1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.639 OF 2008 IN SUIT NO.424 OF 2008. Dr. Abdur Razak Ismail Holy & Anr. .... Plaintiffs. V/s Ali Haroon Wangre & Ors. .... Defendants. Mr. Shailesh Shah with Mr. S.H. Patel for plaintiffs. Mr. Colabawalla with Ms. Sujata Dhanawade i/b Vinay Hegde for defendant Nos. 1 to 5. Mr. D. Madon Senior Counsel with Mr. F. Dubhash, Mr. P. Mehta, Mr. Kapil Sampat i/b Desai & Chinoy for defendant Nos. 7 to 10. CORAM: V. M. KANADE, J. DATE : 24th August, 2009 P.C. 1. Heard. 2. Plaintiffs have filed this suit for a declaration that the suit agreements dated 18/5/2007 are valid, subsisting and binding on defendants and for a declaration that the deed of assignment dated 18/6/2008 and the power of attorney dated 18/6/2008 executed by defendant Nos 1 to 6 in favour of defendant Nos. 7 to 10 are illegal, void, sham and bogus 2 documents and for cancellation of the said two documents and, further, for a decree for specific performance of the suit agreements dated 18/5/2007 and for injunction restraining defendants from disposing of, alienating or creating any third party rights on the suit property and, alternatively, for damages to the tune of Rs 10 crores and compensation to the tune of Rs 56 lacs with interest @ Rs 18% per annum. 3. Defendant Nos. 1 to 5 are lessees of the immovable properties bearing Plot No. 32 and Plot No.33 off Sandhurst Road (East), together with building standing thereon known as “Haroon Manzil”. Defendant No.6 also was in possession of Shop Nos. 10 and 11 situated on the ground floor of the suit property admeasuring 700 square feet with mezzanine floor admeasuring 600 square feet which was let out by defendant No.6 on lease for 15 years to Union Bank of India. 4. It is the case of plaintiffs that they came to know that defendants intended to sell and dispose of the suit property and the suit shops. According to plaintiffs, after negotiations with defendant Nos. 1 to 6, defendants agreed to sell, 3 transfer and alienate the suit property and the suit shops for a lump sum price of Rs 1,57,00,000/- by executing two separate documents; one for assignment of leasehold rights in respect of the suit property and the another for assignment of lessor’s interest in respect of suit shops. It is the case of plaintiffs that two separate agreements viz agreement for assignment of lease dated 18/5/2007 and agreement for assignment of lessor’s interest dated 18/5/2007 were executed between plaintiffs and defendant Nos. 1 to 6 whereby defendants agreed to assign, transfer and alienate their leasehold rights and possessory and other rights in suit property and suit shops. A further affidavit was executed by defendant No.6 dated 18/5/2007, surrendering tenancy of the said shops in favour of plaintiffs. According to plaintiffs, this fact was intimated to the Union Bank of India. Plaintiffs had taken further steps of taking search of the property and also issued public notices which were published in Free Press Journal (English) dated 28/5/2007 and in Urdu Times (Urdu) dated 28/5/2007. Thereafter, draft deeds of assignment were prepared and sent for approval to defendants which were subsequently returned by defendant 4 No.2 to plaintiffs duly approving the draft. Plaintiffs demanded further documents for the purpose of ascertaining valuation of the property so that requisite stamp duty could be paid. However, no response was received even after plaintiffs’ advocate’s letter was received by defendant Nos. 2 and 6 which was sent to them by Registered Post A.D and to rest of the defendants under certificate of posting. It is the case of plaintiffs that individual tenants were informed about execution of agreement dated 18/5/2007 and that they were authorized to collect rent in respect of the suit property. Plaintiffs, accordingly, thereafter filed this suit. Ad-interim relief was not granted by the learned Judge in the Notice of Motion taken out by plaintiffs herein. The learned Judge was of the view that since one of the parties whose interest was sought to be dealt with was a minor viz 5th defendant and that since there was no legally and validly appointed guardian, no case for grant of ad-interim relief was made out. Against this order, plaintiffs preferred an appeal before Division Bench. Defendant Nos. 1 to 6 informed the Court that they had already created third party rights in favour of defendant Nos. 7 to 10 and had sold the suit property to 5 defendant Nos. 7 to 10. In view of this submission made by defendants 1 to 6, the appeal was dismissed. 5. Plaintiffs, thereafter, took out a Chamber Summons for adding respondent Nos 1 to 4 to the Chamber Summons as party defendants in the suit and for making consequential amendments and challenged the deed of assignment dated 18/6/2008 in favour of defendant Nos.7 to 10. This Court by an order dated 11/12/2008 passed in Chamber Summons No. 1745 of 2008 was pleased to grant ad-interim relief, restraining respondents from creating third party interest in respect of the suit property. The chamber summons was made absolute in terms of prayer clause (b). Plaintiffs, thereafter, added respondent Nos. 1 to 4 to the Chamber Summons as defendant Nos. 7 to 10 in the suit and also made consequential amendments in the plaint including the prayer clause. Defendant Nos. 7 to 10, thereafter, filed an affidavit in reply to the notice of motion taken out by plaintiffs. 6. Mr. Shah, the learned Counsel appearing on behalf of 6 plaintiffs submitted that defendant Nos. 1 to 6 had executed an agreement in favour of plaintiffs after accepting an amount of Rs 56 lacs. He submitted that defendant Nos. 1 to 6 had not disputed execution of the said agreement. He submitted that defendant Nos. 1 to 6 had made a bald statement denying receipt of Rs 54 lacs from plaintiffs. He submitted that defendant Nos. 1 to 6 had not denied having executed a receipt for an amount of Rs 56 lacs. He further submitted that immediately after ad-interim relief was refused by the Court, they had filed an appeal and had also registered lis pendense with the Sub-Registrar. He submitted that defendant Nos. 1 to 6 and 7 to 10 were aware that plaintiffs had entered into agreement with defendant Nos. 1 to 6 in respect of the suit property. He submitted that even after ad-interim relief was granted on 11/12/2008, defendant Nos. 7 to 10 continued to create third party rights by selling tenanted premises and by taking further steps. He submitted that all defendants were served with copy of draft notice of motion and after the said copy was served on them, on the same day, third party rights were created by defendants 7 to 10. He submitted that, therefore, it is 7 necessary to appoint Court Receiver in respect of the suit premises and further restrain the defendants from creating third party rights. 7. Mr. Madon, the learned Senior Counsel appearing on behalf of defendant Nos. 7 to 10, on the other hand, submitted that agreement executed by plaintiffs with defendant Nos. 1 to 6 was void and illegal since interest of the minor was being sold without obtaining permission from the court. He submitted that defendant Nos. 1 to 6 had terminated the agreement with plaintiffs and, thereafter, entered into an agreement with defendant Nos. 7 to 10 who had paid the entire sale consideration for the said property. He submitted that the said agreement was duly registered and, therefore, defendant Nos. 7 to 10 have legal rights on the said property whereas, on the other hand, plaintiffs had entered into an agreement which was not properly stamped or registered. Permission was not obtained from the Bombay Municipal Corporation for assignment of rights of defendant Nos. 1 to 6 in favour of plaintiffs. He submitted that, therefore, notice of motion was liable to be dismissed. 8 8. In the present case, plaintiffs have filed a suit for specific performance of the agreements. Perusal of agreements clearly demonstrates that total consideration for the conveyance was Rs 1,37,00,000/-. Out of the said amount, plaintiffs had paid an amount of Rs 56,00,000/-. The said agreements have been duly signed by defendant Nos. 1 to 6 and defendants have not disputed execution of these documents but have alleged that they were signed on account of fraud and misrepresentation by plaintiffs. It is merely denied by defendants that they did not receive Rs 54 lacs as alleged by plaintiffs. It is nowhere stated in the affidavit in reply as to why acknowledgment of receipt of Rs 56 lacs has been signed by defendants 1 to 6. The said receipt has been signed by their own witnesses. No affidavit has been filed by defendant Nos. 1 to 6 of these witnesses, stating therein that defendant Nos. 1 to 6 have not received the said amount. The alleged fraud and misrepresentation, according to defendants, is in respect of certain clauses in the agreement of sale viz clause 10 and some other clauses. It is not stated that there was a fraud and misrepresentation 9 in respect of receipt of Rs 54 lacs in cash or the circumstances under which this receipt was signed by defendants. Since execution of this agreement is not disputed, the question whether it was signed on account of fraud and misrepresentation, therefore, will have to be established by defendants by proving the said fact at the hearing of the case. Similarly, it will have to be established by defendant Nos. 1 to 6 that they did not receive an amount of Rs 54 lacs in cash. The fact remains that the said agreement is specifically enforceable atleast exlcuding 1/6th share of the minor. It is relevant to note that defendant Nos. 7 to 10 are claiming rights in respect of th suit property on the basis of registered agreement and that registered agreement is also singed by the minor. It does appear, therefore, that the plaintiffs as also defendant Nos. 7 to 10 were made to believe that minor was represented by a guardian who had the authority to sell interest of the minor. Under these circumstances, therefore, in my view, if no interim relief is granted, defendant Nos. 7 to 10 would further create third party rights. There is one other circumstance which needs to be noted. Plaintiffs had 10 registered lis pendense with the Sub-Registrar and the notice had been issued to defendants. Further, defendant Nos. 7 to 10 are tenants of defendant Nos. 1 to 6. However, even if it is assumed that plaintiffs had not informed all their tenants about deed of assignment in their favour, as a result of lis pendense defendant Nos. 7 to 10 now cannot take a plea that they are bonafide purchasers for value without notice. 9. For the aforesaid reasons, therefore, in my view, it would be appropriate if the Court Receiver, High Court Bombay is appointed as Receiver of the suit property and defendant Nos. 7 to 10 are appointed as agents of the Court Receiver. 10. Accordingly, Court Receiver High Court Bombay is appointed as Receiver in respect of the suit property. Defendant Nos. 7 to 10 are appointed as agents of the Court Receiver. Defendant Nos. 7 to 10 shall pay royalty @ Rs 15000/- per month and give security deposit to the tune of Rs 5 lacs. As agents of the Court Receiver, they shall collect rent from tenants and give accounts to the Court Receiver 11 after every six months. Defendant Nos. 1 to 10 shall not create any third party rights in respect of the suit property or transfer any of the tenements or handover possession of the suit property. During the pendency of the suit, there shall be further interim relief in terms of prayer clause (g) of the notice of motion. Prayer clause (g) of the notice of motion reads as under:- “(g) That pending the hearing and final disposal of the above suit for an injunction restraining the defendants in any manner disposing of or alienating or encumbering or from creating any third party rights in respect of the suit property and/or the suit shops and/or developing the same and/or putting up any construction thereon.” 11. Notice of Motion is made absolute in the aforesaid terms. 12 12. At this stage Counsel for plaintiffs and defendants submitted that this order may be stayed for a period of eight weeks. The Counsel for the plaintiffs submitted that only that part of the order appointing the defendants 7 to 10 as agent of the Court Receiver may be stayed. The Counsel appearing on behalf of the defendants prays that the operation of the entire order may be stayed. He further submitted that the statement of the defendants 7 to 10 recorded in the ad- interim order dated 24.6.2009 may continue for a period of eight weeks. Since both parties want to challenge this order in appeal, this order is stayed for a period of six weeks in order to enable the parties to approach the Appellate Court. The statement of defendant Nos. 7 to 10 recorded in the ad- interim order dated 24.6.2009, shall continue for a period of six weeks. (V.M. KANADE, J.)