=1=
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.113 OF 2008
IN
NOTICE OF MOTION NO.1538 OF 2007
IN
SUIT NO.1186 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
v/s
Bharat Shantilal Shah and anr. ...Respondents
ig WITH
APPEAL NO.114 OF 2008
IN
NOTICE OF MOTION NO.1974 OF 2007
IN
SUIT NO.1316 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. …Appellants
v/s
Solo Real Estate Pvt.Ltd. …Respondents
WITH
APPEAL NO.115 OF 2008
IN
NOTICE OF MOTION NO.1973 OF 2007
::: Downloaded on – 09/06/2013 14:14:06 :::
=2=
IN
SUIT NO.1314 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. …Appellants
v/s
Bina Bharat Shah and ors. …Respondents
WITH
APPEAL NO.116 OF 2008
IN
NOTICE OF MOTION NO.1977 OF 2007
ig IN
SUIT NO.1317 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. …Appellants
v/s
Rashesh B. Shah and anr. …Respondents
WITH
APPEAL NO.117 OF 2008
IN
NOTICE OF MOTION NO.1976 OF 2007
IN
SUIT NO.1318 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. …Appellants
v/s
::: Downloaded on – 09/06/2013 14:14:06 :::
=3=
Rajiv B. Shah …Respondent
WITH
APPEAL NO.118 OF 2008
IN
NOTICE OF MOTION NO.1982 OF 2007
IN
SUIT NO.1689 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. …Appellants
v/s
Reshma R. Mehta and anr.
ig ...Respondents
WITH
APPEAL NO.119 OF 2008
IN
NOTICE OF MOTION NO.1980 OF 2007
IN
SUIT NO.1740 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. …Appellants
v/s
Jothawat Construction Pvt.Ltd. …Respondents
WITH
APPEAL NO.120 OF 2008
IN
::: Downloaded on – 09/06/2013 14:14:06 :::
=4=
NOTICE OF MOTION NO.1979 OF 2007
IN
SUIT NO.1741 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. …Appellants
v/s
Reshma Rashesh Diamonds Pvt.Ltd. …Respondents
WITH
APPEAL NO.121 OF 2008
IN
NOTICE OF MOTION NO.1981 OF 2007
IN
SUIT NO.1724 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. …Appellants
v/s
Vishal Rajeev Diamonds Pvt.Ltd. …Respondents
WITH
APPEAL NO.122 OF 2008
IN
NOTICE OF MOTION NO.2123 OF 2007
IN
SUIT NO.1725 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. …Appellants
::: Downloaded on – 09/06/2013 14:14:06 :::
=5=
v/s
Banyan Properties Pvt.Ltd. …Respondents
WITH
APPEAL NO.123 OF 2008
IN
NOTICE OF MOTION NO.1553 OF 2007
IN
SUIT NO.1194 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. …Appellants
Anoop Vrajlal Mehta
v/s
ig …Respondent
WITH
APPEAL NO.124 OF 2008
IN
NOTICE OF MOTION NO.1978 OF 2007
IN
SUIT NO.1259 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. …Appellants
v/s
Devaunshi Anoop Mehta …Respondent
WITH
APPEAL NO.125 OF 2008
::: Downloaded on – 09/06/2013 14:14:06 :::
=6=
IN
NOTICE OF MOTION NO.1975 OF 2007
IN
SUIT NO.1258 OF 2007
Royal Palms (INdia) Pvt.Ltd. and ors. …Appellants
v/s
Dia Anoop Mehta …Respondent
WITH
APPEAL NO.126 OF 2008
ig IN
NOTICE OF MOTION NO.2124 OF 2007
IN
SUIT NO.1199 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. …Appellants
v/s
Master Mohit Anoop Mehta …Respondent
WITH
APPEAL NO.127 OF 2008
IN
NOTICE OF MOTION NO.2125 OF 2007
IN
SUIT NO.1269 OF 2007
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=7=
Royal Palms (India) Pvt.Ltd. and ors. …Appellants
v/s
Anoop Vrajlal Mehta …Respondent
WITH
APPEAL NO.128 OF 2008
IN
NOTICE OF MOTION NO.2126 OF 2007
IN
SUIT NO.1638 OF 2007
v/s
Royal Palms (INdia) Pvt.Ltd. and ors. …Appellants
Desai Trade Credits Pvt.Ltd. …Respondents
WITH
APPEAL NO.129 OF 2008
IN
NOTICE OF MOTION NO.2128 OF 2007
IN
SUIT NO.1637 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. …Appellants
v/s
Desai Home Finance Pvt.Ltd. …Respondents
WITH
::: Downloaded on – 09/06/2013 14:14:06 :::
=8=
APPEAL NO.130 OF 2008
IN
NOTICE OF MOTION NO.2127 OF 2007
IN
SUIT NO.1688 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. …Appellants
v/s
Desai Equipment Finance Pvt.Ltd. …Respondents
WITH
ig APPEAL NO.131 OF 2008
IN
NOTICE OF MOTION NO.2842 OF 2007
IN
SUIT NO.1268 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. …Appellants
v/s
Desai Built-in Finance Pvt.Ltd. …Respondents
WITH
APPEAL NO.132 OF 2008
IN
NOTICE OF MOTION NO.2843 OF 2007
IN
SUIT NO.1267 OF 2007
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=9=
Royal Palms (India) Pvt.Ltd. and ors. …Appellants
v/s
Desai Auto Credits Pvt.Ltd. …Respondents
Mr I.M. Chagla, Sr.Counsel with Mr F. D’Vitre, Sr.
Counsel, Mr Naval Agarwal, Mr Pesi Modi with Ms Dimple
Shah and Mr Firdaus i/b M/s Mulla and Mulla and Craigie
Blunt and Caroe for Appellants.
Mr Vaibhav Krishna i/b M/s Juris Consillis for
Respondents in Appeal No.113 of 2008.
Mr Aspi Chinoy,
ig Sr.
Ms Laxmi Modekar for Respondent in Appeal No.125 of
Counsel i/b Mr Vaibhav Krishna and
2008.
CORAM : D.K. DESHMUKH AND A.A. SAYED JJ.
DATE : 13TH JANUARY 2009
ORAL JUDGMENT (PER D.K. DESHMUKH J.) :-
1. These appeals are preferred against the common
order dated 30th October 2007 passed by the learned
Single Judge of this Court in notices of motion taken
out in different suits. Since these appeals are against
the common order as the questions of fact and law
involved are substantially the same, these appeals can
be conveniently disposed off by a common order.
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=10=
2. For convenience, in this order, we will be
referring to the parties by their nomenclatures as Shah
Group and Mehta Group. These appeals have been filed by
the defendants in civil suits, the defendants in all the
suits are the same. The suits, 20 in number, are filed
for specific performance of each of the agreement
entered into by the respective plaintiffs and the
defendants and for other ancillary reliefs. It is the
claim of the plaintiffs that they are in possession of
the suit property and an order for protection of that
possession
suits belong
is
to
also
the Shah
sought.
Group and
The plaintiffs
Mehta Group.
in these
The
defendant No.1 is owner of the land admeasuring about
240 acres at Andheri, Mumbai. The defendants in all the
suits are common. The property falls in no development
zone wherein only certain restricted / controlled and
limited development is permissible under the Development
Control Regulations for Greater Mumbai 1991. The
defendants entered into an agreement in the year 1993
with the plaintiffs for conveying plot admeasuring 2.5
acres each. Thus, 20 plots admeasuring 2.5 acres each
are the subject matter of the suits. In these suits,
notices of motion were taken out for interim relief
restraining the defendants from disturbing possession of
the plaintiffs of the suit property as also restraining
them from creating third party rights and also
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=11=
restraining them from carrying out any construction. In
those notices of motion, ad-interim order was made
granting status-quo in favour of the plaintiffs.
Thereafter, all the notices of motion were finally heard
and by order dated 30th October 2007, all notices of
motion are disposed off and interim relief in terms of
prayer clause (b) of notices of motion has been granted
i.e. restraining the defendants from carrying out any
construction on the suit plots, creating any third party
rights on the suit plots and also restraining them from
making any application to the authorities for sanction
of
the
any
suit
building
plots.
plan
In
for
these
construction
appeals, interim
of buildings
order
on
has
been passed permitting the appellants – defendants to
carry on construction on a part of the property subject
to certain conditions.
3. Perusal of the order passed by the learned
Single Judge which is impugned in these appeals shows
that one of the grounds raised by the defendants
opposing the notices of motion was that the suits are
barred by the law of limitation. According to the
defendants, the agreements were terminated by the
defendants by letter dated 29th January 2003, in any
case, the agreements were terminated on 17th January
2004 and therefore, suits instituted on 18th April 2007
have not been filed within the period of limitation.
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=12=
The learned Single Judge, though objection to the
jurisdiction of the Court to entertain the suits was
raised, ignoring the provisions of section 9A(1) of
C.P.C. without framing preliminary issue, has proceeded
to make the interim order. We find that the procedure
adopted by the learned Single Judge is contrary to the
provisions of section 9A of C.P.C. Section 9A of C.P.C.
reads as under :-
“9A. Where at the hearing of application
relating to interim relief in a suit,
objection
ig toto be decided by the Court as a preliminary
jurisdiction is taken, such issueissue –
(1) Notwithstanding anything contained in this
Code or any other law for the time being in
force, if, at the hearing of any application
for granting or setting aside an order of
injunction, appointment of a receiver or
otherwise, made in granting an interim relief,
whether by way of stay, in any suit, an
objection to the jurisdiction of the Court to
entertain such suit is taken by any of the
parties to the suit, the Court shall proceed
to determine at the hearing of such
application the issue as to the jurisdiction
::: Downloaded on – 09/06/2013 14:14:06 :::
=13=as a preliminary issue before granting or
setting aside the order granting the interim
relief. Any such application shall be heard
and disposed of by the Court as expeditiously
as possible and shall not in any case be
adjourned to the hearing of the suit.
(2) Notwithstanding anything contained in
sub-section (1), at the hearing of any such
application, the Court may grant such interim
relief as it may consider necessary, pending
determination by it of the preliminary issue
as to the jurisdiction.”
. Perusal of provisions of section 9A of C.P.C.
quoted above makes it clear that whenever there is an
application for grant of temporary injunction or
appointment of Receiver is sought before any Court and
an objection to the jurisdiction of the Court to
entertain the suit in which the application for such
interim relief has been made by any of the parties, then
it becomes the duty of the Court to first frame the
preliminary issue as to the jurisdiction of the Court to
entertain the suit and decide that issue and thereafter
take up for consideration the application for interim
relief. The scope and ambit of the provisions of
section 9A of the C.P.C. has been considered by the
::: Downloaded on – 09/06/2013 14:14:06 :::
=14=Supreme Court in its judgment in the case of Tayabbhai
Bagasarwalla and anr. v/s Hind Rubber Industries
Pvt.Ltd., reported in AIR 1997 SC 1240 and after quoting
the provisions of section 9A of C.P.C., the Supreme
Court in paragraph 16 has observed thus :-
“16. According to this section, if an
objection is raised to the jurisdiction of the
Court at the hearing of an application for
grant of, or for vacating, interim relief, the
Court should determine that issue in the first
instance
granting
ig asor
asetting aside
preliminarythe
issuerelief
beforealready
granted. An application raising objection to
the jurisdiction to the Court is directed to
be heard with all expedition. Sub-rule (2),
however, says that the command in sub-rule (1)
does not preclude the Court from granting such
interim relief as it may consider necessary
pending the decision on the question of
jurisdiction. In our opinion, the provision
merely states the obvious. It makes explicit
what is implicit in law. Just because an
objection to the jurisdiction is raised, the
Court does not become helpless forthwith – nor
does it become incompetent to grant the
interim relief. It can. At the same time, it
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=15=should also decide the objection to
jurisdiction at the earlier possible moment.
This is the general principle and this is what
section 9A reiterates.”
4. The Supreme Court has thus held that when the
Court at the time of hearing an application for
temporary injunction finds that an objection to its
jurisdiction to entertain the suit has been raised
though it has power to make an ad-interim order if such
an order is necessary to be made, it is under a duty to
take
entertain
upthe
the
suit for
objection raisedconsideration
toat
itsthe
jurisdictionearliest
toand
decide that objection finally. The question whether
compliance with the provisions of section 9A is
mandatory or not has also been considered by the
Division Bench of this Court in its judgment in the case
of Smithkline Beecham Consumer Healthcare GHBH and ors.
v/s Hindustan Lever Ltd. and anr. reported in 2003
Vol.105(2) Bom.L.R. 547 and the Division Bench after
referring to the provisions of section 9A and the object
and reasons clause of the Maharashtra Amendment Act of
1969, which introduced section 9A in C.P.C., has held
that compliance with the provisions of section 9A is
mandatory. The observations of the Division Bench in
paragraphs 13 and 14 are relevant which read thus :-
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=16=
“13. There is thus ample authority
justifying the Court in looking into the
history of the legislation not for the purpose
of construing the Act, but for the limited
purpose of ascertaining the background,
conditions and circumstances which led to its
passing, the mischief it was intended to
prevent and remedy it furnished to prevent
such mischief. The statement of objects and
reasons also can be legitimately used for
ascertaining the object which the legislative
had
Act.
ig in The mind, though statement of not for objects and construing reasons the of Maharashtra (Amendment) Act of 1969 recites - 'The effect of the judgment of the High Court in Institute Indo Portuguese v/s Borges is that the Bombay City Civil Court for the purposes of granting interim relief cannot or need not go into the question of jurisdiction. Sometimes declaratory suits are filed in the City Civil Court without a valid notice under section 80 of the Code of Civil Procedure, 1908. Relying upon another judgment of the High Court recorded on the 7th September 1961 in Appeal No.191 of 1960, it has been the practice of the City civil Court to adjourn a notice of motion for injunction in a suit ::: Downloaded on - 09/06/2013 14:14:06 ::: =17= filed without such valid notice, which gives time to the plaintiff to give the notice. After expiry of the period of notice, the plaintiff is allowed to withdraw the suit with liberty to file a fresh one. In the intervening period, the Court grants an ad-interim injunction and continues the same. This practice of granting injunctions, without going into the question of jurisdiction even though raised, has led to grave abuse. It is therefore proposed to provide that if a question hearing ig of of any jurisdiction application is for raised granting at the or setting aside an order granting an interimrelief the Court shall determine that question
first.’
14. The statement of objects and reasons
specifically refers to the practice followed
in the City Civil Court in filing the suits
against the Government without giving notice
under section 80 of the C.P.C. and in
continuing such interim relief, by permitting
the plaintiff to withdraw the suit and file a
fresh suit. The Legislature intended to stop
this abuse of process and therefore provision
of 9A was introduced by the Amendment Act of
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=18=1969 requiring the Court to decide the issue
of jurisdiction at the time of granting the
interim relief or consider the application for
vacating the interim relief. Section 9A casts
a duty on the Court to forthwith hear the
application for granting or setting aside the
order granting an interim relief and determine
the question of the jurisdiction of the Court
wherever it is taken. The decision on the
issue of jurisdiction of Court cannot be
postponed or adjourned. The object underlying
section
jurisdiction
ig 9Aof
isthe
to decideCourt
theat
questionthe
aboutinterlocutory
thestage itself to avoid hearing of issues on
merits even for prima facie purpose of grant
of interim reliefs. The term ‘jurisdiction’
as used in section 9A will have to be
construed harmoniously with section 9 of the
C.P.C. Section 9 lays down that the Courts
shall (subject to the provision herein
contained) have jurisdiction to try all suits
of a civil nature excepting suits of which
their cognizance is either expressly or
impliedly barred. The scope of section 9A
will have to be considered keeping in view the
provisions of section 9. In Official Trustee
West Bengal and others v/s Sachindra Nath
::: Downloaded on – 09/06/2013 14:14:06 :::
=19=Chatterjee and another, the Court observed :
‘From the above discussion it is clear
that before a Court can be held to
have jurisdiction to decide particular
matter it must not only have
jurisdiction to try the suit brought
but must also have the authority to
pass the orders sought for. It is not
sufficient that it has some
jurisdiction in relation to the
ig subjectjurisdiction
mattermust
ofinclude
thethe
suit.power
Itsto
hear and decide the questions at
issue, the authority to hear and
decide the particular controversy that
has arisen between the parties.’
Therefore, it is not sufficient that the Court
has territorial or pecuniary jurisdiction or
jurisdiction in relation to subject matter of
the suit. If the suit is barred by any
statute the Court will have no authority to
hear and decide the controversy between the
parties. Considering the history of the
legislation, the background and the
circumstances in which section 9A was enacted
::: Downloaded on – 09/06/2013 14:14:06 :::
=20=and the object of section 9A, we are inclined
to agree with the submission of Dr Tulzapurkar
that the Legislature has used the word
‘jurisdiction’ in a wider sense and the Court
is required to consider the bar to the
maintainability of the suit under section 9A
of the C.P.C.”
. It is thus clear that non-compliance by the
learned Single Judge with the provisions of section 9A
will be a material irregularity which would vitiate the
order.
is barred The by question the law whether of an limitation objection is an that objection the suit to the jurisdiction of the Court for the purpose of section 9A of C.P.C. has been decided by the Division Bench of this Court in its judgment in the case of Foreshore CHS Ltd. v/s Shri Praveen D. Desai and ors., reported in 2008(6) All MR 600. The Division Bench has relied on the judgment of the Constitution Bench of the Supreme Court in the case of Pandurang D. Chougule v/s Maruti H. Jadhav, reported in AIR 1966 SC 153 holding that the plea of limitation is plea of law concerned with the jurisdiction of the Court. Thereafter, the DivisionBench of this Court in the above referred judgment has
observed thus :-
“18. The moment, the issue of jurisdiction
::: Downloaded on – 09/06/2013 14:14:06 :::
=21=is raised under section 9-A of the Code of
Civil Procedure, the said issue should be
decided at first, and not to be adjourned to a
later date. The main reason is that if the
Court comes to finding that it does not have
jurisdiction vested in it in law, then no
further enquiry is needed and saves a lot of
valuable judicial time. In fact, section 9-A
itself mandates that when an objection to the
jurisdiction of the Court to entertain such a
suit is taken by any of the parties, the Court
will
ig haveand in no case to be adjourned to the hearing
to decide the issue expeditiouslyof the suit.
19. A Division Bench judgment of our High
Court in Smith Kline Beechan Cons v/s
Hindustan Lever, 2003 Vol (105) 2 Bom.L.R.
547 : 2002(1) All MR 1043 has categorically
held that it is not sufficient that the Court
has territorial or pecuniary jurisdiction or
jurisdiction in relation to the subject matter
of the suit but if the suit is barred by any
statute, the Court will have no authority to
hear and decide the same. The said judgment
clearly holds that the use of the word
‘jurisdiction’ is used in a wider sense under
::: Downloaded on – 09/06/2013 14:14:06 :::
=22=section 9-A which would include the bar to
maintainability of the suit i.e. to say any
statutory bar to the maintainability of the
suit. Section 3 of Limitation Act clearly
mandates the Court to dismiss the suit if the
same is barred by limitation.
20. To put it in other words, if the suit
is barred by Limitation, the Court has no
jurisdiction to entertain it and the Court is
duty bound to dismiss the same, and the
parties cannot confer jurisdiction by consent.
21. It is explicitly clear that a plea of
limitation is a plea which goes to the
jurisdiction of the Court and it is a plea on
law, and it is a settled position in law that
when a suit is barred by limitation, the Court
is precluded from proceeding on the merits of
the contentions and in fact obliged to dismiss
the suit.”
. It is clear from the law laid down by the
Division Bench in its aforesaid judgment that when an
objection to the jurisdiction of the Court to entertain
the suits as the suits are barred by the law of
limitation is raised, at the hearing of notices of
::: Downloaded on – 09/06/2013 14:14:06 :::
=23=motion wherein interim order is claimed, the Court is
obliged by provisions of section 9A of C.P.C. to frame
preliminary issue as to the ground raised to the
jurisdiction of the Court to entertain the suits and
proceed to decide that preliminary issue and it is only
on decision of that preliminary issue, that the notices
of motion can be taken up for final decision. We find
that the learned Single Judge has made the order
disposing of the notices of motion even after noting
that one of the objections raised was to the
jurisdiction of the Court to entertain the suits as they
are
made
barredby
bythe
ig thelearned
lawSingle
ofJudge
limitation,will have
thereforeto
thebe
orderset
aside and the notices of motion will have to be remitted
back to the learned Single Judge for consideration and
decision in accordance with law.
5. Now, as we have set aside the order passed in
notices of motion and as the ad-interim order that was
passed by the learned Single Judge stands merged in the
final order passed in the notices of motion and as we
have set aside that order, in our opinion, it will be
for us to decide what should be the ad-interim order
operating, if at all, during the pendency of the notices
of motion. For consideration of that aspect of the
matter, in our opinion, we will have to take into
consideration the question whether it can be said that
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=24=the plaintiffs have made out a strong prima facie case
for grant of temporary injunction in the terms in which
it is sought in their favour. So far as that question
is concerned, the plaintiffs in these suits seek a
decree of specific performance of the agreement dated
27th September 1993. It was pointed out by the
defendants that as the land admittedly falls in no
development zone, sub-division of the plot cannot be
permitted. Similarly, because of the guidelines that
have been framed under the Development Control
Regulations for Greater Mumbai, the entire land has to
vest
subdivided
intoat any
single
time.
ownership
What
andis
thepermitted
landto be
cannotdone
beis
that there can be more than one owner of the land.
Therefore, before us, there was no debate on the
question that in view of the Development Control
Regulations, there cannot be a decree for specific
performance of the agreement to sell the land to the
plaintiffs. The learned counsel appearing for
plaintiffs therefore, invited our attention to clause 19
of the agreement and submitted that when the agreement
was entered into, the Development Control Regulations
were already in force and therefore, the parties were
aware that sub-division of the property may not be
possible and therefore sale of the property may not be
permissible. Therefore, a provision was made in Clause
19 of the agreement which reads as under :-
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=25=
“19. It is agreed by and between the
parties hereto that the Vendor shall get the
larger property subdivided by the Municipal
Corporation of Greater Bombay and other
concerned bodies and authorities on or before
the concerned bodies and authorities on or
before the 30th day of April 1994 time being
essence of the contract at its own costs and
expenses. However, in the event the
sub-division is not sanctioned by the
Municipal
other
ig Corporationconcerned bodies
of Greaterand
Bombayauthorities
andthen
the Vendor shall demarcate the said premises
and convey the same to the Purchaser.”
. Perusal of above quoted clause 19 shows that
it was in contemplation of the parties that sub-division
may not be possible and therefore, it was contemplated
that without sub-division there shall be transfer in
favour of the plaintiffs. The learned counsel therefore
submitted that there were negotiations between the
parties for execution of lease deeds of the property in
favour of the plaintiffs. The learned counsel took us
through the correspondence between the parties which is
annexed to the plaint to contend that if sale is not
possible, the Court can make a decree for execution of
::: Downloaded on – 09/06/2013 14:14:06 :::
=26=lease deeds in favour of the plaintiffs. Perusal of the
correspondence between the parties does show that the
proposal for grant of lease instead of sale of the
property was considered by both the parties. However,
in our opinion, perusal of the plaint shows that in the
plaint, it is not the case of the plaintiffs that they
are seeking execution of lease deeds of the property in
their favour. Perusal of the averments in paragraphs 17
and 23 of the plaint clearly shows that according to the
plaintiffs, there was no agreement between the parties
for execution of lease deeds after it is found that
execution of sale deeds is not possible. The plaintiffs
have stated in paragraph 23 of the plaint thus :-
“The plaintiffs agree that the discussions
relating to the proposed lease were not
binding till the execution of the lease deed
and since that event did not take place the
said agreement dated 27th September 1993
continues to hold good and subsists and binds
the parties. The plaintiffs’ efforts were to
resolve the matter, in terms of the discussion
initiated by the defendant No.1 in or about
the year 1997 for a lease instead of a sale,
however as confirmed by the 1st defendant,
those discussions did not fructify into a
binding agreement.”
::: Downloaded on – 09/06/2013 14:14:06 :::
=27=
. What is stated in paragraph 23 by the
plaintiffs clearly shows that according to them the
agreement of September 1993 is agreement to sell the
property and not agreement to grant lease of the
property in the alternative. Following sentence from
paragraph 25 of the plaint makes the position absolutely
clear :-
“In the circumstances the plaintiffs say and
submit that the defendant No.1 agreed to sell
the
ig suit plotthe said agreement dated 27th September 1993.”
to the plaintiffs in terms of
. What is further to be seen here is that
according to the plaintiffs, they have been placed in
possession of the property as prospective purchasers and
not as prospective lessees and they also seek an order
of protection from the Court as prospective purchasers
and not as prospective lessees. Had it been the case of
the plaintiffs that they want execution of the lease
deeds in the alternative, then they would have sought an
order for protection of their possession as prospective
lessees. In our opinion, therefore, from the averments
in the plaint it cannot be said that the plaintiffs are
seeking any decree for execution of lease deeds in their
favour. It is clear that the plaintiffs are seeking a
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=28=decree for execution of sale deeds in their favour when
it appears to be an admitted position that execution of
sale deeds is not possible because of Development
Control Regulations. In our opinion, therefore, it
cannot be said that reading the plaint as framed and
filed makes out a strong prima facie case in favour of
the plaintiffs. The case of the plaintiffs which has
been accepted by the learned Single Judge in his order
which is impugned in the appeal is that by letter dated
29th January 2003, the agreement for execution of
sale-deed was terminated. Because of the conduct of the
defendants
plaintiffs after
of
ig 29th
sendingJanuary
maintenance2003, it
billshas been
to theinferred
by the learned Judge that the defendants waived the
termination of the contract for execution of sale-deed.
Thereafter, the possibility of performing the contract
in the alternate mode viz. by execution of lease-deed
was explored by the parties and the negotiations for
performance of the contract by the alternate mode i.e.
by executing lease-deed, was terminated by letter dated
17th January 2004 and therefore, the learned Single
Judge has held that because termination of the contract
for execution of sale-deed was waived, the contract for
execution of sale-deed continues in force. However, it
is clear from the order impugned that negotiations for
performing the contract by the alternate mode viz. by
execution of lease-deed was terminated by letter dated
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=29=
17th January 2004 and there is no plea of waiver in
relation to that termination. Thus, if one goes by this
case of the plaintiffs which has been accepted by the
learned Single Judge, the proposal for execution of
lease-deed was terminated by letter dated 17th January
2004 and therefore, if the present suit is for a decree
of specific performance of the agreement to execute
lease-deed, then the suit may not be within the period
of limitation because the suit has not been filed within
the period of three years from 17th January 2004. It
does appear to our mind that in the plaint as framed and
filed,
grant of
there
a
is
ig no
decree
case made
for specific
out by the
performance
plaintiffs
of
for
the
agreement to execute lease-deed firstly and secondly
even assuming that such a case is made out, the other
case of the plaintiffs which found favour with the
learned Single Judge that what was terminated by the
letter dated 17th January 2004 was a proposal for
adopting alternate mode of performing the contract viz.
by execution of lease-deed when the suit may not be
within the period of limitation. We make it clear that
the observations that we have made above are relevant
strictly for the purpose of considering the question of
grant of ad-interim order and they are not relevant for
any other purpose. The fact, however, remains that the
agreement was entered into in the year 1993, the
defendants have received full amount of consideration
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=30=
from the plaintiffs. It is also common ground that on a
part of the property, construction has already been
started and it has been completed to a large extent. We
also find that third party rights have been created even
before the civil suits were filed. In our opinion,
therefore, it will not be appropriate to make any order
of temporary injunction restraining construction
activity already started. In so far as that portion of
the land which can be described as plots allotted to
Mehta Group is concerned, admittedly though according to
the plaintiffs, S.E.Z. in relation to this land has
been
sanctioned
sanctioned,
for
ig today
carrying
even
out
building
any
plans have
construction
not been
activities.
In our opinion therefore, as the notices of motion are
yet to be finally decided, some interim order is
necessary to be made. In our opinion therefore,
following ad-interim order should operate during the
pendency of the notices of motion before the learned
Single Judge.
6. There shall be no ad-interim order in relation
to the plots where construction has already been
started, however, the construction to be made by the
defendants shall be subject to the result of the suits
and the defendants will have to file an affidavit in
this Court within a period of two weeks from today
stating that the defendants will not claim any equity on
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=31=
the basis of constructions which they raise during the
pendency of the suits. The defendants shall also within
a period of two weeks from today, supply to the
plaintiffs any documents executed or entered into or to
be entered into by them for creation of third party
rights in those constructions.
7. So far as the land which can be loosely
described as plots allotted to Mehta Group are
concerned, in our opinion, as there is no question of
there being any construction carried out unless the
building
therefore,
plans
a
ig are
temporary
sanctioned.
injunction
In our
restraining
opinion,
the
plaintiffs from carrying out any construction on those
plots and creating third party rights should be granted
and it is accordingly so granted. However, in case any
building plans are sanctioned and negotiations for
creation of any third party rights in the construction
to be made on those plots are finalised, the defendants
shall be at liberty to move the learned Single Judge for
modification of the ad-interim order. Appeals are
disposed off.
8. We request the learned Single Judge that
considering that the notices of motion are pending for a
long time to hear and dispose off preliminary issue and
the notices of motion as expeditiously as possible. We
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=32=
have been informed that so far as the land which is
described as Mehta Group land is concerned, there is
already a reservoir constructed. The order of temporary
injunction will not come in the way of operation of that
reservoir.
. Parties to act on the copy of this order duly
authenticated by the Associate / Private Secretary of
the Court.
. Certified copy is expedited.
ig ( D.K. DESHMUKH J.)
( A.A. SAYED J.)
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