Padmashri P. Vyas And 5 Ors vs Tushar D. Shah And 2 Ors
2016 Latest Caselaw 563 Bom

      pvr   /rng                            1                             appl140-
                                      14.doc
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                      ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                            
                           APPEAL (L) NO. 140 OF 2014
                                       IN




                                                    
                       NOTICE OF MOTION NO. 2121 OF 2011

    1.Smt.Padmashri P. Vyas,                    )
    Age 63 years, Occupation Housewife          )




                                                   
                                                )
    2. Devanand Purushottam Vyas                )
    Age -41 years, Occupation Business          )
                                                )




                                           
    3. Vivekanand Purushottam Vyas              )
    Age - 38 years, Occupation-Business         )
                                ig              )
    4.Hitesh Purushottam Vyas                   )
    Age-34 years, Occupation-Profession         )
                                                )
                              
    5. Smt.Neelu Devanand Vyas                  )
    Age 40 years, Occupation Housewife          )
                                                )
    6. Smt.Hema Hitesh Vyas.                    )
      

    Age 30 years, Occupation Housewife.         )
                                                )
   



    All plaintiffs are residing at B-708,       )
    Whispering Heights, Mind Space,             )
    Chincholi Bunder Road, Malad (W),           )
    Mumbai-400064.                              )...Appellants





              Versus

    1.Tusar Dhansukhlal Shah                    )
    Age-Adult, Occupation Business              )
                                                )





    2. Setu Dhansukhlal Shah                    )
    Age Adult, Occupation - Business            )
                                                )
    Defendant No.1 and 2 are residing at        )
    Alfa Block No.8, 1st Floor, Opp.Garden      )
    Seven Bungalows, Andheri (W),               )
    Mumbai-400061.                              )
                                                )
    3. Bhushan Dhansukhlal Shah                 )
    Age - Adult, Occupation-Business            )




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          pvr   /rng                                2                                    appl140-
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    residing at A/9, Ghadhakwala Apartment                 )
    Near Vijay Nagar Bus Stand, Naranpura                  )
    Ahmedabad-13.                                          )...Respondents




                                                                                          
                                                                  
    Mr.P.G.Karande, for the Appellants.
    Mr.D.H.Mehta with Ms.Rima Paradkar i/b. D.M.Legal Associates, for
    Respondent Nos.1 & 2.




                                                                 
                                      -----
                                  CORAM : A.S.OKA &
                                             G.S.KULKARNI, JJ.
                                   DATED:    14th March 2016




                                                 
    JUDGMENT (Per G.S.Kulkarni, J)

1. The Appellants-Original Plaintiffs are in appeal against

order dated 16 January 2014 passed by the learned Single Judge

whereby the Notice of Motion filed by the Appellants seeking an

injunction to restrain the Defendants from selling, transferring, alienating

or disposing of the suit property has been rejected by the impugned

order.

    2.                    The      Appellants    have     filed      a    suit     against       the

    Respondents/Defendants               seeking       specific      performance           of    the

Memorandum of Understanding (for short 'MOU') dated 27 September

2006. The Respondents are stated to be the owners of the suit property

having inherited the same through their father. The Appellants' case

was that the MOU was entered between the Respondents/owners and

`the Appellants for sale of the suit property namely Plot Nos.D31, D32,

pvr /rng 3 appl140-

14.doc D34, D35 and C-4 and CD-5 admeasuring about 34,681.5 sq.yards

situated at Bhagatsingh Nagar & Laxmi Nagar, Goregaon (W), Mumbai,

at the rate of Rs.50/- per square feet on as is where is basis. Admittedly,

the MOU described the property to be encroached by trespassers who

have put up structures. It is the Plaintiffs' case that a token money of

Rs.11,000/- was paid by the Plaintiffs to the Respondents in cash (on

the execution of MOU). It was also agreed that the Appellants would

clear the title and all defects in the title at their own cost and for that

purpose the Respondents had agreed to execute a General Power of

Attorney in favour of Plaintiff No.3. The Appellants have averred in the

plaint that they have spent more than Rupees Six Lakhs to stop

encroachment by engaging security services to safeguard the suit plot.

The Appellants were hopeful that the Defendants will execute

conveyance in favour of the Appellants after receiving the consideration

and after the litigation in respect of the lands was cleared and the title

becomes marketable. Thus, the agreement between the Appellants and

the Respondents was concluded as also was acted upon. However,

Respondent Nos.1 and 2 sent Notice dated 16 September 2010 through

their Advocate addressed to Defendant No.3 terminating the said MOU

and the power of attorney without giving any reasons. The

Respondents could not have backed out from the MOU causing a

wrongful loss to the Appellants and that now the lands are declared free

from the coastal zone. The Appellants' replied to the notice of the

pvr /rng 4 appl140-

14.doc Respondents terminating the MOU and also tried to contact

Respondent Nos.1 and 2, however, the Respondents avoided the

Appellants. The Appellants, therefore, apprehended that the

Respondents may create third party rights in respect of the said suit

land. The Appellants stated that they were ready and willing to

complete their part of the contract. On these facts the Appellants

instituted the above suit seeking declaration that the Respondents'

Notice dated 16 September 2010 terminating the MOU was invalid and

not binding upon the Appellants, and also a decree of specific

performance of the MOU dated 27 September 2006 and that the

Respondents be directed to execute a conveyance of the suit property,

and also prayed for a permanent injunction to restrain the

Respondents/Defendants from selling, transferring, alienating,

encumbering, disposing of or creating any third party right in the suit

plots.

3. The Appellants took out Notice of Motion No.2121 of 2011

seeking a relief of temporary injunction against the Respondents from

selling, transferring, alienating the suit plots. However, recording a

different area in the prayer clauses than the one contained in the MOU.

The Respondents/Defendants appeared and opposed the notice of

motion by filing reply affidavit of Defendant No.1. Defendant No.1

contended that the suit of the Appellants was false and bogus. There

pvr /rng 5 appl140-

14.doc was not only suppression of material facts but also false and reckless

statements were made by the plaintiffs in the plaint The MOU was

denied and it was stated that there was no enforceable, valid or legal

contract between the Appellants and the Respondents. It was stated

that the MOU was not executed by Defendant Nos.2 and 3. The

document was neither stamped nor registered as per the provisions of

law and thus was not admissible in evidence. It was further stated that

none of the defendants knew Advocate Mr.S.R..Singh of Goregaon,

Mumbai or Notary Mr.M.R.Suryavanshi, Advocate of N.M.Joshi Marg,

Mumbai-400011 and that Respondent Nos.1 and 2 had never met or

visited the said persons. Further Respondent No.2 on the date of MOU

(27 September 2006) was at Ahmedabad. Thus, there was no question

of visiting the said Advocate and Notary.It was averred that the MOU

was fabricated and was maneuvered by Mr.Purshottam M.Vyas,

Advocate or his son who is also an Advocate. Respondent No.3

(Defendant No.3) was not a party to the power of attorney. Further the

amount of Rs.11,000/- or any other amount was never paid to the

Respondents. The power of attorney and the MOU, therefore, were not

executed by the Respondents(Defendants). The power of attorney

does not bear the registered number of Notary Public as required by

law. It is further contended that even if was to be assumed that the

case of the Appellants is to be accepted, there was no material which

could show that the appellant have made out a prima facie case for

pvr /rng 6 appl140-

14.doc grant of injunction in a suit for specific performance. Further, the land in

question was completely encroached having structures on it. The

parties to the documents are all family members of Mr.Purshottam

M.Vyas who is a practising Advocate who has abused his professional

position and acted against the principles of professional ethics and a

criminal complaint to that effect has been filed by the Respondents on

which investigation has been completed by the Police Authority. Even

otherwise, the suit was barred by limitation as it was seeking specific

performance of the MOU dated 29 September 2006 as the suit was

instituted on 27 April 2011. The Appellants had in fact approached the

Bombay City Civil Court in Suit No.2179 of 2010 challenging termination

of the said MOU with an application for interlocutory injunction. The

application for interlocutory injunction was rejected by the Bombay City

Civil Court on the ground that it was in a simpliciter suit for injunction

and not in a suit for specific performance after which the present suit

came to be filed.

4. By the impugned order, the learned Single Judge has

rejected the Notice of Motion thereby declining any injunctory reliefs to

the Appellants. The impugned order in paragraph 3 records detailed

reasons regarding as to why no case for interference and the

discretionary reliefs as sought by the Appellants was made out.

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5. We have heard the learned counsel appearing for the

parties. Learned Counsel appearing for the Appellants submits that the

injunction ought to have been granted in the Notice of Motion of the

Appellants as prima facie case was made out by the appellants in that

regard. It is submitted that the Appellants had deployed security guards

and had safeguarded the property. It is submitted that the Appellants

were ready and willing to perform their obligation under the MOU and,

therefore, the Appellants were entitled for an injunction. On the other

hand, the learned Counsel for the Respondents has strongly opposed

the contention as urged on behalf of the Appellants. It is submitted that

the suit as filed by the Appellants was absolutely frivolous and that the

learned Single Judge has appropriately recorded in the impugned order

that none of the facts as urged on behalf of the Appellants inspired any

confidence much less for any discretionary reliefs. He accordingly,

urged that the suit be dismissed with costs.

6. We have perused the MOU in question, power of attorney

as also the pleadings of the parties before the learned Single Judge.

We are in complete agreement with the findings as recorded by the

learned Single Judge and more particularly, the findings as recorded in

paragraph (3) of the impugned order. Admittedly, the MOU was

executed on 27 September 2006 and the MOU is being projected by the

Appellants to mean that it is an agreement for sale of the suit property.

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                                       14.doc

This document is not registered. The Respondents have seriously

disputed the execution of the document and the signatures thereon.

Further, we are in complete agreement with the learned Single Judge

that there is a grave doubt on the date of execution of the document, as

the original date mentioned on the MOU is 3 September 2006 and the

date shown to have been corrected in the copy of the MOU as annexed

to the plaint is 27 September 2006, on which date it appears to be

notarized. It is, therefore, quite apparent that as a result of notarization

on 27 September 2006, the date of the document is altered in the first

paragraph of the MOU. The case of the Respondents/Defendants was

that they never appeared before the Notary Public for execution of any

document. Defendant No.3 who is admittedly a part owner of the suit

property, is also not a party to the MOU. The case of misrepresentation

being pleaded by the Appellants for Defendant No.3 being not made a

party to MOU also would not assist the Appellants. It also cannot be

overlooked that the token amount of Rs.11,000/- for such a huge and

valuable property was paid in cash when the total consideration of the

property is above Rupees One Crore. Perusal of the MOU also prima

facie demonstrates that the MOU requires no further performance on

the part of the Respondents and whatever was required to be done was

by the Appellants/Plaintiffs, coupled with the fact that there is no time

limit for completion of the sale transaction. Further the Appellants were

absolutely silent in regard to any steps taken on their part to remove the

pvr /rng 9 appl140-

14.doc encroachment. Though the learned Single Judge inadvertently

mentioned that Survey No.CD-5 was not the part of the suit property, it

was the part of the MOU, however, considering the over all facts this

would not assist the Appellants in any manner. The delay on the part of

the appellant also cannot be overlooked. The MOU is dated 27

September 2006, the same was terminated on 16 September 2010.

The Appellants had approached the City Civil Court in a suit seeking

injunctory reliefs against the Respondents and having failed in the same

by order dated 19 March 2011, had filed a suit in question on 27 April

2011. Further, no interim reliefs were claimed in the suit for more than

twenty months.

7. We are, therefore, more than certain that the Appellants

were not entitled to any interim injunction.. None of the contentions as

urged on behalf of the Appellants remotely indicate that the Appellants

had made out a prima facie case for grant of any injunctory reliefs.

8. In the light of the above discussion, we find that the Appeal

is completely misconceived, calling no interference in the orders passed

by the learned single Judge. The Appeal accordingly stands summarily

rejected. No order as to costs.

    (G.S.KULKARNI, J.)                                            (A.S.OKA, J.)