{"id":126601,"date":"2010-08-02T00:00:00","date_gmt":"2010-08-01T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mr-vs-manik-roy-and-others-on-2-august-2010"},"modified":"2017-12-23T05:28:27","modified_gmt":"2017-12-22T23:58:27","slug":"mr-vs-manik-roy-and-others-on-2-august-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mr-vs-manik-roy-and-others-on-2-august-2010","title":{"rendered":"Mr vs Manik Roy And Others on 2 August, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Mr vs Manik Roy And Others on 2 August, 2010<\/div>\n
Author: Anant S. Dave,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nAO\/118\/2010\t 30\/ 30\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nAPPEAL\nFROM ORDER No. 118 of 2010\n \n\nWith\n\n\n \n\nCIVIL\nAPPLICATION No. 4790 of 2010\n \n\n======================================\n \n\nKEVAL\nDEVELOPERS PRIVATE LTD \n\n \n\nVersus\n \n\nASHOK\nGOVINDRAM HURRA & OTHERS\n \n\n======================================\n \nAppearance :\n \n\nMr.\nP.C. Kavina, Senior Advocate, with Mr. Digant M. Popat for the\nappellant.\n \n\nDr.\nSonia Hurra with Mr. Prasad A. Hurra for respondent No.1\n \n\nMr.\nN.D. Nanavati, Senior Advocate with Mr. Vimal M. Patel for respondent\nNos. 2 to 5\n \n\nRespondent\nNos. 6 and 7 party in person. \n======================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE ANANT S. DAVE\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 02\/08\/2010 \n\n \n\n \nORAL\nORDER<\/pre>\n
1\tThis
\nAppeal from Order under Order 43 Rule 1(r) of the Code of Civil
\nProcedure is filed by the appellant [original defendant No.5] against
\nthe judgment and order dated 27.4.2010 passed by the learned Judge,
\nCourt No.9, City Civil Court, Ahmedabad, below Exh.139 [Notice of
\nMotion] in Civil Suit No.545 of 2007, by which, the Notice of Motion
\nfiled by the plaintiff came to be allowed and the interim relief in
\nterms of paragraph 6(B) of the Notice of Motion was granted against
\ndefendant No.5 till final disposal of the suit.\n<\/p>\n
1.1\tAlong
\nwith the appeal from order, Civil Application No.4790 of 2010 is
\nfiled by the applicant-appellant to stay  the above order dated
\n27.4.2010  passed by the trial court.\n<\/p>\n
2.\tOn
\n3.5.2010, when the matter was listed for admission hearing before the
\nCourt [Coram: Ravi R. Tripathi, J.], by order dated 3.5.2010, the
\nappeal was admitted and in the civil application for stay, notice as
\nto interim relief was issued  returnable on  21.6.2010. On 21.6.2010,
\nsince the notice was not served upon respondent Nos. 2 to 7, the
\nRegistry was directed to issue fresh notice to the unserved
\nrespondents returnable on 29.6.2010. On the returnable date, the
\nRegistry placed the matter before this Court on 29.6.2010. In the
\nnote dated 29.6.2010 submitted by the Registry, the matter was placed
\nfor the order of the Court since process fees were not paid and the
\ntime was to be extended. This Court passed an order to the effect
\nthat the process fee be paid on or before 2.7.2010 and returnable
\ndate be extended accordingly. Since the matter was not listed, a note
\nwas submitted and, accordingly, this Court directed the Registry to
\nnotify the matter on 15.7.2010. On 15.7.2010, this Court passed the
\nfollowing order:\n<\/p>\n
 Heard
\nlearned counsels for the parties.\n<\/p>\n
\tIn
\nview of the office note dated 14.07.2010 filed by the Registrar
\n(Judicial) and the endorsement made by the Hon’ble the Chief Justice
\nto notify the matter, this matter is placed before this Court, today.\n<\/p>\n
\tMr.\n<\/p>\n
Prasad Hurra, learned advocate appearing for the respondent No.1,
\nsubmits that he has made a representation to the Hon’ble the Chief
\nJustice expressing no confidence in this Court to conduct this case.
\nHe further submits that even today also he has made a representation
\nto the Registrar (Judicial).\n<\/p>\n
\tIn
\nview of the above, the Office is directed to place this matter before
\nthe Hon’ble Chief Justice for obtaining appropriate order.\n<\/p>\n
The
\nRegistry referred the matter to the Hon’ble Chief Justice as per the
\nnote dated 19.7.2010 and, thereafter, as per the order dated
\n23.7.2010 passed by the Hon’ble Chief Justice  – ‘before the same
\nHon’ble Judge i.e, Mr. Justice A.S. Dave on 23.7.2010’, the matter
\nwas placed  before this Court. On 27.7.2010, the appeal as well as
\ncivil application for stay was taken up for hearing.  The learned
\nadvocates for both the parties argued the case for about three and
\nhalf hours and the matter was adjourned to 29.7.2010 at 14.30 hours
\nand, again, the learned advocates for the parties argued the case for
\nabout one and half hours. Thus, the matter is heard extensively by
\nthis  Court and today the matter is listed for orders.\n<\/p>\n
3.\tThe
\nbroad facts, as narrated by the plaintiff, have a root in an
\nagreement dated 12.12.2003, which was entered into between the
\nplaintiff as karta of HUF and his son Prasad Hurra and one Shri
\nPragnesh, laying down terms and conditions and development of their
\nancestral bungalow at Ashram Road named ‘Sant Kutir’. It is the say
\nof the plaintiff that it was decided to develop the building named
\n‘Florence’ and the name of the partnership firm was M\/s. Florence
\nConstruction. That, the said bungalow owned by the plaintiff HUF and
\nhis minor son was valued at Rs.2.31 crores which was later on
\nincreased to Rs.2.51 crores with increase of FSI due to amalgamation
\nof the entire plot into one including two rear bungalows. That, the
\nsaid amount was taken as investment by the plaintiff in the
\npartnership firm and likewise Pragnesh was to pay Rs.50 lakhs as
\ndeposit on or before 12.12.2003 and was to bear the entire cost of
\nconstruction of Florence. On 22.4.2004, a partnership deed was
\nexecuted adopting all the terms and conditions of the agreement dated
\n12.12.2003 and, as per clause 10 of the said agreement, the term of
\npartnership would be extended to the  new venture by mutual consent
\nof both the partners and, as per clause 22, the funds of the
\npartnership would not be given on loan and if it was so then there
\nshould be a written agreement thereto. It is the say of the plaintiff
\nthat the said partnership firm was initially formed for the purpose
\nof Florence project but later on it was extended to the new project
\nof Natraj cinema land by consent of both the parties. On 15.9.2004, a
\ndevelopment agreement was executed between the parties. That, as per
\nthe plaintiff, in the year 2005-2006, the plaintiff suffered a
\nserious disease and due to malignancy of cancer of tongue, he was to
\nbe hospitalized and the said situation was exploited by the defendant
\nwho committed certain irregularities including criminal
\nmisappropriation and embezzlement of partnership funds, for which a
\ncriminal complaint, being FIR C.R. No.139 of 2007, came to be filed.
\nHowever, in the meanwhile, certain transactions took place  with
\nregard to letting out a premises owned by the plaintiff to some
\ncompanies and in or around October 2006 the plaintiff came to know
\nabout certain illegal activities of the defendant and thereafter that
\ncomplaint was filed. It is further submitted that, when the plaintiff
\ncame to know about the defendant’s efforts to sell the partnership
\nproperty of Natraj cinema to one Fame Group for Multiplex, the
\nplaintiff filed Civil Suit No.545 of 2007 in the City Civil Court,
\nAhmedabad, on 14.3.2007. Initially, a writ petition being Special
\nCivil Application No.6874 of 2007 was filed in this Court wherein
\nthis Court granted an interim relief restraining the respondent Nos.
\n2 to 5 of the said writ petition from selling, mortgaging, leasing or
\ndeveloping the property of Natraj cinema, but, it is stated that the
\nlearned advocate appearing for the respondents made a false statement
\nbefore the learned Single Judge that a caveat was filed on behalf of
\nthe respondents and, therefore, the order was not signed  and,
\nthereafter, after hearing the learned advocates for both the parties,
\nan undertaking was filed by the respondents to the effect that they
\nwill not alienate the partnership property in question and,
\ntherefore, the interim relief granted earlier was ordered to continue
\ntill 30.3.2007. According to the plaintiff, finally,  Special Civil
\nApplication No.6874 of 2007 was disposed of with a direction to the
\ntrial court to decide the Notice of Motion application within 15
\ndays. On 26.4.2007,  a notice of lis pendens under Section 52 of the
\nTransfer of Property Act, 1882, was registered and on 22.7.2007 a
\ncaution notice was published in Gujarat Samachar, a widely circulated
\nvernacular newspaper, and a similar notice was published in the Times
\nof India on 24.7.2007. In the meanwhile, the plaintiff filed
\napplication dated 29.10.2007  and, as per the order dated 24.10.2007,
\nsubmitted amended plaint  and amended application for interim
\ninjunction and other reliefs in Civil Suit No.545 of 2007 and the
\nsame was pending for hearing. It is the say of the plaintiff that on
\n26.3.2008, the impugned sale deed came to be executed since the
\nnotice of motion Exh.6\/7 for interim relief was rejected by the trial
\ncourt by order dated 24.10.2007.\n<\/p>\n
3.1\tBeing
\naggrieved by the above order dated 24.10.2007 of the trial court, the
\nplaintiff filed Appeal From Order No.3 of 2008  with Civil
\nApplication No.15 of 2008, wherein, after hearing the learned
\nadvocates for the parties, this  Court [Coram: D.N. Patel, as His
\nLordship then was] by order dated 27.3.2008 dismissed the appeal and
\nthe civil application. However, considering the nature of controversy
\nbetween the parties, the trial court was directed to hear and decide
\nCivil Suit No.545 of 2007 as expeditiously as possible and preferably
\non or before 31.1.2009 without being influenced by the observations
\nmade in the above order as well as the order passed by the court
\nbelow in Notice of Motion Exh.6\/7.\n<\/p>\n
3.2\tBeing
\naggrieved by the order dated 27.3.2008 passed by this Court, the
\nplaintiff filed Special Leave to Appeal [Civil]  Nos.9411-9412 of
\n2008 before the Apex Court, wherein, the following order was passed
\nby the Apex Court on 5.5.2008.\n<\/p>\n
 Since
\nthe impugned order is an interim Order, the Special Leave Petitions
\nare dismissed. We make it clear that observations by the High Court
\nin the impugned order are tentative and shall have no bearings on the
\nmerits of the case at final hearing.\n<\/p>\n
3.3\tThe
\nplaintiff filed an amendment application challenging two sale deeds
\ndated 11.5.2006. On 14.7.2009, the plaintiff filed Civil Suit No.1448
\nof 2009 against Kewal Developers as defendant No.1 of the said suit.
\nOnce again, lis pendens was registered in Civil Suit No.1448 of 2009.
\nA written statement was filed and, thereafter, the amended plaint was
\nfiled on 20.8.2009. The application Exh.24 for stay of the suit in
\nCivil Suit No.1448 of 2009 was allowed by order dated 15.9.2009,
\nwherein, the trial court observed that on the same subject matter of
\nthe property, the issues are identically same and, therefore, the
\nsubsequent suit cannot be proceeded with, but, if the plaintiff is
\naggrieved against Keval Developers Private Limited, then the
\nplaintiff may also bring out an application for amendment in proper
\nmanner in order to enable him to ask new prayer against the newly
\nadded party in Civil Suit No.1448 of 2009.\n<\/p>\n
3.4\tIn
\nthe meanwhile,  when the plaintiff came to know about the plan for
\nconstruction of a six-storyed building namely ‘Welcome’ on the Natraj
\ncinema property, the plaintiff made inquiries and, accordingly, the
\nletters addressed by  Keval Developers Private Limited and other
\napplications for permission to construct building according to the
\nplan, came to the notice of the plaintiff. Even, the Ahmedabad
\nMunicipal Corporation also wrote a letter to the plaintiff on
\n31.12.2009 asking for objections of the plaintiff to the construction
\nplan given by  Keval Developers Private Limited and, accordingly,
\nobjections were raised by the plaintiff. However, it seems from the
\nrecord that the competent authority of the Ahmedabad Municipal
\nCorporation  granted permission subject to certain conditions by
\norder dated  26.4.2010.\n<\/p>\n
3.5\tIt
\nis to be noted that in Civil
\nSuit No.1448 of 2009, after
\nconsidering prima-facie case, etc. of the plaintiff, by order dated
\n3.3.2010, the trial court granted interim injunction restraining
\nthird party-defendant from creating any further rights and
\nprohibiting them from
\nalienating the property in question in any manner. Some of the
\ndefendants, being aggrieved
\nby the aforesaid order dated 3.3.2010, filed Appeal From Order No.70
\nof 2010, which came to be disposed of by this Court by order dated
\n10.3.2010 on the basis of submissions made by the learned advocates
\nappearing for the parties. While disposing of the aforesaid Appeal
\nFrom Order, the undertaking dated 4.3.2010 filed by the defendants in
\nRegular Civil Suit No.1448 of 2009 to the extent that they shall not
\ntransfer the property in question in any manner, was ordered to be
\ncontinued till proper amendment application is moved for a period of
\ntwo weeks. It is further say of the plaintiff that on 13.4.2010, the
\namendment application was filed in Civil Suit No.545 of 2007 and
\nplaced on record the amended plaint after serving a copy of the same
\nto the defendants.\n<\/p>\n
3.6\tSo
\nfar as the criminal proceedings are concerned, the stay granted by
\nthe High Court qua investigation of criminal case, came to be vacated
\nby the Apex Court by order dated 26.4.2010.\n<\/p>\n
3.7\tIt
\nis further case of the plaintiff that the plaintiff had no knowledge
\nabout the second sale deed dated 10.4.2008 of the property in
\nquestion executed in favour of defendant No.5.\n<\/p>\n
3.8\tIn
\nthe context of above facts, the application Exh.139 in Civil Suit
\nNo.545 of 2007 was heard and decided by the trial court, by which,
\nthe Notice of Motion filed by the plaintiff came to be allowed and
\nthe interim relief in terms of paragraph 6(B)  was granted against
\nonly defendant No.5 till final disposal of the suit, which is under
\nchallenge.\n<\/p>\n
4\tMr.\n<\/p>\n
P.C. Kavina, learned Senior Counsel for the appellant, has assailed
\nthe order passed by the trial court mainly on the ground that the
\nsecond Notice of Motion for injunction filed after the amendment was
\ngranted is wrongly entertained and allowed by the trial court.
\nAccording to the learned counsel for the appellant, the reliance
\nplaced on the provisions of Section 52 of the Transfer of Property
\nAct, 1882, is based on the ignorance and misconceived notion that, if
\nlis pendens  is there, the party has to obtain permission from the
\nCourt concerned under section 52 of the Act before dealing with the
\nproperty. According to the learned counsel for the appellant, the
\ncorrect interpretation of Section 52 of the Act is that, once lis
\npendens is registered, the subsequent transferee would be bound by
\nthe decision, namely, the final order or decree that may be passed by
\nthe concerned Court and nothing more than that. At the most, a plea
\ncannot be taken by the subsequent transferee that he is not bound by
\nthe final decision or decree of the trial court  in spite of lis
\npendens. According to the learned counsel for the appellant, in the
\nfacts and circumstances of the case, when the first notice of lis
\npendens was registered on 26.4.2007, the trial court rejected the
\ninterim application on 24.10.2007, which came to be confirmed by this
\nHonourable Court in Appeal From Order No. 3 of 2008 on 27.3.2008 and
\neven the Special Leave to Appeal (Civil) Nos.9411-9412 of 2008 also
\ncame to be rejected by the Apex Court by order dated 5.5.2008 with
\ncertain observations. In view of the above, applying the doctrine of
\nvery Section 52 of the Act to the subsequently amended plaint and
\nNotice of Motion, the trial court ought not to have exercised its
\njurisdiction by restraining the defendant from dealing with the
\nproperty in question. It is further stated that the reliance was
\nplaced on the report of the Chartered Accountant appointed and
\nengaged by the plaintiff who had an access to the material supplied
\nand made available by the plaintiff and disputed by the defendants,
\nand the said report of the Chartered Accountant based on such
\nmaterial could not have formed basis for grant of relief in favour of
\nthe plaintiff, which upsets the norms of balance of convenience,
\nundue hardship including the prima-facie case. The learned counsel
\nfor the appellant has drawn the attention of this Court to the
\nfinding of the Chartered Accountant and submitted that his report was
\nbased solely on the verification of the statement of accounts which
\nwas made available to him and no account books or other material was
\nverified. The learned counsel for the appellant has also submitted
\nthat  the property in question, as mentioned in paragraph 3 of the
\nplaint, is in two parts and one part was purchased by respondent No.2
\nand the other part was purchased by respondent No.3 and both the
\nparts were sold, conveyed and transferred to the present appellant by
\ndefendant No.1 by two different sale deeds and the same were
\nregistered with the Sub-Registrar, Ahmedabad, and necessary entries
\nwere also posted  in the revenue records. It is further submitted
\nthat permission for construction as per the plan submitted is granted
\nby the competent authority of the Ahmedabad Municipal Corporation
\nsubject to the conditions laid down thereunder and the appellant is
\nbound by the final outcome of the suit proceedings and any dealing,
\nduring pendency of the suit proceeding, is the subject matter or the
\ndecision that may be taken finally by the court concerned. In support
\nof his argument, the learned counsel for the appellant has placed
\nreliance on the decision of the Apex Court in the case of Sanjay
\nVerma vs. Manik Roy and others<\/a>, reported in (2006) 13 SCC 608, and it
\nis submitted that in paragraph 12 of the above decision, the Apex
\nCourt  clearly lays down that the parties are free to deal with the
\nproperty, which is subject matter of the suit, and bound by the
\ndecree that may be passed, but, when the permission is sought for,
\nlis pendens will not apply.\n<\/p>\n
4.1\tThe
\nlearned counsel for the appellant has further submitted that,  since
\nthe sale consideration  has been paid, the transactions are valid and
\nlegal, and the permission to construction is granted by the competent
\nauthority of the Ahmedabad Municipal Corporation, the restriction put
\nforth by the trial court not to transfer or alienate the property in
\nquestion in any manner will cause undue hardship and irreparable loss
\nto the appellant and, therefore, the impugned order of the trial
\ncourt deserves to be quashed and set aside.\n<\/p>\n
5\tMr.\n<\/p>\n
N.D. Nanavati, learned Senior Counsel appearing for original
\ndefendant Nos. 2 and 3, has submitted that the nature of the suit and
\nthe claim made in Civil Suit No.545 of 2007 and Civil Suit No.1148 of
\n2009, are about recovery of money with regard to the accounts of the
\npartnership firm and, in the said suits, even if the plaintiff
\nsucceeds and a decree is passed in their favour, the amount as
\nclaimed can be ordered to be recovered. The learned Senior Counsel
\nalso relied upon the very decision of the Apex Court  in the case of
\nSanjay Verma [supra] and submitted that the third party, newly added
\ndefendant, is not privy to the contract and there is no lis between
\nthe parties and no restrictive or prohibitive order could have been
\npassed. The defendants are independent legal entity and just some of
\nthe partners are relatives, presumption cannot be drawn about
\nfraudulent transaction. Besides, the issue involved in the proceeding
\ncan be decided and adjudicated without restraining the third party
\nfrom alienating the property in question and, when the permission is
\ngranted to construct a building by the Ahmedabad Municipal
\nCorporation, the same may be permitted to be done.\n<\/p>\n
6\tPer
\ncontra, on behalf of the plaintiff, respondent No.1 herein, two
\nlearned counsels were heard and permitted to argue on the same issue
\nin view of the inability on the part of the learned junior counsel to
\nunderstand and submit on the basis of certain recital in the sale
\ndeeds in vernacular Gujarati. At the outset, it is submitted on
\nbehalf of the plaintiff that the trial court, in its well considered
\nand reasoned order, restrained the defendants from alienating or
\ndealing with the  property in any manner as prayed for in paragraph
\n6(B) of the application for injunction and, thereby, no illegality is
\ncommitted by the trial court while passing the order impugned and,
\ntherefore, this Court, in exercise of its appellate power, would not
\ninterfere and, even if another view is possible with regard to
\nappreciation of finding of facts by the trial court, this Court would
\nbe loathe in substituting its own opinion with that of the trial
\ncourt. The learned counsel for the plaintiff has further submitted
\nthat, in view of the specific and clear permission granted by this
\nCourt in Appeal From Order No.3 of 2010, coupled with the
\nobservations made by the trial court while passing an order below
\napplication Exh.24 of staying the second suit, the amendment
\napplication was moved in view of the changed and new circumstances
\nwhich came to the notice of the plaintiff. It is further submitted
\nthat the second sale deed dated 10.4.2008 executed in favour of the
\nappellant  came to the notice of the plaintiff only after 10.3.2010,
\ni.e. after the order passed by this Court in Appeal From Order No.70
\nof 2008. It is further submitted that two sale deeds dated 27.3.2008
\nand 10.4.2008 were executed surreptitiously so that no action can be
\ntaken by the plaintiff. The learned counsel has also referred to the
\nletters addressed by the Ahmedabad Municipal Corporation, which
\nformed the basis for the amendment and a Chartered Accountant
\nappointed by the plaintiff for verification of the account books
\nsubmitted a report specifically pointing out non-transfer of Rs.50
\nlakhs in favour of the plaintiff.  It is further submitted that, in
\nspite of lis pendens notice, the defendants continued to create third
\nparty right on the suit property making it impossible for the
\nplaintiff to get any relief and, virtually, amounting to multiplicity
\nof proceedings and defeating the right of the plaintiff. The trial
\ncourt, after having noticed the above facts and considering the
\nprinciples of public policy, equity, good conscience, irreparable
\nloss and the balance of convenience in favour of the plaintiff,
\npassed the order impugned, which cannot be said to be in any manner
\nillegal, which deserves interference by this Court. The learned
\ncounsel for the plaintiff [respondent No.1 herein] has also taken
\nthis Court to various documents produced and annexed along with this
\nAppeal From Order and recorded in the foregoing paragraphs including
\nthe partnership agreement, development agreement, public notices
\nissued in the newspapers and the criminal case filed and submitted
\nthat, the defendants created firms and companies to siphon off the
\nfund of the plaintiff to deprive him of his legitimate dues. That,
\nthe alleged purchase of the property is not bona fide and the
\ntransactions have taken place between the defendants inter-se was to
\ndefeat and delay the lawful claim of the plaintiff.\n<\/p>\n
6.1\tThe
\nlearned counsel for the plaintiff [respondent No.1 herein] has
\nsubmitted that the Apex Court in the following decisions has
\nconsidered the scope of exercise of powers by the High Court under
\nArticle 227 of the Constitution of India and submitted that the High
\nCourt cannot re-appreciate the finding of facts arrived at by the
\nsubordinate courts:\n<\/p>\n
[i]\t(1975)
\n1 SCC 858\t: Bathutmal Raichand Oswal vs. Laxmibai R. Tarta<\/p>\n
[ii]\t(1991)
\n3 SCC 141\t: Mani Nariman Daruwala vs. Phiroz N. Bhatena<\/a><\/p>\n
[iii]\t(2002)
\n8 SCC 400\t:  Essen Deinki vs. Rajiv Kumar,<\/a> which is again referred to
\nin the subsequent decision of the Apex Court in (2003) 6 SCC 641 in
\nthe case of State through Special Cell, New Delhi vs. Navjot Sandhu.<\/a>\n<\/p>\n
6.2\tThe
\nlearned counsel for the plaintiff [respondent No.1 herein] has also
\nreferred to various decisions of the Apex Court in the context of
\nSection 52 of the Transfer of Property Act, 1883 and reliance is
\nplaced on the decision of the Apex Court in the case of  Sarvinder
\nSingh vs. Dalip Singh,<\/a> reported in (1996) 5 SCC 539 in support of her
\nsubmission that the defendants in the suit were prohibited by
\noperation of Section 52 to deal with the property and could not
\ntransfer or otherwise deal with it in any manner affecting the right
\nof the plaintiff except with the order and authority of the Court.
\nThe learned counsel has placed reliance on the decision of the Apex
\nCourt in the case of Guruswamy Nadar vs. P. Lakshmi Ammal,<\/a> reported
\nin (2008) 5 SCC 796 and submitted that the principle of lis pendens
\nis based on public policy so as to discourage that, for the same
\nsubject matter of the property, if subjected to sale to a third
\nperson, such transaction has to be checked otherwise the litigation
\nwill not come to an end. The above principle was earlier propounded
\nby the Apex Court in (2004) 1 SCC 191,  Bibi Zubaida Khatoon vs. Nabi
\nHassan Sabeb.  For<\/a> grant of an interim injunction under Order 39
\nRules 1 and 2, relying on the decision of the Apex Court in the case
\nof Gujarat Bottling Co. Ltd vs. Coca Cola Co. and others<\/a>, reported in
\n(1995) 5 SCC 545, it is submitted that grant of interlocutory
\ninjunction is based on the exercise of sound judicial  discretion
\nbased on prima-facie case, balance of convenience, irreparable loss,
\nwhich cannot be compensated in terms of money, undue hardship, etc.
\netc. and the party seeking the court s interference with an order
\nof injunction must be fair. It is further submitted that, when the
\nconduct of the appellant is not bona-fide, and the relief granted by
\nthe trial court  in favour the plaintiff being wholly equitable in
\nnature, the appellate court may refuse to interfere.\n<\/p>\n
7.\tIn
\nrejoinder, Mr. P.C. Kavina, learned Senior Counsel for the appellant,
\nhas reiterated his submissions with regard to applicability of
\nSection 52 of the Transfer of Property Act and submitted that the
\nappellant-defendant is a bona fide purchaser for value of money and
\nis ready and agreeable that any further alienation of the suit
\nproperty will be subject to the final outcome of the suit, which is
\nopposed by the learned counsel for the plaintiff on the ground that
\nthe same will result into multiplicity of proceedings and unending
\nlitigation. Mr. P.C. Kavina, learned Senior Counsel for the
\nappellant, has vehemently denied the submissions made by the learned
\ncounsel for the plaintiff that the two suits do have bearing on the
\ncriminal case and other submissions regarding irregularity or
\nillegality.\n<\/p>\n
7.1\tLearned
\ncounsels for the original defendants have vehemently denied the
\nallegations levelled by the learned counsel for the plaintiff and
\ntermed the same as baseless and devoid of merit.\n<\/p>\n
8.\tHeard
\nthe learned counsels for the parties and perused the record.\n<\/p>\n
9.\tFrom
\nthe record, it appears that the first suit was filed on 14.3.2007
\nbasically for recovery of Rs.4,37,18,447\/- with the following prayers
\nin paragraph 27 [page 453 of the compilation]:\n<\/p>\n
 [A]\tThis
\nHon’ble Court may kindly be pleased to declare that the suit property
\ncommonly known as Natraj Land at Changispur alias Mithakali, in the
\nRegistration District and Sub-District of Ahmedabad-3 (Memnagar-
\nbearing Final Plot No.485-paiki of Ellisbridge Town Planning Scheme
\nNo.3 admeasuring 5082 sq.yards or thereabout an asset and property of
\nthe firm of M\/s. Florence Construction;\n<\/p>\n
[A-1]\tThis
\nHon’ble Court may kindly be pleased to declare null and void thus set
\naside the two sale deed executed on dated 11.5.2006,one in favour of
\nPure Infrastructure, defendant No.2 herein, and second in favour of
\nM\/s. Parikh Real Estate & Leasing [Pvt] Ltd in relation to suit
\nproperty commonly known as Natraj Land situated at  Changispur alias
\nMithakali, in the Registration District and Sub-District of
\nAhmedabad-3 (Memnagar- bearing Final Plot No.485-paiki of Ellisbridge
\nTown Planning Scheme No.3 admeasuring 5082 sq.yards or thereabout
\nwhich is executed by sellers of Natraj Cinema named in the two sale
\ndeeds annexed with the plaint;\n<\/p>\n
[B]\tThis
\nHon’ble Court may kindly be pleased to declare that the defendants
\nNos. 2 and 3 have no right, title or interest in the property being
\nNatraj Land situated at  Changispur alias Mithakali, in the
\nRegistration District and Sub-District of Ahmedabad-3 (Memnagar-
\nbearing Final Plot No.485-paiki of Ellisbridge Town Planning Scheme
\nNo.3 admeasuring 5082 sq.yards  and the defendants Nos. 2 and 3 be
\ndirected by mandatory injunction to convey the said property to the
\nfirm of M\/s. Florence Construction and\/or in the joint names of the
\nplaintiff and defendant No.1′<\/p>\n
[C]
\nThis Hon’ble Court may kindly be pleased to dissolve the partnership
\nfirm of M\/s. Florence Constructing with effect from the date of suit.\n<\/p>\n
[D]
\nThis Hon’ble Court may kindly be pleased to direct the defendant No.1
\nto give complete accounts of the profits and assets, including the
\nproperty known as Natraj Cinema property, of the firm of M\/s.
\nFlorence Construction and to direct the defendant No.1 to pay to the
\nplaintiff his share in the profits and assets of the firm on taking
\nsuch accounts together with interest @ 18% per annum till date of
\npayment;\n<\/p>\n
[E]
\nThis Hon’ble Court may kindly be pleased to pass a decree for the sum
\nof Rs.4,37,18,447\/- with interest at the rate of 18% per annum
\nagainst the defendant No.1 as partner of the firm and direct him to
\npay the said sum to the firm of M\/s. Florence Construction;\n<\/p>\n
[F]
\nThis Hon’ble Court may kindly be pleased to grant any other and
\nfurther relief as may be deemed just and fair in the circumstances of
\nthe case.\n<\/p>\n
9.1\tThe
\namended plaint, as per the order dated 13.4.2010 below application
\nExh.137, refers to the suit for recovery of Rs.12,83,69,745, with the
\nfollowing prayers [page 505 of the compilation]:\n<\/p>\n
 [A]\tThis
\nHon’ble Court may kindly be pleased to declare that the suit property
\ncommonly known as Natraj Land at Changispur alias Mithakali, in the
\nRegistration District and Sub-District of Ahmedabad-3 (Memnagar-
\nbearing Final Plot No.485-paiki of Ellisbridge Town Planning Scheme
\nNo.3 admeasuring 5082 sq.yards or thereabout an asset and property of
\nthe firm of M\/s. Florence Construction;\n<\/p>\n
[A-1]\tThis
\nHon’ble Court may kindly be pleased to declare null and void thus set
\naside the two sale deed executed on dated 11.5.2006,one in favour of
\nPure Infrastructure, defendant No.2 herein, and second in favour of
\nM\/s. Parikh Real Estate & Leasing [Pvt] Ltd in relation to suit
\nproperty commonly known as Natraj Land situated at  Changispur alias
\nMithakali, in the Registration District and Sub-District of
\nAhmedabad-3 (Memnagar- bearing Final Plot No.485-paiki of Ellisbridge
\nTown Planning Scheme No.3 admeasuring 5082 sq.yards or thereabout
\nwhich is executed by sellers of Natraj Cinema named in the two sale
\ndeeds annexed with the plaint;\n<\/p>\n
[B]\tThis
\nHon’ble Court may kindly be pleased to declare that the defendants
\nNos. 2 and 3 have no right, title or interest in the property being
\nNatraj Land situated at  Changispur alias Mithakali, in the
\nRegistration District and Sub-District of Ahmedabad-3 (Memnagar-
\nbearing Final Plot No.485-paiki of Ellisbridge Town Planning Scheme
\nNo.3 admeasuring 5082 sq.yards  and the defendants Nos. 2 and 3 be
\ndirected by mandatory injunction to convey the said property to the
\nfirm of M\/s. Florence Construction and\/or in the joint names of the
\nplaintiff and defendant No.1.\n<\/p>\n
[C-1]
\nThis Hon’ble Court may kindly be pleased to declare that defendant
\nNo.5 has not acquired any legal right, title or interest in the said
\nhalf of property pursuant to sale deed dated 27.3.2008 and subsequent
\nsale deed of second half of the property vide registered sale deed
\ndated 10.4.2008 commonly known as  Natraj Land situated at
\nChangispur alias Mithakali, in the Registration District and
\nSub-District of Ahmedabad-3 (Memnagar- bearing Final Plot
\nNo.485-paiki of Ellisbridge Town Planning Scheme No.3 admeasuring
\n5082 sq.yards and thus defendant No.5 be kindly directed to convey
\nthe said half property each admeasuring 2541 sq.yards to the firm
\nnamed M\/s. Florence Construction.\n<\/p>\n
[C-2]
\nThis Hon’ble Court may kindly be pleased to quash and set aside
\ndeclaring null and void the sale deeds dated 276.3.2008 registered on
\ndated 27.3.2008 and subsequent sale deed of second half of the
\nproperty vide registered sale deed dated 10.4.2008 bearing Sr.
\nNo.6116, both in favour of M\/s. Keval Developer Private Limited,
\ndefendant No.5 in relation to the property commonly known as  Natraj
\nLand situated at  Changispur alias Mithakali, in the Registration
\nDistrict and Sub-District of Ahmedabad-3 (Memnagar- bearing Final
\nPlot No.485-paiki of Ellisbridge Town Planning Scheme No.3
\nadmeasuring 5082 sq.yards, they are not binding on the plaintiff.\n<\/p>\n
[C-3]
\nThis Hon’ble Court may kindly be pleased to restrain the defendants
\nmore particularly defendant No.5 by granting appropriate prohibitory
\ninjunction restraining him from alienating, transferring, mortgaging,
\nselling, developing, or otherwise dealing with suit property in any
\nmanner whatsoever, i.e.  property commonly known as  Natraj Land
\nsituated at  Changispur alias Mithakali, in the Registration District
\nand Sub-District of Ahmedabad-3 (Memnagar- bearing Final Plot
\nNo.485-paiki of Ellisbridge Town Planning Scheme No.3 admeasuring
\n5082 sq.yards, or thereabout which is bounded as under:\n<\/p>\n
North
\nby: Final Plot no.484 [building of Chamber of Commerce]<\/p>\n
South
\nby: T.P. Land<\/p>\n
East
\nby :Final Plot no.485 part Ashram Road<\/p>\n
West
\nby: Final Plot no.481, 482, 483.\n<\/p>\n
[C]
\nThis Hon’ble Court may kindly be pleased to dissolve the partnership
\nfirm of M\/s. Florence Constructing with effect from the date of suit.\n<\/p>\n
[D]
\nThis Hon’ble Court may kindly be pleased to direct the defendant No.1
\nto give complete accounts of the profits and assets, including the
\nproperty known as Natraj Cinema property, of the firm of M\/s.
\nFlorence Construction and to direct the defendant No.1 to pay to the
\nplaintiff his share in the profits and assets of the firm on taking
\nsuch accounts together with interest @ 18% per annum till date of
\npayment;\n<\/p>\n
[E]
\nThis Hon’ble Court may kindly be pleased to pass a decree for the sum
\nof Rs.821.71 lacs with interest at the rate of 18% per annum
\ncalculated from May 10, 2005 till the date of realization against the
\ndefendant No.1 to 8 payable to Florence Construction Partnership Firm
\nas damages for fraud conspired by them recoverable out of sale
\nproceeds of the suit property of partnership firm known as Natraj
\ncinema land, and kindly be pleased to declare that all defendants are
\njointly and severally liable to satisfy said claim as stated herein.\n<\/p>\n
[E-1]
\nThis Hon’ble Court may kindly be pleased to declare that both the
\nparters i.e. plaintiff and defendant No.1 are entitled to receive
\ntheir share in profits of the firm   in proportion to their
\ncontribution given towards partnership firm Florence Construction
\nas may be established before this Hon’ble Court, recoverable out of
\nsale proceeds of Partnership Property Natraj cinema and other
\nproperties owned by defendants.\n<\/p>\n
[F]
\nThis Hon’ble Court may kindly be pleased to grant any other and
\nfurther relief as may be deemed just and fair in the circumstances of
\nthe case.\n<\/p>\n
9.2\tSo
\nfar as Civil Suit No.1448 of 2009 is concerned, the same is stayed by
\nthe trial court and there is no challenge thereafter. Therefore,
\nthere is no necessity to refer to the said suit.\n<\/p>\n
10.\tThere
\nis no dispute about applicability of doctrine of Section 52 of the
\nTransfer of Property Act to the proceeding in question. Section 52
\nreads as under:\n<\/p>\n
 Transfer
\nof property pending suit relating thereto:-\n<\/p>\n
During
\nthe pendency in any Court having authority within the limits of India
\nexcluding the State of Jammu and Kashmir or established beyond such
\nlimits by the Central Government of any suit or proceedings which is
\nnot collusive and in which any right to immoveable property is
\ndirectly and specifically in question,  the property cannot be
\ntransferred or otherwise dealt with by any party to the suit or
\nproceeding so as to affect the rights of any other party thereto
\nunder any decree or  order which may be made therein, except under
\nthe authority of the Court and on such terms as it may impose.\n<\/p>\n
10.1\tThe
\nabove provision is interpreted by the Apex Court in the case of
\nSanjay Verma [supra] wherein the issue of transfer pendente lite
\nwithout leave of the Court fell into consideration of the Apex Court
\nin the context of rejection of an application of the third party to
\nseek impleadment in the pending suit. In the above decision, the Apex
\nCourt has considered various case-laws including Bibi Zubaida Khatoon
\nvs. Nabi Hassan Sabhe,<\/a> (2004) 1 SCC 191, Sarvinder Singh v. Dalip
\nSingh,<\/a> (1996) 5 SCC 539, Dhurandhar Prasad Singh vs. Jai Prakash
\nUniversity,<\/a> (2001) 6 SCC 534 and, in paragraph 12, held as under:\n<\/p>\n
 The
\nprinciples specified in Section 52 of the TP Act are in accordance
\nwith equity, good conscience or justice because they rest upon an
\nequitable and just foundation that it will be impossible to bring an
\naction or suit to a successful termination if alienations are
\npermitted to prevail. A transferee pendente lite is bound by the
\ndecree just as much as he was a party to the suit. The principle of
\nlis pendens  embodied in Section 52 of the TP Act being a principle
\nof public policy, no question of good faith or bona fide arises. The
\nprinciple underlying Section 52 is that a litigating party is
\nexempted from taking notice of a title acquired during the pendency
\nof the litigation. The mere pendency of a suit does not prevent one
\nof the parties from dealing with the property constituting the
\nsubject-matter of the suit. The section only postulates a condition
\nthat the alienation will in no manner affect the rights of the other
\nparty under any decree which may be passed in the suit unless the
\nproperty was alienated with the permission of the court.\n<\/p>\n
The
\nApex Court has extensively referred to the principles underlying
\nSection 52 and held that a  transferee pendente lite is bound by the
\ndecree just as much as he was a party to the suit and the principle
\nof lis pendens  embodied in Section 52 of the TP Act being a
\nprinciple of public policy, good faith or bona fide of the purchaser
\nor transferee is subservient to the principle of public policy. It is
\nfurther held that one of principles underlying Section 52 is that a
\nlitigating party is exempted from taking notice of a title acquired
\nduring the pendency of the litigation and the mere pendency of a suit
\ndoes not prevent one of the parties from dealing with the property
\nconstituting the subject-matter of the suit. However, in the case of
\na property being alienated with the permission of the Court, the same
\nshall be subservient to the decree that may be passed.\n<\/p>\n
11\tThis
\nCourt is in respectful agreement with the proposition of law laid
\ndown by the Apex Court on the doctrines of lis pendens embodied in
\nSection 52 of the Transfer of Property Act in various decisions and,
\nconsidering the facts and circumstances of the case, the decisions
\nquoted in the foregoing paragraphs are suffice to mention.\n<\/p>\n
11.1\tThe
\ndecisions relied upon by the learned counsel for the plaintiff
\n[respondent No.1] with regard to exercise of powers under Article 227
\nof the Constitution of India will strictly be not applicable to the
\nfacts of the present appeal.\n<\/p>\n
12\tKeeping
\nin mind the above principles underlying Section 52 of the Transfer of
\nProperty Act, admittedly, the property in question, namely, Natraj
\ncinema, came to be transferred as per the sale deeds dated 27.3.2008
\nand 10.4.2008.  It is also true that two earlier sale deeds dated
\n11.5.2006, the origin of the above two sale deeds dated 27.3.2008 and
\n10.4.2008, were under challenge in Civil Suit No.545 of 2007, which
\nwas instituted on 14.3.2007, whereas, the notice of lis pendens under
\nsection 52 was issued on 26.4.2007. No doubt, this Court in the order
\npassed in Appeal From Order No. 3 of 2008 and the Apex Court in
\nSpecial Leave to Appeal (Civil) No.9411-9412 of 2008 preferred
\nagainst the above order, had noticed the above facts. So far as
\nAppeal From Order No. 3 of 2008 is concerned, in the order dated
\n27.3.2008, this Court [Coram: D.N. Patel, J. as His Lordship then
\nwas] had given tentative findings\/observations for not believing the
\nprima-facie case of the plaintiff.  The above findings for deciding
\nthe issue involved in the present Appeal From Order may have some
\nbearing but in view of the subsequent development, which took place
\nin Appeal From Order No. 70 of 2010 and the permission granted by
\nthis Court to amend the plaint and to move an interim injunction
\napplication and the same is to be considered accordingly. The finding
\nof the learned trial judge is based basically on three issues,
\nnamely;\n<\/p>\n
[i]\tplea
\nof lis pendens on the basis of Section 52 of the Transfer of Property
\nAct and consequent thereto;\n<\/p>\n
[ii]\tthe
\nknowledge of the plaintiff about execution of the second sale deed,
\nentries in the revenue record, etc. and the correspondence between
\nthe plaintiff and the Ahmedabad Municipal Corporation;\n<\/p>\n
[iii]\tthe
\nreport of the Chartered Accountant and prima-facie finding in the
\nsaid report based on the record submitted by the plaintiff.\n<\/p>\n
12.1\tSince
\nthe suit is pending before the trial court and the written statement
\nis filed by the defendants, any detailed analysis or discussion of
\nthe material on record may have bearing on further proceedings of the
\nsuit. Hence, such exercise is not undertaken in this appeal and it is
\nrestricted to examining legality and validity of the order impugned
\nonly.\n<\/p>\n
13.\tIn
\nview of the prayers quoted hereinabove in Civil Suit No.545 of 2007
\nand the amended plaint, it was a suit for recovery of money as well
\nas for declaration and injunction. No doubt, if the plaintiff
\nsucceeds in his case before the trial court, a decree can be passed
\nin his favour and the plaintiff can be compensated in terms of money
\nas claimed. The defendant-appellant herein had knowledge about
\npendency of the proceeding  and the litigation between the parties.
\nIt is further not in dispute that the competent authority of the
\nAhmedabad Municipal Corporation granted permission to construct
\nbuilding on the suit property subject to certain conditions laid down
\nin the letter of authority [raja-chitti] dated 26.4.2010.  Therefore,
\naccording to this Court, pending the suit, any further alienation of
\nthe suit property may result into multiplicity of proceedings and the
\nfact still remains that in Appeal From Order No. 3 of 2008, the
\nlearned Single Judge had given a specific direction to the trial
\ncourt to finally hear and dispose of the suit as expeditiously as
\npossible preferably on or before 31.1.2009. However, in view of the
\nsubsequent development and the order passed in Appeal From Order No.
\n70 of 2010, the plaint was amended and the injunction as prayed for
\nbelow application Exh.137 is granted in favour of the plaintiff.\n<\/p>\n
14.\tConsidering
\nthe above, if the present case is viewed in light of the prima-facie
\ncase, balance of convenience, irreparable loss and undue hardship,
\nincluding equity and good conscience, the interest of justice will be
\nserved by directing the trial court to finally hear and decide the
\nsuit as expeditiously as possible preferably on or before 31.12.2010.
\nHowever, pending hearing and final disposal of the suit, it will be
\nopen for the appellant-defendant to continue the construction on the
\nsuit land as per the permission granted by  the competent authority
\nof the Ahmedabad Municipal Corporation by the order dated 26.4.2010,
\nbut the appellant-defendant is restrained from alienating or
\ntransferring the suit property in any manner in favour of a third
\nparty.\n<\/p>\n
15.\tIn
\nthe result, the Appeal From Order is partly allowed. The impugned
\norder of the trial court stands modified to the aforesaid extent.
\nCivil Application stands disposed of. There shall be no order as to
\ncosts. It is made clear that the observations and findings made in
\nthis order are of tentative in nature and shall have no bearing on
\nthe further proceedings of the suit pending before the trial court.\n<\/p>\n
(ANANT
\nS. DAVE, J.)<\/p>\n
(swamy)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Mr vs Manik Roy And Others on 2 August, 2010 Author: Anant S. Dave,&Nbsp; Gujarat High Court Case Information System Print AO\/118\/2010 30\/ 30 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD APPEAL FROM ORDER No. 118 of 2010 With CIVIL APPLICATION No. 4790 of 2010 ====================================== KEVAL DEVELOPERS PRIVATE LTD […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-126601","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nMr vs Manik Roy And Others on 2 August, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mr-vs-manik-roy-and-others-on-2-august-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mr vs Manik Roy And Others on 2 August, 2010 - 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