{"id":64514,"date":"2009-01-13T00:00:00","date_gmt":"2009-01-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/royal-palms-india-pvt-ltd-and-vs-bharat-shantilal-shah-and-anr-on-13-january-2009"},"modified":"2016-04-15T13:58:20","modified_gmt":"2016-04-15T08:28:20","slug":"royal-palms-india-pvt-ltd-and-vs-bharat-shantilal-shah-and-anr-on-13-january-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/royal-palms-india-pvt-ltd-and-vs-bharat-shantilal-shah-and-anr-on-13-january-2009","title":{"rendered":"Royal Palms (India) Pvt.Ltd. And … vs Bharat Shantilal Shah And Anr on 13 January, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Royal Palms (India) Pvt.Ltd. And … vs Bharat Shantilal Shah And Anr on 13 January, 2009<\/div>\n
Bench: D.K. Deshmukh, A.A. Sayed<\/div>\n
                                                       =1=\n\n\n\n                 IN      THE          HIGH        COURT         OF       JUDICATURE          AT       BOMBAY\n\n                       ORDINARY                     ORIGINAL                CIVIL                JURISDICTION\n\n                                      APPEAL                    NO.113                  OF                  2008\n\n\n\n\n                                                                                              \n                                                         IN\n\n\n\n\n                                                                      \n                             NOTICE            OF            MOTION           NO.1538           OF          2007\n\n                                                         IN\n\n                                       SUIT                    NO.1186                  OF                  2007\n\n\n\n\n                                                                     \n    Royal Palms (India) Pvt.Ltd. and ors.                                            ...Appellants\n\n                       v\/s\n\n\n\n\n                                                     \n    Bharat Shantilal Shah and anr.          ...Respondents<\/pre>\n
                                 ig                    WITH\n                               \n                                      APPEAL NO.114 OF 2008\n\n                                                         IN\n\n<\/pre>\n
                             NOTICE OF MOTION NO.1974 OF 2007<\/p>\n
                                                         IN<\/p>\n
                                       SUIT NO.1316 OF 2007<\/p>\n
    Royal Palms (India) Pvt.Ltd. and ors.                                            …Appellants<\/p>\n
                       v\/s<\/p>\n
    Solo Real Estate Pvt.Ltd.           …Respondents<\/p>\n
                                                       WITH<\/p>\n
                                      APPEAL NO.115 OF 2008<\/p>\n
                                                         IN<\/p>\n
                             NOTICE OF MOTION NO.1973 OF 2007<\/p>\n
                                                                      ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                     =2=<\/p>\n
                                                         IN<\/p>\n
                                      SUIT NO.1314 OF 2007<\/p>\n
    Royal Palms (India) Pvt.Ltd. and ors.                                    …Appellants<\/p>\n
                       v\/s<\/p>\n
    Bina Bharat Shah and ors.           …Respondents<\/p>\n
                                                    WITH<\/p>\n
                                    APPEAL NO.116 OF 2008<\/p>\n
                                                         IN<\/p>\n
                             NOTICE OF MOTION NO.1977 OF 2007
\n                                 ig                      IN<\/p>\n
                                      SUIT NO.1317 OF 2007<\/p>\n
    Royal Palms (India) Pvt.Ltd. and ors.                                    …Appellants<\/p>\n
                       v\/s<\/p>\n
    Rashesh B. Shah and anr.            …Respondents<\/p>\n
                                                    WITH<\/p>\n
                                    APPEAL NO.117 OF 2008<\/p>\n
                                                         IN<\/p>\n
                             NOTICE OF MOTION NO.1976 OF 2007<\/p>\n
                                                         IN<\/p>\n
                                      SUIT NO.1318 OF 2007<\/p>\n
    Royal Palms (India) Pvt.Ltd. and ors.                                    …Appellants<\/p>\n
                       v\/s<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                        =3=<\/p>\n
    Rajiv B. Shah                                                            …Respondent<\/p>\n
                                                       WITH<\/p>\n
                                     APPEAL NO.118 OF 2008<\/p>\n
                                                         IN<\/p>\n
                             NOTICE OF MOTION NO.1982 OF 2007<\/p>\n
                                                         IN<\/p>\n
                                      SUIT NO.1689 OF 2007<\/p>\n
    Royal Palms (India) Pvt.Ltd. and ors.                                    …Appellants<\/p>\n
                       v\/s<\/p>\n
    Reshma R. Mehta and anr.\n<\/p>\n
                                 ig         ...Respondents\n                               \n                                                       WITH\n\n                                     APPEAL NO.119 OF 2008\n\n                                                         IN\n      \n\n\n<\/pre>\n
                             NOTICE OF MOTION NO.1980 OF 2007<\/p>\n
                                                         IN<\/p>\n
                                      SUIT NO.1740 OF 2007<\/p>\n
    Royal Palms (India) Pvt.Ltd. and ors.                                    …Appellants<\/p>\n
                       v\/s<\/p>\n
    Jothawat Construction Pvt.Ltd.          …Respondents<\/p>\n
                                                       WITH<\/p>\n
                                     APPEAL NO.120 OF 2008<\/p>\n
                                                         IN<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                     =4=<\/p>\n
                             NOTICE OF MOTION NO.1979 OF 2007<\/p>\n
                                                      IN<\/p>\n
                                      SUIT NO.1741 OF 2007<\/p>\n
    Royal Palms (India) Pvt.Ltd. and ors.                                     …Appellants<\/p>\n
                       v\/s<\/p>\n
    Reshma Rashesh Diamonds Pvt.Ltd.          …Respondents<\/p>\n
                                                    WITH<\/p>\n
                                    APPEAL NO.121 OF 2008<\/p>\n
                                                      IN<\/p>\n
                             NOTICE OF MOTION NO.1981 OF 2007<\/p>\n
                                                      IN<\/p>\n
                                      SUIT NO.1724 OF 2007<\/p>\n
    Royal Palms (India) Pvt.Ltd. and ors.                                     …Appellants<\/p>\n
                       v\/s<\/p>\n
    Vishal Rajeev Diamonds Pvt.Ltd.         …Respondents<\/p>\n
                                                    WITH<\/p>\n
                                    APPEAL NO.122 OF 2008<\/p>\n
                                                      IN<\/p>\n
                             NOTICE OF MOTION NO.2123 OF 2007<\/p>\n
                                                      IN<\/p>\n
                                      SUIT NO.1725 OF 2007<\/p>\n
    Royal Palms (India) Pvt.Ltd. and ors.                                     …Appellants<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                     =5=<\/p>\n
                       v\/s<\/p>\n
    Banyan Properties Pvt.Ltd.          …Respondents<\/p>\n
                                                    WITH<\/p>\n
                                    APPEAL NO.123 OF 2008<\/p>\n
                                                         IN<\/p>\n
                             NOTICE OF MOTION NO.1553 OF 2007<\/p>\n
                                                         IN<\/p>\n
                                      SUIT NO.1194 OF 2007<\/p>\n
    Royal Palms (India) Pvt.Ltd. and ors.                                    …Appellants<\/p>\n
    Anoop Vrajlal Mehta
\n                       v\/s
\n                                  ig                                         …Respondent<\/p>\n
                                                    WITH<\/p>\n
                                    APPEAL NO.124 OF 2008<\/p>\n
                                                         IN<\/p>\n
                             NOTICE OF MOTION NO.1978 OF 2007<\/p>\n
                                                         IN<\/p>\n
                                      SUIT NO.1259 OF 2007<\/p>\n
    Royal Palms (India) Pvt.Ltd. and ors.                                    …Appellants<\/p>\n
                       v\/s<\/p>\n
    Devaunshi Anoop Mehta                                                    …Respondent<\/p>\n
                                                    WITH<\/p>\n
                                    APPEAL NO.125 OF 2008<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                   =6=<\/p>\n
                                                   IN<\/p>\n
                             NOTICE OF MOTION NO.1975 OF 2007<\/p>\n
                                                   IN<\/p>\n
                                      SUIT NO.1258 OF 2007<\/p>\n
    Royal Palms (INdia) Pvt.Ltd. and ors.                                   …Appellants<\/p>\n
                       v\/s<\/p>\n
    Dia Anoop Mehta                                                         …Respondent<\/p>\n
                                                  WITH<\/p>\n
                                    APPEAL NO.126 OF 2008
\n                                 ig                IN<\/p>\n
                             NOTICE OF MOTION NO.2124 OF 2007<\/p>\n
                                                   IN<\/p>\n
                                      SUIT NO.1199 OF 2007<\/p>\n
    Royal Palms (India) Pvt.Ltd. and ors.                                   …Appellants<\/p>\n
                       v\/s<\/p>\n
    Master Mohit Anoop Mehta                                                …Respondent<\/p>\n
                                                  WITH<\/p>\n
                                    APPEAL NO.127 OF 2008<\/p>\n
                                                   IN<\/p>\n
                             NOTICE OF MOTION NO.2125 OF 2007<\/p>\n
                                                   IN<\/p>\n
                                      SUIT NO.1269 OF 2007<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                        =7=<\/p>\n
    Royal Palms (India) Pvt.Ltd. and ors.                                    …Appellants<\/p>\n
                       v\/s<\/p>\n
    Anoop Vrajlal Mehta                                                      …Respondent<\/p>\n
                                                       WITH<\/p>\n
                                    APPEAL NO.128 OF 2008<\/p>\n
                                                         IN<\/p>\n
                             NOTICE OF MOTION NO.2126 OF 2007<\/p>\n
                                                         IN<\/p>\n
                                      SUIT NO.1638 OF 2007<\/p>\n
                       v\/s<\/p>\n
    Royal Palms (INdia) Pvt.Ltd. and ors.                                    …Appellants<\/p>\n
    Desai Trade Credits Pvt.Ltd.            …Respondents<\/p>\n
                                                       WITH<\/p>\n
                                    APPEAL NO.129 OF 2008<\/p>\n
                                                         IN<\/p>\n
                             NOTICE OF MOTION NO.2128 OF 2007<\/p>\n
                                                         IN<\/p>\n
                                      SUIT NO.1637 OF 2007<\/p>\n
    Royal Palms (India) Pvt.Ltd. and ors.                                    …Appellants<\/p>\n
                       v\/s<\/p>\n
    Desai Home Finance Pvt.Ltd.              …Respondents<\/p>\n
                                                       WITH<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                        =8=<\/p>\n
                                      APPEAL NO.130 OF 2008<\/p>\n
                                                         IN<\/p>\n
                             NOTICE OF MOTION NO.2127 OF 2007<\/p>\n
                                                         IN<\/p>\n
                                       SUIT NO.1688 OF 2007<\/p>\n
    Royal Palms (India) Pvt.Ltd. and ors.                                     …Appellants<\/p>\n
                       v\/s<\/p>\n
    Desai Equipment Finance Pvt.Ltd.          …Respondents<\/p>\n
                                                       WITH
\n                                 ig   APPEAL NO.131 OF 2008<\/p>\n
                                                         IN<\/p>\n
                             NOTICE OF MOTION NO.2842 OF 2007<\/p>\n
                                                         IN<\/p>\n
                                       SUIT NO.1268 OF 2007<\/p>\n
    Royal Palms (India) Pvt.Ltd. and ors.                                     …Appellants<\/p>\n
                       v\/s<\/p>\n
    Desai Built-in Finance Pvt.Ltd.         …Respondents<\/p>\n
                                                       WITH<\/p>\n
                                      APPEAL NO.132 OF 2008<\/p>\n
                                                         IN<\/p>\n
                             NOTICE OF MOTION NO.2843 OF 2007<\/p>\n
                                                         IN<\/p>\n
                                       SUIT NO.1267 OF 2007<\/p>\n
                                                               ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                                    =9=<\/p>\n
    Royal Palms (India) Pvt.Ltd. and ors.                                                                      …Appellants<\/p>\n
                           v\/s<\/p>\n
    Desai Auto Credits Pvt.Ltd.                   …Respondents<\/p>\n
    Mr          I.M.                    Chagla,          Sr.Counsel          with           Mr       F.                  D’Vitre,            Sr.<\/p>\n
    Counsel,               Mr       Naval         Agarwal,              Mr       Pesi          Modi        with         Ms               Dimple<\/p>\n
    Shah and Mr Firdaus i\/b M\/s Mulla and Mulla and Craigie<\/p>\n
    Blunt and Caroe for Appellants.\n<\/p>\n
    Mr Vaibhav Krishna i\/b M\/s Juris Consillis for<\/p>\n
    Respondents in Appeal No.113 of 2008.\n<\/p>\n
    Mr              Aspi         Chinoy,\n                                        ig       Sr.\n\n<\/pre>\n
    Ms Laxmi Modekar for Respondent in Appeal No.125 of
\n                                                                   Counsel            i\/b        Mr        Vaibhav             Krishna      and<\/p>\n
    2008.\n<\/p>\n
    CORAM : D.K. DESHMUKH AND A.A. SAYED JJ.\n<\/p>\n
    DATE : 13TH JANUARY 2009<\/p>\n
    ORAL JUDGMENT (PER D.K. DESHMUKH J.) :-\n<\/p>\n
    1.                                     These appeals are preferred against the common<\/p>\n
    order            dated              30th                  October        2007           passed        by             the             learned<\/p>\n
    Single             Judge                of          this      Court          in          notices       of          motion             taken<\/p>\n
    out        in          different           suits.                    Since              these         appeals            are         against<\/p>\n
    the         common                 order             as         the       questions             of          fact            and         law<\/p>\n
    involved are substantially the same, these appeals can<\/p>\n
    be conveniently disposed off by a common order.\n<\/p>\n
                                                                                        ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span><\/p>\n
                                                                                    =10=<\/p>\n
    2.                                              For convenience, in this order, we will be<\/p>\n
    referring                     to              the                 parties               by            their            nomenclatures                           as         Shah<\/p>\n
    Group         and            Mehta                 Group.                          These              appeals             have              been                filed        by<\/p>\n
    the         defendants                   in             civil                suits,             the             defendants                      in               all        the<\/p>\n
    suits               are           the          same.                         The             suits,           20          in            number,                are        filed<\/p>\n
    for           specific                    performance                            of                each                   of                the                      agreement<\/p>\n
    entered              into                     by                    the                 respective                      plaintiffs                         and              the<\/p>\n
    defendants                        and           for               other             ancillary             reliefs.                         It             is                the<\/p>\n
    claim                of            the              plaintiffs               that             they            are             in          possession                         of<\/p>\n
    the             suit                     property                  and             an         order           for             protection                  of               that<\/p>\n
    possession<\/p>\n
    suits          belong
\n                                 is<\/p>\n
                                             to
\n                                                    also<\/p>\n
                                                         the            Shah
\n                                                                               sought.\n<\/p>\n
                                                                                       Group            and\n                                                                                                           The           plaintiffs\n\n                                                                                                                       Mehta                   Group.\n                                                                                                                                                              in              these\n\n                                                                                                                                                                               The\n                                            \n    defendant                  No.1                         is           owner              of          the            land            admeasuring                            about\n\n    240         acres          at            Andheri,                   Mumbai.                           The            defendants                      in             all     the\n\n    suits                are            common.                                The           property               falls              in            no            development\n      \n\n\n    zone                 wherein                             only                certain               restricted             \/              controlled                        and\n   \n\n\n\n    limited             development                              is              permissible                       under                     the                   Development\n\n<\/pre>\n
    Control              Regulations                         for                 Greater                            Mumbai                      1991.                          The<\/p>\n
    defendants                    entered                             into        an             agreement               in            the            year                    1993<\/p>\n
    with                   the              plaintiffs                   for              conveying                 plot               admeasuring                              2.5<\/p>\n
    acres               each.                       Thus,                20            plots           admeasuring                     2.5           acres                    each<\/p>\n
    are            the                      subject               matter             of          the          suits.                    In           these                    suits,<\/p>\n
    notices              of                   motion                          were           taken            out          for                      interim                   relief<\/p>\n
    restraining                the                  defendants                            from                 disturbing                           possession                   of<\/p>\n
    the                  plaintiffs                    of               the             suit              property                 as               also                restraining<\/p>\n
    them                 from                     creating                     third                      party               rights                  and                      also<\/p>\n
                                                                                                            ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                                                   =11=<\/p>\n
    restraining            them                  from                carrying                 out             any                 construction.                             In<\/p>\n
    those           notices                       of                 motion,               ad-interim                       order                    was                made<\/p>\n
    granting              status-quo                         in                 favour                            of                   the                          plaintiffs.\n<\/p>\n
    Thereafter,            all              the               notices                 of               motion                were                  finally              heard<\/p>\n
    and            by                  order            dated              30th            October           2007,               all                 notices                of<\/p>\n
    motion                 are             disposed               off             and          interim             relief               in           terms                  of<\/p>\n
    prayer                 clause                (b)            of             notices            of          motion                   has           been             granted<\/p>\n
    i.e.                         restraining                 the               defendants                 from              carrying               out                    any<\/p>\n
    construction              on                 the              suit               plots,               creating                    any             third              party<\/p>\n
    rights                on               the           suit             plots             and            also             restraining                them              from<\/p>\n
    making                     any                application                   to            the           authorities                     for                      sanction<\/p>\n
    of<\/p>\n
    the
\n                   any<\/p>\n
                   suit<\/p>\n
                                            building<\/p>\n
                                           plots.\n<\/p>\n
                                                                     plan<\/p>\n
                                                                     In
\n                                                                                     for<\/p>\n
                                                                                  these
\n                                                                                                  construction<\/p>\n
                                                                                                appeals,               interim
\n                                                                                                                                 of           buildings<\/p>\n
                                                                                                                                                     order
\n                                                                                                                                                                            on<\/p>\n
                                                                                                                                                                           has<\/p>\n
    been                  passed                        permitting                   the            appellants               –              defendants                      to<\/p>\n
    carry on construction on a part of the property subject<\/p>\n
    to certain conditions.\n<\/p>\n
    3.                                              Perusal of the order passed by the learned<\/p>\n
    Single                Judge                        which              is         impugned               in          these                appeals                   shows<\/p>\n
    that          one                 of               the                grounds                    raised                 by                 the                 defendants<\/p>\n
    opposing                  the                   notices               of         motion               was          that             the          suits                 are<\/p>\n
    barred           by                    the               law           of        limitation.                            According                         to           the<\/p>\n
    defendants,                  the                   agreements                       were                           terminated                        by                the<\/p>\n
    defendants                   by                    letter            dated           29th             January            2003,                       in               any<\/p>\n
    case,               the                      agreements                 were            terminated                 on                     17th                    January<\/p>\n
    2004                   and               therefore,                   suits            instituted              on                  18th           April              2007<\/p>\n
    have             not                     been               filed           within              the          period                       of                   limitation.\n<\/p>\n
                                                                                                          ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span><\/p>\n
                                                                            =12=<\/p>\n
    The            learned              Single                      Judge,                   though                           objection                        to           the<\/p>\n
    jurisdiction                of              the                Court             to           entertain                  the                   suits                   was<\/p>\n
    raised,             ignoring                   the                     provisions                   of             section                     9A(1)                     of<\/p>\n
    C.P.C.                      without               framing                       preliminary                          issue,                 has                  proceeded<\/p>\n
    to             make         the         interim            order.                       We               find             that          the                      procedure<\/p>\n
    adopted               by          the          learned                Single             Judge                  is             contrary               to                the<\/p>\n
    provisions of section 9A of C.P.C. Section 9A of C.P.C.\n<\/p>\n
    reads as under :-\n<\/p>\n
                          “9A.                      Where                       at                 the            hearing                    of                     application<\/p>\n
                          relating                       to               interim                      relief                        in               a                    suit,<\/p>\n
                          objection
\n                                       ig           to<\/p>\n
                          to be decided by the Court as a preliminary
\n                                                                         jurisdiction                       is                taken,                  such                issue<\/p>\n
                          issue –<\/p>\n
                          (1)               Notwithstanding                               anything                           contained                     in               this<\/p>\n
                          Code                or                   any         other             law             for          the         time            being              in<\/p>\n
                          force,                   if,              at          the              hearing                 of           any                           application<\/p>\n
                          for               granting                      or                 setting              aside              an                order                 of<\/p>\n
                          injunction,                    appointment                              of                     a                receiver                           or<\/p>\n
                          otherwise,                made                       in                granting                      an               interim                  relief,<\/p>\n
                          whether              by                   way               of                 stay,           in               any                  suit,         an<\/p>\n
                          objection                           to           the              jurisdiction                      of           the                 Court         to<\/p>\n
                          entertain                 such                    suit            is          taken                by      any                   of               the<\/p>\n
                          parties                   to              the             suit,              the             Court               shall                       proceed<\/p>\n
                          to                determine                          at                the                     hearing                      of                   such<\/p>\n
                          application                              the           issue                 as              to            the                            jurisdiction<\/p>\n
                                                                                                       ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                                                      =13=<\/p>\n
                           as                  a                     preliminary                          issue             before                  granting               or<\/p>\n
                           setting                          aside                    the              order            granting                 the                   interim<\/p>\n
                           relief.                                   Any                  such           application                 shall            be                heard<\/p>\n
                           and                        disposed                       of            by           the           Court              as           expeditiously<\/p>\n
                           as possible and shall not in any case be<\/p>\n
                           adjourned to the hearing of the suit.\n<\/p><\/blockquote>\n
                           (2)                      Notwithstanding                                     anything                                contained                  in<\/p>\n
                           sub-section                           (1),                        at          the          hearing              of          any               such<\/p>\n
                           application,                                   the                Court               may               grant               such           interim<\/p>\n
                           relief                          as             it               may              consider               necessary,                        pending<\/p>\n
                           determination by it of the preliminary issue<\/p>\n
                           as to the jurisdiction.”\n<\/p><\/blockquote>\n
    .                                                 Perusal of provisions of section 9A of C.P.C.\n<\/p>\n
    quoted            above                         makes                 it             clear          that          whenever                there          is            an<\/p>\n
    application             for                     grant                      of                           temporary                      injunction                      or<\/p>\n
    appointment                   of            Receiver                       is           sought              before             any              Court                 and<\/p>\n
    an          objection                 to                    the                      jurisdiction                  of               the                 Court          to<\/p>\n
    entertain              the                      suit             in             which               the          application                       for               such<\/p>\n
    interim       relief            has              been                 made                   by           any            of           the           parties,         then<\/p>\n
    it          becomes                the                      duty                of       the         Court          to         first               frame              the<\/p>\n
    preliminary        issue                   as               to              the               jurisdiction                of              the            Court         to<\/p>\n
    entertain                    the                suit              and                  decide               that              issue               and           thereafter<\/p>\n
    take             up                         for              consideration                        the            application                for                   interim<\/p>\n
    relief.            The                     scope                      and                    ambit          of                the               provisions             of<\/p>\n
    section          9A                   of          the            C.P.C.                       has          been          considered                      by           the<\/p>\n
                                                                                                               ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                                           =14=<\/p>\n
    Supreme            Court       in              its           judgment                    in          the           case              of                Tayabbhai<\/p>\n
    Bagasarwalla            and              anr.                              v\/s                          Hind                    Rubber                     Industries<\/p>\n
    Pvt.Ltd.,      reported       in               AIR                1997                  SC              1240               and               after           quoting<\/p>\n
    the provisions of section 9A of C.P.C., the Supreme<\/p>\n
    Court in paragraph 16 has observed thus :-\n<\/p>\n
                      “16.                           According to this section, if an<\/p>\n
                      objection               is                raised                  to               the             jurisdiction                    of          the<\/p>\n
                      Court                  at                     the          hearing               of         an                     application                  for<\/p>\n
                      grant            of,                or                for                 vacating,                interim                   relief,           the<\/p>\n
                      Court            should                    determine                        that            issue                  in          the            first<\/p>\n
                      instance<\/p>\n
                      granting
\n                                   ig                as<\/p>\n
                                                         or
\n                                                                           a<\/p>\n
                                                                      setting                    aside
\n                                                                                                      preliminary<\/p>\n
                                                                                                                   the
\n                                                                                                                                         issue<\/p>\n
                                                                                                                                    relief
\n                                                                                                                                                                  before<\/p>\n
                                                                                                                                                                 already<\/p>\n
                      granted.                                        An                application                    raising                   objection             to<\/p>\n
                      the                   jurisdiction                    to             the           Court                is           directed                    to<\/p>\n
                      be                heard                  with               all             expedition.                            Sub-rule                    (2),<\/p>\n
                      however,               says                that                 the              command                      in            sub-rule            (1)<\/p>\n
                      does        not                    preclude                    the              Court              from                 granting              such<\/p>\n
                      interim                      relief                         as             it          may          consider                             necessary<\/p>\n
                      pending                 the                   decision                      on                      the                    question             of<\/p>\n
                      jurisdiction.                                        In              our              opinion,                the                        provision<\/p>\n
                      merely                        states                 the              obvious.                           It             makes              explicit<\/p>\n
                      what             is                     implicit                     in         law.               Just                    because              an<\/p>\n
                      objection                           to               the              jurisdiction                 is               raised,                    the<\/p>\n
                      Court           does                    not               become                   helpless                  forthwith               –         nor<\/p>\n
                      does             it                 become                        incompetent                                to              grant             the<\/p>\n
                      interim          relief.                        It             can.                    At          the              same           time,         it<\/p>\n
                                                                                                      ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                                                =15=<\/p>\n
                            should                       also                    decide                                the                     objection                   to<\/p>\n
                            jurisdiction                             at              the            earlier                    possible                             moment.\n<\/p><\/blockquote>\n
                            This is the general principle and this is what<\/p>\n
                            section 9A reiterates.”\n<\/p><\/blockquote>\n
    4.                                               The Supreme Court has thus held that when the<\/p>\n
    Court           at                 the            time                of                      hearing                     an               application                for<\/p>\n
    temporary                    injunction                       finds                    that         an              objection                         to              its<\/p>\n
    jurisdiction                  to                  entertain                     the         suit                     has                    been                   raised<\/p>\n
    though                 it           has          power           to          make              an             ad-interim                   order           if       such<\/p>\n
    an             order          is          necessary            to          be          made,             it          is         under            a          duty       to<\/p>\n
    take<\/p>\n
    entertain
\n                     up<\/p>\n
                         the<\/p>\n
                                             the<\/p>\n
                                             suit           for
\n                                                               objection              raised<\/p>\n
                                                                              consideration
\n                                                                                                        to<\/p>\n
                                                                                                                  at
\n                                                                                                                       its<\/p>\n
                                                                                                                                   the
\n                                                                                                                                           jurisdiction<\/p>\n
                                                                                                                                                    earliest
\n                                                                                                                                                                           to<\/p>\n
                                                                                                                                                                         and<\/p>\n
    decide                 that                      objection            finally.                      The                         question                        whether<\/p>\n
    compliance                         with             the               provisions                    of                    section                9A                    is<\/p>\n
    mandatory               or                not             has                also               been                      considered                      by          the<\/p>\n
    Division         Bench                   of        this         Court                 in        its                judgment                in             the       case<\/p>\n
    of               Smithkline                     Beecham               Consumer                     Healthcare                    GHBH                     and        ors.\n<\/p>\n
    v\/s            Hindustan                        Lever         Ltd.                and          anr.                      reported                    in             2003<\/p>\n
    Vol.105(2)                    Bom.L.R.                                547             and          the              Division               Bench                    after<\/p>\n
    referring         to               the            provisions                of             section                 9A                and             the           object<\/p>\n
    and              reasons                 clause           of          the             Maharashtra                   Amendment                      Act                of<\/p>\n
    1969,                which                       introduced                section            9A              in           C.P.C.,              has                 held<\/p>\n
    that            compliance                          with            the          provisions               of              section                     9A               is<\/p>\n
    mandatory. The observations of the Division Bench in<\/p>\n
    paragraphs 13 and 14 are relevant which read thus :-\n<\/p>\n
                                                                                                       ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span><\/p>\n
                                                   =16=<\/p>\n
      “13.                       There is thus                                                       ample authority<\/p>\n
      justifying               the                Court                    in                 looking                      into               the<\/p>\n
      history         of              the            legislation                   not               for               the                purpose<\/p>\n
      of            construing                     the          Act,             but          for                    the                  limited<\/p>\n
      purpose                        of              ascertaining                                   the                             background,<\/p>\n
      conditions                      and               circumstances                        which               led                 to       its<\/p>\n
      passing,             the                   mischief                   it                was                    intended                  to<\/p>\n
      prevent                  and                 remedy             it           furnished                         to                   prevent<\/p>\n
      such                mischief.                       The          statement                    of           objects                     and<\/p>\n
      reasons              also                   can                 be           legitimately                           used                for<\/p>\n
      ascertaining                           the               object                    which                   the                 legislative<\/p>\n
      had<\/p>\n
      Act.<\/p>\n
\n                  ig in\n\n                                 The\n                                          mind,         though\n\n                                                  statement            of\n                                                                           not           for\n\n                                                                                       objects             and\n                                                                                                                construing\n\n                                                                                                                               reasons\n                                                                                                                                              the\n\n                                                                                                                                               of\n                \n      Maharashtra                         (Amendment)                      Act               of            1969                 recites         -\n\n      'The                effect            of          the       judgment                     of          the             High            Court\n\n      in             Institute                    Indo           Portuguese                   v\/s                    Borges                    is\n      \n\n\n      that          the               Bombay                    City             Civil               Court                     for            the\n   \n\n\n\n      purposes                       of            granting                 interim                  relief                cannot              or\n\n      need          not              go            into           the                  question                  of                 jurisdiction.\n\n      Sometimes                       declaratory                suits              are              filed                in                  the\n\n\n\n\n\n      City                 Civil             Court             without                   a          valid              notice              under\n\n      section              80                of          the       Code                of                  Civil                     Procedure,\n\n      1908.                      Relying                      upon              another             judgment                   of             the\n\n\n\n\n\n      High                 Court             recorded             on               the             7th           September                  1961\n\n      in           Appeal                 No.191                 of         1960,             it      has                  been               the\n\n      practice                  of          the           City             civil             Court              to             adjourn          a\n\n      notice              of                motion                for             injunction               in                   a            suit\n\n\n\n\n                                                                           ::: Downloaded on - 09\/06\/2013 14:14:06 :::<\/span>\n                                                      =17=\n\n\n\n      filed                     without                 such              valid              notice,              which                          gives\n\n      time            to                     the                    plaintiff           to             give              the                    notice.\n\n      After            expiry                       of                    the         period             of               notice,                  the\n\n\n\n\n                                                                                                                         \n      plaintiff            is               allowed                  to               withdraw                   the           suit               with\n\n\n\n\n                                                                                 \n      liberty                   to           file              a                   fresh                 one.                  In                  the\n\n      intervening                           period,                       the                          Court                grants                  an\n\n      ad-interim                              injunction                        and               continues                 the                  same.\n\n\n\n\n                                                                                \n      This             practice                         of                  granting                        injunctions,                    without\n\n      going                      into              the              question                 of             jurisdiction                          even\n\n      though                    raised,             has             led          to           grave              abuse.                    It        is\n\n\n\n\n                                                   \n      therefore                 proposed                       to                provide                          that                if             a\n\n      question\n\n      hearing\n                   ig            of\n\n                                 of                 any\n                                                        jurisdiction\n\n                                                                     application\n                                                                                            is\n\n                                                                                                  for\n                                                                                                        raised\n\n                                                                                                                       granting\n                                                                                                                               at                  the\n\n                                                                                                                                                    or\n                 \n      setting                   aside                     an           order            granting                       an                    interim\n\n<\/pre>\n
      relief the Court shall determine that question<\/p>\n
      first.’<\/p>\n
      14.                               The statement of objects and reasons<\/p>\n
      specifically                           refers                  to               the               practice                           followed<\/p>\n
      in             the                    City             Civil              Court             in          filing        the                   suits<\/p>\n
      against                         the           Government                         without                  giving                          notice<\/p>\n
      under          section                  80                of                     the               C.P.C.                     and             in<\/p>\n
      continuing                              such                    interim                     relief,              by                permitting<\/p>\n
      the                plaintiff                 to           withdraw                    the           suit           and             file        a<\/p>\n
      fresh                     suit.                        The                Legislature                   intended              to            stop<\/p>\n
      this                      abuse               of               process                     and             therefore                 provision<\/p>\n
      of            9A               was       introduced                  by           the            Amendment               Act                  of<\/p>\n
                                                                                 ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                           =18=<\/p>\n
      1969                    requiring                   the            Court             to           decide              the                  issue<\/p>\n
      of             jurisdiction                               at            the          time           of           granting                    the<\/p>\n
      interim              relief                    or                  consider                  the                 application                 for<\/p>\n
      vacating             the                 interim                    relief.                         Section                  9A            casts<\/p>\n
      a          duty                    on                    the        Court           to       forthwith                       hear            the<\/p>\n
      application                              for               granting                  or              setting                 aside           the<\/p>\n
      order              granting                     an                  interim                 relief                and                determine<\/p>\n
      the                  question                       of             the             jurisdiction                 of           the          Court<\/p>\n
      wherever                 it                    is         taken.                    The           decision                    on             the<\/p>\n
      issue              of                    jurisdiction                         of              Court                    cannot                be<\/p>\n
      postponed                or                adjourned.                                     The               object                  underlying<\/p>\n
      section<\/p>\n
      jurisdiction
\n                  ig     9A<\/p>\n
                                    of
\n                                         is<\/p>\n
                                                      the
\n                                                          to          decide<\/p>\n
                                                                              Court
\n                                                                                           the<\/p>\n
                                                                                                  at
\n                                                                                                           question<\/p>\n
                                                                                                                  the
\n                                                                                                                                   about<\/p>\n
                                                                                                                                     interlocutory
\n                                                                                                                                                   the<\/p>\n
      stage               itself                      to             avoid            hearing            of                  issues                on<\/p>\n
      merits                   even              for             prima                facie             purpose              of                  grant<\/p>\n
      of                  interim                    reliefs.                            The             term                        ‘jurisdiction’<\/p>\n
      as         used               in               section                   9A                  will               have                to       be<\/p>\n
      construed                          harmoniously                         with          section               9           of                   the<\/p>\n
      C.P.C.                        Section                          9         lays         down               that         the                Courts<\/p>\n
      shall                    (subject                         to                       the                 provision                          herein<\/p>\n
      contained)                              have                   jurisdiction                  to             try               all          suits<\/p>\n
      of             a                   civil             nature              excepting               suits                  of                which<\/p>\n
      their                     cognizance                               is                      either                    expressly                or<\/p>\n
      impliedly                  barred.                                  The            scope          of                  section                9A<\/p>\n
      will        have              to               be              considered                 keeping                in           view           the<\/p>\n
      provisions                          of               section               9.                      In             Official               Trustee<\/p>\n
      West Bengal and others v\/s Sachindra Nath<\/p>\n
                                                                                    ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                 =19=<\/p>\n
      Chatterjee and another, the Court observed :\n<\/p>\n
                           ‘From              the              above                  discussion                    it            is          clear<\/p>\n
                           that           before                      a         Court            can           be                held            to<\/p>\n
                           have                jurisdiction                            to                    decide                     particular<\/p>\n
                           matter                   it                 must                       not                    only                 have<\/p>\n
                           jurisdiction                         to              try              the            suit                        brought<\/p>\n
                           but                must                     also            have              the         authority                   to<\/p>\n
                           pass         the              orders             sought                for.                    It           is       not<\/p>\n
                           sufficient                           that                       it                       has                       some<\/p>\n
                           jurisdiction                          in                   relation                            to                    the
\n                  ig       subject<\/p>\n
                           jurisdiction
\n                                                matter<\/p>\n
                                                         must
\n                                                                           of<\/p>\n
                                                                                include
\n                                                                                                    the<\/p>\n
                                                                                                          the
\n                                                                                                                         suit.<\/p><\/blockquote>\n
                                                                                                                               power
\n                                                                                                                                                Its<\/p>\n
                                                                                                                                                 to<\/p>\n
                           hear              and                 decide                            the                   questions               at<\/p>\n
                           issue,              the                authority                        to                hear                      and<\/p>\n
                           decide the particular controversy that<\/p>\n
                           has arisen between the parties.’<\/p>\n
      Therefore,             it          is               not                sufficient                   that                 the           Court<\/p>\n
      has                     territorial                 or              pecuniary                      jurisdiction                            or<\/p>\n
      jurisdiction                      in                relation                    to               subject                 matter            of<\/p>\n
      the          suit.                If                the                suit           is            barred                 by            any<\/p>\n
      statute               the                 Court                will             have              no          authority                    to<\/p>\n
      hear                 and                 decide                the              controversy                   between                     the<\/p>\n
      parties.                      Considering                        the                         history                       of             the<\/p>\n
      legislation,                       the                              background                                      and                   the<\/p>\n
      circumstances                       in              which                  section                 9A               was               enacted<\/p>\n
                                                                             ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                                                  =20=<\/p>\n
                              and                         the           object             of          section         9A,               we           are          inclined<\/p>\n
                              to               agree               with              the          submission                   of              Dr           Tulzapurkar<\/p>\n
                              that                  the                 Legislature                has                     used                 the                  word<\/p>\n
                              ‘jurisdiction’                              in           a          wider              sense               and           the           Court<\/p>\n
                              is               required                   to               consider                   the                 bar               to         the<\/p>\n
                              maintainability of the suit under section 9A<\/p>\n
                              of the C.P.C.”\n<\/p>\n
    .                                                     It is thus clear that non-compliance by the<\/p>\n
    learned                   Single                Judge                with          the             provisions              of             section                  9A<\/p>\n
    will                  be              a               material               irregularity                 which             would                 vitiate          the<\/p>\n
    order.\n<\/p>\n
    is             barred\n                                      The\n                                               \n                                               by\n                                                          question\n\n                                                            the          law\n                                                                                whether\n\n                                                                                      of\n                                                                                                       an\n\n                                                                                                 limitation\n                                                                                                                   objection\n\n                                                                                                                      is        an\n                                                                                                                                           that\n\n                                                                                                                                               objection\n                                                                                                                                                            the        suit\n\n                                                                                                                                                                         to\n                                              \n    the       jurisdiction                     of            the            Court                for           the           purpose                  of           section\n\n    9A              of         C.P.C.                       has           been             decided            by      the           Division                Bench       of\n\n    this             Court                in          its          judgment                 in          the        case             of          Foreshore             CHS\n      \n\n\n    Ltd.                      v\/s         Shri              Praveen             D.                Desai            and          ors.,           reported                 in\n   \n\n\n\n    2008(6)               All                   MR              600.                  The        Division            Bench               has        relied              on\n\n    the             judgment                           of           the          Constitution                 Bench            of          the                    Supreme\n\n    Court                in         the             case           of          Pandurang               D.              Chougule                 v\/s                 Maruti\n\n\n\n\n\n    H.              Jadhav,               reported                in           AIR          1966              SC         153             holding            that       the\n\n    plea             of                   limitation               is          plea         of          law        concerned                        with               the\n\n    jurisdiction                     of                      the           Court.                       Thereafter,                       the                     Division\n\n\n\n\n\n<\/pre>\n
    Bench of this Court in the above referred judgment has<\/p>\n
    observed thus :-\n<\/p>\n
                              “18.                                 The moment, the issue of jurisdiction<\/p>\n
                                                                                                         ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                         =21=<\/p>\n
      is          raised                    under                 section               9-A             of             the              Code                     of<\/p>\n
      Civil                 Procedure,                            the                    said               issue                     should                    be<\/p>\n
      decided           at           first,               and                not             to              be              adjourned                  to       a<\/p>\n
      later             date.                                The             main             reason               is           that         if                 the<\/p>\n
      Court                  comes                 to          finding                  that            it             does            not                    have<\/p>\n
      jurisdiction                  vested                         in                   it         in             law,                  then                    no<\/p>\n
      further                 enquiry                   is             needed                and             saves              a        lot                     of<\/p>\n
      valuable                       judicial                     time.                            In                  fact,           section                 9-A<\/p>\n
      itself                  mandates                       that              when                    an               objection                  to           the<\/p>\n
      jurisdiction                         of                the              Court                    to               entertain                 such           a<\/p>\n
      suit       is           taken                by              any              of             the                 parties,              the             Court<\/p>\n
      will
\n                  ig         have<\/p>\n
      and in no case to be adjourned to the hearing
\n                                                          to            decide                 the                issue                       expeditiously<\/p>\n
      of the suit.\n<\/p>\n
      19.                                 A Division Bench judgment of our High<\/p>\n
      Court                   in              Smith                     Kline                          Beechan                        Cons                      v\/s<\/p>\n
      Hindustan                     Lever,                         2003             Vol                (105)                     2                  Bom.L.R.\n<\/p>\n
      547               :                  2002(1)                     All         MR              1043                  has                  categorically<\/p>\n
      held                   that             it             is              not             sufficient                      that            the             Court<\/p>\n
      has                      territorial                      or                 pecuniary                           jurisdiction                              or<\/p>\n
      jurisdiction                  in                  relation                    to                      the                 subject                      matter<\/p>\n
      of              the          suit         but               if         the          suit               is          barred          by                    any<\/p>\n
      statute,                     the             Court                will              have                    no           authority                         to<\/p>\n
      hear              and               decide               the            same.                          The               said                 judgment<\/p>\n
      clearly               holds                  that                 the                        use                    of             the                  word<\/p>\n
      ‘jurisdiction’                          is               used                in              a               wider               sense                 under<\/p>\n
                                                                                    ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                                               =22=<\/p>\n
                         section                  9-A                    which                would            include                the                    bar           to<\/p>\n
                         maintainability                            of             the         suit            i.e.                    to              say               any<\/p>\n
                         statutory                      bar                          to            the          maintainability                        of                the<\/p>\n
                         suit.                      Section                           3        of         Limitation                              Act                 clearly<\/p>\n
                         mandates the Court to dismiss the suit if the<\/p>\n
                         same is barred by limitation.\n<\/p>\n
                         20.                                  To put it in other words, if the suit<\/p>\n
                         is           barred                        by                    Limitation,               the          Court                      has           no<\/p>\n
                         jurisdiction                          to                  entertain             it               and               the              Court         is<\/p>\n
                         duty           bound                       to                dismiss                  the                   same,                   and         the<\/p>\n
                         parties cannot confer jurisdiction by consent.\n<\/p>\n
                         21.                                  It is explicitly clear that a plea of<\/p>\n
                         limitation               is                a                plea                      which                    goes                  to         the<\/p>\n
                         jurisdiction                     of             the              Court           and              it          is          a           plea       on<\/p>\n
                         law,                and               it             is          a         settled               position                in          law        that<\/p>\n
                         when           a              suit              is              barred           by               limitation,                      the        Court<\/p>\n
                         is                 precluded                      from               proceeding                   on               the              merits       of<\/p>\n
                         the contentions and in fact obliged to dismiss<\/p>\n
                         the suit.”\n<\/p>\n
    .                                         It is clear from the law laid down by the<\/p>\n
    Division             Bench                    in            its                aforesaid             judgment                    that          when                   an<\/p>\n
    objection                  to        the                  jurisdiction                    of              the               Court                  to           entertain<\/p>\n
    the          suits         as           the               suits                  are       barred                     by                the               law         of<\/p>\n
    limitation           is             raised,                       at            the        hearing                          of                 notices                of<\/p>\n
                                                                                                      ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                                                       =23=<\/p>\n
    motion                     wherein                            interim             order                is          claimed,             the              Court                      is<\/p>\n
    obliged                     by          provisions                   of           section               9A              of          C.P.C.                          to          frame<\/p>\n
    preliminary                  issue                     as              to               the                      ground                 raised                      to             the<\/p>\n
    jurisdiction                      of                    the           Court                 to          entertain               the                     suits                     and<\/p>\n
    proceed                      to              decide              that              preliminary                     issue              and              it            is          only<\/p>\n
    on                    decision                    of            that               preliminary                      issue,              that                the                notices<\/p>\n
    of             motion              can            be           taken          up             for            final            decision.                      We                    find<\/p>\n
    that           the                learned                      Single                  Judge                      has               made                      the               order<\/p>\n
    disposing                    of                    the           notices               of              motion             even                        after                    noting<\/p>\n
    that             one                   of              the                objections                             raised             was                       to                   the<\/p>\n
    jurisdiction               of               the               Court               to              entertain                   the             suits                 as           they<\/p>\n
    are<\/p>\n
    made
\n                barred<\/p>\n
                     by
\n                                      by<\/p>\n
                                            the
\n                                                  ig  the<\/p>\n
                                                           learned
\n                                                                         law<\/p>\n
                                                                               Single
\n                                                                                           of<\/p>\n
                                                                                                 Judge
\n                                                                                                           limitation,<\/p>\n
                                                                                                                     will          have
\n                                                                                                                                        therefore<\/p>\n
                                                                                                                                                to
\n                                                                                                                                                                   the<\/p>\n
                                                                                                                                                                       be
\n                                                                                                                                                                                    order<\/p>\n
                                                                                                                                                                                       set<\/p>\n
    aside        and                the           notices                 of           motion                   will             have             to              be              remitted<\/p>\n
    back to the learned Single Judge for consideration and<\/p>\n
    decision in accordance with law.\n<\/p>\n
    5.                                                 Now, as we have set aside the order passed in<\/p>\n
    notices                    of           motion                 and           as             the             ad-interim                order             that                      was<\/p>\n
    passed                      by              the             learned           Single                   Judge              stands              merged                     in        the<\/p>\n
    final            order                        passed             in          the            notices               of          motion             and           as                  we<\/p>\n
    have                 set                    aside             that          order,               in          our             opinion,            it           will                 be<\/p>\n
    for             us                     to         decide              what             should               be          the                 ad-interim                          order<\/p>\n
    operating,             if              at              all,           during                     the              pendency                  of              the                notices<\/p>\n
    of             motion.                              For                    consideration                    of          that        aspect                      of                 the<\/p>\n
    matter,              in                 our                   opinion,                  we             will         have                 to                   take                into<\/p>\n
    consideration                           the             question              whether                       it          can           be               said                       that<\/p>\n
                                                                                                                 ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                                                =24=<\/p>\n
    the                plaintiffs              have              made           out         a               strong             prima               facie                 case<\/p>\n
    for                 grant            of           temporary                 injunction                  in            the              terms            in          which<\/p>\n
    it            is          sought            in          their        favour.                       So              far        as          that                   question<\/p>\n
    is            concerned,                        the               plaintiffs            in             these                  suits                    seek             a<\/p>\n
    decree                    of                     specific            performance                       of           the           agreement                         dated<\/p>\n
    27th          September                     1993.                    It               was                         pointed                out               by         the<\/p>\n
    defendants                  that                  as                the         land             admittedly                       falls                   in           no<\/p>\n
    development                      zone,                       sub-division               of              the           plot                     cannot                  be<\/p>\n
    permitted.                                 Similarly,                         because                  of            the           guidelines                         that<\/p>\n
    have                 been                  framed                 under                          the                       Development                            Control<\/p>\n
    Regulations                      for             Greater             Mumbai,                 the                  entire           land             has                to<\/p>\n
    vest<\/p>\n
    subdivided
\n                   into<\/p>\n
                         at          any<\/p>\n
                                         single<\/p>\n
                                                     time.\n<\/p>\n
                                                                 ownership<\/p>\n
                                                                              What
\n                                                                                            and<\/p>\n
                                                                                                is
\n                                                                                                                the<\/p>\n
                                                                                                                permitted
\n                                                                                                                                 land<\/p>\n
                                                                                                                                       to          be
\n                                                                                                                                                     cannot<\/p>\n
                                                                                                                                                                 done
\n                                                                                                                                                                           be<\/p>\n
                                                                                                                                                                            is<\/p>\n
    that          there                  can                be       more           than         one             owner                 of                the            land.\n<\/p>\n
    Therefore,                before                  us,             there                was                    no              debate                      on          the<\/p>\n
    question                 that              in                view                of                the                   Development                              Control<\/p>\n
    Regulations,                    there                   cannot                    be         a                      decree                    for                 specific<\/p>\n
    performance                     of                the           agreement              to          sell             the       land                     to             the<\/p>\n
    plaintiffs.                           The                        learned                          counsel                              appearing                      for<\/p>\n
    plaintiffs               therefore,                    invited                  our                attention                      to                clause             19<\/p>\n
    of                 the          agreement                 and             submitted                that              when               the                     agreement<\/p>\n
    was                   entered                           into,           the            Development                         Control                           Regulations<\/p>\n
    were                 already                       in           force            and             therefore,                 the           parties                    were<\/p>\n
    aware               that                sub-division                       of         the          property                       may                  not             be<\/p>\n
    possible                   and            therefore              sale           of          the              property              may              not                be<\/p>\n
    permissible. Therefore, a provision was made in Clause<\/p>\n
    19 of the agreement which reads as under :-\n<\/p>\n
                                                                                                           ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span><\/p>\n
                                                                               =25=<\/p>\n
                             “19.                             It is agreed by and between the<\/p>\n
                             parties                     hereto               that        the                Vendor                 shall          get                 the<\/p>\n
                             larger                      property                         subdivided                     by           the                       Municipal<\/p>\n
                             Corporation                            of                Greater                            Bombay                    and               other<\/p>\n
                             concerned                              bodies              and                 authorities                on            or            before<\/p>\n
                             the                     concerned                    bodies               and           authorities                        on             or<\/p>\n
                             before                    the          30th          day            of           April            1994           time                  being<\/p>\n
                             essence                     of          the          contract              at          its         own               costs               and<\/p>\n
                             expenses.                              However,                       in                     the                     event                the<\/p>\n
                             sub-division                           is                   not                        sanctioned                     by                  the<\/p>\n
                             Municipal<\/p>\n
                             other
\n                                               ig              Corporation<\/p>\n
                                                        concerned                            bodies
\n                                                                                                       of          Greater<\/p>\n
                                                                                                                   and
\n                                                                                                                                           Bombay<\/p>\n
                                                                                                                                    authorities
\n                                                                                                                                                                      and<\/p>\n
                                                                                                                                                                     then<\/p>\n
                             the Vendor shall demarcate the said premises<\/p>\n
                             and convey the same to the Purchaser.”\n<\/p><\/blockquote>\n
    .                                                 Perusal of above quoted clause 19 shows that<\/p>\n
    it          was              in            contemplation                     of              the               parties                 that               sub-division<\/p>\n
    may                    not           be          possible              and           therefore,                 it          was                       contemplated<\/p>\n
    that               without                        sub-division                there            shall             be                      transfer                   in<\/p>\n
    favour            of               the            plaintiffs.                         The                  learned                  counsel                  therefore<\/p>\n
    submitted                    that                 there                   were                     negotiations                         between                    the<\/p>\n
    parties                  for              execution             of           lease             deeds                 of           the           property            in<\/p>\n
    favour                  of           the          plaintiffs.                      The             learned                counsel              took                us<\/p>\n
    through                        the           correspondence                       between                  the              parties                 which           is<\/p>\n
    annexed                 to                 the       plaint          to           contend               that         if         sale                 is           not<\/p>\n
    possible,                    the          Court           can          make              a          decree                for           execution                  of<\/p>\n
                                                                                                       ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                                                         =26=<\/p>\n
    lease          deeds                 in           favour                 of              the            plaintiffs.                          Perusal                    of      the<\/p>\n
    correspondence                              between                            the             parties            does            show                  that                    the<\/p>\n
    proposal                 for                     grant                   of          lease          instead          of                 sale                       of           the<\/p>\n
    property                       was               considered                    by            both           the             parties.                                     However,<\/p>\n
    in                 our              opinion,              perusal                   of          the         plaint            shows                    that             in      the<\/p>\n
    plaint,                  it           is           not             the              case           of          the           plaintiffs                 that                   they<\/p>\n
    are                  seeking                 execution                   of              lease            deeds              of             the           property               in<\/p>\n
    their          favour.                            Perusal                 of                the           averments                    in              paragraphs                17<\/p>\n
    and           23          of               the           plaint                clearly                 shows           that             according                       to      the<\/p>\n
    plaintiffs,                         there               was               no                agreement                between                      the                        parties<\/p>\n
    for                execution                       of                   lease             deeds          after         it         is                    found                   that<\/p>\n
    execution of sale deeds is not possible. The plaintiffs<\/p>\n
    have stated in paragraph 23 of the plaint thus :-\n<\/p>\n
                                  “The                       plaintiffs                            agree           that                         the                         discussions<\/p>\n
                                  relating                   to                   the                 proposed                        lease                   were                  not<\/p>\n
                                  binding                         till             the             execution             of           the              lease                       deed<\/p>\n
                                  and                  since                       that            event        did            not          take             place                  the<\/p>\n
                                  said                 agreement                             dated                       27th                    September                        1993<\/p>\n
                                  continues                            to               hold           good              and           subsists                    and            binds<\/p>\n
                                  the                        parties.                              The          plaintiffs’                     efforts                were          to<\/p>\n
                                  resolve               the                  matter,                  in           terms              of                the                 discussion<\/p>\n
                                  initiated                       by                     the           defendant              No.1               in          or                   about<\/p>\n
                                  the                  year              1997             for          a       lease            instead               of           a               sale,<\/p>\n
                                  however                         as                    confirmed              by          the                     1st                      defendant,<\/p>\n
                                  those discussions did not fructify into a<\/p>\n
                                  binding agreement.”\n<\/p><\/blockquote>\n
                                                                                                               ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span><\/p>\n
                                                                                  =27=<\/p>\n
    .                                                     What is stated in paragraph 23 by the<\/p>\n
    plaintiffs                 clearly                         shows                   that           according             to                    them                 the<\/p>\n
    agreement                      of                    September             1993           is        agreement                to                 sell               the<\/p>\n
    property                 and                 not                 agreement                 to               grant             lease                  of            the<\/p>\n
    property                       in                     the           alternative.                         Following                sentence                       from<\/p>\n
    paragraph 25 of the plaint makes the position absolutely<\/p>\n
    clear :-\n<\/p><\/blockquote>\n
                               “In                        the            circumstances                  the             plaintiffs            say                     and<\/p>\n
                               submit                           that           the            defendant                No.1            agreed               to        sell<\/p>\n
                               the
\n                                                 ig    suit                plot<\/p>\n
                               the said agreement dated 27th September 1993.”<\/p><\/blockquote>\n<\/blockquote>\n
                                                                                         to          the         plaintiffs            in         terms                 of<\/p>\n
    .                                                     What is further to be seen here is that<\/p>\n
    according                      to                     the           plaintiffs,           they              have          been            placed                    in<\/p>\n
    possession                of                 the                 property               as               prospective                    purchasers                and<\/p>\n
    not                 as          prospective                  lessees             and            they         also            seek             an                 order<\/p>\n
    of                  protection                     from             the           Court                as          prospective                              purchasers<\/p>\n
    and          not          as              prospective              lessees.                     Had           it        been             the            case        of<\/p>\n
    the                plaintiffs                        that          they           want            execution            of                     the                lease<\/p>\n
    deeds          in              the              alternative,               then            they             would             have                  sought         an<\/p>\n
    order                          for              protection                 of             their              possession                  as             prospective<\/p>\n
    lessees.                                   In              our            opinion,              therefore,             from               the               averments<\/p>\n
    in                 the              plaint            it          cannot           be             said         that           the             plaintiffs           are<\/p>\n
    seeking             any              decree                 for           execution               of           lease              deeds                in        their<\/p>\n
    favour.                              It         is          clear          that           the           plaintiffs           are          seeking                   a<\/p>\n
                                                                                                        ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                                                   =28=<\/p>\n
    decree                for             execution                   of             sale             deeds              in             their            favour          when<\/p>\n
    it             appears                to           be               an            admitted                position                  that             execution           of<\/p>\n
    sale          deeds                   is                 not                   possible                       because                      of               Development<\/p>\n
    Control               Regulations.                                       In                   our             opinion,                          therefore,                it<\/p>\n
    cannot              be                    said          that           reading            the             plaint               as                framed                and<\/p>\n
    filed           makes                out          a           strong              prima             facie                case          in           favour               of<\/p>\n
    the            plaintiffs.                                   The           case              of          the             plaintiffs              which                 has<\/p>\n
    been                accepted               by           the              learned             Single                 Judge             in          his                order<\/p>\n
    which                is          impugned                    in           the            appeal               is          that             by           letter       dated<\/p>\n
    29th           January                     2003,                     the                 agreement                         for                   execution               of<\/p>\n
    sale-deed           was              terminated.                               Because                   of              the           conduct                of        the<\/p>\n
    defendants<\/p>\n
    plaintiffs          after
\n                                    of
\n                                           ig 29th
\n                                                     sending<\/p>\n
                                                                 January
\n                                                                                  maintenance<\/p>\n
                                                                                            2003,                  it
\n                                                                                                                              bills<\/p>\n
                                                                                                                                    has              been
\n                                                                                                                                                           to               the<\/p>\n
                                                                                                                                                                       inferred<\/p>\n
    by            the                learned                       Judge              that            the          defendants                        waived                 the<\/p>\n
    termination                          of                the               contract                  for               execution                    of             sale-deed.\n<\/p><\/blockquote>\n
    Thereafter,                          the               possibility                  of                  performing                     the                         contract<\/p>\n
    in            the           alternate                  mode               viz.                    by               execution                of                   lease-deed<\/p>\n
    was             explored                         by            the            parties             and              the                 negotiations                     for<\/p>\n
    performance                      of              the           contract                 by              the              alternate               mode                   i.e.<\/p>\n
    by                   executing                    lease-deed,                     was               terminated                        by             letter          dated<\/p>\n
    17th            January                          2004                      and           therefore,                 the                     learned                 Single<\/p>\n
    Judge                     has             held               that             because                   termination                   of             the           contract<\/p>\n
    for                 execution                of               sale-deed                  was                  waived,                 the            contract           for<\/p>\n
    execution                       of           sale-deed                    continues                 in               force.                          However,             it<\/p>\n
    is             clear             from              the               order              impugned                    that              negotiations                      for<\/p>\n
    performing                  the             contract                 by           the             alternate               mode               viz.                       by<\/p>\n
    execution                       of          lease-deed                     was               terminated                    by               letter                   dated<\/p>\n
                                                                                                            ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                                                     =29=<\/p>\n
    17th           January                     2004                      and         there          is          no             plea          of                   waiver               in<\/p>\n
    relation        to           that               termination.                               Thus,                 if            one                 goes               by         this<\/p>\n
    case             of                    the             plaintiffs               which              has            been              accepted                   by                 the<\/p>\n
    learned               Single                       Judge,                         the           proposal                    for                     execution                      of<\/p>\n
    lease-deed                       was              terminated                     by                letter              dated                  17th                           January<\/p>\n
    2004                 and            therefore,                  if          the              present                  suit          is              for              a         decree<\/p>\n
    of            specific                       performance                              of           the           agreement                               to                   execute<\/p>\n
    lease-deed,                  then                the           suit             may             not              be               within             the                       period<\/p>\n
    of         limitation             because                  the                  suit            has                   not             been                    filed            within<\/p>\n
    the            period                      of          three           years               from             17th             January                2004.                          It<\/p>\n
    does        appear           to            our            mind               that             in            the              plaint            as              framed            and<\/p>\n
    filed,<\/p>\n
    grant           of
\n                         there<\/p>\n
                                      a
\n                                          is
\n                                                ig    no<\/p>\n
                                                       decree
\n                                                                    case             made<\/p>\n
                                                                                    for          specific
\n                                                                                                         out              by           the<\/p>\n
                                                                                                                                performance
\n                                                                                                                                                       plaintiffs<\/p>\n
                                                                                                                                                                        of
\n                                                                                                                                                                                      for<\/p>\n
                                                                                                                                                                                      the<\/p>\n
    agreement                    to                         execute                 lease-deed                   firstly                          and                            secondly<\/p>\n
    even            assuming                          that          such             a           case           is          made                 out,             the               other<\/p>\n
    case           of                 the                    plaintiffs              which               found                        favour                       with               the<\/p>\n
    learned               Single                      Judge               that             what              was            terminated                              by                the<\/p>\n
    letter          dated                  17th                    January                       2004            was                    a                proposal                     for<\/p>\n
    adopting                      alternate                    mode                   of                performing                       the                  contract               viz.\n<\/p>\n
    by            execution                     of                 lease-deed                  when             the             suit         may                        not           be<\/p>\n
    within                the             period              of           limitation.                             We                 make              it              clear        that<\/p>\n
    the             observations                             that              we           have               made               above                 are                      relevant<\/p>\n
    strictly                   for              the             purpose                     of               considering                     the                  question             of<\/p>\n
    grant                 of          ad-interim                     order                 and            they                  are              not              relevant            for<\/p>\n
    any              other                purpose.                             The               fact,           however,                     remains                     that        the<\/p>\n
    agreement               was                  entered                   into                   in                 the                year                      1993,               the<\/p>\n
    defendants                       have                           received                   full             amount                      of                          consideration<\/p>\n
                                                                                                               ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                                                    =30=<\/p>\n
    from         the           plaintiffs.                       It           is             also            common                 ground              that         on       a<\/p>\n
    part               of                     the                  property,                  construction                   has                 already                  been<\/p>\n
    started       and             it           has           been              completed                     to          a         large             extent.                We<\/p>\n
    also         find              that              third             party                  rights               have                 been            created           even<\/p>\n
    before               the                   civil                   suits            were            filed.                     In                our              opinion,<\/p>\n
    therefore,                     it           will            not                be             appropriate                 to              make            any         order<\/p>\n
    of                       temporary                        injunction                                              restraining                                 construction<\/p>\n
    activity                   already                started.                          In             so          far             as          that          portion         of<\/p>\n
    the            land                       which          can              be             described              as         plots                   allotted              to<\/p>\n
    Mehta              Group                   is            concerned,                           admittedly                   though                  according             to<\/p>\n
    the            plaintiffs,                         S.E.Z.                       in            relation            to           this                 land                has<\/p>\n
    been<\/p>\n
    sanctioned
\n                  sanctioned,<\/p>\n
                                  for
\n                                               ig   today<\/p>\n
                                                       carrying
\n                                                                       even<\/p>\n
                                                                                        out
\n                                                                                              building<\/p>\n
                                                                                                             any
\n                                                                                                                      plans                   have<\/p>\n
                                                                                                                                    construction
\n                                                                                                                                                              not         been<\/p>\n
                                                                                                                                                                     activities.\n<\/p>\n
    In             our             opinion                 therefore,               as              the            notices               of          motion                 are<\/p>\n
    yet           to               be                 finally                  decided,                       some                  interim                  order            is<\/p>\n
    necessary                to                be             made.                               In               our                  opinion                      therefore,<\/p>\n
    following                      ad-interim                           order                 should                operate                          during                 the<\/p>\n
    pendency of the notices of motion before the learned<\/p>\n
    Single Judge.\n<\/p>\n
    6.                                                There shall be no ad-interim order in relation<\/p>\n
    to           the                plots                   where                             construction                         has                already             been<\/p>\n
    started,                 however,                        the          construction                      to        be            made                     by             the<\/p>\n
    defendants                      shall             be           subject                   to           the            result           of           the                suits<\/p>\n
    and                the                defendants                   will             have            to          file           an                 affidavit              in<\/p>\n
    this          Court                   within                   a          period              of         two               weeks                   from               today<\/p>\n
    stating        that                 the            defendants                   will                not              claim                any            equity          on<\/p>\n
                                                                                                                 ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                                                 =31=<\/p>\n
    the                 basis               of           constructions                which             they              raise         during                     the<\/p>\n
    pendency               of              the           suits.                      The              defendants                shall            also           within<\/p>\n
    a          period                 of               two            weeks                from               today,              supply                to         the<\/p>\n
    plaintiffs                        any              documents                executed                or           entered             into            or         to<\/p>\n
    be entered into by them for creation of third party<\/p>\n
    rights in those constructions.\n<\/p>\n
    7.                                                 So far as the land which can be loosely<\/p>\n
    described                        as               plots             allotted                to             Mehta                     Group                     are<\/p>\n
    concerned,                       in                  our          opinion,             as         there         is          no       question                   of<\/p>\n
    there               being                         any                construction                 carried            out                 unless                the<\/p>\n
    building<\/p>\n
    therefore,
\n                                  plans<\/p>\n
                                           a
\n                                                  ig     are<\/p>\n
                                                               temporary
\n                                                                          sanctioned.<\/p>\n
\n\n                                                                                                      injunction\n                                                                                                                     In               our\n\n                                                                                                                                      restraining\n                                                                                                                                                              opinion,\n\n                                                                                                                                                                   the\n                                                \n    plaintiffs                        from               carrying              out              any           construction               on                      those\n\n    plots                       and              creating              third              party          rights                should             be           granted\n\n    and               it             is          accordingly             so           granted.                     However,                 in         case       any\n      \n\n\n    building                    plans                    are                   sanctioned                     and                    negotiations                  for\n   \n\n\n\n    creation                     of              any            third           party             rights            in          the                     construction\n\n    to                be              made               on           those           plots            are          finalised,              the          defendants\n\n    shall        be             at             liberty           to        move                 the           learned             Single           Judge           for\n\n\n\n\n\n<\/pre>\n
    modification of the ad-interim order. Appeals are<\/p>\n
    disposed off.\n<\/p>\n
    8.                                                 We request the learned Single Judge that<\/p>\n
    considering             that                 the           notices               of           motion             are             pending             for        a<\/p>\n
    long                   time             to           hear           and               dispose            off          preliminary              issue          and<\/p>\n
    the                 notices                  of          motion             as          expeditiously                 as          possible.                   We<\/p>\n
                                                                                                       ::: Downloaded on – 09\/06\/2013 14:14:06 :::<\/span>
\n                                                              =32=<\/p>\n
    have         been           informed              that      so      far        as    the     land        which          is<\/p>\n
    described           as               Mehta       Group           land     is        concerned,           there          is<\/p>\n
    already       a          reservoir           constructed.                  The             order    of           temporary<\/p>\n
    injunction will not come in the way of operation of that<\/p>\n
    reservoir.\n<\/p>\n
    .                                     Parties to act on the copy of this order duly<\/p>\n
    authenticated by the Associate \/ Private Secretary of<\/p>\n
    the Court.\n<\/p>\n
    .                                     Certified copy is expedited.\n<\/p>\n
                                   ig                        ( D.K. DESHMUKH J.)\n                                 \n                                                             ( A.A. SAYED J.)\n      \n   \n\n\n\n\n\n\n                                                                              ::: Downloaded on - 09\/06\/2013 14:14:06 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Royal Palms (India) Pvt.Ltd. And … vs Bharat Shantilal Shah And Anr on 13 January, 2009 Bench: D.K. Deshmukh, A.A. Sayed =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 […]<\/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":[11,8],"tags":[],"class_list":["post-64514","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nRoyal Palms (India) Pvt.Ltd. And ... vs Bharat Shantilal Shah And Anr on 13 January, 2009 - 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\/royal-palms-india-pvt-ltd-and-vs-bharat-shantilal-shah-and-anr-on-13-january-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Royal Palms (India) Pvt.Ltd. And ... vs Bharat Shantilal Shah And Anr on 13 January, 2009 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/royal-palms-india-pvt-ltd-and-vs-bharat-shantilal-shah-and-anr-on-13-january-2009\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2009-01-12T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2016-04-15T08:28:20+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"28 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/royal-palms-india-pvt-ltd-and-vs-bharat-shantilal-shah-and-anr-on-13-january-2009#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/royal-palms-india-pvt-ltd-and-vs-bharat-shantilal-shah-and-anr-on-13-january-2009\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Royal Palms (India) Pvt.Ltd. 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