IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.582 OF 2007 OF MOTION NO.582 OF 2007 OF MOTION NO.582 OF 2007 IN IN IN SUIT SUIT SUIT NO. 335 OF 2007 NO. 335 OF 2007 NO. 335 OF 2007 M/S. M/S. M/S. SOPARIWALA JOGLEKAR & NOOR SOPARIWALA JOGLEKAR & NOOR SOPARIWALA JOGLEKAR & NOOR ... ... ... PLAINTIFFS. PLAINTIFFS. PLAINTIFFS. VS. VS. VS. M/S. M/S. M/S. O.K.MOTOR WORKS & ORS. O.K.MOTOR WORKS & ORS. O.K.MOTOR WORKS & ORS. ... ... ... DEFEDANTS. DEFEDANTS. DEFEDANTS. MR. MR. MR. B.PATIL I/B. ISHA VALANI FOR THEPLAITIFFS B.PATIL I/B. ISHA VALANI FOR THEPLAITIFFS B.PATIL I/B. ISHA VALANI FOR THEPLAITIFFS MR. MR. MR. PRAVI SAMDAI WITH HEMAG RAYTHATTA I/B. RMG LAW PRAVI SAMDAI WITH HEMAG RAYTHATTA I/B. RMG LAW PRAVI SAMDAI WITH HEMAG RAYTHATTA I/B. RMG LAW FOR FOR FOR THE DEFENDAT OS. 2 & 3. THE DEFENDAT OS. 2 & 3. THE DEFENDAT OS. 2 & 3. Coram Coram Coram : S.K.Shah, J. : S.K.Shah, J. : S.K.Shah, J. Date Date Date : March 6, 2007. : March 6, 2007. : March 6, 2007. P.C.:- P.C.:- P.C.:- 1. 1. 1. This This This is Plaintiffs motion seeking relief of is Plaintiffs motion seeking relief of is Plaintiffs motion seeking relief of appointment appointment appointment of receiver and also injunction against the of receiver and also injunction against the of receiver and also injunction against the defendant defendant defendant No.2 and 3, restraining them from parting No.2 and 3, restraining them from parting No.2 and 3, restraining them from parting with with with possession and creating third party right and possession and creating third party right and possession and creating third party right and interest interest interest in the suit property. in the suit property. in the suit property. 2. 2. 2. Plaintiff Plaintiff Plaintiff is the owner and also builder of multi is the owner and also builder of multi is the owner and also builder of multi storied storied storied building. The defendant No.1 was running a building. The defendant No.1 was running a building. The defendant No.1 was running a garage garage garage in the part of the premises, before construction in the part of the premises, before construction in the part of the premises, before construction of of of the building was started. Defendant NO. 1 became the building was started. Defendant NO. 1 became the building was started. Defendant NO. 1 became owner owner owner of the area adm. 7200 sq.feet. There was an of the area adm. 7200 sq.feet. There was an of the area adm. 7200 sq.feet. There was an agreement agreement agreement between the defendant No.1 and the Plaintiff between the defendant No.1 and the Plaintiff between the defendant No.1 and the Plaintiff that that that the defendant No.1 would not transfer the business the defendant No.1 would not transfer the business the defendant No.1 would not transfer the business of of of M/s. O.K.Motor Works of garage during the currency M/s. O.K.Motor Works of garage during the currency M/s. O.K.Motor Works of garage during the currency of of of the agreement. the agreement. the agreement. 3. 3. 3. The The The contention of the Plaintiff is that the contention of the Plaintiff is that the contention of the Plaintiff is that the building building building is not yet complete and, therefore, the is not yet complete and, therefore, the is not yet complete and, therefore, the agreement agreement agreement is in force. During the force of the is in force. During the force of the is in force. During the force of the agreement, agreement, agreement, the defendant NO.1 has transferred the the defendant NO.1 has transferred the the defendant NO.1 has transferred the entire entire entire premises adm. 7200 sq.ft. in favour of premises adm. 7200 sq.ft. in favour of premises adm. 7200 sq.ft. in favour of defendant defendant defendant NO.2 & 3 and, therefore the present suit is NO.2 & 3 and, therefore the present suit is NO.2 & 3 and, therefore the present suit is filed. filed. filed. 4. 4. 4. Prima Prima Prima facie case is in favour of the Plaintiff, facie case is in favour of the Plaintiff, facie case is in favour of the Plaintiff, however, however, however, as regards the balance of convenience and as regards the balance of convenience and as regards the balance of convenience and irreparable irreparable irreparable loss, no case is made out by the plaintiff loss, no case is made out by the plaintiff loss, no case is made out by the plaintiff for for for the relief sought. the relief sought. the relief sought. 5. 5. 5. It It It is not in dispute that the construction of is not in dispute that the construction of is not in dispute that the construction of the the the entire premises adm. 7200 sq. ft. has been entire premises adm. 7200 sq. ft. has been entire premises adm. 7200 sq. ft. has been completed completed completed and it is after completion thereof, there is and it is after completion thereof, there is and it is after completion thereof, there is an an an agreement to pass conveyance in that regard in agreement to pass conveyance in that regard in agreement to pass conveyance in that regard in favour favour favour of the defendant No.1. of the defendant No.1. of the defendant No.1. 6. 6. 6. There There There is clause NO. 27 in the agreement, which is clause NO. 27 in the agreement, which is clause NO. 27 in the agreement, which reads reads reads thus :- thus :- thus :- "Clause "Clause "Clause 27 : The Tenants do hereby agree ad 27 : The Tenants do hereby agree ad 27 : The Tenants do hereby agree ad covenant covenant covenant with the Owners and the Developers or with the Owners and the Developers or with the Owners and the Developers or their their their nominees that they will not during the nominees that they will not during the nominees that they will not during the currency currency currency of this Agreement id any manner of this Agreement id any manner of this Agreement id any manner alienate alienate alienate and/or encumber, create any third party and/or encumber, create any third party and/or encumber, create any third party rights rights rights and/or assign, transfer the said business and/or assign, transfer the said business and/or assign, transfer the said business of of of M/s. O.K.Motors Works or any part thereof to M/s. O.K.Motors Works or any part thereof to M/s. O.K.Motors Works or any part thereof to any any any person i howsoever manner until the said person i howsoever manner until the said person i howsoever manner until the said development development development of the said property in terms of the of the said property in terms of the of the said property in terms of the said said said plan that may be sanctioned by the plan that may be sanctioned by the plan that may be sanctioned by the Municipal Municipal Municipal Corporation of Greater Mumbai is fully Corporation of Greater Mumbai is fully Corporation of Greater Mumbai is fully completed completed completed in all respect." in all respect." in all respect." 7. 7. 7. The The The learned Counsel for the defendant NO. 2 & 3 learned Counsel for the defendant NO. 2 & 3 learned Counsel for the defendant NO. 2 & 3 points points points out that the construction of the building was out that the construction of the building was out that the construction of the building was completed completed completed in 1983 itself. Therefore, what remains is in 1983 itself. Therefore, what remains is in 1983 itself. Therefore, what remains is only only only a formal conveyance to be passed in favour of the a formal conveyance to be passed in favour of the a formal conveyance to be passed in favour of the defendant defendant defendant NO. 1. As earlier observed, there is no NO. 1. As earlier observed, there is no NO. 1. As earlier observed, there is no irreparable irreparable irreparable loss which is going to be caused to the loss which is going to be caused to the loss which is going to be caused to the Plaintiff Plaintiff Plaintiff nor there is any balance of convenience in nor there is any balance of convenience in nor there is any balance of convenience in favour favour favour of the Plaintiff, as he himself is responsible of the Plaintiff, as he himself is responsible of the Plaintiff, as he himself is responsible for for for not passing a conveyance in favour of the defendant not passing a conveyance in favour of the defendant not passing a conveyance in favour of the defendant NO.1. NO.1. NO.1. Therefore, I do not find any merit in this Therefore, I do not find any merit in this Therefore, I do not find any merit in this notice notice notice of motion. The notice of motion is accordingly of motion. The notice of motion is accordingly of motion. The notice of motion is accordingly dismissed. dismissed. dismissed. .... .... .... [S.K.Shah [S.K.Shah [S.K.Shah , J.] , J.] , J.]