1 IN THE HIGH COURT OF BOMBAY AT GOA CIVIL APPLICATION NO. 96/2011 IN APPEAL FROM ORDER NO. 16/2011 M/s. Anirva Developers Pvt. Ltd. …... Applicant. V/s. Ravindra C.P. Navelcar and others. …... Respondents. Mr. S. G. Dessai, Senior Advocate with Mr. Shivan Dessai, Advocate for the applicant. Mr. S. Walawaikar, Advocate for respondent No.1. Mr. S. R. Rivonkar and Mr. G. Nagvekar, Advocates for respondent No.2 Mr. H. D. Naik, Advocate for respondent No.5. Respondent No.7 in person. None for other respondents, though served. CORAM :- A.P. LAVANDE, J. Date of reserving the order :- 20th August, 2011. Date of pronouncing the order :- 14th October, 2011. O R D E R :- By this application, the applicant seeks restraint against 2 the respondents and more particularly against respondent No.7 from transferring and/or creating any third party right in respect of the suit property pending the hearing and final disposal of the appeal. 2. Appeal from Order No.16 of 2011 has been preferred against an order dated 22nd March, 2011, passed by the Civil Judge, Senior Division, “C” Court at Mapusa in Special Civil Suit No.39/2010/C, by which the application for temporary injunction filed by the applicant has been dismissed. The applicant is the plaintiff and the respondents are the defendants in the above civil suit. 3. On 21st April, 2011, the appeal was admitted ex parte and an ad interim relief was granted in favour of the applicant-appellant. Pursuant to the notices issued, respondent No.7 who had filed a caveat and against whom the relief has been sought, appeared in person and opposed the grant of any interim relief in favour of the applicant, on various grounds. 4. I have heard Mr. Dessai, learned Senior Counsel appearing for the applicant and respondent No.7 in person, at length. I have also 3 heard Mr. Walawaikar, Mr. Rivonkar and Mr. Naik, learned Counsel appearing for the respective respondents. 5. Respondent No.7 urged the following grounds in support of his contention that ad interim injunction granted by this Court deserves to be vacated forthwith : (I) Ex parte order has been passed despite the caveat filed by respondent No.7, which is contrary to the provisions of Section 148A(3) of the Code of Civil Procedure and also contrary to the Caveat Rule No.7 as enshrined in Order XL A of the Code of Civil Procedure. (II) The suit filed by the applicant as well as the present appeal is nothing, but abuse and misuse of judicial process and amounts to relitigation after dismissal of the application filed by the applicant by order dated 30th April, 2010. (III) The applicant has no locus standi to file the suit challenging the auction proceedings and sale dated 19th March, 2006 and 17th May, 2006, as the applicant company was not in existence till 14th June, 2007. (IV) The suit for declaration and setting aside auction 4 proceedings is barred under Sections 115 and 117(3) of the Multi-State Cooperative Societies Act, 2002 (“the Act” for short) and also under Article 58 of the Limitation Act. (V) The applicant is guilty of suppression of material facts inasmuch as the applicant has suppressed before the Trial Court, as well as before this Court, the order dated 20th January, 2011 passed by the Company Law Board at Delhi, in the proceedings filed by one Baleshwar Sharma, wherein an injunction has been granted against respondent No.7 from transferring the suit property. (VI) The applicant is also guilty of fraud inasmuch as the applicant has not disclosed the order dated 20th January, 2011 passed by the Company Law Board, although it was a party before it. (VII) The Sale Deed dated 19th September, 2007 purportedly executed by respondent No.1 in favour of the applicant is illegal, void and non-est as the property had already been transferred in favour of the auction purchaser i.e. respondent No.5 and the sale deed has been executed and registered in her favour by the Sales and Recovery Officer of respondent No.2 pursuant to the award, attachment of the property and issuance of certificate of sale in favour of respondent No.5 under the provisions of the Act when the applicant 5 Company was not in existence. (VIII) Sale Deed dated 19th September, 2007 executed by respondent No.1 in favour of the applicant was in violation of the order of attachment, order of status quo dated 11th January, 2007 passed by this Court in Writ Petition No. 498 of 2006 and also in violation of Section 28 of the Registration Act; the sale deed is also contrary to public policy and, as such, violative of Section 32 of the Contract Act and hence unlawful and void. (IX) The Sale Deed dated 19th September, 2007 executed by respondent No.1 in favour of the applicant is hit by doctrine of lis pendens enshrined in Section 52 of the Transfer of Property Act and, therefore, void and confers no title. The contention of the applicant that it is a bonafide purchaser without notice, has no relevance in the eyes of law. (X) No injunction can be granted under Section 41(h) of the Specific Relief Act, as equally efficacious remedy is available to the applicant under the provisions of the Act. (XI) The suit filed by the applicant, challenging the orders passed by this Court is not maintainable since the same have attained finality and cannot be challenged by filing a suit; reagitation of the 6 same issue by a suit is impermissible in law. (XII) Since the applicant has preferred Special Leave Petition before the Supreme Court, challenging the withdrawal of the writ petition, the suit filed by the applicant-plaintiff is not maintainable inasmuch as the applicant has chosen to avail of the remedy by filing a special leave petition before the Supreme Court; judicial discipline requires that the suit filed by the plaintiff seeking relief claimed therein be not entertained. (XIII) The suit filed by the applicant-plaintiff is also barred by Rule 37 of the Multi-State Cooperative Societies Rules, since the applicant did not challenge the sale in favour of respondent No.1 within the period stipulated in the said Rules. (XIV) The applicant has no right, title or interest in the suit property since the same had passed in favour of the auction purchaser-respondent No.5 upon issuance of certificate of sale dated 17th May, 2006 and registration of sale deed in her favour on 13th July, 2006; respondent No.1 who did not himself have any right in the suit property, could not have transferred any right, title and interest thereof in favour of the applicant. In support of his submissions, respondent No.7 relied upon 7 the following Judgments : (1) Achut vs. Shivajirao, (AIR 1937 Bombay 244); (2)Amir Din Shahab Din vs. Shiv Dev Singh, (AIR (34) 1947 Lahore 102); (3) Lakshamanan vs. Kamal, (AIR 1959 Kerala 67); (4)Kishan Singh vs. Mohinder Singh, (ILR (1973) 2 Punj & Haryana 142); (5)T. Arivanandam vs. T.V. Satyapal and anr., (AIR 1977 SC 697); (6)Nirmal Chandra Vs. Grindra Narayan, (AIR 1978 Calcutta 492); (7)G.C. Siddalingappa vs. G.C. Veerana, (AIR 1981 Karnataka 242); (8) S.P. Chengal Varaya Naidu (Dead) by LRs. Jagannath (Dead) by LRs., and others; ((1994) 1 SCC 1); (9)Renusagar Power Co. vs. General Electric Co., (AIR 1994 (SC) 860); (10) Surjit Singh vs. Harbans Singh, (1995(6) SCC 50); (11) C.O.M. Janta Inter College vs. Dy. Director, (1996 ALL. L.J. 769); (12) Hanumanthappa vs. Muninarayanappa; ((1996) 11 SCC 696); (13) K.K. Modi vs. K.N. Modi and ors., ((1998) 3 SCC 573); (14) Bhaurao Dagdu Paralkar vs. State of Maharashtra, (2005) 7 SCC 605; (15) State of Uttaranchal vs. Balwant Singh Chaufal and ors., 8 ((2010) 3 SCC 402); (16) The Saraswat Co-op. Bank Ltd., vs. Madan S. Jha and anr., (2010 (5) ALL MR 87); (17) Ramrameshwari Devi and ors.. vs. Nirmala Devi and ors., (2011 (6) SCALE 677); (18) Indian Council for Enviro-Legal Action vs. Union of India and others, 2011(7) SCALE 768). 6. Mr. Walawaikar, learned Counsel appearing for respondent No.1 submitted that the sale deed executed by respondent No.1 in favour of the applicant is null and void since the applicant Company was not in existence on the date of execution of the sale deed and the Company was registered with the Registrar of Companies only on 14th June, 2007. Mr. Walawaikar further submitted that the amount of Rs.17.00 crores, mentioned in the sale deed, and purported to have been paid to respondent No.1 by the applicant was actually not paid by the applicant at all. The learned Counsel further submitted that no case is made out for grant of injunction in favour of the applicant. 7. Mr. Rivonkar, learned Counsel appearing for respondent No.2 submitted that no fault can be found on the part of the Bank and the sale deed executed in favour of respondent No. 5 is after following 9 the provisions of the Act and as such legal. 8. Mr. Naik, learned Counsel appearing for respondent No.5 submitted that the sale deed in favour of the applicant purportedly executed by respondent No. 1 is null and void, since the sale deed was registered at Sub-Registrar's Office at Canacona, although the suit property is situated within the jurisdiction of Tiswadi Taluka. In support of his submission, he placed reliance upon a Judgment in Kharka and ors., vs. Yellappa, (AIR 1953 Hyderabad 28) 9. Mr. S. G. Dessai, learned Senior Counsel appearing for the applicant submitted that the ad interim relief granted by this Court deserves to be confirmed, inter alia, on the following grounds : (I) Respondent No.7 has refused to accept the notice pursuant to the caveat filed, as is evident from the record. Moreover, respondent No.7 who lodged the caveat application, initially gave his Delhi address, but thereafter inserted Goa address at Bainguinim in the caveat application, without informing the same to the applicant. (II) Appeal from Order No.16/2011 having been admitted by this Court, after being satisfied that prima facie case is made out, ad 10 interim relief deserves to be confirmed; otherwise the appeal would be rendered infructuous. (III) There is no suppression of facts by the applicant or any fraud having been played by the applicant inasmuch as the order dated 20th January, 2011 passed by the Company Law Board, Delhi has no relevance having regard to the case set up by the applicant; moreover, even respondent No.7 against whom the said order was passed chose not to disclose the same before the Trial Court, although the impugned order was passed thereafter. (IV) The applicant-plaintiff is not challenging the orders passed by this Court, but is pursuing the remedy in terms of the liberty granted by this Court vide Order dated 30th April, 2010 in Misc. Civil Application No. 279/2010. (V) The suit filed by the applicant is not an abuse of the process of the Court; on the contrary, the applicant has resorted to the remedy of suit, which is the only remedy available to it to challenge the actions of the respondents-defendants. (VI) The suit filed by the applicant is maintainable and Sections 115 and 117 of the Act do not oust the jurisdiction of the Civil Court, since the mandatory provisions of the Act and the Rules 11 were not followed while auctioning and transferring the suit property in favour of respondent No.5. The suit filed by the applicant therefore cannot be held to be not maintainable for want of notice under Section 115 and also under Section 117 of the Act in view of the breach of the mandatory provisions of the Act and also in view of the fact that the prayers made in the suit are not available under the Act. (VII) The sale deed executed by respondent No.1 in favour of the applicant is not illegal inasmuch as the applicant was not a party to the writ petition filed by respondent No.1 in which status quo order was passed and the sale deed in favour of the applicant does not become invalid or illegal on account of alleged breach of the order passed by this Court, committed by respondent No.1. (VIII) Writ Petition No.468/2006 was withdrawn collusively by the parties without even issuing notice to the applicant which was impleaded as party to the writ petition and, as such, the suit filed by the applicant is maintainable. (IX) The sale deed executed by respondent No.1 in favour of the applicant in respect of the two properties, including the suit property, and registered with the Sub-Registrar of Canacona is valid, in view of Sections 64 and 65 of the Registration Act, 1908. 12 (X) The suit filed by the applicant is within limitation inasmuch as the sale deed executed in favour of the applicant is dated 19th September, 2007 and the sale deed executed in favour of the respondent No.7 is dated 02.02.2010. (XI) The sale deed effected by respect No.1 in respect of the suit property after attachment is not void, since the attachment is not in terms of Section 64 of the Code of Civil Procedure. (XII) The applicant has not committed any fraud; on the contrary, it is the respondent No.7 who has committed a fraud by executing a sale deed in respect of the suit property in his favour and that too for a meagre consideration after executing the sale deed on behalf and in favour of the applicant for a much higher consideration. (XIII) Respondent No.7 having executed the sale deed on behalf of the company is not entitled to urge that the sale deed in favour of the applicant Company is null and void. In support of his submissions Mr. Dessai placed reliance upon the following judgments : (1)Dhulabhai etc., vs. State of Madhya Pradesh and another; (AIR 1969 SC 78); (2)Mrs. Smita Janak Thacker vs. Commissioner of Registrar Maddeavarti Karyalaya and ors., (AIR 13 2002 BOMBAY 58); (3)Narendra Kantilal Shah vs. Joint Registrar, Co- operative Societies (Appeal), Bombay and others, (AIR 2004 BOMBAY 166); and (4) Meghmala and others vs. G. Narasimha Reddy and others, (2010) 8 SCC 383. 10. I have perused the record and the judgments relied upon by rival parties. 11. In so far as the ground taken by respondent no.7 that Ex parte order passed on 21st April, 2011 is contrary to the provisions of Section 148A(3) and Caveat Rule No.7 is concerned, affidavits of Satish Julka and Rameshwar Yadav filed on behalf of the applicant disclose that an attempt was made to serve respondent No.7 on 20th April, 2011 to serve the notice on respondent No.7 pursuant to the caveat filed and the same was refused by respondent No.7. Therefore, the applicant had complied with the provision of Section 148A(3) C.P.C. Therefore, the ex parte order cannot be taken as without jurisdiction. 14 12. In so far as the submission made by respondent No.7 that the ex parte order is illegal on account of not giving reasons is concerned, I am of the considered opinion that this ground, by itself, is not sufficient to vacate the ex parte order once the parties are heard on merits and the same is not available to the party before the same Court. Therefore, I am not inclined to vacate the ex parte injunction on this ground. 13. Indisputably, Appeal from Order No.16/2011 has been admitted ex parte on 21st April, 2011. There is no dispute that the Company Law Board at Delhi in proceedings initiated by Baleshwar Sharma has passed an order of injunction against respondent No.7 from transferring the suit property and the same is in operation. In this factual background, I am of the considered opinion that it would be just and proper to dispose of the main Appeal from Order No.16/2011 expeditiously and it would be appropriate not to record any finding on the other rival submissions, on merits, made by the parties at this stage, so as not to cause any prejudice to either side. The interest of respondent No.7 can very well be protected by expediting the final hearing of Appeal from Order No.16/2011. Therefore, I am of the 15 considered opinion that it would be just and proper at this stage to maintain status quo which has been existing for more than a year and dispose of the main appeal on merits, expeditiously. Accordingly, Appeal from Order No.16/2011 is ordered to be fixed for final hearing on 14th November, 2011. Till disposal of Appeal from Order No.16/2011, ad interim order granted on 21st April, 2011 is confirmed. 14. Civil Application stands disposed of. A.P. LAVANDE, J. ssm.