Bombay High Court

Lodha Estate Private Limited vs Shri Kishan Waman Bhoir on 21 October, 2011

Bench: R. M. Borde

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                    CIVIL APPELLATE JURISDICTION.




                                                                              
                         Appeal from Order No. 590 of 2011
                                        WITH




                                                      
                  Civil Application No. 812 of 2011 in AO 590/2011


    Lodha Estate Private Limited




                                                     
    through Director
    Shri Rajendra Lodha
    2nd floor, 216, Shah & Nahar
    Industrial Estate, Dr. E. Moses Road.
    Worli, Mumbai 400 018.




                                               
    office address-Lodha Paradise,
                               
    Eastern Express Highway, Majiwada
    Thane(W).                                                      ....Appellant
                              
                                                                (orig. Defendant)
          v/s.

    1. Shri Kishan Waman Bhoir
           


    2. Smt. Rajani Kishan Bhoir
       r/at Balkum, Tal. Dist.Thane.
        



    3. Smt. Nayana Vasant Choudhary
       r/at Dombivli, Tal. Dist. Thane.





    4. Smt. Alka Vilas Vaiti

    5. Shri Rajaram Barkya Bhoir





    6. Smt. Anusaya Rajaram Bhoir

    7. Shri Mahendra Rajaram Bhoir

    8. Smt. Vaishali Mahendra Bhoir

    9. Shri Raghunath Rajaram Bhoir

    10. Smt. Nanda Raghunath Bhoir




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    11. Shri Sandesh Raghunath Bhoir

    12. Ms. Yogita Raghunath Bhoir




                                                                                 
    13. Kumar Rupesh Raghunath Bhoir




                                                         
        being minor represented through
        sr. no.9 Raghunath R. Bhoir

    14. Shri Nitin Rajaram Bhoir




                                                        
    15. Shri Dinesh Rajaram Bhoir
        (above sr. nos. 4-15 r/at
         Mauje Balkum, Tal. Dist. Thane.)




                                               
    16. Smt. Kunda Kesri Patil
        r/at Mauje, Ghansoli     
        Taluka Thane.
                                
    17. Smt. Manda Ramesh Patil
        r/at Mauje Turbhe,
        Taluka Thane.

    18. Smt. Yamuna Bhalchandra Bhoir
           


        Mauje, Majiwada, Dist. Thane.
        



    19. Smt. Bhanumati Pramod Patil
        r/at Mauje, Balkum, Tal. Dist. Thane.





    (For sr. nos. 1-6 and 8-19 and for Sr. No. 7(self)
    through Constituted Attorney
    Shri Mahendra Rajaram Bhoir
    r/at Mauje, Balkum, Tal. Dist. Thane.                    ....Respondents
                                                             (orig. Plaintiffs)





    Mr. Janak Dwarkadas, Sr. Counsel with Pravin Samdani, Rahul Dwarkadas, M.
    Mukerji i/b. M/s. Wadia Ghandy & co. for the appellant.

    Mr. R.S.Apte, Sr. Counsel i/b. Mandar Limaye for respondents 1-14.




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                                      CORAM: R.M. BORDE, J.
                      JUDGMENT RESERVED ON:- 14th October, 2011
                   JUDGMENT PRONOUNCED ON:- 21st October, 2011




                                                                                   
                                                           
    JUDGMENT:

Heard Counsel for the parties.

Admit.

With the consent of the parties, Appeal taken up for final disposal.

2. The appellants-original defendants are taking exception to the order

passed below exhibit 5 in Special Civil Suit No. 186/2011 thereby granting an

order of injunction in favour of the respondents-original plaintiffs and against

the defendants restraining them from making and/or continuing any

construction over the properties of the plaintiff including the suit properties and

the lands bearing Hissa Nos. 8 and 3 of Survey Nos. 25 and 26 respectively of

village Majiwade, Dist. Thane. The original defendants-appellants herein are

also restrained temporarily during the pendency of the suit from creating third

party interest in respect of aforesaid properties. The plaintiff instituted a

Special Civil Suit No. 186/2011 for the following reliefs:-

                   "a)    the suit may be decreed;

                   b)      in the Schedule mentioned in Para No.6, since Suit

Properties No. 1 to 7 were included in the unregistered agreement dated 30/8/2005 rendering the unregistered agreement illegal and hence the suit Agreement may be

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cancelled and for the declaration that the Defendants do not have any right to carry out any lawful work and Development Work in the suit properties and the

illegal construction work carried out by is not binding upon the Defendants.

c) the order of this Hon'ble Court for Declaration that, the Defendants have kept the Plaintiffs in dark and cheated the Plaintiffs by adding three (3) properties in the suit Power of Attorney as mentioned in para No. 7 of this suit at Sr. No.

1 to 10 is illegal and any work and acts done by the Defendants in furtherance of the suit Power of Attorney is not binding upon the Plaintiffs and for declaration that, all the work/acts done by the Defendants in furtherance of the Suit Agreement and Suit Power of Attorney, permissions

and approvals obtained without any rights and hence are illegal and hence the said permissions are not binding upon

the Plaintiffs.

d) Hon'ble Court may by it's order and directions

required the Plaintiff demolish the any type of constructions carried out the suit properties and handover, vacant and peaceful possession of the suit property to the plaintiffs.

e) permanent injunction against the defendants, their agents, their workers and any other persons claiming

through the Defendants by restraining them from entering into, carrying out Development Work, Construction Work, procuring permissions, approvals on the basis of the suit deeds, transferring/creating third party rights in respect of the constructions in the suit properties in favour any

persons, institutions by any agreement, deed act, restraining the transfer and parking of possession by the Defendants.

f) Ad-interim relief in terms of temporary injunction against the Defendants, their agents, their workers and any

other persons claiming through the Defendants by restraining them from entering into, carrying out Development Work, Construction Work, procuring permissions, approvals on the basis of the suit deeds, transferring/creating third party rights in respect of the constructions in the suit properties in favour any persons, institutions by any agreement, deed, act, restraining the transfer and parking of possession by the Defendants.

g) ex-parte Ad-interim reliefs in terms of prayer clause 7(A)

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till the filing of reply/written statements by the Defendants.

h) any other orders in favour of the Plaintiffs as the court

may deem fit.

i) for cost of this Suit."

3. On 30th August. 2005 under a Development Agreement executed between

the appellants and the respondents i.e. Defendants and plaintiffs, the plaintiffs

granted rights to develop certain properties 7 Survey Nos. situated at Village

Majiwade, Thane. The consideration amount mentioned was Rs. 3,11,04,007/-.

The terms and conditions are specified in the Development Agreement

executed between the parties. On the same day the plaintiffs executed in favour

of the appellant-original defendants an irrevocable Power of Attorney in respect

of property situated at Village Majiwade, Dist. Thane enlisting 10 Survey Nos.

details whereof are set out in the Deed of Power of Attorney. It is not disputed

that the possession of the property is handed over to the Developer/Defendant

nor there is any serious dispute in respect of receipt of consideration amounting

to Rs. 3,11,04,007/- by the respondents-original defendants. The grievance

made by the plaintiff in the plaint is that at the time of entering into agreement,

they were informed by the defendants that the consideration of the 7 properties

would be decided after taking into consideration the market value of the

properties at the time of registration of conveyance. It is also stated in the

plaint that defendants informed the plaintiff that after obtaining necessary

permission, after conducting survey of the suit property and after submitting the

plans for approval in the Municipal Corporation, Thane, they have executed

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and registered conveyance in respect of 7 properties and assured the plaintiffs

that they will be paid additional consideration as per the market value of the

said property prevailing at that time. According to the plaintiff the defendants

are not abiding by the assurances given by them and neither the Development

Agreement is registered nor the plaintiffs have paid additional amount

equivalent to market value. It is also contended in the plaint that infact the

Development Agreement executed by the plaintiff with the defendant is in

respect of 7 properties whereas the irrevocable Power of Attorney is secured by

the defendant in respect of 10 properties. The properties i.e. Survey Nos. 25

Hissa No.8, Survey No. 26 Hissa No.3, Survey No.2 Hissa No.7 were not part

of the Development Agreement and without paying any consideration amount

for the said properties, those have been included in the irrevocable Power of

Attorney. Infact there was no intention to authorize the defendants to

undertake development work in respect of the additional 3 properties.

According to the plaintiffs, the defendants have taken undue advantage of their

poverty and illiteracy and secured execution of irrevocable Power of Attorney

in respect of additional 3 properties. It is also contended that oral assurances

given in respect of payment of amount equivalent to the market value of the

property is not being adhered to by the defendants. The plaintiff, therefore,

proceeded to issue a notice through Advocate to the defendant thereby

cancelling the Power of Attorney as well as the Development Agreement. The

notice was addressed to the defendant on 26th December, 2009 and same was

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followed by a 2nd notice dated 4th August, 2010. The defendants did not pay

any heed/attention to the notice and continued with the development work.

The plaintiffs were, therefore, constrained to file a suit which was presented in

the month of February, 2011.

4. In a pending suit, the plaintiff presented an application seeking an order

of injunction restraining the defendants from entering into, carrying out

development work or construction work, procuring permissions, approvals on

the basis of suit deeds, transferring/creating third party rights in respect of the

constructions in the suit property in favour of any persons, institutions by any

agreement, deed, act, restraining the transfer and parking of possession by the

defendants.

5. The defendants appeared and resisted the application by filing say. It is

denied by the defendants that there was any oral assurance given by them for

paying additional amount equivalent to market rate at the time of execution of

the registered deed. It is also contended that the allegations in respect of taking

disadvantage of the situation or the illiteracy or poverty of the plaintiff have

been denied by the defendant. It is contended that no fraud as alleged has been

committed in securing the Development Agreement or the irrevocable Power of

Attorney. It is the contention of the defendant that the consideration amount of

Rs. 3,11,04,007/- was the market value of the property on the date of execution

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of the Development Agreement and the Power of Attorney which was agreed

between the parties to be the market value after due negotiations. The

document namely the Development Agreement contains a recital that an

amount of Rs. 3,11,04,007/- is a market value of the property on the date of

execution of the document which is agreed between the parties to be the market

value. Therefore, no question of agreeing to pay any additional consideration

at subsequent point of time arises. It is also contended that after execution of

the documents namely the Development Agreement and Power of Attorney by

the plaintiffs in favour of the defendants, the defendants obtained a Exemption

Order under Section 20 of the Urban Land Ceiling Act, 1976 in respect of the

suit property. The defendants mortgaged the suit property with a view to raise

funds for the proposed construction of the suit property. They also obtained

permission for development in respect of the suit property on 27th December,

2007. After obtaining requisite permissions and NOC from various authorities

the appellant commenced the development activities on the suit properties and

the lands attached thereto. Since between the year 2008-2011 the appellants

have constructed several multi storey buildings and expended over Rs. 100

Crores towards the construction of the said building. The defendants-appellants

herein have also sold over 500 residential units to various third parties by and

under registered agreements. In this view of the matter, it is contended that

there is neither prima-facie case in favour of the plaintiff nor balance of

convenience lies in their favour. Sofar as the execution of the Power of

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Attorney in respect of the 10 properties is concerned, it is contended that there

was an earlier litigation wherein the issue in respect of Survey No. 25, Hisa no.

8 and Survey No. 26, Hisa No. 3 is settled. There was a Compromise decree in

favour of on e Shri Sainath Enterprises, a sister concern of the defendant in

earlier litigation and in view of the Compromise decree, the defendant had

acquired the rights in respect of Survey Nos. 25 and 26. Sofar as Survey No. 2

is concerned, the same has been acquired by the defendant from one

Saghunabai under the registered Development Agreement dated 25th June, 2003

and the defendants have no concern and are not liable to pay any consideration

in respect of the said Survey Number. Thus, it is contended that the

application tendered by the plaintiff seeking an interim injunction does not

warrant favourable consideration. The trial Court after hearing both the parties

was pleased to allow the application Exhibnit 5 tendered by the plaintiff and

issue restraint order restraining the defendants from making and/or continuing

any construction activities over the suit property including the lands bearing

Nos. 25 and 26 of Village Majiwade, Dist. Thane. The defendants are also

restrained from creating third party interest.

6. I have heard the arguments advanced by the respective Counsels. My

attention is invited to the document i.e. Development Agreement dated 30th

August, 2005. In Paragraph D, it is clearly mentioned that the consideration

amount of Rs. 3,11,04,007/- which is in accordance with current market rate is

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acceptable to the executants i.e. plaintiffs. There is also recital to the effect

that defendants are authorized to develop the property alongwith other

properties and may construct one or several buildings thereon and may also

transfer the constructed units to third parties and earn profit. On perusal of the

Development Agreement it does not transpire that there was an agreement in

respect of deciding the price of the property at the future dates or at the time of

executing the registered agreement. The pleadings raised in the plaint appears

to be contrary and is not in consonance with the written agreement. The terms

of the oral agreement which are contrary to the written document cannot be

taken into consideration in view of the provisions of Section 91 and 92 of the

Indian Evidence Act. Sofar as the passing of consideration amount is

concerned, there is little doubt in that regard and it is not seriously disputed that

the amount of consideration mentioned in the document i.e. the Development

Agreement executed on 30th August, 2005 amounting to Rs. 3,11,04,007/- has

already been passed over to the original plaintiffs. Thus it transpires that the

plaintiffs have received the total amount of consideration and handed over the

possession of the property to the defendants and have agreed for grant of

development rights so also agreed for creation of third party interest by the

Developer after developing the property. There does not appear to be prima-

facie any force in the contention of the plaintiff that they have been deceived by

the defendants.

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7. Sofar as another contention raised by the plaintiff that Development

Agreement makes a mention of 7 (seven) properties whereas by virtue of

execution of irrevocable Power of Attorney, the defendants have secured

development rights in respect of 10 (ten) properties which itself amounts to

fraud. In that regard, my attention is invited to terms of Compromise decree

presented in Special Civil Suit No. 262/1988. It was a suit presented by one

Shri Sainath Enterprises which is a sister concern of the defendants. The pre-

decessor in title of the plaintiff Waman B.Bhoir and Rajaram B. Bhoir were

party to the suit. The terms of Compromise are recorded between the plaintiff

in the said suit and defendant no.4 i.e. Kishore Kanungo. The defendant no.4

has given up his rights and entitlement in relation to the property Survey No. 25

and 26 in favour of Sainath Enterprises. It is also agreed and noted in the

terms of Compromise that the plaintiff no.1 shall be put in possession and

occupation of the suit property and every part thereof. Thus from the terms of

the Compromise recorded between Shri Sainath Enterprises which is a sister

concern of the defendant herein and the defendant no.4, it is clear that the

Sainath Enterprises was in possession of the property and has received the same

in view of the terms of the settlement between the plaintiff and the defendant

no.4 therein. Sofar as entitlement of defendant no.4 is concerned, one has to

look to the written-statement presented by the pre-decessor in title of the

plaintiff in the said suit. The pre-decessor in title of the plaintiff in suit who

were defendants 1 and 2 in the said suit have stated in Paragraph 25 of the

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written-statement presented in Special Civil Suit No. 262/1988 that they have

already sold the suit property and parted with possession thereof in favour of

Shri Kishore Kanungo before filing of the suit. It is also reiterated in the

written-statement that the concerned defendants have already created third

party rights in favour of Kishore Kanungo and, therefore, the question of again

trying to create third party interest does not arise. It is also stated in the

written-statement in Paragraph 25 that since neither of the defendants nor

plaintiffs are in possession of the suit property and possession of the suit

property having been handed over to said Kishore Kanungo, the allegations

made by the plaintiff are without justification, incorrect and wrong. In view

of the statement, stand taken by the pre-decessor in title of the plaintiff that they

are not in possession of the property, said Kishore Kanungo was impleaded as

defendant in the suit and the terms of settlement are reached and recorded

between the plaintiffs and Kishore Kanungo in Special Civil Suit No. 262/1988.

In view of the clear admission of the pre-decessor in title of the plaintiff, they

have no concern with the property Survey No. 25 and 26. The plaintiffs herein

are not entitled to claim any right, entitlement in relation to the said property.

The pre-decessor in title of the plaintiff has categorically stated and admitted in

S.C.Suit No. 262/1988 that they have sold property in favour of Kishore

Kanungo with whom the defendants have entered into Compromise and have

received the possession of the said properties. The contention of the defendant

that by act of inclusion of 2 additional properties while executing the

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irrevocable Power of Attorney, they have been deceived, therefore, appears to

be incorrect. The plaintiffs were surely aware of the fact that their pre-

decessors have already sold property in favour of the Kishore Kanungo from

whom the defendants have acquired the property i.e. Survey Nos. 25 and 26.

On account of inclusion of Survey Nos. 25 and 26 in the Deed i.e. Irrevocable

Power of Attorney, it cannot be said that the plaintiffs have been deceived or

that the defendants have played any fraud by inclusion of said property in the

Power of Attorney.

8. Sofar as the property bearing Survey No.2 is concerned, the plaintiffs

have not been able to establish that said property belongs to them. The

defendants have contended that they have entered into separate Development

Agreement in respect of said Survey No. 2 with the owner thereof and the

plaintiffs do not have any entitlement in relation to the said property deserves to

be accepted. Thus, the contention raised by the plaintiffs that they have been

deceived or some fraud has been practiced upon by the defendants, does not

appear to be correct and allegations made in that behalf prima-facie do not

appear to have any substance.

9. It is not seriously disputed that the plaintiffs have received a

consideration amount mentioned in the document i.e. Development Agreement

to the tune of Rs. 3,11,04,007/- which is in subsistence the market value

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arrived at between the parties while executing the documents. Having received

the amount in the year 2005 or thereabout, it is not open for the plaintiff to

prohibit the defendants from conducting any development activities on the suit

property.

10. It is contended that the document executed in favour of defendant is an

unregistered Development Agreement and unregistered Power of Attorney and,

therefore, need not to be taken into consideration. Having received the

advantage under the document, i.e. the unregistered Development Agreement

and the Power of Attorney, it is not open for the plaintiffs to contend that the

document cannot be acted upon. The plaintiffs are recipients of the amount

which is equivalent to prevailing market value which was arrived at between

the parties after due negotiations. The plaintiffs have also waited to raise the

challenge to the transaction for about six years from the date of execution of

the documents and atleast for about two years after transmitting the notice of

cancellation of agreement. In the meantime, the defendants have secured all

the clearances and started development activities over the property. It is

pointed out that the several structures having about 22 storey have been built on

the properties involved in the suit. Considering the progress of the

development activity and the stage of the construction, the irreparable loss that

would be caused to the defendants is more if they are prohibited from

continuing with the development activities. Having received the amount of

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consideration in respect of the properties, the prima-facie case and balance of

convenience also does not tilt in favour of the plaintiffs for securing an order of

injunction against the defendants restraining them from developing the

property. Certain dates and events are material for considering as to whether

the balance of convenience lies in favour of the plaintiff. The Development

Agreement and the Power of Attorney are executed on 30th August, 2005 and

the plaintiffs have been paid the entire consideration amount in or about the

year 2005. The defendants secured Exemption orders under Section 20 of the

Urban Land Ceiling Act in the year 2007 and also secured N.A. Permission on

27th December, 2007 and thereafter started development activities over the

property. The construction was started and was continued during the year 2008

till 2011 and defendants have invested an amount to the tune of Rs. 100 Crores

for constructing several multi storey buildings. The defendants also contend

that they have created third party interest in favour of about 500 persons and

residential units have been agreed to be sold to the prospective purchasers.

11. Thus, considering the sequence of events stated above, balance of

convenience does not lie in favour of the plaintiff. The principles governing

grant of injunctions are stated in the matter of M. Gurudas & ors. vs.

Rasaranjan & ors. (2006) 8 SCC 367. In Paragraph 18 of the Judgment it is

observed that While considering an application for injunction, it is well-settled,

the courts would pass an order thereupon having regard to:

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              (i) Prima facie

              (ii) Balance of convenience




                                                                                       
              (iii) Irreparable injury.

In Paragraph 19 it is stated further that a finding on 'prima facie case' would be

a finding of fact. However, while arriving at such finding of fact, the court not

only must arrive at a conclusion that a case for trial has been made out but also

other factors requisite for grant of injunction exist.

In Paragraph 21 of the Judgment it is observed that

While considering the question of granting an order of injunction one way or the other, evidently, the court, apart from finding out a prima facie case, would consider the question in regard

to the balance of convenience of the parties as also irreparable injury which might be suffered by the plaintiffs if the prayer for injunction is to be refused. The contention of the plaintiffs must be bona fide. The question sought to be tried must be a serious question and not only on

a mere triable issue."

12. In the instant matter, considering the fact that the Development

Agreement as well as the irrevocable Power of Attorney is executed in the year

2005 and the amount of consideration amounting to more than Rs. 3 Crores

have been passed in favour of the plaintiffs, I do not find that the plaintiffs are

entitled to any equitable relief. Having received the amount of consideration

and permitted the defendants to develop the property and having invested the

amount to the tune of Rs. 100 Crores by the defendants, it would not be

appropriate at this stage to prohibit the defendants from continuing with the

development activities or even putting a restraint in respect of creation of third

party interest. In my opinion, the plaintiffs are not litigating in a bonafide

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