Harish Punanchand Mashruwala And ... vs Kishore Punamchand Mashruwala ...
2021 Latest Caselaw 227 Bom

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                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         ORDINARY ORIGINAL CIVIL JURISDICTION
Dhanappa
I. Koshti
Digitally signed by
Dhanappa I. Koshti      INTERIM APPLICATION (L) NO. 4586 OF 2020
Date: 2021.01.06
11:58:01 +0530

                                                         IN

                                        SUIT NO. 246 OF 2011

              Harish Punamchand Mashruwala & Ors.                  ... Applicants/
                                                                  Defendant Nos.1 to 4

                       In the matter between

              Kishore Punamchand Mashruwala & Ors.                  ... Plaintiffs

                       Vs

              Harish Punamchand Mashruwala & Ors.                   ... Defendants.

                       And

              Mohanbhai Govindbhai Bani                             ...Respondent.



              Dr.Abhinav Chandrachud i/b Lalit Jain for the applicants/ defendant Nos.1 to 4


              Mr. Chetan Kapadia with Mr. Vinod B. Mistry and Mr. Deepak Shukla i/b
              Vinod Mistry and Co. for the plaintiffs.




                                          CORAM : B. P. COLABAWALLA, J.

                                          Reserved on   : 16th December, 2020
                                          Pronounced on : 6th January, 2021.

                                                                                 Page 1 of 22
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JUDGEMENT :

1. The above Interim Application has been preferred by

the applicants/ defendant Nos.1 to 4 seeking the following reliefs:-

"(a) This Hon'ble Court may be pleased to appoint the Court Receiver of this Hon'ble Court as a Receiver to take possession of the property being Plot No.250/1 and 250/2, Road No.2, GIDC Sachin, Surat, 394 230, under Order 39 Rule 2-4 of the Code of Civil Procedure, 1908;

(b) this Hon'ble Court may be pleased to attach all the properties of the plaintiffs, including plot No.250/1 and 250/2, Road No.2, GIDC Sachin, Surat, 394 230, under Order 39 Rule 2-4 of the Code of Civil Procedure, 1908;

(c) This Hon'ble Court may be pleased to dismiss the present Suit under Order 39 Rule 11 of the Code of Civil Procedure, 1908;

(d) This Hon'ble Court may be pleased to order the plaintiffs to be detained in civil prison for a term not exceeding three months."

2. According to defendant Nos.1 to 4, the reliefs sought

in this application ought to be granted in view of the fact that the

plaintiffs have violated the status-quo order passed by this Court

on 4th September, 2014 (for short "the 2014 order") in Notice of

Motion No.303/2011. For the sake of convenience the 2014 order

reads thus :-

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"Heard the learned counsel for both parties. After the matter was heard at some length, it is now agreed between the learned counsel for parties that both the parties, namely, Plaintiff Nos.1 to 4 on the one hand and Defendant Nos.1 to 4 on the other, shall maintain status-quo in respect of their respective plots, namely, plot No.250/1 owned by plaintiff No.1 and plot No.250/2 owned by the H.U.F. of defendant No.1 situated at Road No.2, Sachin GIDC, Sachin, Surat, pending the hearing and final disposal of the suit. It is clarified that this agreement shall be without prejudice to the rights and contentions of the parties in Summary Suit No.193 of 2010. The Notice of Motion is disposed of accordingly. There shall be no order as to costs."

(emphasis supplied)

3. Dr. Chandrachud, the learned counsel appearing on

behalf of defendant Nos.1 to 4, submitted that plaintiff Nos.3 and

4 are in possession of plot No.250/1 and 250/2, Road No.2,

Sachin GIDC, Sachin, Surat, 394230 along with the factory

standing thereon. He submitted that in relation to the said plots

and the factory standing thereon, there were no third-party

rights created in relation thereto as on the date of the passing of

the 2014 order. Subsequently, it has come to the knowledge of

defendant Nos.1 to 4 that plaintiff Nos.3 and 4 have inducted a

third party, namely Padmavati Textile Mills (a proprietary

concern of the respondent abovenamed), as a lessee/licensee in

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the said property by entering into an agreement dated 23rd

November, 2019. This is in direct violation of the 2014 order,

which directs plaintiff Nos.1 to 4 on the one hand and defendant

Nos.1 to 4 on the other, to maintain status-quo in respect of their

respective plots, namely, plot No.250/1 owned by plaintiff No.1

and plot No.250/2 owned by the H.U.F. of defendant No.1. He

submitted that it is, in these circumstances, that defendant Nos.1

to 4 have preferred the present application inter alia seeking

appointment of a Court Receiver to take possession of the

aforesaid two plots and attach all the properties of plaintiff Nos.3

and 4, pending the hearing and final disposal of the above suit.

4. Dr. Chandrachud submitted that plaintiff Nos.3 and 4

have violated the 2014 order principally on two grounds:

(a) that the agreement dated 23rd November, 2019 entered into with Padmavati Textile Mills is a Lease Agreement and not a Business Conducting Agreement as sought to be contended by the plaintiffs. This would clearly be in violation of the status quo order passed by this Court on 4th September, 2014; and

(b) even assuming that the aforesaid agreement dated

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23rd November, 2019 could be construed as a Business Conducting Agreement, it is still in violation of the order dated 4th September, 2014 which directs the parties to maintain status-quo as set out above.

5. On his first contention, namely, that the agreement

dated 23rd November, 2019 is a Lease Agreement and not a

Business Conducting Agreement, Dr. Chandrachud pointed out

that the said agreement was executed between a partnership

firm called Tejoday Dyeing and Printing Works (for short

"TDPW") on the one hand and Padmavati Textile Mills on the

other. He submitted that admittedly plaintiff Nos.3 and 4 are

partners of the said TDPW. The fact that the agreement dated

23rd November, 2019 is a Lease Agreement is clear from the

language and terminology used in the agreement. He submitted

that firstly the title of the agreement states that it is a Lease

Agreement and the agreement has been referred to as such in the

terms and conditions as well. Dr. Chandrachud pointed out that

the parties to the agreement have been referred to as "Lessor"

and "Lessee", and the periodic lease amount towards the use of

the property has been referred to as "Monthly Lease Amounts".

He further submitted that clause 12 of the agreement clearly

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mentions that the Lessee (respondent abovenamed) has to pay

Monthly Lease Amount for three months in case the property is

not let out to another. He further submitted that reading the

agreement as a whole, one can hardly dispute that this is a Lease

Agreement and not a Business Conducting Agreement. While the

title and designation of a document alone may not be conclusive

as to its nature, Dr. Chandrachud submitted that this would have

strong persuasive value. Reading the said agreement holistically,

there is no doubt that it is a Lease Agreement, was the

submission. If that be so, then there is a clear breach of the 2014

order, and therefore, this would be a fit case to grant the reliefs as

prayed for in the Interim Application, was the argument

canvassed by Dr. Chandrachud.

6. As far as Dr. Chandrachud's second contention is

concerned, namely, that even assuming that the aforesaid

agreement is a Business Conducting Agreement it is still in

violation of the 2014 order, he submitted that the said order

directed the parties to maintain status-quo in respect of their

respective plots, namely, plot No.250/1 owned by plaintiff No.1

and plot No.250/2 owned by the H.U.F. of defendant No.1. He

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submitted that the scope of the term "status-quo" is very broad

and encapsulates any change in the circumstances or change in

the rights and interest in the property or any building standing

thereon, after the date of the order. In the instant case, the

induction of a third party by the plaintiffs pursuant to the

agreement dated 23rd November, 2019 would certainly alter the

status-quo, even if one were to assume that the said agreement

was to be treated as a Business Conducting Agreement.

Therefore, even assuming for the sake of argument that the

agreement dated 23rd November, 2019 can be termed as a

Business Conducting Agreement, the same would still be in

violation of the 2014 order which directed the parties to maintain

the status-quo.

7. To substantiate his argument that the term "status-

quo" has a very broad meaning and encapsulates any change in

the circumstances or change in the rights and interest in the

property, Dr. Chandrachud relied upon the following decisions:-

1) Bharat Coking Coal Ltd. Vs. State of Bihar & Ors.

(1987) Supp SCC 284;

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2) Narmada Mai Khadan Kamgar Karigar Sahkari Samiti and Ors. Vs. Laxminarayan and Ors. 1998 (1) JLJ 357;

3) Ghulam Ahmad Dar and Ors. Vs. Mushtaq Ahmad Shah and Ors.

AIR 2006 J & K 91;

8. Relying upon the aforesaid decisions, Dr.

Chandrachud submitted that in the instant case the position as

on 4th September, 2014 (the 2014 order) was altered by the

plaintiffs by entering into the agreement dated 23rd November,

2019 and inducting the respondent abovenamed into the factory

premises standing on plot Nos.250/1 and 250/2. Hence there was

a clear violation of the status-quo order, was the submission of Dr.

Chandrachud.

9. Dr. Chandrachud submitted that the contentions

raised by the plaintiffs that TDPW being a partnership firm and

not being a party to the above suit, would not be bound by the

2014 order, is wholly misconceived. He submitted that the

aforesaid argument is fallacious for two reasons. Firstly, he

submitted that TDPW being a partnership firm, would have no

existence independent of its partners who were bound by the

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2014 order. He submitted that the plaintiffs cannot be permitted

to subvert the operation of the 2014 order by acting through their

partnership firm. Secondly, Dr. Chandrachud submitted that the

plaintiffs (including plaintiff Nos.3 and 4 who are partners of

TDPW) themselves made plot No.250/1 and 250/2 and the

factory standing thereon, the subject matter of the present suit

by seeking specific performance of an alleged oral agreement

concerning the said premises. He, therefore, submitted that

merely because TDPW is not a party to the suit, and therefore,

there is no violation of the status-quo order, is wholly

misconceived.

10. Dr. Chandrachud then submitted that even the

argument of the plaintiffs that the factory premises was not in

issue in the suit, and therefore, the status-quo order does not

cover the factory premises but only plot No.250/1 and plot

No.250/2, is wholly misconceived. He submitted that this

argument also is totally frivolous for the following reasons. He

submitted that firstly, reading the averments in the plaint, it is

clear that the factory premises as well as the said two plots were

the subject matter of the alleged oral settlement of which the

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plaintiffs seek specific performance. Secondly, if the argument of

the plaintiffs is taken to its logical conclusion, then there was no

reason for this Court to pass the status-quo order in respect of

plot No.250/1 and plot No.250/2 for the simple reason that the

defendants, in their Written Statement, have averred at

paragraph "G" that with respect to the disputes as to the land,

plaintiff No.1 and defendant No.1 intended to exchange their

plots, but plaintiff No.1 backed out and the transaction fell

through. Thus, as the agreement had fallen through there was

technically no reason for this Court to pass a status-quo order

concerning plot Nos.250/1 and 250/2. However, this Court, in its

order, decided to direct the parties to maintain status-quo with

respect to plot Nos.250/1 and 250/2, which according to Dr.

Chandrachud, not only covers the land but also the factory

standing thereon. He, therefore, submitted that looking to all the

facts and circumstances of the case, it was clear that the 2014

order was willfully and deliberately violated by the plaintiffs and

hence the reliefs sought for in the above Interim Application for

appointment of the Receiver; attachment; dismissal of the suit

under Order XXXIX Rule 11 of the Code of Civil Procedure, 1908;

and detaining the plaintiffs in a civil prison for a term not

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exceeding three months, ought to be granted in their entirety.

11. On the other hand, Mr. Kapadia the learned counsel

appearing on behalf of the plaintiffs, submitted that there is

absolutely no violation of the 2014 order. He submitted that it is

incorrect on the part of defendant Nos.1 to 4 to contend that the

2014 order has been violated for the following reasons:-

(i) the order directing the parties to maintain status-quo must be read in the context of the facts and issues before the court that passed the status-quo order. The said order of status-quo only prevented the parties from transferring and/or creating any interest in their respective plots of land and does not in any manner cover the factory premises which were on the said plots, namely, plot Nos.250/1 and 250/2;

(ii) admittedly, TDPW (of which plaintiff Nos.3 and 4 are partners) has been granted a lease of 99 years in respect of plot No.250/1 by plaintiff No.1 and plot No.250/2 by defendant No.1, since the year 2004. Incidentally, plaintiff Nos.3 & 4 are the sons of plaintiff No.1 and nephews of defendant Nos.1 and 7.

TDPW is admittedly in continuous and uninterrupted enjoyment of the said plots since 2004 and has

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constructed a factory on the said plots with plant and machinery therein. The respondent to the Interim Application, namely, the proprietor of Padmavati Textile Mills, under the agreement dated 23rd November, 2019, has only been permitted by TDPW (and who is not a party to the present suit or the status-quo order) to use the factory with plant and machinery therein on a conducting basis and the same does not result in any breach of the status-quo order;

(iii) TDPW is not a party to the above suit, or Notice of Motion No. 303 of 2011 or the 2014 order. In these circumstances, even assuming that TDPW created any rights in relation to the factory premises, the same cannot be said to be in breach of the status-quo order, which in any event only related to the aforesaid two plots (250/1 and 250/2) and not the factory premises standing thereon.

12. In support of his submissions, Mr. Kapadia relied

upon the following decisions:-

1) Bharat Coking Coal Ltd. Vs. State of Bihar & Ors.

AIR 1988 SC 127;

2) N. Ramaiah Vs. Nagaraj S. & Ors.

AIR 2001 Kant 395;

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3) Suraj Roy V. Leela Nath & Ors.

(2004) 3 Gauhati Law Reports 312;

4) Madan Mohan Sahoo Vs. Bijay Kumar Sahoo 2003 SCC OnLine Ori 176

5) Image Developers Pvt. Ltd. Vs. N. Subhash, 2000 SCC OnLine AP 314.

13. Lastly, Mr. Kapadia submitted that before I pass any

order as sought for in the above Interim Application, it is

necessary for the Court to arrive at a finding about the default

and/or non-compliance of the order of the Court and further that

such a default was either deliberate or intentional or willful. The

party complaining of the violation cannot, as a matter of right,

demand for the reliefs sought in the instant case, for every

violation at the hands of the opposite party. It is for the Court to

take an appropriate decision in its discretion and depending upon

the facts of each case. He submitted that this is now well settled

as held by this Court in the case of Samsul Hudda & Ors. Vs/

Khayber Properties & Investment Pvt. Ltd. & Ors., AIR 2004

Bom 126. In the facts of the present case, he submitted that even

assuming for the sake of argument that there was any violation of

the status-quo order, the same can never be termed as deliberate,

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willful or intentional. On this ground also, therefore, Mr. Kapadia

submitted that the above Interim Application is without any

merit and ought to be dismissed with costs.

14. I have heard the learned counsel appearing for the

parties and have perused the papers and proceedings in the

Interim Application as well as the above suit. The principal

contention that I have to consider is whether the agreement

dated 23rd November, 2019 entered into between TDPW and

Padmavati Textile Mills falls foul of the status-quo order passed

by this Court on 4th September, 2014. The secondary question to

be decided is, if the 2014 order is violated, then whether the said

violation was willful, intentional and/or deliberate.

15. To understand and ascertain whether the status-quo

order (the 2014 order) is violated or not, one must read and

understand it in the context of the facts of the case and the issues

before the Court that passed the status-quo order. In this regard,

it would be relevant to refer to some of the pleadings in the plaint.

In the plaint, it is the case of the plaintiffs that they and the

defendants were jointly carrying on the business of

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manufacturing and/or selling and/or marketing as commission

agents, art silk cloth, through several different partnership

and/or proprietary concerns in Surat and Mumbai. The

description of the proprietary and partnership firms set up in

Surat and Mumbai are set out in Exhibit "A" and "B" to the plaint.

It is the case of the plaintiffs that in March 2008 there was an

oral family arrangement entered into by the members of

Mashruwala family (plaintiff Nos.1 to 6 and defendant Nos.1 to

11). In this family arrangement, it is the case of the plaintiffs,

that plaintiff No.1 and his faction were to inter alia get plot

No.250/2 which was in the name of defendant No.1/ H.U.F. (that

is his faction). For this purpose, defendant No.1 and/or his

faction were to transfer the ownership of plot No.250/2 to the

faction of plaintiff No.1.

16. Much prior to the aforesaid family arrangement, a

lease deed dated 20th January, 2004 was executed between (i)

plaintiff No.1 in favour of TDPW in respect of plot No.250/1 and

(ii) defendant No.1 and TDPW in respect of plot No.250/2, to use

their respective plots for 99 years. It is pursuant to this lease

that a factory has been constructed on the said two plots by

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TDPW.

17. When one reads the agreement dated 23rd November,

2019 (executed between TDPW and Padmavati Textile Mills) and

which is styled as a Lease Agreement, it is clear that the

agreement is entered into between TDPW on the one hand and

the proprietor of Padmavati Textile Mills on the other. The

agreement is for a period of 60 months for industrial purpose

from 15.12.2019 to 14.12.2024. The property forming the

subject matter of the said agreement is described in the schedule

thereto. Though the agreement is in Gujarati, the official

translation of the said agreement has been tendered before me

and which translation has been done by the Office of the Chief

Translator and Interpreter, High Court, Bombay. The official

English translation of the schedule to the said agreement reads

as under:-

"-:SCHEDULE:-

-: Description of the property mentioned in this Lease Agreement:-

The property consisting of structures of buildings-plants only together with the fully constructed factory building, boiler house, ETP plant, all the machinery, instruments situated inside the factory building, pipe lines, water softening plant, underground water tank, generator, electric house and office building and all the machinery plants, etc. presently

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operating or lying not operated on the land bearing Plot No.250/1 and Plot No.250/2 admeasuring approximately 14500 square meters situated at Road No.2 in Sachin G.I.D.C. at Sachin area of Taluka :Choryasi of Surat District, but except the land of the partnership firm Tejoday Dyeing and Printing Works, without assigning the lease rights of all the properties to the party of second part."

(emphasis supplied)

18. From the aforesaid agreement, it is quite clear that

even if the aforesaid agreement is termed as a Lease Agreement,

there is no lease created in favour of Padmavati Textile Mills of

plot No.250/1 and plot No.250/2. The lease, if at all, is in relation

to the factory building, boiler house, ETP plant, all the machinery,

instruments situated inside the factory building, pipe lines, water

softening plant, underground water tank, generator, electric

house and office building etc. As far as the lease of 2004 is

concerned (being created by plaintiff No.1 and defendant No.1 in

relation to the said plots in favour of TDPW), the same is not in

dispute. Prima facie, there was no dispute between the parties in

relation to the lease created by plaintiff No.1 and defendant No.1

in favour of TDPW, which was in respect of plot No.250/1 and

250/2. It is also not in dispute that TDPW is in possession of the

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said plots and has constructed a factory thereon and is in lawful

possession thereof ever since. In other words, the fact with

regard to the possession of the said plots and the possession and

use of the factory thereon by TDPW was not in issue between the

parties at all. Prima facie, the dispute between the parties was in

relation to the ownership/ title of the said plots which was in

possession and occupation of TDPW, namely, whether the

plaintiffs were entitled to ownership of plot No.250/2 as alleged

by them in the oral family settlement, or otherwise. In other

words, it appears that the dispute between the parties was with

reference to the ownership of the plots, namely, plot No.250/1

and 250/2. This being my prima facie opinion, then clearly the

agreement entered into by TDPW with Padmavati Textile Mills

does not fall foul of the status-quo order. This is also clear

because the status-quo order itself records that "plaintiff Nos.1 to

4 on the one hand and defendant Nos.1 to 4 on the other, shall

maintain the status-quo in respect of their respective plots,

namely, plot No.250/1 owned by plaintiff No.1 and plot No.250/2

owned by the H.U.F. of defendant No.1..............". If one were to

read the status-quo order in this context, and since admittedly no

right, title or interest is created in the aforesaid plots under the

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agreement dated 23rd November, 2019, I do not think that Dr.

Chandrachud is correct in his submission that the said

agreement falls foul of the status-quo order. This is apart from

the fact that TDPW is not a party to the present suit at all. It is

true that plaintiff Nos.3 and 4 are partners of TDPW. However, to

my mind, that would make little difference. To bind the

partnership firm by the status-quo order, it would have to be a

party to the suit and against whom the status-quo order would

have to be passed. It is not even the case of defendant Nos.1 to 4

that the status-quo order was passed against TDPW. This being

the case, I do not find that there is any breach by the plaintiffs of

the status-quo order passed by this Court on 4th September, 2014.

19. Even otherwise, looking at the facts of the present

case, even if I were to assume Dr. Chandrachud's submissions to

be correct, it can certainly not to be said that the alleged breach

of the 2014 order is either willful, deliberate or intentional. The

interpretation put by the plaintiffs on the status-quo order is

certainly a plausible interpretation, namely, that the status-quo

order relates only to the plots and not to the factory building

standing thereon. Once it is a plausible interpretation, then there

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is no question of the violation being either intentional, deliberate

or willful. This being the position, I find that the applicants/

defendant Nos.1 to 4 are not entitled to the interim reliefs prayed

for in the above Interim Application.

20. I must mention that Dr. Chandrachud relied upon

several judgments as set out by me earlier, especially with

reference to, what is the scope and ambit of the status-quo order.

However, one must not lose sight of the fact that the status-quo

order has to be understood in the context in which it was passed.

The expression "status-quo" is undoubtedly a term of ambiguity

and at times gives rise to doubt and difficulty. To my mind, when

the Court orders a "status-quo" to be maintained, it means the

position that was existing at the time of the passing of the order,

should not be altered. However, having said this, the question

whether a party is guilty of contempt and willfully disregarded

the Court's status-quo order must be seen in the context in which

it was passed. Further the status-quo order cannot be extended

to mean and apply to what has not been specifically stated in the

order. As mentioned earlier, the status-quo order passed by this

Court was in respect of plot No.250/1 owned by plaintiff No.1 and

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plot No.250/2 owned by the H.U.F. of defendant No.1. By entering

into the agreement dated 23rd November, 2019 between TDPW

and Padmavati Textile Mills, I do not think that the status-quo

with reference to the aforesaid two plots has been altered in any

way. This is quite clear from the agreement dated 23rd November,

2019 itself, which clearly, in the schedule, keeps out the land of

the partnership firm, namely, the land of TDPW and which was

leased to it (being plot No. 250/1 and plot No.250/2). This being

the factual position, I do not think that the decisions relied upon

by Dr. Chandrachud can be of any assistance to him in the facts

and circumstances of the present case. In any event, as

mentioned earlier, the interpretation of the said order put by the

defendants is certainly a plausible interpretation. Once having

held that it is a plausible interpretation, then there is no question

of holding that the plaintiffs have willfully and deliberately

violated the status-quo order passed by this Court on 4th

September, 2014.

21. In view of the foregoing discussion, I find no merit in

the above Interim Application. It is accordingly dismissed.

However, in the facts and circumstances of the case, there shall

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be no order as to costs.

22. This order shall be digitally signed by the Private

Secretory /Personal Assistant of this Court. All concerned shall

act on production by fax or e-mail of a digitally signed copy of this

order.

(B.P. COLABAWALLA, J. )