1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.77 OF 2007 IN SPECIAL CIVIL SUIT NO.1322 OF 2006 WITH CIVIL APPLICATION NO.102 OF 2008 1 Kamal Arjan Hingorani Age 64 years, Occ: Household, Residing at 102, Landmark Building, 16th floor, Cartar Road, Bandra, Mumbai-50 2 Mr. Bharat A. Hingorani Age, Adult, Occ: Service, Both residing at 102, Landmark Building, 16th floor, Cartar Road, Bandra, Mumbai – 50 ...Appellants. (Org. Defts.) v/s. Shri Jayant Maniklal Lunawant Age 52 years, Occ: Business, residing at 52, National Society Aundh, Pune- 411 007 ..Respondent. (Org.Plff.) WITH APPEAL FROM ORDER NO.116 OF 2007 WITH CIVIL APPLICATION NO.540 OF 2007 1 Jyotin C. Gandhi Age 58 years, residing at 56, D.G.Kher Marg, Malabar Hill, Mumbai 400 006 2 2 Payal J. Gandhi Age 29, Adult, residing at 56, D.G.Kher Marg, Malabar Hill, Mumbai 400 006 ...Appellants. v/s. 1 Shri Jayant M. Lunawat Age 52 years, Occ: Business, Residing at 52, National Society, Aundh, Pune- 411 007. 2 Kamal Arjan Hingorani Age 64 years, Occ: Household, residing at 102, Landmark Building, 16th floor, Carter Road, Bandra, Mumbai- 50 3 Mr. Bharat Arjan Hingorani Age, Adult, Occ: Service, residing at 102, Landmark Building, 16th floor, Carter Road, Bandra, Mumbai -50 ...Respondents. Mr. S.M.Gorwadkar , adv. For the Appellants/Intervenors. (in A.O.No.116/2007) Mr. Girish S. Kulkarni a/w Z.A.K.Najam-Es-Sani i/by M/s Mulla & Mulla & CBC, advs. For the Respondent Nos.2 and 3. (Original Defendant Nos.1 and 2) (in A.O.No.116 of 2007) and (for the appellants in A.O.No.77 of 2007). None for the respondent no.1 (in A.O.No.116/2007) and (for the respondent in A.O.No.77 of 2007)- (Original Plaintiff). CORAM : J.H. BHATIA, J. DATED : AUGUST 5, 2011. ORAL JUDGMENT: 1 None for the plaintiff/respondent no.1 in all the matters. 3 Appeal From Order No.77 of 2007 with the application therein was filed by the original defendant nos.1 and 2 in Special Civil Suit No.1332 of 2006 filed by the respondent no.1/Plaintiff Jayant M. Lunawat. Appeal From Order No.116 of 2007 with the application therein was filed by the appellants, who are not parties to the suit but who claim that their rights are being affected by the impugned order. For the sake of convenience, therefore, parties may be referred to as the plaintiff, defendants and the intervenors. 2 Dispute pertains to the suit plot no.265 admeasuring 1521.52 sq.mtrs. out of the lay out of Survey No.58 at village: Aundh at Pune. That complete lay out belongs to the Sindh Co-operative Housing Society Ltd. Defendants are the members of the said society and holders of the suit plot. Plaintiff claims that by virtue of Memorandum of Understanding dated 22.7.2005, defendants had agreed to sell, transfer and assign the plot to the plaintiff for a consideration of Rs. 1,61,00,000/- and out of the consideration amount, earnest money of Rs. 5 lac was paid. As the defendants failed to fulfil the contract, plaintiff filed the suit for specific performance of the contract. Plaintiff also filed application Ex.17 restraining the defendants from creating third party interest pending the suit. Application was contested by the defendants 4 alleging that the plaintiff himself had failed to fulfil certain terms of the contract and had not obtained necessary permission from the society for the purpose of transfer. However, after hearing the parties, the trial Court by the impugned order dated 1.12.2006 allowed that application and granted temporary injunction restraining the defendants from creating any third party interest or from developing or making any construction on the suit plot till final disposal of the suit. That order has been challenged by the original defendants in the Appeal From Order No.77 of 2007. 3 Intervenors, who are the appellants in Appeal From Order No.116 of 2007 claim that the defendants had terminated contract/Memorandum of Understanding in favour of the plaintiff and after termination of that, intervenors entered into contract to purchase the suit plot from the defendants. Intervenors were neither party to the said suit nor any opportunity was given to them to defend the application, Ex.17 and the impugned order was passed restraining the defendants from creating third party interest and thereby rights of the intervenor to get the sale deed / conveyance deed is affected and, therefore, said order is liable to be set aside. 4 The learned counsel for the defendants makes a statement 5 that not only evidence in the suit has been completed, final arguments are in progress and, therefore, suit is expected to be disposed off shortly. In view of these circumstances, in my opinion, no purpose will be served by interfering in the impugned order at this stage. Appeal and the application filed by the defendants may be disposed off with the directions to dispose off the suit itself within the specified period. 5 Coming to the appeal filed by the intervenors by the order dated 8th February, 2007, this Court had granted sufficient protection to them and intervenors were allowed to approach the society for taking necessary permission for transfer of the suit plot by the defendants in their favour and if such permission was granted, intervenors could seek further directions for completion of transaction. That order was challenged by the plaintiff by filing Special Leave Petition No.5189 of 2007 before the Supreme Court. In that Special Leave Petition, by the order dated 30th March, 2007, the Supreme Court clarified that in case the society accords permission in favour of the intervenors, they may seek further direction from the High Court. In the light of this direction, intervenors filed Civil Application No.540 of 2007 seeking permission from this Court to complete the transaction. In fact, the appeal filed by the intervenors could be disposed off in the terms of the order passed on 6 8th February, 2007 itself. As far as permission to complete the transaction is concerned as the suit is at the flag end and is likely to be disposed off shortly, it would not be desirable to grant such permission at this stage. The learned counsel for the intervenors, in view of the circumstances also concedes that at this stage, he would not press for prayer to complete the transaction but he seeks liberty to deposit Rs.15,20,580/- with the society as directed by the society as condition for granting approval to the transaction. In my opinion, there is no difficulty or hitch in allowing this limited request. 6 In the light of the facts and circumstances noted above, Appeal From Order No.77 of 2007 stands disposed off with the direction to the trial Court to dispose off the suit itself as early as possible and in any case, by the end of October, 2011. As the appeal itself is disposed off, civil application no.102 of 2008 does not survive and stands disposed off accordingly. 7 Appeal From Order No.116 of 2007 stands disposed off in terms of the order dated 8th February, 2007. In Civil Application No.540 of 2007, the intervenor/applicants are allowed to deposit an amount of Rs.15,22,550/- with Sind Co-operative Housing Society in compliance to the directions given by the society as condition for approval of his 7 transaction. Application stands disposed off accordingly. (J.H. BHATIA,J.)