Bombay High Court
Axis Bank Limited vs Quartz Estate Management Services ... on 9 July, 2024
Author: Abhay Ahuja
Bench: Abhay Ahuja
55-NMS-2542-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 1401 OF 2019
AXIS BANK LIMITED )...PLAINTIFF
V/s.
QUARTZ ESTATE MANAGEMENT SERVICES )
INDIA PRIVATE LIMITED AND OTHERS )...DEFENDANTS
WITH
NOTICE OF MOTION NO.2542 OF 2019
IN
SUIT NO. 1401 OF 2019
Mr.Naushad Engineer a/w. Ms.Shreya Jha, Ms.Sonali Aggarwal i/by
M/s.Dhruve Liladhar & Co., Advocate for the Plaintiff.
Mr.Bharat R. Zaveri, Advocate for the Defendant No.1.
CORAM : ABHAY AHUJA, J.
DATE : 9th JULY 2024 P.C. :
1. This matter has been listed for hearing as the pleadings are complete. After the matter is briefly heard, it emerges that the suit is primarily seeking an order against the Defendants to admit execution of the agreement for sale for registration before the Sub-Registrar of Assurances.
2. Mr.Zaveri, learned Counsel, appearing for the Defendant no.1, would submit that he has no objection to admitting the execution avk 1/5 ::: Uploaded on - 09/07/2024 ::: Downloaded on - 11/07/2024 04:14:23 ::: 55-NMS-2542-2019.doc before the Sub-Registrar as long as a suitable indemnity is furnished in view of Clause 4(ii) of the agreement for sale dated 24 th April 2007 inter alia between the Defendant no.1 and the predecessor of the Plaintiff - bank viz. UTI Bank Ltd.
3. Mr.Engineer, learned Counsel for the bank, seeks some time to take appropriate instructions in the matter. At his request, list the suit on 13th August 2024.
4. Mr.Engineer, however, submits that the Notice of Motion can be disposed of.
NOTICE OF MOTION NO.2542 OF 2019
5. This Notice of Motion seeks a restraint order against the Defendants as under :
"a) That pending the hearing and final disposal of the Suit, this Hon'ble Court be pleased to issue an order and injunction restraining the Defendants, their respective servants, agents, contractors and/or any other persons claiming by, through and/or under them in any manner whatsoever dealing with or disposing of transferring, alienating, selling, encumbering the suit property more particularly described in Exhibit "D" to the Plaint or any part thereof and/or creating any third party rights or interests and/or disturbing the Plaintiff's right, title and interest in the suit property and possession of the suit property in any manner whatsoever;"avk 2/5 ::: Uploaded on - 09/07/2024 ::: Downloaded on - 11/07/2024 04:14:23 :::
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6. On 16th September 2019, the following order was passed and this Court had granted injunction in terms of prayer clause (a) till further orders:
"1. On behalf of the Plaintiff, the learned counsel submits that the motion has been duly served on defendant nos.1, 2 &
3. Defendant no.2 is represented today. Defendant nos.1 & 3 are absent.
2. The suit seeks a declaration that the suit agreement between the plaintiff and the defendant is valid and binding. It is the case of the plaintiff and as canvassed by Mr. Engineer that the plaintiff has agreed to purchase the third floor of building known as Corporate Park at Chambur more particularly described in agreement for sale dated 24 th April, 2007.
3. Mr. Engineer states that the agreement was lodged for registration under document no.BDR-133636 of 2007, however, the defendant no.1 did not attend the office of Sub- Registrar Assurance for admitting the execution of the document. The document is duly stamped as evident from the first page of Exhibit D to the plaint. The entire consideration has been paid over as evident from the receipt clause appearing and at page 23 of the agreement for sale. The apprehension today is that although the plaintiffs are in possession, the defendant may create third party rights in favour of the parties who may not even aware of the suit transaction. In that view of the matter, they seeks relief in terms of prayer clause (a).
4. Defendant nos.1 and 3 are absent on call. Plaintiff's Advocates undertakes to file affidavit of service upon Defendant no.4 on or before 18 th September, 2019. In that view of the matter, I pass the following order:avk 3/5 ::: Uploaded on - 09/07/2024 ::: Downloaded on - 11/07/2024 04:14:23 :::
55-NMS-2542-2019.doc
(i) there will be an injunction terms of prayer clause (a) till further orders. It is made clear that if affidavit of service is not filed, this order will stand vacated.
(ii) Defendant no.2 waives service and seeks time to file an affidavit in reply.
(iii) Let such reply to be filed within four weeks from today.
(iv) Rejoinder to be filed within four weeks thereafter.
(v) Motion to come up after completion of pleadings and in accordance with its turn."
7. At that time, Defendant no.2 had appeared and waived service. This Court has perused the affidavit dated 11 th February 2020 of the bailiff recording that the packets containing duplicates of writ of summons have been served upon the Defendants.
8. Mr.Engineer tenders across the bar an office copy of the letter dated 23rd September 2019 which indicates that even the order dated 16th September 2019 has been served.
9. Mr.Zaveri, learned Counsel, appears for the Defendant no.1 and submits that a reply has been filed. It is pointed out by Mr.Zaveri for the Defendant no.1 that the Defendant no.1 never had any intention, at any point of time, to create any third party rights. avk 4/5 ::: Uploaded on - 09/07/2024 ::: Downloaded on - 11/07/2024 04:14:23 :::
55-NMS-2542-2019.doc
10. I have heard the learned Counsel appearing in the matter and considered the rival contentions. In the reply dated 9 th October 2019 of the Defendant no.1, it is admitted that the Defendant no.1 has no intention to create any third party rights. Defendants no.2 and 3, though served, are not represented.
11. Accordingly, I am of the view that, the Notice of Motion be made absolute in terms of prayer clause (a) quoted above.
12. The Notice of Motion, accordingly, stands disposed.
(ABHAY AHUJA, J.)
Digitally
signed by
ARTI
ARTI VILAS
VILAS KHATATE
KHATATE Date:
2024.07.09
21:05:37
+0530
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