ash 1 caf-881n883.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL APPLICATION NO.881 OF 2011 IN FIRST APPEAL NO.463 OF 2011 Shri Suhas Ratilal Merchant. .. Applicant Vs Shri Hari Laxman Dharphale & Ors. .. Respondents -- AND CIVIL APPLICATION NO.883 OF 2011 IN FIRST APPEAL NO.464 OF 2011 Shri Suhas Ratilal Merchant. .. Applicant Vs Shri Pradeep Laxman Dharphale & Ors. .. Respondents -- Shri R.S. Apte, Senior Counsel i/by Shri S.B. Deshmukh for the Applicant. Shri P.K. Dhakephalkar, Senior Counsel i/by Shri Ajay Patil for Respondents. -- CORAM ; A.S. OKA, J DATED : 1ST AUGUST, 2011 P.C. . Heard learned senior counsel appearing for the Applicant and learned senior counsel appearing for the Respondents. The Appeals are preferred by the original Plaintiff. There were two suits filed by the Applicant-Appellant which have been disposed of by a common judgment. The suits have been dismissed. The suits were filed for ash 2 caf-881n883.11 enforcing the alleged agreement for sale coupled with the development rights executed by the Respondents in favour of the Applicant in respect of the three final plots. 2. The prayer made by the Applicant in these Applications is for injunction and for directing the Respondents to maintain status quo and not to execute any sale deed. 3. The Applications are being opposed by the Respondents by filing a reply. 4. In Civil Application No.881 of 2011, the authorized representative of the fourth Respondent has filed an affidavit dated 30th July, 2011. In the affidavit, it is stated that the Respondent Nos.1 to 3 have executed a sale deed in favour of the fourth Respondent in respect of Plot No.90. It is stated that the conveyance in respect of the Plot Nos.24 and 89 has not been executed. It is stated that the Respondent Nos.1 to 3 have received the entire consideration in respect of the said two plots from the fourth Respondent. In Paragraph 4 of the said Affidavit, the authorized representative of the fourth Respondent has stated thus:- “4. I say that, in the event the Respondent Nos.1 to 3 are permitted to execute the Sale Deeds, in ash 3 caf-881n883.11 respect of plot Nos.24 and 89 in favour of this Respondents, then this Respondent, then the Respondent No.4 hereby undertakes that they will not create any third party interest in respect of suit property nor they will carry out any construction over suit property and further undertakes that they will not claim any equity to that effect in the present Appeal. Moreover, this undertaking shall always be subject to the final orders, as shall be passed in the present appeal by the Hon’ble Court.” ( underline added) 5. It is obvious that even if the sale deeds are executed by the Respondent Nos.1 to 3 during the pendency of the Appeal, the same will be subject to the further orders passed in the Appeal and no equity can be claimed on the basis of the sale deeds. In Paragraph 4, there is an undertaking given by the fourth Respondent that after they obtain the sale deeds, they will not create any third party rights in respect of the entire suit property and will not carry out construction on the suit property. The undertaking is given subject to the final order passed in the First Appeal. 6. In Civil Application No.883 of 2011, the authorized representative of the 5th Respondent has filed an identical affidavit. The undertakings therein will sufficiently protect the interests of the Applicant. Clause 4 of the affidavit reads thus:- “4. I say that, in the event the Respondent Nos.1 to 4 are permitted to execute the Sale Deeds, in ash 4 caf-881n883.11 respect of plot Nos.24 and 89 in favour of this Respondent, then this Respondent hereby undertakes they will not create any third party interest in respect of suit property nor they will carry out any construction over suit property and further undertakes that they will not claim any to that effect in the present Appeal. Moreover, this undertaking shall always be subject to the final orders, as shall be passed in the present appeal by the Hon’ble Court.” 7. It is obvious that the word “equity” is missing from the following part of the undertaking: “....further undertakes that they will not claim any to that effect in the present Appeal”. It is a typographical error and the learned counsel for the Respondents agrees that the word “equity” will have to be read after the word “any”. 8. The Applicant has failed in the suits. The last Respondents in the Appeals have paid entire consideration to the other Respondents. Even if the sale deeds are obtained by the last Respondents, their undertakings will sufficiently protect the Applicant during the pendency of the Appeals. Hence, the Applications are disposed of by passing the following order:- ORDER : ash 5 caf-881n883.11 (i) Undertakings of the 4th and 5th Respondents in the Affidavits dated 30th July, 2011 are accepted. (ii) It is obvious that the execution of the Sale Deeds during the pendency of the Appeals shall be subject to final outcome of the appeals. It is obvious that by virtue of execution of the Sale Deeds during the pendency of the Appeals, the 4th and 5th Respondents will not be entitled to claim any equity. (iii) Subject to what is stated above, the Applications are rejected. (iv) The ad-interim orders granted earlier stand vacated. ( A.S. OKA, J )