1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.157 OF 2008 IN ARBITRATION PETITION NO.134 OF 2000 Amulya Marketing Agencies Pvt. Ltd. …Petitioners Vs. Riyaz Amin & Ors. …Respondents And Hema Vijaykumar Dalani …Intervener Mr.S. Shah i/b. Singhi & Co. for Petitioners Mr.S.I.Momen for Applicant None for other parties CORAM: SMT. ROSHAN DALVI, J. DATED: 2 ND MAY 2008 P.C. 1. The Arbitration Petition has been filed in respect of a certain sole selling agreement between the parties to the Arbitration Petition. The Petitioner has claimed security deposit of Rs.15, 75,797.65, accounts of the sales by the Respondents and for the appointment of the Court Receiver and injunction in respect of certain immovable properties mentioned in the prayer clause (d) of the Petition. The sole selling agency agreement Exhibit- A to the Petition is only in respect of the sales of the products and not in respect of any 2 of the properties for which the Receiver is sought to be appointed or the injunction is sought from the Court. The parties agreed to refer the matter to Arbitrator under the Arbitration Clause mentioned in the sole selling agreement and consequently the Arbitration Petition came to be filed. 2. Certain ad- interim and interim reliefs came to be granted in the Petition for reliefs pending the Arbitration Petition. On 11 th May 2000 my brother Judge Mr. Khanvilkar passed an order in terms of prayer clause ( c ) and (d) taken out in the Arbitration Petition. Court receiver came to be appointed in respect of books of accounts of the respondents and the stock of the business. The Respondents were restrained from selling, alienating or creating 3rd party rights or disposing off the 3 properties mentioned in prayer clause (d) of the Petition. 3. The Respondents were further directed to file affidavit in reply and the affidavit indicating the properties in their possession. 4. It appears that the Petitioners already knew inter alia of one property Gomes Villa, which is the subject property of this Petition and that property has been listed at Serial No. (iii) in prayer (d) of the Petition. The Respondents filed their 3 affidavit in reply to the Petition and also therein listed 8 properties showing the properties inherited by them from one Mrs. Ruksana Amin, who is stated to be the mother of Respondents 1 and 2. The aforesaid property Gomes Villa, is the only property concerned in this application. The details of the title, if any, of the mother of Respondents 1 and 2 or of Respondents 1 and 2 themselves in the said property Gomes Villa is not shown in the said list. All that is stated is that an advance of Rs.50 lacs is paid in 1995 and the property is under dispute. It can be seen from the affidavit in reply and more especially the list showing the details of the properties that no title to the said property shown. 5. I am told that the ad- interim order dated 11 th May 2000 was appealed against. The Appeal was withdrawn after it was heard on 21 st September 2000. 6. On 25 th September 2000 the Petition came to be admitted and the ad- interim relief earlier granted inter alia in terms of prayer clause (d) came to be restricted to 3 properties mentioned in the Petition of which the property Gomes Villa was one. 7. In this Notice of Motion the rights of the parties with regard to the property Gomes Villa is alone required to be 4 considered. It is seen that the Petitioners initially showed that property in prayer (d) (iii). They obtained an ad- interim order of injunction with regard to property on 11th May 2000. That order came to be confirmed in view of the withdrawal of the Appeal on 21 st September 2000. That order further came to be confirmed with regard to this property on 25th September 2000, upon the admission of the Petition and the confirmation of the ad- interim reliefs as restricted therein. 8. The Petitioners in this Notice of Motion, who seek to be interveners, claim title to the property. It is their case that the property never belonged to the Respondents or the mother of Respondents 1 and 2 and could not have been included in the Arbitration Petition which was in essence upon the sole selling agreement between the parties for recovery of monies thereunder as shown in Exhibit- A to the Petition. 9. The Applicants have sought to show their title to the property Gomes Villa. The Applicants have relied upon the registered Deed of Conveyance dated 14 th September 2006 between one Derrick Gomes and the Applicant. The Applicants have also shown the receipt of registration dated 14 th September 2006. The recitals in the Deed of Conveyance show, the property having belonged to the father 5 of the Vendor under Survey No.281, Hissa No.2, CTS No.C/1073 situated in Bandra Mumbai. Upon the death of the father, the property came to be released by the other heirs in favour of the Vendor. The Applicant paid consideration of Rs.50 lacs, which is recited therein. 10. The Applicant has also relied upon Index- II with the Deputy Registrar, Andheri, Bandra, Mumbai which shows the transaction of sale for the consideration mentioned therein in favour of the Applicant. 11. Upon the Applicant having been conveyed the said property under the registered Deed of Conveyance and having paid the requisite stamp duty thereon, the Applicant desired to have the property register cards of said property modified to show her as the owner pursuant to the said transaction. The records could not be updated to show the transaction in favour of the Applicant as the City Survey Officer, Bandra found the notice relating to the lis between the parties to the Arbitration Petition having been registered under the Lis- pendens notice dated 19 th May 2006. 12. It may be remembered that the Lis was pending between the parties since 2000. The aforesaid Arbitration filed on 10th March 2000. Lis has been registered more than 4 years 6 thereafter. The Applicant has relied upon the search of the Revenue records with respect to the property which includes the notice of Lis-pendens. The search shows no transaction between 1977 to 1987. A Partition Deed is shown to have been executed between the family members of the Vendor including the Vendor in 1987. That Partition Deed has been recited in the Deed of Conveyance also. The Schedule of the property shown in the Partition Deed is same as shown in the Deed of Conveyance. The reference with regard to Index- II book is also made. The Lis-pendens notice make no mention of the title holders of the property. The schedule of the Lis-pendens notice understandably shows the names of only the parties to the Petition who have nothing to do with the property in the Index- II. The reference to the name of the mother of Respondents 1 and 2 is made without any particulars of her title in respect of the property. 13. The Lis-pendens notice is like the proverbial sale of Rajabai Tower. Since no title whatsoever is shown to have passed from the earlier titleholders to the mother of Respondents 1 and 2, the Lis-pendens entry is completely without significance or any connection to the Respondents. It, therefore, does not show any inheritance by Respondents 1 and 2 from their mother as shown in the list of properties annexed to the reply to the Petition. It is by virtue of such 7 redundant innocuous Lis-pendens entry that the name of the Applicant has not been entered in the property registered cards and in the Revenue Records despite the registered conveyance from the earlier title holders shown in the very same Index- II under the entry relating to the Partition Deed. 14. The search record read as a whole shows the earlier titleholders to be the family members of the Vendor shown in the Deed of Conveyance. The unrelated Lis-pendens entry does not show the tracing of title with regard to that lis in favour of the Respondents or their predecessors- in-title. The later entry relating to the Conveyance Deed shows the tracing of title by the Applicant from the earlier titleholders as per the 1987 Partition Deed. 15. It is seen that the Applicants have traced their title from the earlier titleholders. The property has been conveyed to them upon payment of valid consideration therefor. The conveyance has been registered and the relevant stamp duty paid thereon. The Revenue records require to be shown in the name of the Applicant / Intervener. Consequently the mention about the property Gomes Villa in prayer clause (d) (iii) of the Petition is itself put to challenge. The Petitioners who have vehemently disputed the claim of the Intervener in this application have not shown how in their Arbitration 8 Petition relating to the amounts claimed by them under the Sole Selling Agreement Exhibit- A to the Petition, the property Gomes Villa could have been shown as the property of the Respondents for claiming any reliefs thereto. If the property is not shown to be that of the Respondents, no reliefs could have been granted in favour of the Petitioners restraining the Respondents from disposing off, selling or creating third party interest of property which does not belong to them. 16. In fact the claim of the Applicant, that the order with regard to this property has been obtained by collusion stands to reason. The affidavit in rejoinder has been filed by the Petitioners in the Arbitration Petition. Even the affidavit in rejoinder show no verification with regard of the 8 properties shown by the Respondents. No reference to any of the properties is shown. In fact no statement with regard to the property in Gomes Villa is made. 17. Even if it was not obtained by collusion the order is seen to have been obtained under the mistaken belief or representing that the property which does not belong to the Respondents is shown to have belonged to them. Only the true owner of the property who is concerned with the property can bring that fact to the knowledge of the Court as Applicant has done it. Consequently the Applicant’s 9 application for modification of the order dated 25th September 2000, which confirms the ad- interim order upon the admission of the Arbitration Petition, is well placed and deserves to be granted. 18. It is argued on behalf of the Petitioners that such an order cannot be passed on such an application and the Applicants must file a suit in respect of such reliefs. It is not known under what provision of law there is a bar to filing a claim by the Applicant, who owns the suit property to show the Court that it is indeed not a suit property and no order could have been passed thereunder. It is seen that orders came to be passed in the Arbitration Petition upon the representation of the ownership of the properties made by the Petitioners as well as the Respondents. The representation is seen to be falsified by the records of the search obtained and the registered transfer of immovable property. Consequently the orders once passed by the Court upon a wrongful representation that Respondent Nos. 1 & 2 are the rightful owners to the suit properties deserves to be modified. 19. I may mention that there has been a modification of the order dated 11 th May 2000 also in the order dated 25 th September 2000. Whereas in the initial ad- interim order 10 injunction has been granted with regard to all the 3 properties mentioned in prayer (d) to the Petition, in the later interim order dated 25 th September 2000 only the injunction order in respect of only the first property shown in Exhibit- d (i) and the property Gomes Villa under clause (d)(iii) has been granted. The remaining properties mentioned in (d)(i) and (d) (ii) are not included in the order dated 25 th September 2000. Therefore, the injunction earlier granted is restricted to the aforesaid 2 properties only. It is, of course, not known why a part of the property (d)(i) and the entire property (d)(ii) came to be excluded from the interim order. It has now transpired that property (d)(iii) not shown to have been belonging to any of Respondents 1 and 2 must also be excluded from such order. 20. The order dated 25 th September 2000 is, therefore, modified to exclude the property Gomes Villa mentioned in Item No.(ii) of the said order dated 25 th September 2000. The City Survey Officer shall update the property register cards accordingly to show the property Gomes Villa as having been validly conveyed for consideration to the Applicant. 21. This Notice of Motion has been disputed and argued by the Petitioners. The Respondents have failed to appear despite service by registered post to them as well as their 11 Advocate who represented them in the Petition. 22. The Applicants shall file their affidavit of service upon the respondents and their Advocates. It may be mentioned that even in this Notice of Motion which came up for hearing before my brother Judge Chandrachud on 18 th February 2008, the Respondent’s Advocate V.I. Shaikh had appeared. He has since not appeared. 23. This order is stayed for 6 weeks. (SMT. ROSHAN DALVI, J.)