-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2644 OF 2006 NOTICE OF MOTION NO.2644 OF 2006 NOTICE OF MOTION NO.2644 OF 2006 IN IN IN SUIT NO.2531 OF 1992 SUIT NO.2531 OF 1992 SUIT NO.2531 OF 1992 Bankim Prabhatchandra Dalal and ors .. Plaintiffs. Vs 1(a) Sarojben Snehchandra Dalal & ors .. Defendants. Mr D.D.Madon, Senior Advocate, with Mr Kishore Jain and Sheetal Shah i/b Mehta & Girdharilal, for the plaintiffs. Mr J.P.Sen i/b Rahul Moghe for defendant nos 1(a), 1(b) and 1(c). Mr J.Shekhar, for the applicant/defenant no.2. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. DATE : 02nd April, 2008 DATE : 02nd April, 2008 DATE : 02nd April, 2008 PC: PC: PC: 1. This notice of motion is taken out by defendant no.2 for the following reliefs:- (a) The plaintiff and the legal heir of defendant no.1 as ell as their agents, servants, assignees and any person claiming through them, including Pramukh Infrastructure Pvt Ltd, be restrained from disturbing peaceful, actual and physical possession of the suit property, given to this defendant under the consent terms before this Hon’ble Court. (b) The plaintiff and the legal heir of defendant no.1 as well as their agents, servant, assignees and any person claiming through them, -2- including Pramukh Infrastructure Pvt Ltd, be restrained by an order of injunction from further creating any third party interest in any manner, including alienating, transferring, encumbering or creating any further rights, in properties mentioned in the sale deeds, more particularly mentioned as Exhibit "H", "I", "J", "K". (c) The plaintiff and the legal heir of defendant no.1 as well as their agents, servant, assignees and any person claiming through them, including Pramukh Infrastructure Pvt Ltd, be restrained by an order of injunction from dispossessing this defendant no.2 and his family, who are in actual and physical possession from his residence, viz. Pravin Mahal situated at Survey No.3001, exclusively allotted to him in the consent decree dated 23rd April, 1999 and Final Award pending the final disposal of the matter. (d) That appropriate orders regarding the sale deeds executed by plaintiffs being registered at Serial number BLS/540/2006 dated 14th February 2006 being executed on the same day and another sale deeds executed on dated 27th March 2006 by plaintiffs being registered at Serial number BLS/1076/2006 on 19th April 2006 in favour of Pramukh Infrastructure Pvt Ltd by violating an injunction order of this Hon’ble Court may kindly be passed. (e) That appropriate orders regarding the sale deed executed by defendant no.1 through his constituted attorney and registered at Serial number BLS/476/2006 dated 8th February 2006 in favour of Pramukh Infrastructure Pvt Ltd by violating an injunction order of this Hon’ble Court may kindly be passed. (f) That appropriate orders regarding an unnumbered sale deed executed on 14th February 2006 by defendant no.1 through his constituted attorney and registered at Serial number 818 in book no.1 dated 19th April, 2006 in favour of Pramukh Infrastructure Pvt Ltd for properties bearing CTS No.4106, 4121, 4122, 4134 by violating an injunction order of this Hon’ble Court may kindly be passed. -3- (g) That the plaintiffs and the legal representative of the defendant no.1 be directed to compensate the defendant no.2 to the tune of Rs.50 lakhs being damages/injuries caused to the defendant no.2. (h) That appropriate order under order Order 39 rule 2A of Civil Procedure Code 1908 be passed against the plaintiffs and legal heir of defendant no.1 in violation of injunction orders." 2. The suit has already been decreed in terms of the Award. The learned counsel for defendant no.2 has submitted that even if the suit has been decreed, the present Notice of Motion is maintainable and the reliefs claimed therein can be granted in view of the peculiar facts and circumstances of the case. 3. I have heard learned counsel for the parties at considerable length. Keeping in view the peculiar facts and circumstances of the case and considering the reliefs claimed in the Motion, few relevant facts and the circumstances against which this Motion has been taken out, need to be stated in brief. The plaintiffs had filed a Suit No.2531 of 1992 for partition and separate possession of their share in the estate left behind by one Hiralal Gokuldas. It appears that after the suit was filed, the parties arrived at the Consent Terms whereby the dispute in the suit was referred to sole Arbitration of Justice D.M.Rege (Rtd.) and the -4- decree was accordingly passed in terms of the consent terms. It further appears in the written statement that was filed by defendant no.1 before the Arbitrator, he disclosed, for the first time, that Smt Gaman Gauri, who was wife of deceased Hiralal Gokuldas Dalal had died leaving behind a Will. The Arbitrator, therefore, by order dated 5.8.1996, observed that in view of the claim that there is a Will in the field now, the Arbitrator has no jurisdiction to determine the validity of the Will. Therefore, the parties were directed to take up the proceedings in the Testamentary Court for getting the dispute about the Will resolved. 4. Since no such proceedings were taken out, the plaintiffs once again took out Notice of Motion No.1316 of 1997 for restoration of the suit and for its disposal on merits. The said Notice of Motion was granted in terms of prayer clause (c). While disposing of the Notice of Motion, it was also observed that by order dated 13.11.1992 this Court had directed the parties to maintain status-quo in relation to the properties mentioned in Exhibits "B", "C" and "D" to the plaint and in view thereof that order was continued to operate for a period of eight weeks from the date of the order, that is 15.12.1998. The plaintiffs were also given liberty to take out appropriate proceedings -5- for continuance of injunction order and also for any further reliefs that the plaintiffs were entitled to including the relief of order of appointment of Receiver. 5. Thereafter, once again, the learned Single Judge of this Court vide order dated 23.4.1999, passed the decree in terms of the Consent Terms whereby the parties agreed to revert back to the arbitration of Mr Justice D.M.Rege (Rtd), which arbitration was adjourned sine die on 5.8.1996 as the question of Will of Smt Gamenben Dalal had been settled out of Court. The Hon’ble Arbitrator was accordingly directed to proceed with the arbitration of apportioning the shares as mentioned in the Addendum to the Consent Terms dated 13.11.1992. It was also provided in the Consent Terms that the injunction on "B" and "C" to continue till the entire disposal of the matter. It appears from the affidavit in support of the present motion the parties have understood the expression "entire disposal of the matter" as disposal of the suit, as seen in paragraph 8 of the affidavit dated 3.8.2006. 6. It is against this backdrop that the Arbitrator proceeded with the hearing and passed the interim Award dated 13.7.2004. This Curt, by order dated 26.10.2004, passed the decree in terms of the interim Award and -6- while doing so, disposed of the suit and Notice of Motion No.2677 of 2004. Thereafter, on 24.8.2006, the decree in terms of the Award was passed in Notice of Motion No.1245 of 2005 in Suit No.2531 of 1992, which was taken out by the plaintiff in April, 2005. The order dated 24.08.2006 reads thus: " This is a notice of motion taken out by the plaintiffs for passing a decree in terms of the Award made by the learned Arbitrator which is at Exhibit "C" to the affidavit filed in support of the notice of motion. The Arbitrator was appointed in this suit itself. An affidavit has been filed on behalf of defendant no.2 He stated that he has no objection to decree being passed in terms of the Award. Defendant no.1 has expired. His legal representatives are brought on record. They have been served with the notice of motion. They have not filed any reply. Affidavit of service has been filed. Therefore in view of the no objection given by defendant no.2 and in the absence of any reply filed by the legal representatives of defendant no.1 accepting the averments in the affidavit filed in support of notice of motion at face value, the notice of motion is granted in terms of prayer clause (a). The notice of motion is disposed of. " 7. Insofar as the instant Notice of Motion is concerned, it is taken out by defendant no.2 on 3.8.2006 against the plaintiffs and the heirs of defendant no.1. One Pramukh Infrastructure Pvt Ltd is also made party respondent in the Notice of Motion. This Notice of Motion was heard by the learned Single -7- Judge on 4.9.2006 for interim relief. The order dated 4.9.2006 reads thus: "The reliefs claimed are specifically and directly against one Pramukh Infrastructure Pvt Ltd. They are not made a party tot his Notice of Motion. In the circumstances, no relief can be granted against the said party. 2. Liberty to the plaintiffs to move after giving notice to the said party. 3. A decree in terms of the award was passed on 24th August,2006. It is stated on behalf of defendant no.2 that an application to set aside the same is made. In view thereof, liberty to apply on a fresh preceipe. 4. The other parties to the proceedings however shall not dispossess defendant no.2, if they are in possession of any part of the suit property except by due process of law. 5. Notice of Motion is made returnable in normal course." This Court is informed that despite the aforesaid order, defendant no.2 did not take any steps to serve the notice in this motion to Pramukh Infrastructure Pvt Ltd. Even the application to set aside the decree in terms of the Award, I am informed, has been dismissed by this court. 8. It is in this background, I have heard learned counsel for the parties for quite some time. Mr. Shekhar, learned counsel for defendant no.2, after -8- inviting my attention to all the earlier orders, as mentioned above and to the other material on record, submitted that despite the order of injunction which, according to him, was operating allthrough out, the plaintiffs and deceased defendant no.1 disposed oftheir undivided shares in the properties in favour of Pramukh Infrastructure Pvt Ltd.even before execution of the decree in terms of the Award which is totally illegal. He submitted that in the Award, all the parties to the proceedings were given right to bid in the auction of the properties. He, therefore, submitted that right of preemption was created in favour of defendant no.2 which was deliberately overlooked by the plaintiffs and defendant no.1 and they have sold all the properties of their share to Pramukh Infrastructure Pvt Ltd without giving an opportunity to defendant no.2 to participate in the process of sale of the properties and in view thereof there is a violation of the order of injunction and also the directions given in the Award and hence an action under Order 39, Rule 2A of CPC will have to be taken against the plaintiffs and the heirs of defendant no.1. 9. Defendant no.1 died on 24.5.2006. The heirs of defendant no.1 were added as parties to the proceedings on 28.6.2006. Admittedly, the heirs of defendant no.1 -9- were not parties to the proceedings before this date nor were they parties to the transaction between defendant no.1 and Pramukh Infrastructure Pvt Ltd. 10. Mr Shekhar, then, submitted that in view of the injunction against the plaintiffs and defendant no.1 from creating any third party rights in the properties, the transfer in favour of Pramukh Infrastructure Pvt Ltd in violation of the injunction order is illegal and cannot be recognised in law. In support of this proposition he placed reliance upon the judgment of Keshrimal Jivji Shah and anr VS. Bank of Maharashtra Keshrimal Jivji Shah and anr VS. Bank of Maharashtra Keshrimal Jivji Shah and anr VS. Bank of Maharashtra and ors, 2004 Vol 106 (3) Bom.L.R. 969. and ors, 2004 Vol 106 (3) Bom.L.R. 969. and ors, 2004 Vol 106 (3) Bom.L.R. 969. 11. On the other hand, Mr Madon, learned senior counsel for the plaintiffs and Mr.Sen, learned counsel for the heirs of defendant no.1, at the outset, submitted that none of the prayers made in the Notice of Motion can be granted. Mr Madon submitted that there was no injunction order against the plaintiffs at the relevant time and even if it is assumed that there was such order passed against the plaintiffs, it merged into the order when the suit was disposed of by the learned Single Judge vide order dated 26.10.2004. He then submitted that Pramukh Infrastructure against whom most of the prayers in the motion are directed, are not -10- served with the motion despite the order of this court dated 4.9.2006. Though the prayers are composite in nature, they are specifically directed against Pramukh Infrastructure Pvt Ltd. They were neither party to the suit nor are they served with this Notice of Motion. He submitted that insofar as the plaintiffs and defendant no.1 are concerned, the order of injunction in terms of prayer clauses (b),(d),(e) and (f) cannot be passed in view of the fact that they have already created interest in favour of Pramukh Infrastructure Pvt Ltd. The learned counsel then submitted that the prayer (h) in the Notice of Motion seeking appropriate order under order 39, Rule 2A of CPC against the plaintiffs and the legal heirs of defendant no.1, apart from the other grounds, cannot be granted in view of the fact that in the affidavit in support of the Motion, the allegations are made only against plaintiff no.1 and that the heirs of defendants are not parties to the transactions nor were they party to the proceedings till 28.6.2006. Lastly, it was submitted that the plaintiffs and defendant no.1 have disposed of the property only to the extent of the share allotted to them in the decree in terms of the Award and, therefore, they have not violated the orders of the court. -11- 12. I have heard learned counsel for the parties at considerable length and perused the entire material placed before this court. I would like to deal with every single prayer made in the Motion. Insofar as prayer (a) is concerned, learned counsel for defendant no.2 fairly stated that he has instructions not to press this prayer. So far as prayer (b) is concerned, defendant no.2 has prayed for injunction against the plaintiffs and defendant no.1 and also against Pramukh Infrastructure Pvt Ltd restraining them from creating any third party interest in the properties mentioned at Exhibits "H", "I", "J", and "K". This prayer and the prayers (d), (e) and (f) are of similar nature as they are directed not only against the plaintiffs and defendant no.1 but also against Pramukh Infrastructure Pvt Ltd. Pramukh Infrastructure Pvt Ltd are added as party respondent in the Motion. Despite that, admittedly, defendant no.2 has not served the instant Notice of Motion on them. Admittedly, they were not party to the suit. This Court, vide order dated 4.9.2006 while refusing to grant interim relief, had observed that the reliefs claimed are specifically and directly against Pramukh Infrastructure Pvt Ltd and since they were not party to the suit, no reliefs can be granted against the said party. The plaintiffs were given liberty to move for the reliefs against Pramukh -12- Infrastructure Pvt Ltd after giving notice to the said party. Despite this, admittedly, no such notice was served on Pramukh Infrastructure Pvt Ltd by defendant no.2. Mr.Shekhar, learned counsel for defendant no.2, submitted that Pramukh Infrastructure Pvt Ltd were added as respondent only to show that the properties were sold by the plaintiffs and defendant no.1 to this party and, therefore, they have not served the Motion on them. That being so, it is not possible for this Court to consider the prayers (b),(d), (e) and (f) as they are mainly directed against Pramukh Infrastructure Pvt Ltd. There cannot be and need not be an order of injunction against the plaintiffs and defendant no.1 since they have already transferred the entire properties, that had fallen to their shares in the final decree in terms of the Award,in favour of Pramukh Infrastructure Pvt Ltd. 13. That takes me to prayer (c). Mr Madon, learned senior counsel for the plaintiffs and Mr.Sen, learned counsel for the heirs of defendant no.1, fairly stated that they would not disturb the possession of defendant no.2 and his family or dispossess them from the residential flat mentioned in the prayer. Their statements are accepted. Even the learned Single Judge, by order dated 4.9.2006, had directed the -13- parties to the proceedings not to dispossess defendant no.2 if they are in possession of any part of the suit properties, except by due process of law. There is no dispute that defendant no.2 is in possession of the flat mentioned in prayer clause (c). In view thereof, prayer (c), in my opinion stands satisfied and,therefore, no further orders are necessary. 14. Insofar as prayer (g) is concerned, in my opinion, it cannot be granted since it is always open for defendant no.2 to file independent proceedings seeking damages as prayed. Keeping that remedy open to defendant no.2, this prayer is also rejected. That takes me to prayer (h). By this prayer defendant no.2 has prayed for appropriate orders under Order 39, Rue 2A of CPC against the plaintiffs and the legal heirs of defendant no.1 for violating the injunction order. The injunction order that is brought to my notice was the order by which the learned Single Judge had passed the decree in terms of the Consent Terms dated 23.4.1999. In the Consent Terms, the injunction on properties "B" and "C" was directed to be continued till the entire disposal of the matter. Thereafter, it appears that while passing decree in terms of the interim Award, this Court, vide order dated 26.10.2004, had disposed of the suit allowing the plaintiffs to claim refund of -14- court fees as per the Rules. Thus, the suit came to be disposed of by this order and as a result thereof all the interim orders stood merge in the decree. Even if it is accepted that the entire suit did not stand decreed and/or disposed of by order dated 26.10.2004, it is clear that it stands disposed of vide order dated 24.8.2006 when the decree in terms of the final Award was passed. While passing the decree in terms of the final Award, defendant no.2 had stated and it is recorded in the order that he had no objection to decree being passed in terms of the Award. It is thus clear that even if it is accepted that there was injunction running against the plaintiffs and defendant no.1 issued order dated 23.4.1999 in terms of the Consent Terms, it cannot be stated that it was operating even after disposal of the suit. Defendant no.2 may be justified in stating that the plaintiffs and defendant no.1 ought not to have disposed of their properties and that they did not follow the mandate of the Award, still, I am afraid, there cannot be any order under Order 39 Rule 2A of CPC in view of the disposal of the suit finally. Defendant no.2, if so advised, can take appropriate remedy against the purchaser of the properties. 15. In the circumstances, none of the prayers in the -15- Motion, in my opinion, can be granted. Hence, the Notice of Motion is dismissed. Dismissal of the Motion, however, shall not preclude defendant no.2 from taking any appropriate proceedings, as may be advised, against the plaintiffs, the heirs of defendant no.1 and Pramukh Infrastructure Pvt Ltd. It is also open for defendant no.2 to seek execution of the decree in terms of the Award. This shall also not preclude defendant no.2 from adopting appropriate proceedings and seek appropriate reliefs against the purchaser- Pramukh Infrastructure Pvt Ltd till execution of the decree in terms of the Award. I am not expressing any opinion on the rights of defendant no.2 and of the purchaser of the properties who is not before the court. Though the issue of maintainability of Notice of Motion was also raised, since I have disposed of the Motion on merits I have not entered into that controversy. With these observations, Notice of Motion is disposed of. (D.B.Bhosale, J.) (D.B.Bhosale, J.) (D.B.Bhosale, J.)