Bombay High Court
Bharat Petroleum Corporation ... vs Mumbai-400 021 And 2Nd Floor on 19 October, 2013
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
APPEAL FROM ORDER (STAMP) NO. 26747 OF 2013
WITH
CIVIL APPLICATION (STAMP) NO. 26749 OF 2013
IN
APPEAL FROM ORDER (STAMP) NO. 26747 OF 2013
Bharat Petroleum Corporation Limited,
a Government of India Undertaking
having its registered office at Bharat
Bhavan, 4 & 6, Currimbhoy Road,
Ballard Estate, Mumbai-400 001. ....Appellant.
Vs.
Videocon Properties Limited
and now known as Videocon
Realty and Infrastructures Ltd. a
company Registered under the
Companies Act 1956 having its
registered office at 171, Mittal Court,
"C" Wing, 17th Floor, Nariman Point
Mumbai-400 021 and 2nd Floor, Fort
House, 221, Dr. D.N. Road, Fort,
Mumbai-400 001. ....Respondent.
Mr. Ravi Kadam, Senior Advocate a/w Mr. P.S. Dani and Mr. Pratik
Majumdar i/by M/s. M.P. Savla and Co. for the Appellant.
Mr. Dinyar Madan, Senior Advocate a/w Ms. Neeta Rajde i/by DSR
Associates for the Respondent.
CORAM : ANOOP V. MOHTA, J.
DATE : 19 OCTOBER 2013.
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ORAL JUDGMENT:-
Heard finally, by consent of the parties.
2 The present Appeal from Order is filed by the Appellant-
original Plaintiff- Bharat Petroleum Corporation Limited (for short,
"BPCL") as the learned Judge of the City Civil Court, Greater Mumbai,
pending the Suit for specific performance, dismissed the Notice of
Motion, on 5 September 2013, whereby the prayers were to appoint
the Court Receiver and injunct the Respondent-original Defendant
from selling, transferring, alienating and/or disposing of and/or
parting with possession or creating any third party rights or interest in
the Suit property.
3 The basic document is a minutes of the meeting dated 14
March 2001 recording the discussion between the parties and the
same also signed by the respective representatives/authorized
persons. The basic terms are recorded and noted, but not treated as a
concluded contract even by the learned Judge. The usual contentions
of failure to perform their respective obligations are made, raised and
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discussed. The agreement is conditional and/or concluded, is again a
matter of discussion.
4 The learned Senior Counsel appearing for the Appellant
basically contended that the parties, the price and the properties are
clearly mentioned in the written minutes signed by the respective
representatives. This just cannot be overlooked at this stage of the
proceedings. The learned Senior Counsel appearing for the
Defendant however, contended that the terms itself show, it was
conditional and subject to the completion of the formalities including
the approval by the Appellant's Management. Admittedly, no amount
whatsoever paid and/or received pursuance to the discussion, as it
was specifically agreed that the full sale price would be paid upon
execution and registration of sale deed in a form approved by the
BPCL. Immediately, on 31 March 2001, referring to the discussion,
inquiry was made about the title deed of the site. The next letter was
of 19 January 2002, where the Respondent expressed inability to sell
an additional part of 1300 sq. ft. The first part remained intact even
at this stage. But, after this discussion, no further steps taken by
either of the parties.
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5 Admittedly, the Appellant was in possession of the Suit
property in pursuance to the lease agreement with the Respondent.
The litigation was pending for eviction/possession of the property.
The Appellant by letter dated 26 March 2004, apart from lease issue
intimate to the Respondent the approval of the Management to
purchase the property therefore, the demand was made of the
Conveyance executed by Liberty Oil Mills in favour of the Respondent.
The Respondent by letter dated 23 November 2004 apart from dealing
with the issue with regard to the lease and arrears and release and
termination of it, asked for arrears of the rent that too without
accepting the case and without discussing anything about the sale
transaction.
6 The Appellant, therefore, filed the Suit for specific
performance based upon the agreement sometime in 2005 though the
alleged agreement is dated 14 March 2001. No such Notice of Motion
taken out against the Respondent in the year 2005. The Respondent
filed their written statement on 24 August 2005 and specifically
denied the agreement and/or any contract to sell the property in
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question. In the meantime, the issue with regard to the possession, as
well as, the arrears of rent of the property went up to the Supreme
Court against order dated 27 April 2011. The order of possession was
maintained even by noting the submission referring and revolving
around the present Suit for specific performance. The issue of
termination of tenancy, therefore concluded by the High Court.
7 In Special Leave Petition (SLP) filed by the Appellant,
while dismissing the same, the Supreme Court directed that the Suit in
question be expedited. The statement is made that the ground with
regard to the Suit in question also raised in the SLP. However, only
the time was granted to vacate the premises by 31 December 2012,
which was subsequently extended for further three months. The
possession, in view of above, handed over by the Appellant-Plaintiff to
the Respondent.
8 The Defendant in view of the specific defence so raised in
the written statement filed in the year 2005, as there was no
injunction and/or any order of any kind against them, to create or to
transfer the property, they executed the agreement to sell the property.
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The Appellant filed Notice of Motion on 18 July 2013 and filed an
affidavit in support of the same. On 31 July, 2013, as the matter was
listed for hearing, and based upon the affidavit an ex-parte ad-interim
relief was granted in favour of the Appellant by the trial Court. The
Respondent appeared and contested the Motion and pointed out on
affidavit that the property has already been transferred on 23 July
2013. The Motion was heard on 31 July 2013. The Appellant's
affidavit also acknowledged the transfer as they noted the public
notice of the property in question. It is specifically mentioned that
the possession of the premises also handed over to one Madhuban
Motors Private Limited, on 23 July 2013 apart from the receipt of
consideration of Rs.2 crores, which is recorded along with the
acknowledgement letter of possession.
9 The learned Judge considering the nature of agreement
between the parties, held that the prima facie there is no concluded
contract, the principle of balance of convenience and equity in view of
the facts as recorded, also go in favour of the Respondent and against
the Appellant.
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10 Whether the agreement is conditional and/or concluded
though prima facie observations are made, still it cannot be
adjudicated at this stage in favour of the Appellant. But at the same
stroke, the Suit for specific performance and the discretionary powers
of the Court to conclude and/or pass final order for or against the
party just cannot be overlooked.
11 The Appellant-Plaintiff admittedly were in possession of
the property till they vacated, pursuant to the order passed by the
Supreme Court in December 2012. The Respondent's case and their
stands in view of the written statement so filed in the year 2005 was
clear. Mere possession by the Appellant itself cannot be the reason
not to move such protective motion even in the year 2005 itself. They
have not done so. On the contrary, for the tenancy issue, the aspect
of pendency of the Suit of specific performance raised and discussed
even upto the Supreme Court stage. The issue of handing over the
possession was once concluded, no protection granted based upon the
Suit for specific performance pending, even by the High Court, as well
as, by the Supreme Court.
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12 This also means, there was no interim order of any kind
against the owner of the property to deal with the same. The
Respondent therefore, if entered into an agreement and handed over
the possession to the third party, the Notice of Motion so taken out
now, based upon the agreement of the year 2001 even if any, in my
view, creates no equity in favour of the Appellant, apart from delay at
every stage of the proceedings, including the issue of filing of the Suit
in the year 2005, though the agreement is of the year 2001. The
aspect of prima facie case, balance of convenience and of irreparable
injury, in my view, is not in favour of the Appellant in view of the
above position on record.
13 The issue with regard to the transfer of property, pending
the litigation even if any, revolving around Sections 52 to 54 of the
Transfer of Property Act, (for short, T.P. Act) apart from the allegations
of defaults of either of the parties, unless adjudicated finally, that itself
cannot be the reason to accept the case of the Appellant-Plaintiff for
such order as prayed in the Motion. The agreement of sale and the
handing over of the possession of the property immediately, apart
from the receipt of part payment and considering the provisions of
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Section 53-A of the T.P. Act, and as the third person/party admittedly
not joined, as interest has been created in favour of the third party,
just cannot be overlooked by the Court. The contract was conditional
and/or concluded unless adjudicated finally and even if concluded,
the Court can pass final appropriate Judgment/order in the Suit for
specific performance. Therefore, in view of the above reasons, I see
there is no case made out to interfere with the order.
14 The Appeal from Order is dismissed, so also the Civil
Application. There shall be no order as to costs. There shall be no
order as to costs.
15 The learned Senior Counsel appearing for the Appellant
submitted to extend the status quo order granted by this Court on 27
September 2013 for further four weeks. The same is accordingly
continued for four weeks from today.
(ANOOP V. MOHTA, J.)
