1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. NOTICE OF MOTION NO.2544 OF 2007 IN SUIT NO. 2477 OF 2006 1 Dr. Prithi Paul Singh Sethi & ors. .... Plaintiffs vs 1 M/s.Twist Spin Industries & ors. ... Defendants Mr. Subhash Zha i/b. Law Global for the plaintiff. Mr. T. Subramanian, Sr. Counsel with Mr.Simil Purohit with Mr.Zal Andhyarujina i/b. Raj Baid for the defendants. CORAM: ANOOP V. MOHTA, J. DATE : 14th July, 2009 P.C.: 1 The plaintiff/applicant has taken out this motion some time in December, 2005 in a Suit, wherein basic prayers are: to declare the agreement of consultancy for tender dated 1st July, 2003 between the parties is valid, subsisting and binding; to execute all the necessary requisite documents to be executed for effecting transfer of properties to restrain the defendants or their agents from parting with possession of any movable or immovable of Devagiri Textile Mills and to appoint a Court Receiver. 2 Though prayers for injunction and appointment of Receiver have been taken, yet not moved at the earliest possible of time. There is no ad-interim relief as sought in this motion is granted/obtained against the defendants. 2 3 From the prayer of the Suit itself, it is clear that even the existence and/or execution of agreement of consultancy in question is itself in dispute. The material and the documents on record apart from rival contentions so raised show that there are various serious disputes with regard to the execution of the said documents for want of signature and even of the signatures on the documents itself. 4 As recorded already, though the Suit filed in 2005, the same was numbered in 2006. The notice of motion which the plaintiff has taken out though filed in December, 2005, got it registered some time in 2007. Therefore, it is necessary to consider the other principle of granting any interim relief of injunction and/or appointment of Receiver in absence of any material to show any urgency or imminent danger or loss or damage demanding immediate action. All are missing in the present case. The apprehension so expressed is insufficient. The element of danger must be great and imminent demanding immediate relief. There is no case of irreparable wrong or injury. There is no justification whatsoever on record to move this motion after such long time. It also reflects and demonstrate the conduct of the party who filed the motion, but not moved immediately and/or at least within reasonable time. In the present case, as noted, though moved on earlier occasion, the Court refused to grant any ad-interim relief till this date. 5 The pendency of criminal proceeding including the observations given in 3 Criminal Application No.7906/2005 dated 10.04.2006 in paragraph 7 which is reproduced below, and which has attained finality as the Special Leave Petition (S.L.P.) against the same was also dismissed on 13.03.2007: “7. I have perused the copy of the agreement which is annexed to the application. The original agreement has not been produced by the applicant. Even otherwise the said agreement is illegal since it is clearly in breach of the provisions of the Prevention of Benami Transactions Act, 1985.” There is also a report in respect of the Economic Offences Wing, Cell 3, Mumbai, with regard to the execution of this document and the transaction. This also goes against the plaintiff and basically for want of production of original documents/agreement. This again raises doubt including the very existence of the agreement itself apart from various other lacunae and lapses. 6 The rival expert’s opinions on disputed signature is an additional factor which unless decided at this stage, difficult to accept the contentions/submissions of the plaintiffs to grant interim relief as prayed. 7 Both the learned counsel appearing for the parties have referred and relied on various documents in support of their rival contention on the merits of the matter which, in my view, are matters of trial and just cannot be considered to grant relief as prayed unless, apart from the validity, read with execution of the documents/agreement, the issue whether it was for the machineries or for whole property in question is decided finally. 4 8 The principles to grant ad-interim relief and/or to a appoint Receiver as contemplated under Order 39, Rules 1 and 2 and Order 40, Rule 1 of Code of Civil Procedure (CPC) are well settled. The authorities so cited on this need no further discussion as there cannot be any opposition to those principles. The point is, whether a case is made out or even a prima-facie case is made out, for such reliefs as prayed. The plaintiffs’ submission, therefore, he has a very good case on merit and has very excellent chance of succeeding in the Suit, in the present facts and circumstances as referred above, is unacceptable. The document on which the basic Suit is filed itself is in dispute including its execution. The original document is also not part of the record. The explanation so given with regard to the same that the document is with other side is also a matter of detailed evidence and material. The submission so raised, unless proved in detail inquiry and trial, therefore, difficult to accept at this stage. The plaintiff/applicant has in fact prayed for declaration that it is binding between the parties therefore unless it is decided in favour of the plaintiff, it is difficult to accept the case that they have a prima facie and good case on merits. Therefore, there is no case made out and/or it is not just and convenient to appoint Receiver of any property and/or remove any person from the possession and/or custody of the property. 9 Taking all this into account, in my view, there is no case made out for any relief as prayed. The notice of motion is accordingly dismissed. No costs. (ANOOP V. MOHTA, J.)