Bombay High Court
Dipak Development Corporation vs Veena Vithaldas Sampat And Ors on 29 September, 2016
Bench: Dr. Shalini Phansalkar-Joshi
(901) AO 482-15
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Amk
APPEAL FROM ORDER NO. 482 OF 2015
WITH
CIVIL APPLICATION NO. 621 OF 2015
Dipak Development Corporation ]
A partnership firm registered under ]
Indian Partnership Act, 1932 and ]
Having its place of business at ]
Sundar Niketan, Subhas Lane, ]
Kandivali (West), Mumbai - 400 057. ] .. Appellant
Vs.
(1) Veena Vithaldas Sampatig ]
(2) Sachin Vithaldas Sampat ]
(No.1 widow and No.2 son of ]
Late Vithaldas Mathuradas Sampat) ]
No.1 and 2 both of Mumbai, Indian ]
Inhabitants residing at Flat No.202, ]
2nd floor, "C" Building, ]
Khajuria Nagar, Khajuria Road, ]
Kandivali (West), Mumbai-400067. ]
(3) Meena Prakash Patkar ]
(daughter of Late Vithaldas ]
Mathuradas Sampat) of Mumbai ]
Indian Inhabitant residing at Flat ]
No.201, 2nd floor, "B1" Building, ]
Khajuria Nagar, Khajuria Road, ]
Kandivali (West), Mumbai-400067. ]
(4) Jaydeep Keshavji Sampat ]
(Son of Late Vithaldas Mathuradas ]
Sampat) of Mumbai Indian ]
Inhabitant residing at Flat No.101, ]
1st floor, "C" Building, Khajuria Nagar, ]
Khajuria Road, Kandivali (West), ]
Mumbai - 400 067. ]
(5) Mrs. Asha V. Pinakin ]
(6) Mrs. Sandhya Dinesh ]
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(Nos.5 and 6 both daughters of ]
Keshavji Mathuradas Sampat) ]
both of Mumbai, Indian Inhabitants, ]
residing at Flat No.101, 1st floor, ]
"C" Building, Khajuria Nagar, ]
Khajuria Road, Khandivali (West), ]
Mumbai - 400 067. ]
(7) Haridas Mathuradas Sampat ]
(Deleted since deceased) ]
(7a) Usha Haridas Sampat ]
of Indian Inhabitant, residing at ]
Ekdanta Building, Opp. Vadagaon, ]
Post Office Madhavpur-Vadgaon, ]
Belgaum - 590 005. ]
(7b) Manish Haridas Sampat
of Indian Inhabitant at present
]
]
residing at 4517, Ojai Loop, ]
Union City, CA 94587, USA. ]
(7c) Umesh Haridas Sampat ]
of Indian Inhabitant at present ]
residing at 11460 Willows Green ]
Way, Glen Allen, VA 23059, USA. ]
(8) Madhavdas Mathuradas Sampat ]
of Mumbai, Indian Inhabitant, ]
residing at 6/B, Vaibhav, 80B, ]
Desai Road, Mumbai-400 026. ]
(9) Ashwin Tulsidas Devji Sampat ]
(10) Sunil Tulsidas Devji Sampat ]
(11) Preeti Pradeep Ved ]
(Nos.9, 10, 11 two sons and a ]
daughter respectively of Late ]
Tulsidas Devji Sampat) all of ]
Mumbai Indian Inhabitants, ]
residing at Khajuria Nagar, ]
Khajuria Road, Kandivali (West), ]
Mumbai - 400 067. ]
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(901) AO 482-15
(12) Mrs. Anjani Dhairyasinh Jivraj ]
Sampat, (widow of Late Dhairyasinh ]
Jivraj Sampat) of Pune, Indian ]
Inhabitant, residing at Mantri Manor, ]
Kavde Wadi, Koregaon Park, ]
Pune. ]
(13) Hritik Dhairyasinh Sampat ]
(Son of Late Dhairyasinh Jivraj ]
Sampat) of Pune, Indian Inhabitant ]
residing at mantri Manor, Kavde Wadi, ]
Koregaon Park, Pune. ]
(14) Nirav Dhairyasinh Sampat ]
(Son of Late Dhairyasinh Jivraj ]
Sampat) of Pune, Indian Inhabitant ]
residing at 53, Cloer Royale,
ig ]
Koregaon Park, Pune. ]
(15) Ranjit Jivraj Sampat ]
of Mumbai, Indian Inhabitant, ]
residing at 401, 4th floor, ]
"C" Building, Khajuria Nagar, ]
Khajuria Road, Kandivali (West), ]
Mumbai-400067. ]
(16) Nayna Hamir Jivraj Sampat ]
(17) Prashant Hamir Jivraj Sampat ]
(18) Dirgha Hamir Jivraj Sampat ]
(Nos.16, 17 & 18, widow, son ]
and daughter respectively of ]
late Hamir Jivraj Sampat all of ]
Mumbai, Indian Inhabitant, ]
residing at Flat No.601, 6th floor, ]
"C" Building, Khajuria Nagar, ]
Khajuria Road, Kandivali (West), ]
Mumbai-400067. ]
(19) Rohini Purshottam Sampat ]
of Mumbai, Indian Inhabitant, ]
residing at 301-C, Khajuria Building ]
Khajuria Tank, Kandivali (West), ]
Mumbai - 400 067. ]
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(901) AO 482-15
(20) Hemant Purshottam Sampat ]
of Mumbai, Indian Inhabitant, ]
residing at Flat No.401, 4th floor, ]
"C" Building, Khajuria Nagar, ]
Khajuria Road, Kandivali (West), ]
Mumbai-400 067. ]
(21) Kishore Karsandas Sampat ]
of Mumbai, Indian Inhabitant, ]
residing at Flat No. 402, 4th floor, ]
"C" Building, Khajuria Nagar, ]
Khajuria Road, Kandivali (West), ]
Mumbai-400 067. ]
(22) Ajay Karsandas Sampat ]
of Mumbai, Indian Inhabitant,
ig ]
residing at Flat No. 501, 5th floor, ]
"C" Building, Khajuria Nagar, ]
Khajuria Road, Kandivali (West), ]
Mumbai-400 067. ]
(23) Himansu Karsandas Sampat ]
of Mumbai, Indian Inhabitant, ]
residing at Flat No. 502, 5th floor, ]
"C" Building, Khajuria Nagar, ]
Khajuria Road, Kandivali (West), ]
Mumbai-400 067. ]
(24) Bharat Ratansey Sampat ]
of Mumbai, Indian Inhabitant ]
residing at 2/22, Desai Building, ]
Meghbhat Lane, Girgaum, ]
Mumbai - 400 004. ]
(25) Samir P. Patkar ]
of Mumbai, Indian Inhabitant, ]
residing at Flat No.201, 1st floor, ]
"C" Building, Khajuria Nagar, ]
Khajuria Road, Kandivali (West), ]
Mumbai-400 067. ] .. Respondents
Mr. Nishant Sasidharan i/b Mr. S. S. Redekar for the Appellant.
Mr. M. J. Jamdar for Respondent No.3.
Mr. Kapil N. Gor for Respondent No.25.
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(901) AO 482-15
CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.
DATE : 29th SEPTEMBER, 2016.
ORAL JUDGMENT
1. This appeal is directed against the order dated 16.10.2014
passed by the City Civil Court, Mumbai in an unregistered Notice of Motion
in S.C. Suit No.5540 of 2007. By the said order, the Trial Court has
rejected the Notice of Motion filed by the present appellant. By the said
Notice of Motion, the appellant was seeking the relief of interim injunction
restraining respondent Nos.3 and 25 from creating any third party interest
in the suit flat bearing No.201 in Building 'C' at Khajuria House, Khajuria
Nagar, Kandivali (W), Mumbai. The reasons assigned by the Trial Court
for dismissal of this Notice of Motion are two fold. The first reason is that,
vide the order dated 19.12.2007 passed in Notice of Motion No.3069 of
2007 by this Court, the interim relief of injunction was granted restraining
original defendant Nos.1 to 9, 15 to 19 and 21 to 23 from creating third
party interest or disposing of the original suit property in any event. The
Trial Court observed that respondent No.3 i.e. defendant No.3 in the Trial
Court suit was already party in the said Notice of Motion. Therefore, the
order of interim injunction granted by this Court on 19.12.2007 was binding
on respondent No.3 also and in such situation, the appellant can take any
necessary steps if there is breach of that order. No further Notice of
Motion seeking the same relief of interim injunction is necessary.
(901) AO 482-15
2. The second reason on which the Trial Court has rejected the
Notice of Motion is that the suit was already seven years old and ripe for
hearing. It was also taken up for final hearing and at this stage as the
relief of interim injunction was sought of the same nature and on the same
ground the Trial Court deemed it fit to reject the Notice of Motion.
3. This order of the Trial Court is challenged in this appeal by the
learned counsel for the appellant by submitting that merely because the
suit was ripe for final hearing does not mean that respondents should keep
on creating third party interest in the suit property. By pointing out to the
various documents produced on record, especially, the agreement dated
06.08.1978, it is submitted that the present suit is filed by the appellant
before the Trial Court for specific performance of the said agreement of
development and during the pendency of the suit, if the parties keep on
creating third party interest in the suit property, then it will create hurdles in
getting the decree for specific performance of the agreement. It is
submitted that already third party interest was created in this particular suit
flat No.201 by the original defendant Nos.21 and 24 by creating third party
interest in favour of respondent Nos.3 and 25. There is every likelihood of
these respondents further creating third party interest in the suit flat and,
therefore, it has become necessary to restrain them from doing so, so as
to avoid multiplicity of proceedings. According to learned counsel for the
appellant, the Trial Court has wrongly observed that the earlier order
(901) AO 482-15
passed on 19.12.2007 was also binding on respondent Nos.3 and 25. It is
submitted that, if they had purchased the suit flat as alleged by them in
their independent capacity as a third party purchaser, that order may not
be binding on them and, therefore, this Court should pass an order of
interim injunction restraining respondent Nos.3 and 25 from creating any
third party interest till the decision of the suit.
4. Per contra, learned counsel for respondent No.25 was
submitted that this respondent was never party to the original suit,
especially, when the order of interim injunction was passed by this Court.
Moreover, though respondent No.3 was party to the suit, she was
impleaded as legal heir of the executant of the agreement. Now, she has
along with her son, respondent No.25 independently purchased suit flat
No.201. They are third party purchasers and in such situation, they are
not in any way bound by the obligation of the original owner/executant
relating to the execution of the specific performance of the agreement. It
is urged that they had purchased the suit flat by a registered sale deed
dated 20.11.2006. the suit was filed on 02.08.2007 and the orders were
passed in the said suit on 19.12.2007 and 30.11.2009. In such situation, it
is urged that they cannot be bound by any obligation created by the earlier
owner and they are also not bound by any terms of the agreement so as to
execute the specific performance of the contract. They are also not bound
by the orders passed by this Court. Hence, according to learned counsel
(901) AO 482-15
for respondent Nos.3 and 25, absolutely no case is made out by the
appellant for grant of interim relief of injunction as sought, against them.
5. Now, in order to appreciate and understand the controversy
involved in this appeal, it would be necessary to take a look at certain facts
and events. It is a matter on record that one Dwarkadas was the owner of
the suit flat No.201. He has died issueless, survived by his wife
Rukshmaniben, who has died on 14.02.2005. She has executed her last
will dated 01.01.2003. On the basis of the said will, the executors, namely,
respondent Nos.4 and 21 became the successors to suit Flat No.201. As
per the will, the executors were to sell the suit flat and hand over the
proceeds to the charity. Accordingly, original respondent Nos.4 and 21
sold the suit flat to the present respondent Nos.3 and 25 by registered sale
deed dated 20.11.2006.
6. It is pertinent to note that the suit is filed much thereafter in
August, 2007 by the appellant seeking specific performance of the
agreement for development executed on 06.08.1978 by respondent No.3
and other co-owners of the property in respect of entire property.
Respondent No.25 was not made party to the said suit. Respondent No.3
was made party to the said suit but it was in her capacity as the legal heir
of the original owner/executant for specific performance of the agreement
was sought. It is specific case of respondent No.3 that she had purchased
(901) AO 482-15
the suit flat along with respondent No.25 independently as a third party
purchasers and, therefore, whatever obligations which were with her in her
capacity as the co-owner of the property, cannot be binding on her as far
as suit flat No.201 is concerned.
7. I find much substance therein. Needless to state that
respondent Nos.3 and 25 are the third party purchasers, so far as the suit
flat is concerned and, therefore, no relief of specific performance of the
agreement can be enforced against them as such, despite the provisions
of Section 19 of the Specific Relief Act on which learned counsel for the
appellant has placed reliance. Moreover, the earlier order of interim
injunction which was again not passed against respondent No.3 but
against other respondents, also cannot be binding on her. When these
orders were passed, respondent No.25 was not added as a party and
though respondent No.3 was already to the said suit and injunction, no
order of interim injunction was passed against her. The order of interim
injunction was limited only in respect of certain respondents as stated in
the said order dated 30.11.2009.
8. The present respondent No.25 is made as a party only by
virtue of order dated 26.09.2016 passed by this Court in Writ Petition No.
371 of 2016 and that too in independent capacity as the third party
purchaser of the suit flat. In these circumstances, no case is made out by
(901) AO 482-15
the appellant to seek the relief of interim injunction against these
respondents in respect of suit flat No.201. So far as the rest of the
property in respect of which respondent No.3 may be liable in her capacity
as legal heir of the original owner, that is the different matter but as far as
the suit flat No.201 is concerned, the appellant cannot be entitled for the
relief of interim injunction as claimed.
9. There is also no question of appellant suffering any loss or
hardship because the bar of lis pendense under Section 52 of the Transfer
of Property Act will come into play if the appellant registers notice of the
suit if there is any apprehension that respondent Nos.3 and 25 may create
further rights in respect of suit flat No.201.
10. Otherwise also, in my considered opinion as the suit is
already ripe and fixed for hearing, the interest of justice requires that both
the parties should co-operate to the Trial Court for finally disposing of the
suit at the earliest instead of wasting time in the proceeding of interim
nature.
11. As a result, the appeal holds no merits, hence stands
dismissed.
12. At this stage, it is clarified that whatever observations
(901) AO 482-15
hereinabove are only made for the purpose of deciding this appeal, the
Trial Court shall not get influenced by them and decide the suit on its own
merits, in accordance with the law.
[DR. SHALINI PHANSALKAR-JOSHI, J.]
