1 AO-448-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi APPEAL FROM ORDER NO. 448 OF 2011 IN NOTICE OF MOTINO NO. 2012 OF 2010 IN S.C. SUIT NO. 1765 OF 2010 Aasif Haroon Arbee ... Appellant vs. M/s. Tanwar Builders & Developers & Ors. Respondents Mr. R.S.Apte, Senior Counsel a/w Mr. Mandar Limaye, Advocate, for the appellant. Mr.R.M.Vanoo,Advocate for the respondent. CORAM: J.H.BHATIA,J. DATE : 8th June, 2011. P.C. 1. Heard the learned Counsel for the parties. 2. The appellant, who is the original plaintiff, being not satisfied with the ad-interim relief granted by the trial Court in the Notice of Motion No.2012 of 2010, has preferred the present appeal. 3. Admittedly, the plaintiff was the partner in the firm of M/s. Tanvar Builders and Developers. He and three others had filed Suit No.4180/2000 2 AO-448-11.sxw against the remaining partners and the firm for accounts and dissolution of partnership firm. The suit was disposed of by consent terms filed on 13.12.2001. As per the consent terms, the plaintiff was retired from the firm and the firm was to be continued by the other partners of the firm, who were defendants. The firm was to pay amount of Rs.4,85,00,000/- to the plaintiff as per the schedule mentioned in clause 6 of the consent terms. The last payment of Rs.3.4 crore was to be made within 18 months from the date of the consent terms. According to the plaintiff, he was in possession of the first, second and third floors of the building in dispute and he was to continue to be in possession till the complete payment was made. According to the plaintiff, amount of Rs.2.55 crore is still not paid and therefore, he is entitled to remain in possession of the same. Apprehending that the defendants could forcibly or without following due process of law could evict him from the said building,the plaintiff filed Suit NO.1765/10 for perpetual injunction restraining the defendants from interfering in his possession and from disturbing his possession in any manner otherwise than by due process of laws. He also took out Notice of Motion No.2012/10 for temporary injunction of the same nature. 4. The Notice of Motion was contested by the defendants on the ground that the plaintiff was never in possession of the first and second floors. Only 3rd 3 AO-448-11.sxw floor of the building was in his possession and as per the consent terms he can retain possession of the same till complete payment is made. It was conceded that the plaintiff was also in possession of 200 sq. ft. office premises situated on the first floor of the building. After hearing the parties, the trial Court partly allowed the Notice of Motion and restrained the defendants from causing any interference in possession of the plaintiff over third floor premises and 200 sq. ft. office premises on the first floor of the building. The Notice of Motion in respect of the first floor, except the said 200 sq. ft. office premises and in respect of complete second floor came to be rejected. 5. Admittedly, the consent terms were filed by the parties in Court. Copy of the same is also produced before this Court. The learned Counsel for the plaintiff also contended that in view of clause 19 of the consent terms, it can be inferred that the plaintiff was in possession of the entire building and only on complete payment of the amount due to him, he would be required to remove his belongings and vacate the building including the third floor. The learned Counsel contended that in view of this clause of the consent terms, he is in possession and he cannot be asked to vacate till complete payment is made. However, the learned Counsel for the respondent/defendants pointed out that clause 18 specifically shows that the plaintiff was in possession of 3rd floor. As 4 AO-448-11.sxw far as 200 sq. ft. office premises on first floor are concerned, it was admitted on behalf of the defendants that the office premises are in possession of the plaintiff though Consent Terms are silent about the same. The learned Counsel for the respondents contended nowhere in the consent terms that there is any mention that the plaintiff was in possession of the first and second floors of the building also. According to him, defendant No.4 firm was in possession of 50% of the first and second floors. 6. On perusal of the consent terms, it is clear that on filing the consent terms, the plaintiff retired from the firm and the firm was to pay amount of Rs. 4.85 crore to the plaintiff as per the schedule in clause 6. Clause 7 provides for sale of the 50% premises on the first floor and about the payment of the amount to the plaintiff out of the sale proceeds. If clause 8 is carefully read, it clearly shows that the defendant No.4 firm was in possession of the 50% of the first floor and that portion of the building was to remain as security for payment of the balance amount of Rs.3.4 crore to the plaintiff. It nowhere shows that the said first floor was in possession of the plaintiff or he was allowed to take possession of the said portion. Clause 18 specifically provides that the defendants shall allow the plaintiff to use and occupy the premises on the third floor of the building without payment of any compensation until the entire balance amount was paid to him by 5 AO-448-11.sxw the defendants. Clause 19 shows that the plaintiffs agreed and undertook to remove themselves along with all their belongings from the said building, including the 3rd floor which they would retain till all the payment. It also does not show that besides third floor, any other portion of the building was in possession of the plaintiffs when the consent terms were filed nor it shows that the plaintiffs were allowed to take possession and retain first and second floors of the building. 7. In view of the consent terms, it is clear that the plaintiffs were in possession of only 3rd floor and they are allowed to retain the same until the complete balance amount is paid. As far as the first floor is concerned, that was in possession of the firm and it was to be security for the balance amount. It means as long as the payment is not made, the said 50% of the first floor cannot be sold or disposed of by the defendants in any manner. In view of these facts and circumstances, I find that the trial Court was correct in holding that the plaintiff is in possession of only 200 sq. ft. office premises on the first floor in view of the admission and complete 3rd floor as per the consent terms. To that extent, possession of the plaintiff has been protected by the trial court. The remaining portion of the building does not appear to be in his possession and, therefore, the trial Court was right in refusing injunction to that extent. Therefore, there is no 6 AO-448-11.sxw substance in the present Appeal. 8. For the aforesaid reasons, the Appeal stands dismissed. 9. As the Appeal itself is disposed of, the application does not survive and stands disposed of accordingly. 10. At this stage, the learned Counsel for the plaintiff/appellant seeks direction to continue to maintain the status quo which was granted by the trial Court initially. I do not find any substance. Therefore, the request is refused. (J.H.BHATIA,J.)