1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION rpa NOTICE OF MOTION NO. 3905 OF 2009 IN SUIT NO. 36 OF 1969 Premabai Mathradas Goculdas & Ors. .. Plaintiffs. v/s. The Provident Investment Co. Ltd. & Ors. .. Respondents. .... Mr. S. V. Kamdar, Senior Advocate a/w. Ms. Pooja Patil i/b. Udwadia & Udeshi for the Plaintiffs. Mr. Pravin Patel for Defendant No.1. Mr. S. R. Rajguru for Defendant No.2. .... CORAM : S.J. KATHAWALLA, J. DATE : 27TH JANUARY 2010. P.C. The Plaintiffs have filed the present suit in the year 1969 for redemption of mortgaged properties and to have the same re-conveyed to them and have possession thereof. After filing of the suit the Plaintiffs had not applied for any interim reliefs. The trial in the suit has now commenced and the cross- examination of the Plaintiff’s witness (P. W. 1) is in progress. 2 2. The Plaintiffs have taken out the present Notice of Motion in November, 2009, wherein, pending the hearing and final disposal of the suit, the Plaintiffs have sought an order of injunction, restraining the Defendant Nos. 1 and 2 and/or their officers, agents, servants from dealing with disposing off, issuing NOC’s in favour of the developers, creating third party rights, creating tenancies and/or parting with possession or otherwise transferring, alienating, encumbering the properties which are described in Exhibit A and Exhibit F to the plaint. 3. The Plaintiffs have in the Affidavit in support of the Notice of Motion inter-alia pointed out that the Plaintiffs have reliably learnt that the Defendant No. 1 and / or their Officers, Agents, servants are trying to deal with and dispose off, create tenancy or third party rights in the properties mortgaged by the Plaintiffs which are subject matter of the above suit and which are in their possession. The Plaintiffs Advocates thereupon addressed a letter dated 6th November, 2009 to the Defendant No.1, seeking information with regard to the No Objection Certificates (NOC’s) granted by the Defendant No. 1 to the developers for the development of the mortgaged properties and to give particulars 3 of the third party rights created by the Defendant No. 1 over the Plaintiff’s properties. Defendant No. 1 by its Advocates reply took a stand that the Plaintiffs claim for redemption was barred by the law of limitation. In the affidavit in reply to the Notice of Motion filed by the Defendant No. 1, it is admitted by Defendant No. 1 that the NOC’s are infact being issued, by the Defendant No. 1 to the tenants of the mortgaged properties. It is also contended that no reliefs should be granted to the Plaintiffs at this stage since the suit is being finally heard and the claim of redemption made by the Plaintiffs is time barred. In the said reply the Defendant No.1 not only failed to provide any particulars sought by the Plaintiffs but also did not confirm that pending the hearing and final disposal of the suit, the Defendants will not part with possession or create third party rights in the mortgaged properties. 3. The learned Senior Advocate Mr. Kamdar appearing for the Plaintiffs has submitted that in view of section 60 of the Transfer of Properties Act, the Plaintiffs have a right to redeem the mortgage. The learned Senior Advocate has also relied on the decision of the Hon’ble Supreme Court in the case of Narandas Karsondas V/s. S. A. Kamtam & Anr. (1977) 3 Supreme Court 4 Cases 247, wherein it is inter-alia held that the right of redemption which is embodied in Section 60 of the Transfer of Property Act, is available to the mortgagor unless it has been extinguished by the act of parties. In India, it is only on execution of the conveyance and registration of transfer of the mortgagor’s interest by registered instrument that the mortgagor’s right of redemption will be extinguished. It is further submitted that the contention on the part of the Defendant No. 1, that the suit is barred by the law of limitation is untenable and baseless. It is submitted that since the suit is likely to be decided shortly, the Defendants are trying to cause harm and prejudice to the plaintiffs by giving up valuable rights of the Plaintiffs by issuing NOC’s, obviously for consideration, to the tenants, allowing them to redevelop the properties. 4. The only contention raised on behalf of Defendant No. 1 before this Court, is that the suit is barred by the law of limitation and no interim reliefs should be granted at this stage to the Plaintiffs. The issue as to whether the suit is barred by the law of limitation is one of the issues to be finally decided after the parties have lead the evidence. Advocate for the Defendant No. 1 5 has himself submitted that the issue pertaining to limitation is a mixed question of law and facts and can be decided only after the evidence of all the parties to the suit is recorded. In the meantime, it is admitted by the Defendant No. 1 that NOC’s are being issued to the tenants for redevelopment of the mortgaged properties. The Defendants have not provided the Plaintiffs with the particulars pertaining to the status of the mortgaged properties despite being called upon. No particulars are also provided to the Plaintiffs as to how many NOC’s have been issued by the Defendant No. 1 to the tenants of the mortgaged properties for the redevelopment of the properties. The apprehension of the Plaintiffs is therefore well founded that the Defendants are in the process of creating third party rights in respect of the mortgaged properties and of giving up valuable rights of the Plaintiffs by issuing NOC’s to the tenants allowing them to redevelop the properties. This will cause grave damage and prejudice to the Plaintiffs who may not get to enjoy any benefits of their properties even after redeeming the mortgage pertaining to their properties. The balance of convenience is also in favour of the Plaintiffs. In my view, it would be in the interest of justice that the Defendants be directed not to disturb the present status of the mortgaged 6 properties without the permission of this Court. Hence, I pass the following order : :: O R D E R :: i. Pending the hearing and final disposal of the suit, the Defendants shall maintain status- quo as of date as regards the suit properties. It is clarified that if the Defendants are desirous of changing the status-quo in respect of any of the suit properties, they may do so after obtaining the permission of this Court. ii The Notice of Motion is, accordingly, disposed of with no order as to costs. [ S.J.KATHAWALLA, J. ]