1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3602 OF 2008 IN SUIT NO.1177 OF 2001 Sayyed Mahfoos Ali .. Plaintiff V/s Stephen D.Remedios & Ors. .. Defendants Mr.R.D.Thorat for the plaintiffs. Mr.A.R.Shaikh for the Defendants. CORAM: R.G.KETKAR, J. DATE: 23rd June, 2011. P.C.: 1. Heard learned counsel appearing for the parties. By this notice of motion, the plaintiff has sought an injunction restraining the Defendant Nos.2 & 3, their servants and agents and any person acting and/or claiming through them from creating any third party rights of whatsoever nature in respect of the land bearing CTS No.122-A of village Ghatkopar, Taluka Kurla, District Mumbai (for short suit property). 2. Plaintiff has instituted suit interalia contending that the plaintiff and his father are carrying on business of manufacturing cane furniture in the eight structures tenanted to them standing on the suit property. Defendant No.1 represented to the plaintiff that he 2 is the absolute owner of the suit property and the said eight structures. By an Agreement of Sale dated 11.01.2000 Defendant No.1 agreed to sell and transfer to the plaintiff the suit property together with eight structures tenanted to the plaintiff. The aggregate area of eight structures is around 300 sq.meters. As per the schedule annexed to the Agreement for Sale dated 11.01.2000 the area of the suit property is approximately 500 sq.meters. and the exact area is to be ascertained on joint survey and demarcation of land. Under the said agreement, the sale price was fixed @ Rs. 3200/- per sq.meter of the actual available land to be ascertained by proper survey and demarcation of land, and @ 25000/- for each of the said structures let out to the plaintiff on tenanted basis. The aggregate consideration was around 20 lakhs. 3. It is the case of the plaintiff that pursuant to the said agreement he paid earnest amount of Rs.51,000/- to Defendant No.1 by Cheque No.719136 dated 12th October, 1999 drawn on Syndicate Bank, Andheri (East) Branch, Mumbai, receipt whereof was acknowledged by Defendant No.1. It is the case of the plaintiff that after execution of the agreement, he requested Defendant No. 1 to fix time for joint survey and demarcation of the suit property. 3 Plaintiff by his letter dated 20.02.2000 called upon Defendant No. 1 to carry out the survey. Since there was no reply, by subsequent letter dated 11.04.2000 he again called upon Defendant No.1 to carry out the survey. Instead of carrying out joint survey, Defendant No.1 issued letter dated 09.08.2000 alleging that the plaintiff failed to make payment of the balance purchase price and further called upon the plaintiff to complete the sale within 15 days from the receipt of the said letter, failing which, the agreement would be cancelled. Plaintiff replied on 19.08.2000 calling upon Defendant No.1 to complete the survey of the suit property. Thus though the plaintiff was ready and willing to perform his part of the contract, Defendant No.1 was not ready to perform his obligations under the agreement. 4. Plaintiff further contended that Defendant Nos.2 & 3 tried to disturb his exclusive possession on 15.02.2001 which compelled him to institute S.C.Suit No.944 of 2001 before the Hon'ble City Civil Court at Bombay. In that suit he took out Notice of Motion No.745 of 2001 for ad-interim reliefs restraining the Defendants from disturbing his exclusive possession of the suit property. By order dated 16.02.2001 the City Civil Court directed the parties to 4 maintain status quo till 02.03.2001. It is his further case that he came to know that Defendant No.1 executed an agreement of sale dated 12.02.2001 in favour of Defendant Nos.2 and 3. Plaintiff therefore instituted the present suit on 28.03.2001 (i) for declaration that the Agreement for Sale dated 11.01.2000 is valid, subsisting and binding upon the plaintiff and the Defendant No.1, (ii) and for direction that the Defendant No.1 be ordered and directed to specifically perform his part of the obligations under the Agreement for Sale dated 11.01.2000 by conveying or causing to convey the suit property among other prayers. 5. Plaintiff took out the Notice of Motion No.832 of 2001 in the present suit seeking injunction restraining the Defendants from disturbing his peaceful possession in respect of eight rooms which are in his possession. The notice of motion was made absolute on 03.04.2003 thereby restraining the Defendants only in respect of five rooms as more particularly set out therein. 6. Pursuant to the agreement for sale dated 12.02.2001, Defendant No.1 has conveyed the suit property alongwith the structures in favour of Defendant Nos.2 & 3 by Conveyance Deed dated 10.10.2006. Since Defendant No.1 conveyed the property in 5 favour of Defendant Nos.2 & 3, the plaintiff took out Chamber Summons No.1256 of 2008 challenging the said conveyance deed The said Chamber Summons was allowed on 08.09.2008. 7. Now the plaintiff apprehends that during the pendency of this suit, Defendant Nos.2 & 3 will further create third party interest. He has therefore taken out this notice of motion praying for injunction restraining Defendant Nos.2 & 3 from creating third party interests. Plaintiff has also filed an affidavit in support of this notice of motion. 8. On behalf of Defendant Nos.2 & 3 affidavit in reply is filed opposing the notice of motion. It is contended that the Defendant No.1 has terminated the Agreement for Sale on 09.08.2000. The said notice was duly received by the plaintiff on 14.08.2000. After terminating the Agreement for Sale, Defendant No.1 entered into an Agreement for Sale in favour of Defendant Nos.2 & 3 on 12.02.2001 and ultimately executed Deed of Conveyance on 10.10.2006. It is therefore contended that the plaintiff has no right, title and interest in the suit property. 9. Mr.Shaikh, learned counsel for the Defendants submitted that the plaintiff took out earlier notice of motion seeking only an order of 6 injunction restraining the Defendants from disturbing his lawful possession in respect of the eight rooms. The plaintiff however did not seek any injunction restraining the Defendants from creating any third party interest. Plaintiff is not entitled to any relief in this notice of motion. At any rate the plaintiff on his own showing, has paid only Rs.51,000/- as against the total consideration of Rs.20 lakhs approximately. He therefore submitted that the plaintiff is not entitled to any relief. 10.I have considered the submissions made by learned counsel appearing for the parties. It is not in dispute that after the agreement was terminated by Defendant No.1 on 09.08.2000 the plaintiff has immediately instituted the present suit on 28.03.2001. It is also not in dispute that the plaintiff is in possession of five rooms and the injunction is operating in favour of the plaintiff. It is equally not in dispute that during the pendency of the suit Defendant No.1 has conveyed this property in favour of Defendants 2 & 3 by Deed of Conveyance dated 10.10.2006. In my opinion, subject to putting the plaintiff to terms, if the injunction as sought for by the plaintiff is not issued, it is likely that Defendants 2 and 3 may create third party interest 7 in the property which will lead to multiplicity of the proceedings. On the last occasion I had therefore indicated that if the plaintiff is willing to deposit the balance consideration in this Court, the Court may consider granting of injunction. Today, learned counsel Mr.Thorat, upon instructions from the plaintiff submitted that within a period of 12 weeks from today the plaintiff will deposit balance amount of Rs.19,50,000/- in this Court. Statement made by Mr.Thorat is accepted. 11.In my opinion, interest of justice would be served if the Defendant Nos.2 & 3 are restrained from creating any third party interest in the suit property on the condition of plaintiff depositing Rs.19,50,000/- in this Court within a period of 12 weeks from today. This will also avoid multiplicity of proceedings. Upon such deposit is made, learned counsel for the plaintiff shall intimate the said fact to learned counsel for the Defendants. Hence, I pass the following order:- (i) Upon the plaintiff depositing Rs.19,50,000/- in this Court within a period of 12 weeks from today, Defendants 2 & 3 are restrained from creating any third party rights of whatsoever nature in respect of the land bearing CTS No.122-A of village 8 Ghatkopar, Taluka Kurla, District Mumbai. (ii) After the amount is deposited, the learned counsel for the plaintiff shall intimate the same to the learned counsel for the Defendants. (iii) The amount so deposited by the plaintiff shall be invested in any of the nationalised Bank, initially for a period of three years, which may be thereafter renewed from time to time, and that deposit shall be to the credit of the present suit. (iv) Notice of motion is made absolute in terms of prayer clause (a), with no order as to costs. (R.G.KETKAR, J.)