Bombay High Court
Royal Palms (India) Pvt.Ltd. And Ors vs Bharat Shantilal Shah And Anr on 13 January, 2009
Author: D.K. Deshmukh
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 (India) Pvt.Ltd. and ors. ...Appellants
v/s
Bharat Shantilal Shah and anr. ...Respondents
ig WITH
APPEAL NO.114 OF 2008
IN
NOTICE OF MOTION NO.1974 OF 2007
IN
SUIT NO.1316 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
v/s
Solo Real Estate Pvt.Ltd. ...Respondents
WITH
APPEAL NO.115 OF 2008
IN
NOTICE OF MOTION NO.1973 OF 2007
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=2=
IN
SUIT NO.1314 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
v/s
Bina Bharat Shah and ors. ...Respondents
WITH
APPEAL NO.116 OF 2008
IN
NOTICE OF MOTION NO.1977 OF 2007
ig IN
SUIT NO.1317 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
v/s
Rashesh B. Shah and anr. ...Respondents
WITH
APPEAL NO.117 OF 2008
IN
NOTICE OF MOTION NO.1976 OF 2007
IN
SUIT NO.1318 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
v/s
::: Downloaded on - 09/06/2013 14:14:07 :::
=3=
Rajiv B. Shah ...Respondent
WITH
APPEAL NO.118 OF 2008
IN
NOTICE OF MOTION NO.1982 OF 2007
IN
SUIT NO.1689 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
v/s
Reshma R. Mehta and anr.
ig ...Respondents
WITH
APPEAL NO.119 OF 2008
IN
NOTICE OF MOTION NO.1980 OF 2007
IN
SUIT NO.1740 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
v/s
Jothawat Construction Pvt.Ltd. ...Respondents
WITH
APPEAL NO.120 OF 2008
IN
::: Downloaded on - 09/06/2013 14:14:08 :::
=4=
NOTICE OF MOTION NO.1979 OF 2007
IN
SUIT NO.1741 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
v/s
Reshma Rashesh Diamonds Pvt.Ltd. ...Respondents
WITH
APPEAL NO.121 OF 2008
IN
NOTICE OF MOTION NO.1981 OF 2007
IN
SUIT NO.1724 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
v/s
Vishal Rajeev Diamonds Pvt.Ltd. ...Respondents
WITH
APPEAL NO.122 OF 2008
IN
NOTICE OF MOTION NO.2123 OF 2007
IN
SUIT NO.1725 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
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=5=
v/s
Banyan Properties Pvt.Ltd. ...Respondents
WITH
APPEAL NO.123 OF 2008
IN
NOTICE OF MOTION NO.1553 OF 2007
IN
SUIT NO.1194 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
Anoop Vrajlal Mehta
v/s
ig ...Respondent
WITH
APPEAL NO.124 OF 2008
IN
NOTICE OF MOTION NO.1978 OF 2007
IN
SUIT NO.1259 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
v/s
Devaunshi Anoop Mehta ...Respondent
WITH
APPEAL NO.125 OF 2008
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=6=
IN
NOTICE OF MOTION NO.1975 OF 2007
IN
SUIT NO.1258 OF 2007
Royal Palms (INdia) Pvt.Ltd. and ors. ...Appellants
v/s
Dia Anoop Mehta ...Respondent
WITH
APPEAL NO.126 OF 2008
ig IN
NOTICE OF MOTION NO.2124 OF 2007
IN
SUIT NO.1199 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
v/s
Master Mohit Anoop Mehta ...Respondent
WITH
APPEAL NO.127 OF 2008
IN
NOTICE OF MOTION NO.2125 OF 2007
IN
SUIT NO.1269 OF 2007
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=7=
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
v/s
Anoop Vrajlal Mehta ...Respondent
WITH
APPEAL NO.128 OF 2008
IN
NOTICE OF MOTION NO.2126 OF 2007
IN
SUIT NO.1638 OF 2007
v/s
Royal Palms (INdia) Pvt.Ltd. and ors. ...Appellants
Desai Trade Credits Pvt.Ltd. ...Respondents
WITH
APPEAL NO.129 OF 2008
IN
NOTICE OF MOTION NO.2128 OF 2007
IN
SUIT NO.1637 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
v/s
Desai Home Finance Pvt.Ltd. ...Respondents
WITH
::: Downloaded on - 09/06/2013 14:14:08 :::
=8=
APPEAL NO.130 OF 2008
IN
NOTICE OF MOTION NO.2127 OF 2007
IN
SUIT NO.1688 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
v/s
Desai Equipment Finance Pvt.Ltd. ...Respondents
WITH
ig APPEAL NO.131 OF 2008
IN
NOTICE OF MOTION NO.2842 OF 2007
IN
SUIT NO.1268 OF 2007
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
v/s
Desai Built-in Finance Pvt.Ltd. ...Respondents
WITH
APPEAL NO.132 OF 2008
IN
NOTICE OF MOTION NO.2843 OF 2007
IN
SUIT NO.1267 OF 2007
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=9=
Royal Palms (India) Pvt.Ltd. and ors. ...Appellants
v/s
Desai Auto Credits Pvt.Ltd. ...Respondents
Mr I.M. Chagla, Sr.Counsel with Mr F. D'Vitre, Sr.
Counsel, Mr Naval Agarwal, Mr Pesi Modi with Ms Dimple
Shah and Mr Firdaus i/b M/s Mulla and Mulla and Craigie
Blunt and Caroe for Appellants.
Mr Vaibhav Krishna i/b M/s Juris Consillis for
Respondents in Appeal No.113 of 2008.
Mr Aspi Chinoy,
ig Sr.
Ms Laxmi Modekar for Respondent in Appeal No.125 of
Counsel i/b Mr Vaibhav Krishna and
2008.
CORAM : D.K. DESHMUKH AND A.A. SAYED JJ.
DATE : 13TH JANUARY 2009
ORAL JUDGMENT (PER D.K. DESHMUKH J.) :-
1. These appeals are preferred against the common order dated 30th October 2007 passed by the learned Single Judge of this Court in notices of motion taken out in different suits. Since these appeals are against the common order as the questions of fact and law involved are substantially the same, these appeals can be conveniently disposed off by a common order. ::: Downloaded on - 09/06/2013 14:14:08 :::
=10=
2. For convenience, in this order, we will be referring to the parties by their nomenclatures as Shah Group and Mehta Group. These appeals have been filed by the defendants in civil suits, the defendants in all the suits are the same. The suits, 20 in number, are filed for specific performance of each of the agreement entered into by the respective plaintiffs and the defendants and for other ancillary reliefs. It is the claim of the plaintiffs that they are in possession of the suit property and an order for protection of that possession suits belong is to also the Shah sought.
Group and
The plaintiffs
Mehta Group.
in these
The
defendant No.1 is owner of the land admeasuring about
240 acres at Andheri, Mumbai. The defendants in all the
suits are common. The property falls in no development
zone wherein only certain restricted / controlled and
limited development is permissible under the Development
Control Regulations for Greater Mumbai 1991. The defendants entered into an agreement in the year 1993 with the plaintiffs for conveying plot admeasuring 2.5 acres each. Thus, 20 plots admeasuring 2.5 acres each are the subject matter of the suits. In these suits, notices of motion were taken out for interim relief restraining the defendants from disturbing possession of the plaintiffs of the suit property as also restraining them from creating third party rights and also ::: Downloaded on - 09/06/2013 14:14:08 ::: =11= restraining them from carrying out any construction. In those notices of motion, ad-interim order was made granting status-quo in favour of the plaintiffs.
Thereafter, all the notices of motion were finally heard and by order dated 30th October 2007, all notices of motion are disposed off and interim relief in terms of prayer clause (b) of notices of motion has been granted i.e. restraining the defendants from carrying out any construction on the suit plots, creating any third party rights on the suit plots and also restraining them from making any application to the authorities for sanction of the any suit building plots.
plan In for these construction appeals, interim of buildings order on has been passed permitting the appellants - defendants to carry on construction on a part of the property subject to certain conditions.
3. Perusal of the order passed by the learned Single Judge which is impugned in these appeals shows that one of the grounds raised by the defendants opposing the notices of motion was that the suits are barred by the law of limitation. According to the defendants, the agreements were terminated by the defendants by letter dated 29th January 2003, in any case, the agreements were terminated on 17th January 2004 and therefore, suits instituted on 18th April 2007 have not been filed within the period of limitation. ::: Downloaded on - 09/06/2013 14:14:08 :::
=12= The learned Single Judge, though objection to the jurisdiction of the Court to entertain the suits was raised, ignoring the provisions of section 9A(1) of C.P.C. without framing preliminary issue, has proceeded to make the interim order. We find that the procedure adopted by the learned Single Judge is contrary to the provisions of section 9A of C.P.C. Section 9A of C.P.C.
reads as under :-
"9A. Where at the hearing of application relating to interim relief in a suit, objection ig to to be decided by the Court as a preliminary jurisdiction is taken, such issue issue -
(1) Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside an order of injunction, appointment of a receiver or otherwise, made in granting an interim relief, whether by way of stay, in any suit, an objection to the jurisdiction of the Court to entertain such suit is taken by any of the parties to the suit, the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction ::: Downloaded on - 09/06/2013 14:14:08 ::: =13= as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.
(2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction."
. Perusal of provisions of section 9A of C.P.C. quoted above makes it clear that whenever there is an application for grant of temporary injunction or appointment of Receiver is sought before any Court and an objection to the jurisdiction of the Court to entertain the suit in which the application for such interim relief has been made by any of the parties, then it becomes the duty of the Court to first frame the preliminary issue as to the jurisdiction of the Court to entertain the suit and decide that issue and thereafter take up for consideration the application for interim relief. The scope and ambit of the provisions of section 9A of the C.P.C. has been considered by the ::: Downloaded on - 09/06/2013 14:14:08 ::: =14= Supreme Court in its judgment in the case of Tayabbhai Bagasarwalla and anr. v/s Hind Rubber Industries Pvt.Ltd., reported in AIR 1997 SC 1240 and after quoting the provisions of section 9A of C.P.C., the Supreme Court in paragraph 16 has observed thus :-
"16. According to this section, if an objection is raised to the jurisdiction of the Court at the hearing of an application for grant of, or for vacating, interim relief, the Court should determine that issue in the first instance granting ig as or a setting aside preliminary the issue relief before already granted. An application raising objection to the jurisdiction to the Court is directed to be heard with all expedition. Sub-rule (2), however, says that the command in sub-rule (1) does not preclude the Court from granting such interim relief as it may consider necessary pending the decision on the question of jurisdiction. In our opinion, the provision merely states the obvious. It makes explicit what is implicit in law. Just because an objection to the jurisdiction is raised, the Court does not become helpless forthwith - nor does it become incompetent to grant the interim relief. It can. At the same time, it ::: Downloaded on - 09/06/2013 14:14:08 ::: =15= should also decide the objection to jurisdiction at the earlier possible moment.
This is the general principle and this is what section 9A reiterates."
4. The Supreme Court has thus held that when the Court at the time of hearing an application for temporary injunction finds that an objection to its jurisdiction to entertain the suit has been raised though it has power to make an ad-interim order if such an order is necessary to be made, it is under a duty to take entertain up the the suit for objection raised consideration to at its the jurisdiction earliest to and decide that objection finally. The question whether compliance with the provisions of section 9A is mandatory or not has also been considered by the Division Bench of this Court in its judgment in the case of Smithkline Beecham Consumer Healthcare GHBH and ors. v/s Hindustan Lever Ltd. and anr. reported in 2003 Vol.105(2) Bom.L.R. 547 and the Division Bench after referring to the provisions of section 9A and the object and reasons clause of the Maharashtra Amendment Act of 1969, which introduced section 9A in C.P.C., has held that compliance with the provisions of section 9A is mandatory. The observations of the Division Bench in paragraphs 13 and 14 are relevant which read thus :- ::: Downloaded on - 09/06/2013 14:14:08 :::
=16= "13. There is thus ample authority justifying the Court in looking into the history of the legislation not for the purpose of construing the Act, but for the limited purpose of ascertaining the background, conditions and circumstances which led to its passing, the mischief it was intended to prevent and remedy it furnished to prevent such mischief. The statement of objects and reasons also can be legitimately used for ascertaining the object which the legislative had Act.
ig in The mind, though statement of not for objects and construing reasons the of Maharashtra (Amendment) Act of 1969 recites - 'The effect of the judgment of the High Court in Institute Indo Portuguese v/s Borges is that the Bombay City Civil Court for the purposes of granting interim relief cannot or need not go into the question of jurisdiction. Sometimes declaratory suits are filed in the City Civil Court without a valid notice under section 80 of the Code of Civil Procedure, 1908. Relying upon another judgment of the High Court recorded on the 7th September 1961 in Appeal No.191 of 1960, it has been the practice of the City civil Court to adjourn a notice of motion for injunction in a suit ::: Downloaded on - 09/06/2013 14:14:08 ::: =17= filed without such valid notice, which gives time to the plaintiff to give the notice. After expiry of the period of notice, the plaintiff is allowed to withdraw the suit with liberty to file a fresh one. In the intervening period, the Court grants an ad-interim injunction and continues the same.
This practice of granting injunctions, without going into the question of jurisdiction even though raised, has led to grave abuse. It is therefore proposed to provide that if a question hearing ig of of any jurisdiction application is for raised granting at the or setting aside an order granting an interim relief the Court shall determine that question first.'
14. The statement of objects and reasons specifically refers to the practice followed in the City Civil Court in filing the suits against the Government without giving notice under section 80 of the C.P.C. and in continuing such interim relief, by permitting the plaintiff to withdraw the suit and file a fresh suit. The Legislature intended to stop this abuse of process and therefore provision of 9A was introduced by the Amendment Act of ::: Downloaded on - 09/06/2013 14:14:08 ::: =18= 1969 requiring the Court to decide the issue of jurisdiction at the time of granting the interim relief or consider the application for vacating the interim relief. Section 9A casts a duty on the Court to forthwith hear the application for granting or setting aside the order granting an interim relief and determine the question of the jurisdiction of the Court wherever it is taken. The decision on the issue of jurisdiction of Court cannot be postponed or adjourned. The object underlying section jurisdiction ig 9A of is the to decide Court the at question the about interlocutory the stage itself to avoid hearing of issues on merits even for prima facie purpose of grant of interim reliefs. The term 'jurisdiction' as used in section 9A will have to be construed harmoniously with section 9 of the C.P.C. Section 9 lays down that the Courts shall (subject to the provision herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. The scope of section 9A will have to be considered keeping in view the provisions of section 9. In Official Trustee West Bengal and others v/s Sachindra Nath ::: Downloaded on - 09/06/2013 14:14:08 ::: =19= Chatterjee and another, the Court observed :
'From the above discussion it is clear that before a Court can be held to have jurisdiction to decide particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in relation to the ig subject jurisdiction matter must of include the the suit.
power Its to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties.' Therefore, it is not sufficient that the Court has territorial or pecuniary jurisdiction or jurisdiction in relation to subject matter of the suit. If the suit is barred by any statute the Court will have no authority to hear and decide the controversy between the parties. Considering the history of the legislation, the background and the circumstances in which section 9A was enacted ::: Downloaded on - 09/06/2013 14:14:08 ::: =20= and the object of section 9A, we are inclined to agree with the submission of Dr Tulzapurkar that the Legislature has used the word 'jurisdiction' in a wider sense and the Court is required to consider the bar to the maintainability of the suit under section 9A of the C.P.C."
. It is thus clear that non-compliance by the learned Single Judge with the provisions of section 9A will be a material irregularity which would vitiate the order.
is barred The by question the law whether of an limitation objection is an that objection the suit to the jurisdiction of the Court for the purpose of section 9A of C.P.C. has been decided by the Division Bench of this Court in its judgment in the case of Foreshore CHS Ltd. v/s Shri Praveen D. Desai and ors., reported in 2008(6) All MR 600. The Division Bench has relied on the judgment of the Constitution Bench of the Supreme Court in the case of Pandurang D. Chougule v/s Maruti H. Jadhav, reported in AIR 1966 SC 153 holding that the plea of limitation is plea of law concerned with the jurisdiction of the Court. Thereafter, the Division
Bench of this Court in the above referred judgment has observed thus :-
"18. The moment, the issue of jurisdiction ::: Downloaded on - 09/06/2013 14:14:08 ::: =21= is raised under section 9-A of the Code of Civil Procedure, the said issue should be decided at first, and not to be adjourned to a later date. The main reason is that if the Court comes to finding that it does not have jurisdiction vested in it in law, then no further enquiry is needed and saves a lot of valuable judicial time. In fact, section 9-A itself mandates that when an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties, the Court will ig have and in no case to be adjourned to the hearing to decide the issue expeditiously of the suit.
19. A Division Bench judgment of our High Court in Smith Kline Beechan Cons v/s Hindustan Lever, 2003 Vol (105) 2 Bom.L.R. 547 : 2002(1) All MR 1043 has categorically held that it is not sufficient that the Court has territorial or pecuniary jurisdiction or jurisdiction in relation to the subject matter of the suit but if the suit is barred by any statute, the Court will have no authority to hear and decide the same. The said judgment clearly holds that the use of the word 'jurisdiction' is used in a wider sense under ::: Downloaded on - 09/06/2013 14:14:08 ::: =22= section 9-A which would include the bar to maintainability of the suit i.e. to say any statutory bar to the maintainability of the suit. Section 3 of Limitation Act clearly mandates the Court to dismiss the suit if the same is barred by limitation.
20. To put it in other words, if the suit is barred by Limitation, the Court has no jurisdiction to entertain it and the Court is duty bound to dismiss the same, and the parties cannot confer jurisdiction by consent.
21. It is explicitly clear that a plea of limitation is a plea which goes to the jurisdiction of the Court and it is a plea on law, and it is a settled position in law that when a suit is barred by limitation, the Court is precluded from proceeding on the merits of the contentions and in fact obliged to dismiss the suit."
. It is clear from the law laid down by the Division Bench in its aforesaid judgment that when an objection to the jurisdiction of the Court to entertain the suits as the suits are barred by the law of limitation is raised, at the hearing of notices of ::: Downloaded on - 09/06/2013 14:14:08 ::: =23= motion wherein interim order is claimed, the Court is obliged by provisions of section 9A of C.P.C. to frame preliminary issue as to the ground raised to the jurisdiction of the Court to entertain the suits and proceed to decide that preliminary issue and it is only on decision of that preliminary issue, that the notices of motion can be taken up for final decision. We find that the learned Single Judge has made the order disposing of the notices of motion even after noting that one of the objections raised was to the jurisdiction of the Court to entertain the suits as they are made barred by by the ig the learned law Single of Judge limitation, will have therefore to the be order set aside and the notices of motion will have to be remitted back to the learned Single Judge for consideration and decision in accordance with law.
5. Now, as we have set aside the order passed in notices of motion and as the ad-interim order that was passed by the learned Single Judge stands merged in the final order passed in the notices of motion and as we have set aside that order, in our opinion, it will be for us to decide what should be the ad-interim order operating, if at all, during the pendency of the notices of motion. For consideration of that aspect of the matter, in our opinion, we will have to take into consideration the question whether it can be said that ::: Downloaded on - 09/06/2013 14:14:08 ::: =24= the plaintiffs have made out a strong prima facie case for grant of temporary injunction in the terms in which it is sought in their favour. So far as that question is concerned, the plaintiffs in these suits seek a decree of specific performance of the agreement dated 27th September 1993. It was pointed out by the defendants that as the land admittedly falls in no development zone, sub-division of the plot cannot be permitted. Similarly, because of the guidelines that have been framed under the Development Control Regulations for Greater Mumbai, the entire land has to vest subdivided into at any single time.
ownership What and is the permitted land to be cannot done be is that there can be more than one owner of the land. Therefore, before us, there was no debate on the question that in view of the Development Control Regulations, there cannot be a decree for specific performance of the agreement to sell the land to the plaintiffs. The learned counsel appearing for plaintiffs therefore, invited our attention to clause 19 of the agreement and submitted that when the agreement was entered into, the Development Control Regulations were already in force and therefore, the parties were aware that sub-division of the property may not be possible and therefore sale of the property may not be permissible. Therefore, a provision was made in Clause 19 of the agreement which reads as under :- ::: Downloaded on - 09/06/2013 14:14:08 :::
=25= "19. It is agreed by and between the parties hereto that the Vendor shall get the larger property subdivided by the Municipal Corporation of Greater Bombay and other concerned bodies and authorities on or before the concerned bodies and authorities on or before the 30th day of April 1994 time being essence of the contract at its own costs and expenses. However, in the event the sub-division is not sanctioned by the Municipal other ig Corporation concerned bodies of Greater and Bombay authorities and then the Vendor shall demarcate the said premises and convey the same to the Purchaser."
. Perusal of above quoted clause 19 shows that it was in contemplation of the parties that sub-division may not be possible and therefore, it was contemplated that without sub-division there shall be transfer in favour of the plaintiffs. The learned counsel therefore submitted that there were negotiations between the parties for execution of lease deeds of the property in favour of the plaintiffs. The learned counsel took us through the correspondence between the parties which is annexed to the plaint to contend that if sale is not possible, the Court can make a decree for execution of ::: Downloaded on - 09/06/2013 14:14:08 ::: =26= lease deeds in favour of the plaintiffs. Perusal of the correspondence between the parties does show that the proposal for grant of lease instead of sale of the property was considered by both the parties. However, in our opinion, perusal of the plaint shows that in the plaint, it is not the case of the plaintiffs that they are seeking execution of lease deeds of the property in their favour. Perusal of the averments in paragraphs 17 and 23 of the plaint clearly shows that according to the plaintiffs, there was no agreement between the parties for execution of lease deeds after it is found that execution of sale deeds is not possible. The plaintiffs have stated in paragraph 23 of the plaint thus :-
"The plaintiffs agree that the discussions relating to the proposed lease were not binding till the execution of the lease deed and since that event did not take place the said agreement dated 27th September 1993 continues to hold good and subsists and binds the parties. The plaintiffs' efforts were to resolve the matter, in terms of the discussion initiated by the defendant No.1 in or about the year 1997 for a lease instead of a sale, however as confirmed by the 1st defendant, those discussions did not fructify into a binding agreement."::: Downloaded on - 09/06/2013 14:14:08 :::
=27= . What is stated in paragraph 23 by the plaintiffs clearly shows that according to them the agreement of September 1993 is agreement to sell the property and not agreement to grant lease of the property in the alternative. Following sentence from paragraph 25 of the plaint makes the position absolutely clear :-
"In the circumstances the plaintiffs say and submit that the defendant No.1 agreed to sell the ig suit plot the said agreement dated 27th September 1993."
to the plaintiffs in terms of . What is further to be seen here is that according to the plaintiffs, they have been placed in possession of the property as prospective purchasers and not as prospective lessees and they also seek an order of protection from the Court as prospective purchasers and not as prospective lessees. Had it been the case of the plaintiffs that they want execution of the lease deeds in the alternative, then they would have sought an order for protection of their possession as prospective lessees. In our opinion, therefore, from the averments in the plaint it cannot be said that the plaintiffs are seeking any decree for execution of lease deeds in their favour. It is clear that the plaintiffs are seeking a ::: Downloaded on - 09/06/2013 14:14:08 ::: =28= decree for execution of sale deeds in their favour when it appears to be an admitted position that execution of sale deeds is not possible because of Development Control Regulations. In our opinion, therefore, it cannot be said that reading the plaint as framed and filed makes out a strong prima facie case in favour of the plaintiffs. The case of the plaintiffs which has been accepted by the learned Single Judge in his order which is impugned in the appeal is that by letter dated 29th January 2003, the agreement for execution of sale-deed was terminated. Because of the conduct of the defendants plaintiffs after of ig 29th sending January maintenance 2003, it bills has been to the inferred by the learned Judge that the defendants waived the termination of the contract for execution of sale-deed. Thereafter, the possibility of performing the contract in the alternate mode viz. by execution of lease-deed was explored by the parties and the negotiations for performance of the contract by the alternate mode i.e. by executing lease-deed, was terminated by letter dated 17th January 2004 and therefore, the learned Single Judge has held that because termination of the contract for execution of sale-deed was waived, the contract for execution of sale-deed continues in force. However, it is clear from the order impugned that negotiations for performing the contract by the alternate mode viz. by execution of lease-deed was terminated by letter dated ::: Downloaded on - 09/06/2013 14:14:08 ::: =29= 17th January 2004 and there is no plea of waiver in relation to that termination. Thus, if one goes by this case of the plaintiffs which has been accepted by the learned Single Judge, the proposal for execution of lease-deed was terminated by letter dated 17th January 2004 and therefore, if the present suit is for a decree of specific performance of the agreement to execute lease-deed, then the suit may not be within the period of limitation because the suit has not been filed within the period of three years from 17th January 2004. It does appear to our mind that in the plaint as framed and filed, grant of there a is ig no decree case made for specific out by the performance plaintiffs of for the agreement to execute lease-deed firstly and secondly even assuming that such a case is made out, the other case of the plaintiffs which found favour with the learned Single Judge that what was terminated by the letter dated 17th January 2004 was a proposal for adopting alternate mode of performing the contract viz. by execution of lease-deed when the suit may not be within the period of limitation. We make it clear that the observations that we have made above are relevant strictly for the purpose of considering the question of grant of ad-interim order and they are not relevant for any other purpose. The fact, however, remains that the agreement was entered into in the year 1993, the defendants have received full amount of consideration ::: Downloaded on - 09/06/2013 14:14:08 ::: =30= from the plaintiffs. It is also common ground that on a part of the property, construction has already been started and it has been completed to a large extent. We also find that third party rights have been created even before the civil suits were filed. In our opinion, therefore, it will not be appropriate to make any order of temporary injunction restraining construction activity already started. In so far as that portion of the land which can be described as plots allotted to Mehta Group is concerned, admittedly though according to the plaintiffs, S.E.Z. in relation to this land has been sanctioned sanctioned, for ig today carrying even out building any plans have construction not been activities.
In our opinion therefore, as the notices of motion are yet to be finally decided, some interim order is necessary to be made. In our opinion therefore, following ad-interim order should operate during the pendency of the notices of motion before the learned Single Judge.
6. There shall be no ad-interim order in relation to the plots where construction has already been started, however, the construction to be made by the defendants shall be subject to the result of the suits and the defendants will have to file an affidavit in this Court within a period of two weeks from today stating that the defendants will not claim any equity on ::: Downloaded on - 09/06/2013 14:14:08 ::: =31= the basis of constructions which they raise during the pendency of the suits. The defendants shall also within a period of two weeks from today, supply to the plaintiffs any documents executed or entered into or to be entered into by them for creation of third party rights in those constructions.
7. So far as the land which can be loosely described as plots allotted to Mehta Group are concerned, in our opinion, as there is no question of there being any construction carried out unless the building therefore, plans a ig are temporary sanctioned.
injunction
In our
restraining
opinion,
the
plaintiffs from carrying out any construction on those
plots and creating third party rights should be granted
and it is accordingly so granted. However, in case any
building plans are sanctioned and negotiations for
creation of any third party rights in the construction
to be made on those plots are finalised, the defendants
shall be at liberty to move the learned Single Judge for
modification of the ad-interim order. Appeals are disposed off.
8. We request the learned Single Judge that considering that the notices of motion are pending for a long time to hear and dispose off preliminary issue and the notices of motion as expeditiously as possible. We ::: Downloaded on - 09/06/2013 14:14:08 ::: =32= have been informed that so far as the land which is described as Mehta Group land is concerned, there is already a reservoir constructed. The order of temporary injunction will not come in the way of operation of that reservoir.
. Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of the Court.
. Certified copy is expedited.
ig ( D.K. DESHMUKH J.)
( A.A. SAYED J.)
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