Bombay High Court
Shri Padaji Tukaram Naik And Ors vs Shri Premnath Savalarm Naik And ... on 5 April, 2017
Bench: A.A. Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
APPEAL FROM ORDER NO. 1046 OF 2016
WITH
CIVIL APPLICATION NO.1323 OF 2016
AND
CIVIL APPLICATION NO.1324 OF 2016
IN
APPEAL FROM ORDER NO.1046 OF 2016
...
Shri Padaji Tukaram Naik And Ors ....Appellants
v/s.
Shri Premnath Savalarm Naik And Ors ....Respondents
...
Mr.Bhooshan Mandlik i/by Shriniwas Sudhir Patwardhan for the
Appellants.
Mr.Vijay A. Thorat,Sr.Adv a/w Dr.Birendra Saraf a/w Prayag Joshi i/by
Bipin Jayantilal Joshi, for the Respondent No.5.
Mr. Rohit Pramod Sakhadeo, for the Respondents Nos. 6 to 9.
CORAM : A.A. SAYED, J.
DATED : 5 APRIL 2017
ORAL JUDGMENT:
This Appeal impugns an interlocutory order dated 22 August 2016
passed by the Civil Judge, Senior Division, Panvel, by which the
Application (Exhibit 5) of the Appellants/original Plaintiffs seeking interim
reliefs not to create third party rights or develop the suit plot, came to be
rejected.
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2. Certain agricultural lands in Survey No.381 and 382 originally
belonged to one Hari Naik. Hari Naik was survived by four children
namely Savlaram, Tukaram, Jana and Bhimabai. Survey No.381 and
Survey No.382 were acquired by the Government for New Mumbai
project and against the said acquisition, land admeasuring 1500
sq.meters (approx) were allotted under the 12.5 scheme to Savlaram,
Tukaram, Jana, and Bhimabai, being the heirs of Hari Naik.
3. The suit is filed by heirs of Tukaram (i.e. Plaintiffs Nos.1 to 6) and
by Jana (Original Plaintiff No.7 who died during the pendency of the suit)
inter alia claiming partition and declaration of their share in the suit plot
and for cancellation of registered Deed of Release dated 16-05-2008 and
various subsequent documents/ Agreements including Agreement dated
13 April 2009 in favour of Respondent No.5.
4. It is the case of the Appellants/Original Plaintiffs in the plaint that in
or about February 2008, discussions were held about apportionment of
the suit plot between Tukaram (father of the Plaintiffs Nos.1 to 5 and
husband of the Plaintiff No. 6), Jana (original Plaintiff No. 7), Defendants
Nos.1 and 2 (heirs of Savlaram), and Defendants Nos.10 to 14 (heirs of
Bhimabai). Out of the said suit plot, 200 sq.meters were decided to be
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allotted to Defendants Nos.10 to 19 being the heirs of Bhimabai. Out of
remaining 1300 sq.meters of land, 1/3rd share each was decided to be
allotted to Tukaram (who expired on 31-12-2010), Jana (who expired
during the pendency of the suit) and Defendants Nos.1 & 2 (heirs of
Savalaram who had expired on 24-01-2008).
5. According to the Plaintiffs, Defendants Nos.10 to 19 decided to
transfer the land of their share admeasuring 200 sq.meters in favour of
Defendant No.4 (Developer) for consideration of Rs.44 lakh. Defendants
Nos.1 & 2 sold the land admeasuring 100 sq. meters out of 1300
sq.meters for family need to the Defendant No.4 (Developer) for
consideration of Rs.22 lakh vide an Agreement executed on 19-3-2008. It
is contended that it was thereafter decided to handover remaining 1200
sq.meters of land to the Defendant No.4 (Developer) for development.
6. On 16-05-2008, a registered Deed of Release was executed by
Tukaram, Jana and heirs of Bhimabhai relinquishing their rights in
respect of the suit plot in favour of the Defendant No.1-Premnath
Savalaram Naik . The contention, however, of the Plaintiff Nos.1 to 6
(heirs of Tukaram) and the Original Plaintiff No.7-Jana is that the
Defendants No.1 and Defendant No. 4 (Developer) took advantage of
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simplicity and illiteracy of Tukaram and got the said Deed of Release
dated 16-05-2008 executed by informing him that it was a Development
Agreement.
7. The Plaintiffs claim that the Defendant No.1, by misusing the Deed
of Release and in connivance with the Defendant No.4 (Developer),
executed certain other documents and ultimately transferred the said
land in favour of the Defendant No.5 (New Developer) by Tri-partite
Agreement dated 20-4-2009 between him (Defendant No.1), CIDCO and
Defendant No.5 (New Developer).
8. Affidavit-in-Reply was filed by the Defendant No.4 (Developer)
before the Trial Court, wherein it was inter alia stated that Tukaram, Jana
(original Plaintiff No.7) and Savalaram (father of Defendants Nos.1 and
2) had executed an Agreement for Development dated 03-06-2008 in
their favour for consideration and after cancellation of the said
Development Agreement dated 03-06-2008 an Agreement for Sale dated
18-02-2009 was executed with regard to the suit land in their favour.
Thus, all sharers of the suit land had agreed to sell the suit land.
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9. An Affidavit in reply was also filed by the Defendant No.5 (new
Developer) before the Trial Court. It was inter alia stated in the Reply that
by an Agreement for Sale dated 18-02-2009 all the sharers transferred
the suit land in favour of the Defendant No.4 for consideration of Rs.1.20
crores and pursuant thereto the Defendant No.4 had paid Rs.80.50 lakh
to the Defendant No.1 and an amount of Rs.39.50 lakh remained to be
paid. It was further averred in the Reply that it was not possible for the
Defendant No.4 to comply with the Agreement dated 18-02-2009 and
therefore he decided to sell the land with the consent of the Defendant
No.1. The said transaction was approved by Tukaram, Jana ( original
Plaintiff No.7) and the Defendants Nos.2, 10 to 14. Pursuant thereto,
Tukaram, Jana (original Plaintiff No.7) and Defendants Nos.2, 4, 10 to
14 executed an Agreement for Sale dated 13-4-2009 in favour of the
Defendant No.5 and the sale consideration amount was fixed at Rs.1.60
crores, out of which Rs.39.50 lakh was paid to the Defendant No.1 and
the remaining amount was paid to Defendant No.4 (Developer) and thus
the entire amount of consideration has been paid to the Defendants
Nos.1 and 4. Thereafter, the CIDCO transferred the suit land and all
relevant documents and the Defendant No.5 (new Developer) is
developing the suit land and it has invested approximately about Rs.4.50
crores till date and also sold some of the flats.
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10. I have heard the learned Counsel for the Appellant and the learned
Senior Counsel for the Respondent No.5 and the learned Counsel for
Respondents Nos.6 to 9.
11. Admittedly even after the execution of the registered Release Deed
dated 16 May 2008 there were several documents signed by Tukaram
and Jana viz.
(1) Unregistered Development Agreement dated 3 June 2008 in favour
of Defendant No.4 (Developer) showing consideration of Rs.84.50
lakhs in respect of 1300 sq.meters.
(2) Unregistered Agreement for Sale dated 3 June 2008 in favour of
Defendant No.4 (Developer) in respect of 200 sq.meters of land
showing consideration of Rs. 44 lakhs.
(3) Joint Declaration dated 13 April 2009 inter alia referring to the
Release Deed dated 16 May 2008 and other Agreements.
(4) Agreement for Sale dated 13 April 2009 in favour of Defendant
No.5 (new Developer) wherein Defendant No.1 Premnath
Savalaram Naik is the Assignor and Defendant No.4 (Developer) is
Confirming party.
It is inconceivable and hard to digest that Tukaram and Jana were
allegedly deceived in signing the Release Deed, but thereafter signed all
the aforementioned subsequent documents. Pertinently, Tukaram during
his life time did not challenge the registered Release Deed dated 16 May
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2008 and it is only after he expired, his heirs (Plaintiffs Nos.1 to 6) have
come forward and claim that Tukaram was deceived. The contention that
Tukaram continued to have interest in the suit properties even after the
execution of the Release Deed dated 16 May 2008 inasmuch as his
signatures were even found on subsequent Agreements is stated merely
to be rejected. As rightly pointed out by the learned Senior Counsel for
the Defendant No.5, his signatures and signatures of Jana and other
heirs on the subsequent documents were taken out of abundant caution.
12. In paragraph 9 of the impugned order the Trial Court has observed
as follows:
"9. Defendant No.4 filed his written say at exhibit 75 and
objected the Application. Tukaram Hari Naik, Plaintiff No.7 and
father of Defendant Nos.1 and 2 were paid consideration
amount as per agreement dated 03-06-2008. Said agreement
was executed as per their will and wishes. No sufficient reason
is given as to why till the death of Tukaram Hari Naik i.e. 31-12-
2010 the Plaintiff has not taken any step for cancellation of the
development agreement and the deed of relinquishment.
Plaintiff Nos.1 to 6 are not party to the deed of relinquishment
dated 19-03-2008 and development agreement dated 03-06-
2008. Therefore, they are not entitled to take a ground that the
said document is executed by deceiving them."
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13. The Plaintiffs were aware of the construction activities in the suit
plot atleast from the year 2014 when they had issued Notice dated 19-
05-2014 through their Advocate. However, they have filed the suit only
one year thereafter in May 2015. Learned Senior Counsel for the
Respondent No.5 has tendered across the bar photographs of
construction at the site in question.
14. In the case of Wander Ltd. And Another vs. Antox India P. Ltd.,
1990 (Supp) Supreme Court Cases 727, it has been held by the
Supreme Court in para 13 and 14 as under:
"13. On a consideration of the matter, we are afraid, the Appellate
Bench fell into error on two important propositions. The first is a
misdirection in regard to the very scope and nature of the appeals
before it and the limitations on the powers of the Appellate Court to
substitute its own discretion in an appeal preferred against a
discretionary order. The second pertains to the infirmities in the
ratiocinations as to the quality of Antox's alleged user of the trademark
on which the passing off action is founded. We shall deal with these
two separately.
The appeals before the Division Bench were against the exercise of
discretion by the Single Judge. In such appeals, the Appellate Court
will not interfere with the exercise of discretion of the court of first
instance and substitute its own discretion except where the discretion
has been shown to have been exercised arbitrarily, or capriciously or
perversely or where the court had ignored the settled principles of law
regulating grant or refusal of interlocutory injunctions. An appeal
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against exercise of discretion is said to be an appeal on principle.
Appellate Court will not reassess the material and seek to reach a
conclusion different from the one reached by the court below if the one
reached by the court was reasonably possibly on the material. The
appellate court would normally not be justified in interfering with the
exercise of discretion under appeal solely on the ground that if it had
considered the matter at the trial stage it would have come to a
contrary conclusion. If the discretion has been exercised by the trial
court reasonably and in a judicial manner the fact that the appellate
court would have taken a different view may not justify interference
with the trial court's exercise of discretion. After referring to these
principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v.
Pothan Josheph:
"... These principles are well established, but as has been
observed by Viscourt Simon in Charles Osenton & Co. v. Jhanaton '...
the law as to the reversal by a court of appeal of an order made by a
judge below in the exercise of his discretion is well established, and
any difficulty that arises is due only to the application of well settled
principles in a individual case'."
The appellate judgment does not seem to defer to this principle."
15. Having regard to the facts and circumstances of the case, I do not
find that the discretion exercised by the learned Trial Judge in passing
the impugned order refusing to grant interim relief warrants any
interference by this Court. The trial Court has decided the injunction
Application within the framework of law and the discretion exercised by
the trial Court cannot be said to be arbitrary or perverse or against settled
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principles of law. No fault can be found in the impugned order rejecting
the grant of interim reliefs.
16. The Appeal is dismissed. No order as to costs. Needless to say
that the observations in this judgment are to be taken as confined for
consideration of interim reliefs.
17. The Civil Application Nos.1323 of 2016 and 1324 of 2016 do not
survive and to stand disposed of.
18. Learned Counsel for the Appellants prays that order dated 6
January 2016 of the Trial Court granting the status-quo which has been
continued during the pendency of this Appeal be continued for a period of
eight weeks. Learned Counsel for the Respondent No.5 opposes the
prayer. He submits that the construction had progressed and need not be
stopped and he is willing to make statements on behalf of the
Respondent No.5 that for a period of eight weeks the construction shall
be at the risk of the Respondent No.5 and the Respondent No.5 will not
create third party rights till then. Considering the facts and circumstances
of the case, I am inclined to accept the statement made on behalf of the
Respondent No.5. The statement is accordingly recorded and accepted.
(A.A.Sayed, J.)
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