Bombay High Court
M/S. Shree Siddhi Vinayak ... vs M/S. Apana Sai Builders And ... on 5 June, 2023
Bench: N. J. Jamadar
2023:BHC-AS:14662
AO 909 of 2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.909 OF 2022
IN
SPECIAL CIVIL SUIT NO.160 OF 2021
M/s. Shree Siddhi Vinayak Developers & Ors. ... Appellants
versus
M/s.Apana Sai Builders and Developers & Ors. ... Respondents
------
Mr. Atul Damle Sr.Advocate a/w. Mr.Ramesh Tripathi, Mr.Sagar
Nikambe & Kshitija Chalke & Mr.A.N.Upadhyay Advocate i/by Ramesh
Tripathi & Associates, for Appellants.
Mr. Kartik Vig Advocate for Respondent Nos.6 to 26.
Mr. Anil D'souza a/w. Mr.Emest Tuscano & Mr.Valentine Mascarenhas
for Respondent Nos. 1, 2 to 4.
------
CORAM : N.J.JAMADAR, J.
RESERVED ON : 8th March 2023
PRONOUNCED ON : 5th June 2023
JUDGMENT :
1. This appeal is directed against an order dated 21/07/2022
passed by learned Civil Judge Senior Division, Vasai on an application
for temporary injunction (Exhibit 5) in Special Civil Suit No.160/2021,
whereby the application preferred by the Appellants/Plaintiffs to
restrain the Respondents/Defendants from raising any construction
over the land bearing Survey No. 145, Hissa No.2 admeasuring 3790
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sq.mtrs situated at Village Nilemore, Taluka Vasai (the suit land) and
also from dealing with the suit land or any part thereof and shops
constructed thereon and for allied temporary reliefs, came to be
rejected.
2. For the sake of convenience and clarity the parties are
hereinafter referred to in the capacity in which they are arrayed before
the Civil Court.
3. Background facts leading to this appeal can be stated in brief
as under:-
3.1 M/s. Shree Siddhivinayak Developers (Plaintiff No.1) is a
registered partnership Firm, Plaintiff Nos.2 to 4 are its partners,
Defendant No. 27 is an expelled partner of Plaintiff No.1. Under a
registered Sale Deed dated 05/10/2012, the Plaintiff had purchased the
suit land for a consideration of Rs.1,50,00,000/- (Rs.One Crore Fifty
Lakhs) from Defendant No.1 to 5. A sum of Rs.1,30,00,000/- (Rs.One
Crore Thirty Lakhs) was paid thereunder. The balance amount of
Rs.20,00,000/- was to be paid upon mutation of the name of Plaintiff to
the suit land. No steps were taken by the Defendant No.1 to 5 to mutate
the name of the Plaintiff to the suit land and receive balance
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consideration.
3.2 In the month of July 2021 when the Plaintiffs moved to the
Revenue Authorities to mutate the name of the Plaintiffs to the suit
land, the Defendant Nos.2 to 5 raised an objection. Thereupon, it
transpired that the Defendant No.1 to 5 had sold suit land to the
Plaintiffs by suppressing material facts including development carried
out at the suit land under the development permission granted by the
Competent Planning Authority from time to time, the last being
19/03/2021. Upon further inquiry the Plaintiff noticed that a building
comprising ground plus 7 floors was erected at the suit land. It further
transpired that the Defendant No.27 in connivance with Defendant No.1
to 5 executed a forged and fabricated Cancellation Deed dated
27/08/2014, purporting to Cancel the Sale dated 05/10/2012 and
subsequently executed registered Confirmation Deed on 06/09/2021.
3.3 The Plaintiffs were thus constrained to initiate action
against Defendant No.27 and expel him from the Plaintiff No.1 Firm
vide Notice dated 01/09/2021, followed by a Public Notice dated
29/06/2022. Plaintiffs also approached the Revenue and Police
Authorities. During the course of investigation by Police it was revealed
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that the Cancellation Deed was not at all Notarized before the named
Notary and not witnessed by the person before whom, it purports to
have been executed. Realising the fraud practiced by Defendant No.1 to
5 in connivance with Defendant No.27, plaintiff instituted the suit for
declaration and injunctive reliefs.
3.4 In the suit the plaintiff took out an application for temporary
injunction. The application was resisted by Defendant No.1 to 4 and
Defendant No.6 to 26, who came to be subsequently impleaded as the
persons who claimed to be original occupants of structures standing on
the suit land.
4. By the impugned order learned Civil Judge was persuaded to
reject the application holding, inter alia, that the Plaintiffs failed to
make out a prima facie case and in the circumstances of the case
balance of convenience would tilt in favour of the Defendants and
eventually the Defendant Nos. 6 to 26, would suffer irreparable loss in
the event injunction is granted. The facts that there was inaction on the
part of the Plaintiff from 2012 to 2021 and the material on record
indicated that the Plaintiffs were aware about the development over the
suit land and had, in fact, constructed a portion thereon and also
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received consideration from the occupants, were arrayed against the
Plaintiffs
5. Mr.Damle the learned Counsel for the Appellants would urge
that the learned Civil Judge misdirected himself in declining to grant
injunction in the face of indisputable position that under the Sale deed
title to the suit land had passed to the Plaintiffs. A duly executed and
registered Sale Deed could not have been unilaterally cancelled by
Defendant No.27, under a forged and fabricated instrument. The
subsequent registration of the Deed of Confirmation in the year 2021 is
of no avail to clothe legality and validity to the Deed of Cancellation
dated 27/08/2014. These vital facts were not properly and adequately
considered by the learned Civil Judge, urged Mr.Damle.
6. As against this, Mr.Anil D'souza learned Counsel for
Respondent Nos. 1, 2 and 4 and Mr.Kartik Vig for Respondent Nos.6 to
26 supported the impugned order. It was submitted that the Plaintiffs
have approached the Court by suppressing facts which could not have
been suppressed and that too after almost 10 years of initial transaction
between the Plaintiffs and Defendant Nos. 1 to 5. Thus, the learned Civil
Judge correctly exercised the discretion not to grant temporary
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injunction.
7. It is interesting to note that the Plaintiffs approached the
Court with a plain and simple case that the Plaintiffs had acquired the
suit land under a registered Conveyance Deed dated 05/10/2012,
substantial consideration thereunder was parted with and only a part of
the consideration was to be paid after mutation of the Plaintiffs name to
the record of right and at that stage the dispute arose between the
Plaintiffs and Defendant Nos. 1 to 5. In the wake of the dispute, the
Plaintiffs learnt about alleged suppression of facts and fraud by
Defendant Nos. 1 to 5.
8. The hard facts of the case which prima facie emerge,
however, run counter to the aforesaid version of the Plaintiffs.
Undoubtedly, the aspect as to whether the Plaintiffs, as alleged by the
Defendants, had carried out some development over the suit land and
later on abandoned the project after receiving consideration from some
of the original occupants of the structures, which were existing on the
suit land, is a matter for evidence and trial. However, at this stage the
attendant circumstances cannot be lost sight of.
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9. A delay of almost 9 years in asserting the Plaintiffs rights as
the purchaser of the suit land cannot be said to be natural by any
standard. It defies comprehension that the Defendant Nos. 1 to 5 could
carry out development over the suit land by obtaining permissions from
the Planning Authority, right from 2008 upto March 2021. Likewise
Plaintiffs claim that they were unaware of the development over the
suit land all these years is required to be accepted with a pinch of salt.
10. In the context of the aforesaid stoic silence on the part of the
Plaintiff the defence sought to be put forth by the Defendant Nos. 6 to
26, deserves to be noted. It is case of the Defendant Nos. 6 to 26 that
there were old buildings having A to H Wings, known as "Apna Awas" on
the suit land consisting of 96 tenements. Defendant Nos. 6 to 26 are the
original occupants of those tenements. Development Agreement was
initially executed in favour of Defendant No.1. Building permissions
were obtained. As the Defendant No.1 found it onerous to redevelop the
property, agreements were executed by Defendant No.1 with the
Plaintiffs. On the strength of the said understanding the Plaintiffs
executed redevelopment work to the plinth level and thereafter left the
project incomplete. Hence, the agreement between the Plaintiff and
Defendant No.1 came to be cancelled and Defendant No.1 started
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redevelopment on its own. Defendant No.1 has already constructed 50
units and delivered possession thereof. Rest of the development is
underway. The original owners/occupants who are yet not allotted the
units in the redeveloped buildings are still residing in rented premises.
11. At this stage the material on record prima facie lends support
to the aforesaid version of Defendant Nos. 6 to 26. Even if the
allegations and counter allegations of the Plaintiff and Defendant No.1
to 5 and Defendant No.27 are deferred for consideration to the trial, at
this stage, the aforesaid case of the Defendant No.6 to 26 and the
substantial development at the suit land, significantly bear upon the
grant of temporary injunction. From the own showing of the Plaintiffs a
7 storied building has been constructed at the suit land. It is averred in
the plaint that the Plaintiffs learnt that the defendants have sold near
about 100 flats and shops, out of the buildings constructed on Part
shown in the map annexed to the plaint.
12. It would be difficult to believe that development of such
magnitude could have been carried out sans Plaintiffs knowledge. An
order restraining the Defendants from carrying out further
constructions and/or dealing with the units constructed at the suit
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property would certainly cause irreparable loss to the original
owners/occupants for whom the property is being redeveloped.
13. The learned Civil Judge, in my view, correctly appreciated
the absence of prima facie case in favour of the Plaintiffs and the
elements of balance of convenience and irreparable loss. The exercise of
discretion by learned Civil Judge, in the facts of the case, is not open for
correction in exercise of limited appellate jurisdiction. Thus, the appeal
fails.
14. Hence, following order:
ORDER
1. The Appeal stands dismissed with costs.
2. In view of the dismissal of the Appeal the Interim
Application also stands dismissed.
( N.J.JAMADAR, J. )
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