgage deed in his favour at the office of the Sub Registrar of Assurances and that the signatures of plaintiff nos.1 and 3 are required thereon. The plaintiffs were required to sign certain documents which were mortgage deeds. However, on 22 October, 2010 defendant contacted plaintiff no.2 and asked him to call the other plaintiffs for registration of the mortgage deed on 25 October, 2010. On 25 October 2010 the defendant and Dinesh brought the plaintiffs to the office of the Sub Registrar of Assurances and handed over a mortgage deed which the plaintiff no.2 read. However, at the Registrar’s office the defendant took back the mortgage deed from the gopi 3 app-lodg.758-11 plaintiff stating that some formalities were required to be complied with in the Registrar’s office. Then they came back from the Registrar’s office, went elsewhere and came back to the plaintiffs with one Mishra, who was introduced as an advocate and asked the plaintiffs to sign a document representing the same to be the mortgage deed. It was done in a hurry on the representation that the office would soon close for lunch. Defendant only opened a part of each page to enable the plaintiffs to sign the same. Subsequently, the parties went into the office of the Sub Registrar of Assurances to complete other formalities connected with the registration. Thereafter the defendant asked the plaintiffs to hand over the original title deeds. When plaintiff No.2 requested for the money, defendant stated that he was unable to arrange for the same at that time. On 28 October, 2010 defendant and plaintiff no.2 went to the co-operative bank from which the plaintiffs have taken loan. Defendant deposited the cheques to clear the plaintiffs dues to the bank in a sum of Rs.11,55,000/-. When the plaintiff No.2 requested for the balance amount of Rs.16,00,000/- to be paid in cash. The defendant paid the dues of the society, but the balance loan amount of Rs. 16,00,000/- was not paid to the plaintiffs, on the ground that the defendant’s sister’s marriage was fixed on 17 November 2010 and, therefore, the amount would be paid only after the marriage. Since the defendant insisted upon the original agreement in respect of the suit flat between the plaintiff and the builder and the no liability certificate from the bank, the plaintiff handed over the same to the defendant. Again at the request of the defendant the plaintiffs were required to attend the office of the Sub Registrar of Assurances on 10 December, 2010 and the plaintiffs were required to sign one more document. The plaintiff hoped that they would be paid the amount of Rs.16,00,000/-. The plaintiffs, however, were not paid the amount of Rs.16,00,000/-. Thereafter the gopi 4 app-lodg.758-11 plaintiffs were unable to contact the defendant. Suspecting foul play, the plaintiffs obtained a certified copy of the documents which were registered on 23 December 2010. Then the plaintiffs realised that the defendant played fraud upon the plaintiffs and cheated them by misrepresenting the sale deed to be a mortgage deed and thereby obtaining the plaintiff’s signature thereon. The plaintiffs then lodged police complaint on 12 January 2011 in respect of the alleged fraud played upon them by the defendant. The plaintiffs also stated tht the defendant had been threatening to take forcible possession of the flat. The plaintiffs also addressed letter dated 15 January 2011 to the society setting out the above facts and called upon the society not to entertain any application from the defendant for transfer of the flat. On 15 January 2011 the plaintiffs also replied to the notice dated 5 January 2011 from the defendant’s advocate stating the above facts. 4. On 20 January 2011 the plaintiffs filed case No. 41/SW/2011 against the defendant in the defendant in the Court of the Metropolitan Magistrate, 17th Court, Mumbai for offences punishable under Sections 405, 406, 420, 423, 464, 506(II) of the Indian Penal Code. 5. It was thereafter the defendant claimed to have been put into possession of the suit flat 15 February 2011 and in support of this case the defendant relied upon the possession letter on a typed ledger paper in English. The plaintiff No.1 aged 61 years is running a laundry and plaintiff nos.2 and 3 are his sons. 6. The learned single Judge prima facie accepted the plaintiffs’ case and held that it was difficult to believe that despite police complaint on gopi 5 app-lodg.758-11 12 January 2011, the plaintiffs reply dated 15 January 2011 to the defendant’s advocate and plaintiffs letter to the society dated 15 January 2011 and the criminal complaint filed by the plaintiff on 20 January 2011, the plaintiffs would suddenly and for no apparent reason hand over quiet, vacant and peaceful possession of the suit flat to the defendants on 15 February 2011 as alleged by the defendant. The learned Single Judge also noted that the daughter of the plaintiff no.1 had, on 17 February 2011, from her mobile phone called from Pune on the landline in the suit premises as evidenced by the statement issued by the mobile service provider and this fact was not disputed, but was sought to be explained away by stating that it was during the plaintiffs visit in the suit premises on 17 February 2011 during which time the telephone conversation took place. The learned Single Judge disposed of the Notice of Motion by appointing the Court Receiver of this Court as Receiver and the Receiver has been directed to put the plaintiffs in possession of the suit flat. The learned Single Judge has also restrained the plaintiffs and defendant from disposing of, creating any third party rights in respect of the suit flat. The learned Single Judge has also clarified that in the event of either party filing substantive suit in respect of the suit property, the same and any interlocutory application would be decided on its own merits without being influenced by the observations made in the order. 7. Mr. Andhyarujina, learned counsel for the appellant- defendant submitted that when the registered sale deed and the possession letter including re-possession letter dated 15 February 2011 are in favour of the defendant, the learned Single Judge ought not to have granted any mandatory interim relief in favour of the plaintiffs. It is submitted that when the plaintiffs had already indicated the desire to gopi 6 app-lodg.758-11 sell the suit flat, and that the sale deed executed by the plaintiff is registered, the learned Single Judge ought to have accepted the case of the defendant at this stage. The learned counsel for the defendant also submitted that after handing over possession of the suit flat pursuant to the execution of the sale deed, the plaintiffs had also executed a leave and license agreement under which the plaintiffs were permitted to occupy only from 25 December, 2010. Upon expiry of the license period the plaintiffs had no right to be in possession of the suit flat. 8. On the other hand the learned counsel for the respondents- plaintiffs has supported the order of the learned Single Judge. 9. We have heard the learned counsel for the parties at length and we have also seen the documents, particularly the repossession letter purported to be dated 15 February, 2011. The said repossession letter is typed letter on a ledger paper and is in English. It purports to have been signed by plaintiff no.2-Sujit Pyarelal Kanojia. The said letter reads as under:- “RE-POSSESSION LETTER I, Mr. SUJIT PYARELAL KANOJIA, hereby state that I have give peaceful and vacant possession of Flat No.111, First floor, ‘C’ wing. The Rajeshri Apartment Residency Complex Co-op. Housing Society Ltd., Mahavir Nagar, Kandivali (West), Mumbai-400 067 to Mr. VIJAY KARAMSINGH RANA, owner of the above said Flat. Mr. VIJAY KARAMSINGH RANA, the owner of the above Flat had given the said Flat to me for residential purpose only, for a temporary period of two (2) months, commencing from 26/10/2010 to gopi 7 app-lodg.758-11 25/12/2010 and now I do not require the above said Flat and hence I hereby vacate the said Flat Premises and also remove all my belongings and articles. I have given the said Flat possession in the same & good condition on my own wish and accord and no one has forced me to vacate the said Flat. Further, I hereby request you to please refund my Security Deposit as early as possible. What is stated hereinabove is true to my knowledge and belief. PLACE : MUMBAI sd/- DATE 15th Feb. 2011 Mr. SUJIT PYARELAL KANOJIA WITNESSES : 1) Mr. Manish Udeshi Sd/- 15/2/11. 2) Mr. Rajesh Vadgama Sd/- 15/2/11.” 10. The learned Single Judge has rightly held that nothing is shown either in the repossession letter or by way of oral argument as to why the plaintiffs would hand over possession of the suit flat to the defendant on 15 February 2011 after having filed police complaint against the defendant on 12 January 2011 and criminal case in the Court of the Metropolitan Magistrate on 20 January 2011 in respect of the alleged fraud played by the defendant upon the plaintiffs. 11. At the hearing before us the learned Counsel for the appellant-defendant had no answer to the same query as to why the plaintiffs would hand over possession of the suit flat to the defendant after filing the aforesaid police complaint/criminal case. The plaintiff no.1 is 61 years old and he runs a laundry. The very fact that the letter gopi 8 app-lodg.758-11 purported to be repossession letter and purported to have been signed on 15 February 2011 is in English and on ledger paper clearly shows that the repossession letter was prepared by the defendant or at the instance of the defendant. Al the other documents signed by the plaintiffs are on similar ledger papers and they and the repossession letter appears to be drawn on several such papers prepared by the defendant or at the instance of the defendant and appear to have been signed by the plaintiffs. The learned Single Judge has also rightly found that when the plaintiff no.1 received on the landline in the suit flat the telephone call from his daughter from Pune, her mobile number is evidenced by the statement of the mobile service provider. This clearly indicates that the plaintiff no.1 was in possession of the suit flat. 12. For the reasons aforesaid we are in complete agreement with the reasoning and conclusions drawn by the learned Single Judge and find no reason to interfere with the order under challenge. 13. The appeal is, therefore, summarily dismissed with costs quantified at Rs.15,000/-. The costs shall be paid by the defendant to the plaintiff no.1 within one week from today. 14. At this stage learned counsel for the appellant-defendant prays for stay of operation of this order to proceed according to law. 15. In the facts and circumstances of the case, the request is rejected. (CHIEF JUSTICE) (MRS. ROSHAN DALVI, J.)