1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1715 OF 2009 IN SUIT NO.1161 OF 2009 Renu Vinod Grover and Anr. .. Plaintiffs Versus Ramesh L. Agrawal and Ors. .. Defendants Mr.Y.R.Mishra for plaintiffs Mr.Pravin Samdani, Senior Advocate with Sharan Jagtiani and Sushant Chavan i/b. Shiralkar & Co. for defendant No.1 Mr.D.D.Madon, Senior Advocate with Mr.Amit Mehta i/b. Mahimtura and Co. for defendant Nos. 2 and 3. CORAM : S.C.DHARMADHIKARI, J. DATE : 9th September 2009. P.C.: 1] The plaintiff has applied for interim reliefs and particularly of interim injunction to restrain the defendants Nos. 1 to 3 from further constructing and/or utilising any FSI on the suit property and/or creating third party rights on the floating FSI generated from reservation etc. from the suit property. Further injunctions are claimed with regard to payment under an agreement/ deed of assignment dated 2nd March 2005 and sale of 2 flats constructed on the property. Plaintiff also applies for Receiver of the suit property. 2] These reliefs are claimed in a suit which is filed by the plaintiffs to protect plaintiffs’ sub-lease rights. They are claiming that there is a sub- lease dated 14th February 1995 entered into between the predecessor in title of the plaintiff and defendant No.1 and the further relief is that this deed of sub-lease being binding, defendant Nos. 1 to 3 should hand over the possession of and vacate the suit property. 3] In the plaint, it is averred that the predecessor in title of the plaintiff is one Vinod Grover. The said Vinod Grover has acquired sub-lease of the suit property which is more particularly described in para 1 of the plaint. It is stated that this sub-lease is acquired from first defendant. The sub-lessesses were the plaintiff and defendant No.4. The sub-lease was for a period of 29 years from 14th February 1995. 4] It is stated that the first defendant was the original lessee of the suit property. The defendant No.2 are the new assignees/ lessesses/ 3 developers of the property. The defendant No.2 have illegally and unauthorisedly taken development rights of the suit property from defendant No.1 in spite of the fact that the suit property has already been given on sub-lease to the deceased and the sub-lease is in existence. The defendant No.3 is claiming to be present owners of the suit property. Defendant No.3 has purchased the suit property by indenture of conveyance dated 5th March 2007 from one Harish Chandra and Anant Pandit. 5] It is not disputed that the said Pandits are owner of the suit property and entitled thereto. They executed two deeds of lease, dated 1st August 1972 in favour of Lakhpatrai Agarwal and two others. It is stated that there was a deed of partition dated 2nd July 1973 duly registered between the four lessesses and further there was a family arrangement dated 21st December 1978 sanctioned by this Court in Suit No.1658 of 1978. There is a surrender of lease hold rights executed in favour of defendant No.1 and, thereafter, by dissolution of the partnership firm of father of first defendant, in which the son i.e. First defendant was also a partner. Defendant No.1 became entitled to hold the suit property in his capacity 4 as a lessee. 6] Mr.Mishra appearing in support of the motion contended that the original lease had no prohibition insofar as creation of sub-lease rights. Therefore, the first defendant could have validly and legally created the sub-lease in favour of the predecessor in title of the plaintiff Vinod Grover. Accordingly, the deed of sub-lease was executed on 14th February 1995. All that has happened is that it has been registered subsequently. However, the sub-lease, a copy of which is produced for my perusal by Mr.Mishra would indicate according to the plaintiffs that Ramesh Agarwal, Vinod Grover and defendant No.4 are signatories to this deed of sub-lease. In such circumstances, the submission is that this prior document would prevail and to the detriment of the rights of the plaintiffs who are the successors in title of the said Grover, no agreement could have been executed in favour of the second and third defendant and, therefore, all subsequent transactions are per se illegal, invalid and not binding upon the plaintiffs. 7] He submits that once this position is appreciated and considering 5 that only development rights are conferred on the second defendant, then, the subject matter of the litigation needs to be protected and no further construction or development be permitted. The defendant Nos. 2 and 3 should also be restrained from creating further rights in the suit property. 8] Mr.Mishra has relied upon the provisions of Indian Registration Act and Rules thereunder, so also two decisions of the Supreme Court to buttress his submission that what is material is the time from which the document takes effect and that is when it is executed and not the date of registration. 9] On the other hand, Mr.Samdani, learned Senior Counsel appearing for first defendant contended that this suit is filed with vexatious and mischievous motive to extort monies from the developers and builders. He submits that this very sub-lease was to the knowledge of the said Vinod Grover when he filed a suit in the City Civil Court being Civil Suit No.3927 of 1995 against the defendant Nos. 1 and ors. Further, in this suit, there is no reference to this alleged sub-lease between him and the first defendant to the present suit. Mr.Samdani has taken me through the 6 entire plaint in this suit and the list of the documents on which the plaintiff i.e., the said Vinod Grover and 4th defendant placed reliance. In none of these documents, i.e. neither in the plaint nor in this list, is there any reference to sub-lease. Mr.Samdani submits that it is not a mere coincidence that the sub-lease which was stated to have been executed on 14th February 1995 is sought to be registered on the eve of institution of this suit. He submits that if the document itself was not registered, then, there is no question of the first defendant having knowledge of the same. The document is not genuine and is rather a got up one. Such documents are made the basis of the present proceedings and this Court, therefore, should not pass any orders when the very existence of the documents based upon which the plaintiffs assert the title in the property is disputed. He has also invited my attention to the fact that the second defendant and the third defendant have now claimed rights through the superior holder i.e. the owner of the property (Pandits) and that is how the ownership rights now pass on in their favour. For all these reasons this Court should not grant any interim reliefs also on account of the fact that the application is belated and the claim is not bonafide. 7 10] Mr.Madon, learned Senior Counsel appearing for defendant Nos. 2 and 3 contends that now the defendants have invested approximately Rs. 57 Crores which is the consideration under the deed of assignment and after putting in further funds are to commence the construction activities. The plans in that behalf have been approved. In these circumstances, no interim relief be granted. 11] Having perused the plaint and the annexures thereto so also the affidavits filed by parties, I am of the opinion that no prima facie case is made out by the plaintiffs. It is clear from the perusal of the plaint that the plaintiffs are indeed aware of the rights that have been created in favour of defendant Nos. 2 and 3. The plaintiffs proceed on the basis that the deed of sub-lease is duly registered. The deed of sub-lease was registered with the Joint Sub-Registrar of Assurances, Mumbai in 1995 itself is the averment. However, the said Vinod Grover expired on 1st September 2004. It is then stated that the plaintiffs received the notices dated 8th November 2006, 4th July 2007 and 26th May 2008 in the name of Vinod Grover from the Superintendent of Stamps to submit the relevant documents for valuation of the deed of sub-lease. After making enquiries 8 with the Superintendent of Stamps, the plaintiffs state that they became aware of this deed of sub-lease. More so, as the plaintiffs are house wives. However, it is pertinent to note that plaintiffs’ predecessors in title had filed a suit in the City Civil Court being S.C.Suit No.3927 of 1995 against the defendant No.1 to the present suit, Smt.Satyarani Agarwal, Neeru Chabria and Payal Gupta. The suit was filed for permanent injunction restraining these defendants from creating any third party rights or disposing of or alienating or encumbering the suit property. The description of the suit property in prayer clause (a) of that suit and in the present suit are the same save and except the fact that the first defendant now points out that the area and his entitlement have got drastically reduced on account of partition of 1973. However, it is pertinent to note that in the plaint in the City Civil Court, there has been a reference only to some negotiations and the memorandum of understanding dated 3rd February 1995, an irrevocable General Power of Attorney in favour of the plaintiffs dated 12th February 1995. In the entire plaint there is no reference to the sub-lease. However, Mr.Mishra contention is to be prima facie accepted, then, the sub-lease being registered nothing prevented the plaintiffs’ predecessor Vinod Grover and 9 defendant No.4 to the present suit from asserting their rights on the basis of this deed of sub-lease. The deed of sub-lease is dated 14th February 1995. The plaint in the City Civil Court is declared on 25th April 1995. In such circumstances, prima facie, there is substance in the contentions of Mr.Samdani that the deed of sub-lease is a got up document. While it may be true that the copy of the sub-lease produced for my perusal demonstrates that there is an endorsement of the registration authority of 14th February 1995, yet a careful perusal of the same would indicate that the said endorsement is to identify the signatures of the persons executing the documents. However, the subsequent pages on the original/ copy would indicate that the registration fees have been paid in the month of February 2009 and only after receipt of Registration fee, that the document is stated to be registered and the endorsement to that effect is of 4th March 2009. Thus, there is substance in the second contention of Mr.Samdani that on the eve of the institution of the present suit, this document has got registered and with a view to extort monies from the present owners/ developers. Having realised that the property has high market potential and is likely to be developed that the instant suit is filed. It may be true that the suit filed in City Civil Court is withdrawn and, 10 therefore, the present suit cannot be held to be non maintainable, yet, silence of the plaintiffs’ predecessor with regard to this deed of sub-lease is something which cannot be brushed aside even at this prima facie stage. 12] In the light of this clear position emerging from record and finding that the claim of plaintiff is even otherwise belated and doubtful that this is not a fit case for grant of any interim injunction, much less, in the terms prayed in the motion. On the other hand, the property having changed hands, the investment having been made and the plaintiffs coming to this court belatedly as well, balance of convenience and irreparable loss are both elements which go in favour of the defendants, rather than the plaintiffs. 13] In the result, motion fails and the same is dismissed without costs. In the view that I have taken it is not necessary to make to reference to any decisions brought to my notice. (S.C.DHARMADHIKARI, J)