Bombay High Court
Amar Lifespaces Llp vs Bakul Maganlal Vyas on 12 September, 2023
Bench: Shri Arif Doctor
2023:BHC-OS:9806-DB
Digitally signed
by MULEY
SHUBHAM
MULEY PRAVINRAO
SHUBHAM Date:
PRAVINRAO 2023.09.12
17:44:55
+0530
1 904-APEAL-55-2023.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 55 OF 2023
IN
INTERIM APPLICATION (L) NO. 30888 OF 2022
IN
SUIT NO. 1821 OF 2004
Amar Lifespaces LLP & Ors. ... Appellants
(Orig. Defendant Nos.2 to 5)
V/s.
Bakul Maganlal Vyas & Ors. ... Respondents
(No.1 to 3 Orig.
Plaintiff Nos.1 to 3 &
No.4 Orig. Defendant No.1)
WITH
INTERIM APPLICATION NO. 1623 OF 2023
IN
APPEAL NO. 55 OF 2023
IN
INTERIM APPLICATION (L) NO. 30888 OF 2022
IN
SUIT NO. 1821 OF 2004
Amar Lifespaces LLP & Ors. ... Applicants
(Orig. Appellants)
IN THE MATTER BETWEEN
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Amar Lifespaces LLP & Ors. ... Appellants
(Orig. Defendant Nos.2 to 5)
V/s.
Bakul Maganlal Vyas & Ors. ... Respondents
(No.1 to 3 Orig.
Plaintiff No.1 to 3 &
No.4 Orig. Defendant No.1)
Mr. Cyrus Ardeshir i/by Mr. Omkar Kulkarni for Appellants.
Mr. Sanjay Jain a/w Mr. Hasmit Trivedi, Ms. Gauri Mestha i/by L J
Law for Respondent Nos.1 to 3.
Mr. S. K. Dhekale, Court Receiver is present.
CORAM : DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
RESERVED ON : 7th AUGUST, 2023.
PRONOUNCED ON : 12th SEPTEMBER, 2023.
P.C. : (PER ARIF S. DOCTOR, J.)
1. The present Appeal impugns an order dated 19 th
December, 2022 by which the Learned Single Judge has
dismissed Interim Application (L) No.30888 of 2022 ("the said
Interim Application"). The said Interim Application has been
taken out by the Appellants who are Defendant Nos.2 to 5 in the
captioned Suit. The Appellants have in the said Interim
Application sought the following reliefs viz.
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"a. this Hon'ble Court be pleased to direct the Court Receiver,
High Court Bombay to take physical possession of the Suit
property situate at CTS Nos. 851, 851/1 to 851/36 at 237,
Dadabhai Road, Vile Parle(West), Mumbai - 400 056
alongwith the structures standing thereon;
b. this Hon'ble Court be pleased to pass an Order of Injunction
thereby restraining the Plaintiffs from dealing with and/or
transferring the tenancies in respect of the rooms situated
on the suit property and altering the status of the suit
property;
c. this Hon'ble Court be pleased to pass necessary Orders
directing the Court Receiver, High Court Bombay to carry
out physical survey of the entire suit property and the
structures situated on the suit property and submit the list
of occupants and number of structures standing on the suit
property in this Hon'ble Court;
d. this Hon'ble Court be pleased to pass necessary Orders
directing the Court Receiver, High Court Bombay to collect
rent from all the tenants during the pendency of the suit;
e. this Hon'ble Court be pleased to direct the Plaintiffs to
disclose on oath the consideration received by them for
transfer of rooms mentioned in Para 7 of this application
and the Plaintiffs be further directed to deposit the said
amount of consideration with the Court Receiver.
f. for cost of this Interim Application;
g. any other reliefs as this Hon'ble Court may deem fit and
proper in the facts and circumstances of the case."
2. Before dealing the rival contentions, it is essential to
set out the relevant facts so as to give a context to the rival
contentions.
a. The said Suit was filed by Respondent Nos.1 to 3 ("Original
Plaintiffs") against Respondent No.4 and two others
namely one Babubhai alias Harsukhlal Govindji Trivedi and
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Mugatlal Govindji Trivedi ("Original Defendants") inter alia
seeking a declaration and a decree of specific performance
in respect of an Agreement dated 28 th May, 2001 (the said
Agreement) entered into between one Smt. Ramalaxmi
Raavishankar Trivedi and Respondent Nos.1 to 3 (Original
Plaintiffs). The said Agreement was entered into with Smt.
Ramalaxmi Raavishankar Trivedi for the purchase of her
reversionary interest in immovable property admeasuring
5120 square yards equivalent to 4280.9 square meters or
thereabouts bearing City Survey Nos.851, 851/1 to 851/36
of Vile Parle (West), together with the building and
structures standing thereon and situate, lying and being at
Street No.237, Dadabhai Road, Vile Parle (West), Mumbai
- 400 056 (the suit property) for a lumpsum consideration
of Rs.15,00,000/-. The original Defendants are said to be
the heirs and legal representatives and next of kin of the
said Smt. Ramalaxmi Raavishankar Trivedi.
b. By an Interim Order dated 5th May, 2005 this Court inter
alia directed that during the pendency of the Suit, the
Original Defendants shall not transfer, alienate or create
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any third party interest in the suit property without the
leave of this Court.
c. Thereafter, a Chamber Summons (being Chamber
Summons No. 714 of 2017) was taken out by one
Abhishek Mahesh Trivedi, the son of Respondent No.4
(Original Defendant No.1). By the said Chamber
Summons, Abhishek Mahesh Trivedi sought a variation of
the interim order dated 5th May, 2009 on the basis of a Gift
Deed dated 30th May, 2017 executed in his favour by
Respondent No.4 (his father) to the extent that he maybe
permitted to carry on the litigation after his father. By an
order dated 17th January, 2018, this Court, while disposing
of the said Chamber Summons was pleased to inter alia
observe as follows: -
"6. I do not believe this is an appropriate process or
procedure. That Gift Deed is entirely irregular and
could not have been executed in the face of an
injunction of the kind noted above. In my view, it is
more appropriate that the property be brought in
custodia legis. The Receiver should be appointed of
the property in question but with the direction to only
take symbolic or formal possession and not to
dispossess the Plaintiffs or any other occupants.
There will be no question of the execution of any
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agency agreement either. This is only to ensure that
the property in question is not further encumbered.
7. The other order that is required is to direct the
3rd Defendant to take the necessary steps to have
the Gift Deed of 30th May 2017 cancelled. Since it
has been registered, the necessary applications will
have to be made to the Sub-Registrar of Assurances.
The 3rd Defendant will do so within three weeks from
today.
8. All authorities will act on production of an
authenticated copy of this order.
9. It is clarified that all rights of the Plaintiffs
against their sub-lessees remain unaffected by this
order."
d. Thereafter, Respondent No.4 vide a Sale Deed dated 9 th
March, 2021 sold all his right, title and interest in the suit
property in favour of the Appellants who then came to be
added as Defendant Nos.2 to 5 to the Suit. The Appellants
thereafter, alleging that Respondent Nos.1 to 3 (Original
Plaintiffs) were transferring tenancies in respect of some
rooms, situated in the structures which comprised of the
suit property took out the captioned Interim Application.
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e. The said Interim Application came to be rejected by the
impugned order. It is thus that the captioned Appeal has
been filed.
3. Mr. Ardeshir, learned counsel appearing on behalf of
the Appellants submitted that he would first deal with the
reasons recorded by the Learned Single Judge for not granting
prayer clause "e" and then with the other prayers which were
also not granted. He submitted that the Learned Judge's
reasoning for rejecting prayer clause "e" i.e. " that the plaintiffs
claim antecedent leasehold rights in the suit property " was a
legally untenable one. Placing reliance upon the judgment of the
Hon'ble Supreme Court in the case of R. Kanthimathi and Another
Vs. Beatrice Xavier (Mrs)1 he submitted that once an Agreement
for Sale had been entered into by a lessee with the lessor, the
lease hold rights of the lessees would come to an end. He
submitted that the parties would then be bound by the said
Agreement that was entered into and their corresponding rights
and obligations would flow from the said Agreement. He
submitted that this position would exist even if the Agreement
was subsequently terminated. Basis this, he submitted that the
1 (2000) 9 SCC 339
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Respondent Nos.1 to 3 having entered into the said Agreement
could not claim any rights in the said property as lessees and
therefore could not create any further tenancies in respect of the
suit property since their rights as lessees had come to an end on
execution of the said Agreement. He therefore submitted that the
Learned Single Judge had committed an error of law in
concluding that the Plaintiff would continue to have antecedent
leasehold rights in the suit property even after the Agreement for
Sale had been entered into. Mr. Ardeshir however fairly submitted
that this was not a ground raised before the Learned Single
Judge at the time of the hearing of the said Interim Application,
but was being canvased now for the first time.
4. Basis the above, he submitted that the reasoning
adopted by the Learned Judge being legally erroneous, the
Impugned Order was necessarily required to be set aside. He
submitted that prayer "e" was therefore required to be allowed
and also submitted that the grant of prayer "e" could in no
manner prejudice Respondent Nos. 1 to 3.
5. Mr. Ardeshir then submitted that he was not pressing
for prayer clause (a). He however submitted that if prayer
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clauses (b) to (d) were not granted, grave prejudice would be
caused to the Appellants, who were the bonafide purchasers of
the share of Respondent No.4. He submitted that the very
purpose of appointing the Court Receiver in respect of the suit
property was to prevent any mischief and/or alteration in the
status of the suit property. He submitted that the Respondents
were however frustrating the order by further dealing with and/or
encumbering the said suit property by creating new tenancies
and that too, without the leave of the Court.
6. Mr. Ardeshir submitted that Respondent Nos.1 to 3
were infact permitting the tenants to carry out large scale,
repairs and alterations in the respective tenanted premises
without obtaining any permission either from this Court or from
the Court Receiver. He submitted that Respondent Nos.1 to 3
were deliberately doing so only in order to create unnecessary
complications and litigation with the intent of prejudicing the
rights of the Appellant as well as those of Respondent No.4.
7. Basis the above, he submitted that it was imperative
that the Appellants were granted interim relief in terms of prayer
clauses (b) to (e) of the Interim Application.
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8. Per contra Mr. Jain, Learned Counsel appearing on
behalf of Respondent Nos. 1 to 3 submitted that the present
Appeal was devoid of merit and infact entirely misconceived. He
at the outset submitted that the contention raised by the
Appellant was in fact a point that was never raised before the
Learned Single Judge. He submitted that there was no question
of therefore impugning an order on the basis of a contention that
was never taken before the Learned Single Judge.
9. He then invited our attention to the case pleaded in
the said Interim Application which essentially was that since the
property was custodia legis, Respondent Nos. 1 to 3 ought not to
be permitted to deal with the same. He then pointed out from the
impugned order that this contention had been specifically dealt
with by the Learned Single Judge after recording reasons and
also relying upon the order dated 17th January, 2018. He
submitted that there was no challenge to the order dated 17 th
January, 2018 nor were there any changed circumstance to
warrant the grant of the reliefs which had been sought for by the
Appellant in the Interim Application. He therefore submitted that
the present appeal was entirely without merit and was therefore
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required to be dismissed. He submitted that what the Appellant
was really seeking was for a modification of the order dated 17 th
January, 2018, despite there being no changed circumstances for
the same.
10. He then invited our attention to the order dated 17 th
January, 2018 and pointed out that the same specifically provided
that all the rights of Respondent Nos. 1 to 3 against their lessees
would remain unaffected. He therefore submitted that at this
stage there was neither occasion nor changed circumstance to
modify the order dated 17 th January, 2018, which he submitted
admittedly held for field. He pointed out that Respondent Nos.1
to 3 were complying with the directions contained in the
impugned order which required them to inform the Court, on an
Affidavit, the change and/or transfer in the tenancies which have
occurred since the date of the appointment of the Court Receiver
by order dated 17th January, 2018, or may occur henceforth.
11. He then submitted that the said Interim Application
had not been filed by the original Defendant i.e. Respondent No.
4 but had been filed by newly added Defendants, who had infact
been impleaded after the order dated 17 th January, 2018 had
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been passed. Therefore, he submitted that Appellants would be
bound by the previous orders passed, especially the order dated
17th January, 2018, which was in full force and operation when
the Agreement for Sale was entered into between the Appellants
and Respondent No.4.
12. Mr. Jain then submitted that the judgment in the case
of R. Kanthimathi and Another (supra) in fact had absolutely no
application to the facts of the present case. He submitted that
for the pre-existing rights of the parties to cease to operate the
Agreement entered into must specifically so provide. In support
of his contention he placed reliance upon a subsequent judgment
of the Hon'ble Supreme Court in the case of H. K. Sharma Vs.
Ram Lal2, in which Hon'ble Supreme Court had considered the
judgment in the case of R. Kanthimathi and Another (supra) and
held as follows;
"31. It is for this reason, the law laid down by this Court in
R. Kanthimathi has no application to the facts of this case and
is, therefore, distinguishable on facts. Indeed, it will be clear
from mere perusal of para 4 of the said decision quoted
hereinbelow; (SCC p. 341)
"4. As aforesaid, the question for consideration is,
whether the status of tenant as such changes on the
2 (2019) 4 SCC 153
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execution of an agreement of sale with the landlord. It is
relevant at this junction first to examine the terms of the
agreement of sale. The relevant portions of the
agreement of sale record the following;
'I the aforesaid Mrs Beatrice Xavier hereby agree out
of my own free will, to sell, convey and transfer the
property to you Mrs R. Kanthimathi wife of Mr S.
Ramaswami, 435 Trichy Road, Coimbatore for a
mutually agreed sale consideration of Rs 25,000.
I shall be proceeding to Coimbatore and shall
execute the sale deed and present the same for
admission and registration before the Registering
Authority, accepting and acknowledge payment of
the balance of consideration of Rs 5000 (Rupees five
thousand only) at the time of registration and shall
complete the transaction of sale and conveyance as
the property demised has already been surendered
to your possession.'" (emphasis in original)
The words highlighted in italics of the agreement were
construed by their Lordships for holding that these italicised
words in the agreement clearly indicate that the parties had
really intended to surrender their tenancy rights on execution
of the agreement of sale and bring to an end their jural
relationship of the landlord and tenant."
Basis the above, he submitted that the Agreement in the case of
R. Kanthimathi and Another (supra) specifically provided for the
surrender of tenancy rights on execution of the said Agreement
for Sale which was not the case in the present Suit. He then
invited our attention to the Sale Deed dated 9 th March, 2021
entered into between Respondent No.4 and the Appellant in
which it was specifically recorded that the Lease Deed had come
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to an end before execution of the said Agreement. In addition to
this, Mr. Jain submitted that the Appellants had purchased only
the share of Respondent No.4 and not the other legal heirs' and
therefore could never claim any rights in respect of the said
property.
13. Basis the above, Mr. Jain submitted that the impugned
order had been correctly passed and the Appeal was required to
be dismissed.
14. We have heard learned counsel, perused a copy of the
impugned order and the pleadings in support thereof. We find
that the impugned order does not call for any interference. The
principal ground of challenge raised in the Appeal was essentially
on account of the fact that the Learned Single Judge had
erroneously in paragraph No.11 of the impugned order held that
the Plaintiffs claim antecedent leasehold rights in the property.
We find there is no infirmity in this finding for two reasons, firstly,
this point was not even raised before the Learned Single Judge
and the Learned Single Judge therefore had no occasion to deal
with the same. Secondly and crucially, we find that the
Agreement in question does not provide for the leasehold rights
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of the parties come to an end on execution thereof. Conversely,
the Sale Deed dated 9th March, 2021 entered into between the
Appellant and Respondent No.4 itself provides that on the date of
execution thereof, the Lease Deed had come to an end.
15. Insofar as the grant of prayer clauses (b) to (d) are
concerned, we find that the order dated 17 th January, 2018
clearly holds the field. We find that there is absolutely no change
in circumstances post the order dated 17 th January, 2018 having
been passed. The fact that the Appellants have purchased the
share of Respondent No.4 in the suit property cannot be
construed as a change in circumstance. The Appellants have
merely purchased the share of Respondent No.4 and would
therefore be bound by the order dated 17th January, 2018 just as
Respondent No.4 was. The Appellants purchased the share of
Respondent No.4 with open eyes, being conscious of the fact that
the order dated 17th January, 2018 had been passed and was in
full force and effect. We find that the attempt made by the
Applicants is nothing but a second bite at the cherry. This in our
view is impermissible. For the aforesaid reasons, the Appeal is
dismissed.
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16. In view of the dismissal of the Appeal, Interim
Application No.1623 of 2023 filed therein does not survive and is
accordingly disposed of.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
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