1 1138.11-ao IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. APPEAL FROM ORDER NO. 1138 OF 2011 M/s.Jay Jay Constructions. ... Appellant. V/s. Smt.Heena Chaitanya Kalbag and another. ... Respondents. P.K.Dhakephalkar, Senior Advocate with Sanjay Jain and Ms.Laxmi G. Jesani i/b. A.V.Jain Associates for the appellant. Inderprasad Trivedi i/b. C.K.Trivedi for the respondents. CORAM: R.M.BORDE, J. DATED : 22nd November 2011. P.C. : The appellant/ original plaintiff is taking exception to the order dated 15th September 2011 passed in Notice of Motion No. 10/2008 in S.C.Suit (St.) No.13/2008 whereby the notice of motion tendered by the plaintiff seeking injunction against the defendants came to be dismissed. The appellant/ plaintiff has instituted a suit claiming following substantial reliefs: (a) that this Hon’ble Court be pleased to declare that the Defendants have no right, title and/or interest of any nature whatsoever and were never 2 1138.11-ao in possession of the suit premises viz. Unit No.3, admeasuring 1889 square feet, carpet area on the ground floor and/or the adjoining premises of the ground floor and the basement of the said building, known as “Shreeji Dham”, belonging to the Plaintiff and constructed on the part of said property i.e. plot No. 3 of Suburban Scheme No. 10, situate at Gilbert Hill, Village Andheri, situate, lying and being at Gilbert Hill, Village Andheri (West), Mumbai or any part thereof or any part of the said “Shreeji Dham building”; (b) that by the permanent order of injunction this Hon’ble Court be pleased to restrain the Defendants, their servants, agents and/or any persons claiming through or under them, from disturbing and/or interfering with the possession of the Plaintiffs in respect of the suit premises viz. Unit No. 3, admeasuring 1889 square feet, carpet area on the ground floor of the said building, and/or adjoining premises of the ground floor and the basement of the said building, known as “Shreeji Dham”, belonging to the Plaintiff and constructed on the part of the said property i.e. plot No. 3, of Suburban Scheme No. 10, situate at Gilbert Hill, Village Andheri, situate, lying and being at Gilbert Hill, Village Andheri (West), Mumbai or any part thereof and/or from entering into and/or remaining upon the suit premises. (c) that pending the hearing and final disposal of the above suit, by a temporary order of injunction, this Hon’ble Court be pleased to restrain the Defendants, their servants, agents and/or any persons claiming through or under them, from disturbing and/or interfering with the possession of the Plaintiffs in respect of the suit premises viz. Unit No. 3, admeasuring 1889 square feet, carpet area on the ground floor of the said building, and/or the adjoining premises of the ground floor and the basement of the said building, known as “Shreeji Dham”, belonging to the Plaintiff and 3 1138.11-ao constructed on the part of said property i.e. plot No. 3, of Suburban Scheme No. 10, situate at Gilbert Hill, Village Andheri, situate, lying and being at Gilbert Hill, Village Andheri (West), Mumbai or any part thereof and/or from entering into and/or remaining upon the suit premises. 2. During the pendency of the suit, the plaintiff also claimed an order of injunction restraining the defendants, their servants, agents and/or any persons claiming through or under them from disturbing and/or interfering with the possession of the plaintiff in respect of the suit premises i.e. Unit No.3, admeasuring 1889 sq.feet carpet area on the ground floor of the building known as “Shreeji Dham” belonging to the plaintiff. The plaintiff is carrying on the business of builders and developers in the name and style of M/s.Jay Jay Constructions Co. According to the plaintiff, the agreement for sale was executed on 21st August 2004 between the plaintiff and defendant No.1- purchaser. The plaintiff agreed to sell and defendant No.1 agreed to purchase Unit No.3 admeasuring 1889 sq.feet. having carpet area on the ground floor of the building known as “Shreeji Dham”. The consideration amount was fixed on Rs.75 lakh and the defendant No.1 is stated to have advanced a sum of Rs.l0 lakh as earnest amount which included payment of stamp duty and registration fees. It is also stated that an amount of Rs.7 lakh was utilised by the plaintiff for execution of the agreement i.e. for payment of stamp duty and registration charges. The balance amount of Rs.3 lakh was appropriated towards the consideration amount payable by defendant No.1. The defendant No.1 was supposed to pay entire consideration amount and the plaintiff was supposed to hand over possession of the suit premises to the defendant. 4 1138.11-ao According to the plaintiff, in spite of repeated requests and reminders defendant No.1 failed to pay the amount as agreed. As such, a deed of cancellation got executed on 20th July 2006. In clause-3 of the deed of cancellation it has been specifically stated that the possession of the suit premises was not handed over by the plaintiff to defendant No.1. The defendant No.1 after executing the deed of cancellation did not bother to collect Rs.3 lakh which was paid towards advance. The defendant No.1 proceeded to lodge false and frivolous complaint with the Additional Police Commissioner, Western Zone, Mumbai against the partners of the plaintiff company alleging therein that the plaintiff has taken forcible possession from defendant No.1. However, according to the plaintiff, the defendant No.1 was never put in possession of the suit premises. There is also complaint made in respect of use of coercive measures in securing cancellation of agreement. It is further contended by the plaintiff that on 2nd January 2008, at about 11.00 p.m., four persons tried to break open the locks of the suit premises, obviously, at the instance of defendant No.1. As such, the plaintiff was constrained to file complaint with the police and, in pursuance of lodging of the complaint, an F.I.R. was registered on 2nd January 2008. The plaintiff, thus, contend that the possession of Unit No.3 admeasuring 1889 sq.feet is with the plaintiff and the defendants are trying to create hurdles in the possession of the plaintiff. The plaintiff, as such, presented suit claiming decree of declaration that the possession of the suit premises has not been handed over to the defendants and also sought order of perpetual injunction against the defendants. 3. The defendants resisted the suit by filing their written statement and controverted adverse contentions made in the plaint. 5 1138.11-ao According to the defendants, the suit presented by the plaintiff seeking negative declaration and injunction is not maintainable under the provisions of the Specific Relief Act. It is also alleged by the defendants that the plaintiff has not approached the Court with clean hands and has suppressed material facts and played fraud upon the Court. According to the defendants, the plaintiff has taken forcible possession of the suit premises from the defendants and is, now, claiming protection of possession which cannot be granted under the equitable jurisdiction of this Court. 4. Defendant No.1 is the wife of defendant No.2. It is stated that the defendants decided to settle at Mumbai and, in that view of the matter, they wound up the business which was established abroad and came to Mumbai for earning livelihood. The defendants started a super market under the name and style of “M/s. J MART” at Vishwadarshan, plot No.211-B, 10th road, Juhu, Mumbai-49. However, the premises where the defendants were running super market was found to be insufficient, as such, the defendants approached the plaintiff for purchase of Unit Nos.1, 2 and 3 in Shreeji Dham admeasuring 10,800 sq.feet. According to the defendants, the deal was settled at Rs.2.25 crore. It was decided to pay an amount of Rs.1,75,00,000/- by cheque and Rs.50 lakh in cash. The defendants stated to have paid a token amount of Rs.1 lakh and it was further decided between the parties that the builder and developer will give proper time to the defendants to pay balance amount in quarterly installment of Rs.25 lakh spread over for two years. According to the defendants, a total sum of Rs.50 lakh was paid in cash and sum of Rs.10 lakh was paid by cheque dated 13th August 2004. The plaintiff instead of executing the agreement in 6 1138.11-ao respect of Unit Nos.1, 2 and 3, executed the agreement only in respect of Unit No.3 admeasuring 1889 sq.feet. The consideration amount for shop No.3 was shown as Rs.75 lakh and the mode of payment prescribed in the agreement is also not as per the settlement. The defendants insisted for receipt of amount of Rs.50 lakh which was paid in cash. However, the plaintiff did not issue any receipt. The plaintiff also failed to execute the agreement in respect of Unit Nos.1 and 2. The possession of the premises was, however, given by the plaintiff to the defendants on 1st September 2004. The plaintiff also allotted parking places bearing Nos.4 to 13 vide allotment letters dated 11th January 2005. The defendants made preparations and started carrying out internal work for starting business of departmental store/ super market and spent more than Rs.30 lakh for that purpose. The defendants also secured financial assistance in the form of cash credit of Rs.70 lakh from the Bank of India. The plaintiffs also gave them no- objection for creating lien over the property agreed to be sold to the defendants. The defendants received one letter from the flat purchasers of the society through their advocate on 5th January 2005 objecting to the user of the premises and for carrying out renovation work by the defendants in shop Nos.1, 2 and 3 situated on the ground floor of the building. The objection was raised by the residents of the building on the ground that the shop premises cannot be used for commercial activities as there is no permission secured from the Municipal Corporation. The defendants insisted upon the plaintiff to secure proper permission from the Municipal Corporation for change of user of the premises for the purpose of business. However, the plaintiff avoided to do so. The plaintiff instead of honouring the agreement started insisting upon the defendants to cancel the agreement. It is also 7 1138.11-ao contended by the defendants that after lapse of some time, the defendants started receiving threatening calls from builder’s office. One person identified as Bachisingh used to give threats of dire consequences to the defendants. According to the defendants, said Bachisingh came to the residence of the defendants with Goondas in 4 to 5 vehicles. They forced defendant No.2 to stay at residence till the defendant No.1 returns back and they carried defendant No.1 to the office of the Registrar with a view to execute the cancellation deed. The defendants were shocked and surprised by the attitude of the builder and after the incident of execution of the cancellation deed they tried to lodge complaint with the police. However, according to the defendants, the police officials were favouring the builder and did not record the complaint of the defendants. Ultimately, after constant persuation and after the defendants approached the higher police authority the complaint was registered by the police. In pursuance of the F.I.R. lodged by the defendants, partner of the plaintiff was arrested. After the arrest, with a view to settle the matter and with a view to release the partner of the plaintiff, keys of the suit premises were handed over to the defendants. It is also the contention of the defendants that on 2nd January 2008, the defendants had sent the plumber to carry out certain repair work at shop Nos.1, 2 and 3. However, the plaintiff involved the plumber with other workers sent by the defendants and also the defendants in a criminal prosecution. A criminal complaint came to be lodged with D.N.Nagar Police Station against the workers as well as the defendants. It is also alleged by the defendants that with the active help of the police officials the plaintiff changed the locks put on the suit premises and took back forcible possession. It is, thus, contention of the defendants that the plaintiff, 8 1138.11-ao who has adopted extra judicial means and secured forcible possession of the suit premises, is not entitled to equitable relief of injunction. 5. I have heard the arguments advanced by the learned counsel appearing for the respective parties and also perused the documents placed on record. It is not controverted that the agreement was executed on 21st August 2004. As per the recital contained in the agreement, the transaction was only in respect of sale of Unit No.3 admeasuring 1889 sq.feet for consideration of Rs.75 lakh. The consideration amount was to be paid and, thereafter, the possession was to be secured by the purchaser as per the terms mentioned in the agreement. It is also mentioned in the agreement that a sum of Rs.10 lakh was advanced by defendant No.1. According to the plaintiff, out of the said amount, an amount of Rs.7 lakh was utilised for the purpose of payment of stamp duty and registration charges and Rs.3 lakh were appropriated towards the advance. 6. Although, the defendants contend that in fact three units were agreed to be sold, there is no written agreement in respect of sale of Unit Nos.1 and 2. So far as present possession of the suit premises is concerned, the defendants have also not denied that the possession is with the plaintiff although the same is taken over by applying extra judicial means and coercive measures. There are police complaints lodged by both parties against each other making several allegations. The deed of cancellation registered on 20th July 2006 is perused. In paragraph-3 thereof, it is specifically mentioned that the possession of the suit premises was not handed over by the plaintiff to defendant No. 1 till the date of execution of the deed of cancellation. The defendants 9 1138.11-ao have vehemently opposed the contention raised by the plaintiff and contended that the recital contained in paragraph-3 of the cancellation deed is incorrect and the deed was got executed by the plaintiff by applying coercive means. There appears to be a complaint lodged in respect of application of coercive means for securing deed of cancellation by the plaintiff and the matter is under investigation. 7. It is to be tested as to whether the contention of the plaintiff that the possession of Unit No.3 so also possession of Unit Nos. 1 and 2 was never handed over to the defendants at any point of time bears grain of truth or not. Several documents are placed on record by the defendants to demonstrate that the transaction between the parties, in fact, was in relation to sale of three units and, thereafter, at the same point of time the possession was handed over to the defendants. The letter of possession dated 1st September 2004 is placed on record wherein it is informed by the plaintiff to defendant No.1 to kindly pay the balance dues and collect a set of keys and proceed. According to the defendants, the possession, in fact, has been handed over to the defendants in pursuance of the said letter. On 9th September 2004, a letter has been issued by the plaintiff to defendant No.1 wherein by making reference to the discussion held between the plaintiff and defendant No.1 the plaintiff states that the plaintiff has no objection in defendants’ starting departmental store in office No.1, ground floor at Shreeji Dham. Identical letter referring to office No.2, ground floor, Shreeji Dham has also been issued by the plaintiff to defendant No.1 expressing no-objection for starting departmental store in the said premises. Thus, there appears to be some transactions in respect of Unit Nos.1 and 2 apart from Unit No.3. On 12th October 2004, the 10 1138.11-ao plaintiff has issued letter to defendant No.1 recording their no- objection for installation of signage board subject to the prior permission by the Corporation or any Government statutory body. In the said letter reference is made to Shop No.1 on ground floor in the building known as Shreeji Dham. Three letters dated 11th January 2005 were also issued by the plaintiff to defendant No.1 in respect of allotment of car parking Nos.004 to 013 in her favour. If the contention of the plaintiff that there was only one transaction in respect of sale of shop No.3 is to be accepted, there was no reason for the plaintiff to allot 9 parking spaces in favour of defendant No.1. Apart from this aspect, the earlier letters to which reference is made relate to Unit Nos.1 and 2 of the said building. The defendants contend that he has tendered an application for securing cash credit to the Bank of India for an amount of Rs.70 lakh. The letter issued by the Bank on 13th September 2004 in favour of the defendants is placed on record wherein, condition No.10 reference is made to the collateral security by equitable mortgage of commercial premises in respect of property as office No.3, ground floor, “C” Building, Shreeji Dham i.e. the property agreed to be sold by virtue of agreement dated 21st August 2004 is stated to have been mortgaged by creating equitable mortgage with the Bank of India. The plaintiff himself has tendered letter dated 12th October 2004 to the Chief Manager of Bank of India whereby the plaintiff extended their no-objection to mark lien in regard to Shop No. 3. It is also agreed by the plaintiff that they will not transfer, assign or in any manner deal with the said office No.3., ground floor, in the building known as Shreeji Dham without prior written consent of the Bank. By letter dated 26th August 2004 addressed to the Manager of Bank of India, the plaintiff has confirmed to have sold the office No.3 11 1138.11-ao ground floor in the building known as Shreeji Dham to defendant No.1 for the consideration of Rs.75 lakh under the agreement dated 21st August 2004. One more letter addressed by Advocate Shri Deepak M. Trivedi to the plaintiff as well as to defendant No.1 is placed on record. The said letter is issued by the advocate on behalf of purchasers of the premises in the building known as Shreeji Dham objecting to the change of user from bank premises (proposed) to construction of super market (proposed) on the ground floor of the building. It is contended in the said letter that the builder has assured to the flat purchasers of the building that the ground floor of the building would be utilised for opening a bank and no commercial activities would be conducted on the ground floor. It is contended that the defendants have started the work of establishing super market which, according to the occupiers of the building, is contrary to the assurance given by the builder while they purchased their flats. Thus, it appears that the defendant No.1 was, in fact, given possession of the property and the defendants started activities for opening a departmental store in the premises. The telephone bills in the name of defendants are also placed on record which show the address of the suit premises. A certificate of incorporation under the Companies Act has been issued in favour of defendant No.2 wherein address of company is shown as No.3, ground floor, Shreeji Dham, Andheri (West), Mumbai. It also appears that the defendants had taken steps for starting departmental store with Zee Interactive Learning Systems Limited and deposited a sum of Rs. 61,000/-; Rs.9,522/- and Rs.2,84,374/- on different occasions with Zee Interactive Learning Systems Limited. Thus, there appears to be sufficient material placed on record to come to the conclusion that the possession of the suit premises was, in fact, handed over to defendant 12 1138.11-ao No.1 and the defendants had started activities of the preparation for starting departmental store. The contention raised by the plaintiff specifically in the plaint and reiterated in the cancellation deed that the possession of the suit premises, at no point of time, was handed over to defendant No.1 appears to be incorrect. 8. From the documents of which reference is made above, it appears that the plaintiff has not come to the Court with clean hands and suppressed some material facts from the Court. If the possession of the suit premises was not handed over to defendant No.1 at any point of time then it is a matter of speculation as to how defendant No. 1 has secured the possession back. The allegation made by the defendants in respect of adoption of coercive means by the plaintiff to secure the possession appears to bear some substance. Otherwise it is the responsibility of the plaintiff to come to the Court with clean hands and place all the facts before the Court regarding handing over of the possession to defendant No.1 and recovering the possession back from her. As such, in my opinion, the possession of the plaintiff, prima facie; need not be protected by grant of equitable order of injunction. 9. A reference is made to the orders passed in Notice of Motion No.2028/2007 in Suit No.238/2007 and Notice of Motion No. 1029/2007 in Suit No.237/2007. The statement is recorded in the said orders referred to above that the defendants are not in possession of the property. Be that as it may, defendant No.1 is not in possession of the property, but it is the responsibility of the plaintiff to show as to how the plaintiff regained the possession of the suit property. The contention specifically raised by the plaintiff in the plaint that the 13 1138.11-ao transaction was only in respect of shop No.3 and there was no talk in respect of other properties does not appear to be correct, otherwise, there was no reason for the plaintiff to issue several letters making reference of Unit Nos.1 and 2 along with Unit No.3 So also as stated above, there is no explanation as to how the defendants regained possession of the shop. It does appear that the plaintiff regained the possession of the suit premises by applying illegal means or by applying coercive measures. 10. At this stage, a reference can be made to the judgment in the case of S.P. Chengalvaraya Naidu (dead) by Lrs vs. Jagannath (dead)by LRs (AIR 1994 Supreme Court 853) wherein the Apex Court has observed thus: “ The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation. A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.” 11. The plaintiff, who has approached this Court by suppressing certain material facts, need not be protected by granting equitable order of injunction. The trial Court was perfectly justified in turning down the notice of motion presented by the plaintiff. I do not 14 1138.11-ao find any error in the impugned order passed by the trial Court refusing to grant interim relief to the plaintiff. The appeal is devoid of any merits and liable to be dismissed. 12. In the result, appeal from order is dismissed. In view of dismissal of appeal from order, pending civil application does not survive and stands disposed of accordingly. 13. At this stage, learned counsel for the appellant/ original plaintiff prayed for continuation of interim relief for further period so as to enable the appellant to approach higher forum. Considering the facts and circumstances of the case and for the reasons recorded above, I am of the opinion that the appellant/ original plaintiff does not deserve any protection. The oral request made by learned counsel for the appellant