Bombay High Court
M/S.Siddhivinayak Enterprises Thr. ... vs Mr. Jayesh Hasmukh Shah And Ors on 24 January, 2020
Author: A.S.Gadkari
Bench: A.S.Gadkari
901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO.1068 OF 2019
WITH
INTERIM APPLICATION NO.1 OF 2019
IN
APPEAL FROM ORDER NO.1068 OF 2019
1) E-Park Structure Pvt. Ltd.
2) E-Park Property Pvt. Ltd.
3) E-Park Erector Pvt. Ltd. ..Appellants
(Original Defendant Nos.3,4, & 6)
Vs
1) Mr. Jayesh Hasmukh Shah,
2) Shree Pawansut Infotect Pvt. Ltd.,
3) Mr. Somnath Vaijanath Sakre, ..Respondents
(Original Plaintiff Nos.1 to 3)
4) M/s Siddhivinayak Enterprises,
5) Mr. Rajendra Ashok Jasud, ..Respondents
(Original Defendant Nos.1 & 2)
6) E-Park Places Pvt. Ltd.,
7) Maharashtra Industrial Development Corporation ..Respondents
(Original Defendant Nos.5 & 7)
WITH
APPEAL FROM ORDER ST. NO.28530 OF 2019
E-Park Places Pvt. Ltd. ..Appellant
(Original Defendant No.5)
Vs.
1) Mr. Jayesh Hasmukh Shah,
2) Shree Pawansut Infotect Pvt. Ltd.,
3) Mr. Somnath Vaijanath Sakre, ..Respondents
(Original Plaintiff Nos.1 to 3)
4) M/s Siddhivinayak Enterprises,
5) Mr. Rajendra Ashok Jasud, ..Respondents
(Original Defendant Nos.1 & 2)
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6) E-Park Structure Pvt. Ltd.
7) E-Park Property Pvt. Ltd.
8) E-Park Erector Pvt. Ltd.
9) Maharashtra Industrial Development Corporation ..Respondents
(Original Defendant Nos.3,4,6 & 7)
WITH
APPEAL FROM ORDER ST. NO.29761 OF 2019
1) M/s Siddhivinayak Enterprises
2) Mr. Rajendra Ashok Jasud, ..Appellants
(Original Defendant Nos.1 & 2)
Vs.
1) Mr. Jayesh Hasmukh Shah,
2) Shree Pawansut Infotect Pvt. Ltd.,
3) Mr. Somnath Vaijanath Sakre, ..Respondents
(Original Plaintiff Nos.1 to 3)
4) E-Park Structure Pvt. Ltd.
5) E-Park Property Pvt. Ltd.
6) E-Park Places Pvt. Ltd.
7) E-Park Erector Pvt. Ltd.
8) Maharashtra Industrial Development Corporation ..Respondents
(Original Defendant Nos.3,4,5,6 & 7)
------------
Dr. Veerendra Tulzapurkar, Senior Advocate a/w Mr. Firoz Bharucha, Mr. Vikram
Trivedi, Mr. Sunil Tilokchandani and Mr. Vatsal Parikh i/b M/s Manilal Kher
Ambalal & Co., for the Appellants in A.O. No.1068 of 2019.
Mr. Janak Dwarkadas, Senior Advocate a/w Mr. Chirag Kamdar, Mr. Vikram
Trivedi, Mr. Sunil Tilokchandani i/b M/s Manilal Kher Ambalal & Co., for the
Appellant in A.O. St. No.28530 of 2019.
Mr. R.S. Apte, Senior Advocate i/b Mr. D.P. Shukla for Appellants in A.O.
St.No.29761 of 2019.
Mr. G.S. Godbole, i/b Mr. Vijay Upadhyay for respondent No.1.
Mr. Ankur Pahade i/b JY & Co for respondent No.7 in A.O.No.1068 of 2019.
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CORAM : A.S.GADKARI, J.
Reserved On : 9th January 2020.
Pronounced On : 24th January 2020.
JUDGMENT:-
1] By the present appeals, the appellants/Original defendant Nos.1 to 6 have impugned Order dated 1st October 2019 passed by the learned 22 nd Joint Civil Judge, Senior Division, Pune in Special Civil Suit No.1138 of 2019, thereby confirming ad-interim relief granted by Order dated 9 th August 2019 passed by it and temporarily restrained defendant Nos.3 to 6 from making any kind of alienation or creation of any third party interest in the suit property Nos.1 and 2, mentioned in the plaint, till the disposal of the suit.
2] Heard Dr. Veerendra Tulzapurkar, the learned Senior Counsel appearing for the appellants/original defendant Nos.3,4 and 6 in A.O. No.1068 of 2019, Mr. Janak Dwarkadas, the learned Senior Counsel for the Appellant/original defendant No.5 in A.O. St. No.28530 of 2019, Mr. R.S. Apte, the learned Senior Counsel for the Appellant/original defendant Nos.1 and 2 in A.O. St. No.29761 of 2019, Mr. G.S. Godbole, the learned counsel for the respondent No.1/original plaintiff No.1 and Mr. Ankur Pahade, the learned counsel for the respondent No.7/M.I.D.C. Perused the entire record annexed to the appeals.
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901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc 3] For the sake of brevity and convenience, the parties herein are referred as per their original nomenclature and as they stand before the Trial Court in the suit i.e. the appellants as defendants and respondent Nos.1 to 3 as plaintiffs.
4] The record reveals that, the plaintiff No.1 is a creditor of plaintiff No.2 i.e. plaintiff No.2 owed certain amount to plaintiff No.1. The liability of plaintiff No.2 to pay to plaintiff No.1 arising out of an Arbitral Award dated 23.2.2015 for a sum of Rs.51.00 Crores (Rupees Fifty One Crores Only) along with interest accrued thereon was taken over by the defendant No.1. A Deed of Settlement dated 18.2.2016 was accordingly executed amongst the parties wherein the defendant No.1 agreed to pay a sum of Rs.54.00 crores (Fifty Four Crores Only) to the plaintiff No.1 towards price of the suit property mentioned in the schedule annexed to the said Agreement i.e. the property No.1 mentioned in the plaint.
That a Deed of Admission dated 20.2.2016, in which the plaintiff No.1 as party of the first part, plaintiff No.2 as party of the second part, plaintiff No.3 as party of the third part and the defendant No.1 as party of fourth part was executed wherein the plaintiff No.2 agreed to transfer the suit property i.e. property No.1 mentioned in the plaint to the defendant No.1. The said Deed of Admission dated 20.2.2016 is a registered document with the Joint Sub-Registrar, 4/18 ::: Uploaded on - 27/01/2020 ::: Downloaded on - 18/03/2020 00:26:04 ::: 901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc Class-II, Haveli bearing registration No.1751 of 2016.
That by a registered Deed of Admission dated 10.8.2016 executed amongst the plaintiff No.1, defendant No.1, defendant No.2 and plaintiff No.2, the defendant Nos.1 and 2 admitted and acknowledged their indebtedness and liability to pay an aggregate sum of Rs.56.00 crores (Fiftty Six Crores Only) to be paid to the plaintiff No.1.
That by registered Deed of Assignment of even date i.e. 10.8.2016 bearing registration No.6758 of 2016 executed between the plaintiff No.2 and defendant No.1 wherein the plaintiff No.1 is a consenting party, the plaintiff No.2 assigned all his rights, title and interest in the suit property in favour of the defendant No.1. The defendant No.1 thus became assignee/owner of the suit property. It is to be noted here that, in para No.1 sub-clause(d) of the said Deed of Assignment, the Assignor i.e. plaintiff No.2 has expressly represented the defendant No.1 that, the "Scheduled Property" (suit property) is free from all or any tenancy, license, lease, lien, charge, encumbrance, mortgage, equitable interest, prior assignment, conditional sales, contract, right of other person, claim, security interest, beneficial interest, title defect, interest,option, commitment, restriction, easement or limitation of any nature whatsoever, including any reservation, acquisition, requisition, restriction, adverse possession which are of such nature which would prevent the Assignee from carrying out its activities or exercise of any other attribute of ownership of the "Scheduled 5/18 ::: Uploaded on - 27/01/2020 ::: Downloaded on - 18/03/2020 00:26:04 ::: 901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc Property" and/or rights therein. Further it has not created any third party interests in respect of the same in any manner whatsoever and shall not do any such act even in future.
In para No.2 of the said Deed of Assignment, it is agreed that, Assignor (plaintiff No.2) in consent with the consenting party (plaintiff No.1) have on execution of the present "Assignment" granted transferred, assigned, disposed off, conveyed and sold unto and in favaour of the Assignee and the Assignee hereby purchased, acquired suit property mentioned in the Schedule annexed to the said Assignment Deed and more particularly described in the Schedule of Property together with right, title, interest in the suit property.
That the Board of Directors of the plaintiff No.2 on 3.8.2017 resolved by passing different Resolutions and confirmed the drafts of Agreement of Assign to be executed amongst defendant No.1 and defendant Nos.3 to 6. By the said Resolutions, the plaintiff No.3 Mr. Somnath Vaijanath Sakre, the Director of the Company was authorized to sign and execute the said Assignment Deed and all other Deeds, Documents in that behalf.
That thereafter an Agreement to Assign dated 7.8.2017 bearing registration No.7012 of 2017 came to be executed between the defendant No.1 and 3 whereby the defendant No.3 purchased its suit property (separate Agreements are executed by defendant No.4 to 6 also for respective floors) in the suit property No.1 mentioned in the plaint, by paying valuable consideration. The 6/18 ::: Uploaded on - 27/01/2020 ::: Downloaded on - 18/03/2020 00:26:04 ::: 901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc said Agreement is a registered Agreement. In the said Agreement to Assign, the defendant No.1 represented to the defendant No.3 and confirmed that, the suit property is free from all encumbrances and the property is not encumbered in any way. It is further represented that, there is no secured creditor of the defendant No.1 in respect of suit property or any part thereof. It is further represented that, there is no prior liability pending to be paid to the defendant No.1 with respect to the suit property.
That by further registered Deed of Assignment dated 17.10.2017 bearing registration No.11705 of 2017, the defendant No.1 assigned a floor in the suit property to defendant No.3. That the plaintiff No.2 is consenting party to the said Agreement. Distinct and separate registered Agreements are executed between the defendant No.1 and defendant Nos. 4 to 6 wherein the plaintiff No.2 is a consenting party. The Defendants Nos.4 to 6 have thus purchased their respective floors of the suit property No.1 mentioned in the plaint, from defendant No.1 for valuable consideration and aforestated representations are made in writing in different and distinct Indentures by the defendant No.1. 5] It further appears that, as the defendant No.1 did not pay the agreed dues as per Deed of Settlement dated 18.2.2016, the plaintiffs filed aforerstted Special Civil Suit No.1138 of 2019 on 16.7.2019. The plaintiffs have prayed for declaration that, the suit property Nos.1 and 2 mentioned in the plaint are subject to charge of the plaintiff No.1 and for declaration that, various 7/18 ::: Uploaded on - 27/01/2020 ::: Downloaded on - 18/03/2020 00:26:04 ::: 901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc Agreements and Assignment Deeds executed between the defendant No.1 and the defendant Nos.3 to 6 pertaining to the 2nd, 4th, 5th and 6th floors respectively, of the suit property No.1 are illegal, bad in law and of no consequences and the same stands cancelled forthwith and for other consequential relies.
The plaintiffs also filed an Application below Exh.5 under Order 39 Rule 1 of the Code of Civil Procedure for temporary injunction. By its ad-interim Order ated 9.8.2019, the Trial Court had restrained the defendant Nos.1 to 6 or any other person acting on their behalf from making any kind of alienation or creation of any third party interest in the Suit Property Nos.1 and 2 or any part thereof till final hearing of Application below Exh.5. The learned Judge of the Trial Court by its impugned Order dated 1.10.2019 has confirmed its ad-interim Order dated 9th August 2019 and has further temporarily restrained the defendant Nos.3 to 6 or any other persons acting on their behalf from making any kind of alienation or creation of any third party interest in the Suit Property Nos.1 and 2.
6] Mr. Tulzapurkar, the learned senior counsel appearing for the appellants/original defendant Nos.3 to 6 in A.O. No.1068 of 2019 submitted that, no charge is created on the suit properties in the Indentures namely Deed of Admission dated 20.2.2016 and 10.8.2016 for the amount to be paid by the defendant No.1 to the plaintiff No.1. He submitted that, in Deed of Admission dated 10.8.2016 the defendant Nos.1 and 2 have admitted their indebtedness 8/18 ::: Uploaded on - 27/01/2020 ::: Downloaded on - 18/03/2020 00:26:04 ::: 901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc and liability to the tune of Rs.56.00 Crores (Fifty Six Crores Only) to be paid to the plaintiff No.1. However, in the Deed of Assignment dated 10.8.2016 executed between the plaintiff No.2 and defendant No.1, wherein the plaintiff No.1 is the consenting party, whereby the defendant No.1 has become owner of the suit properties, it was represented by the plaintiff No.2 that the Suit Property is free from all encumbrances. That in furtherance of the said Deed of Assignment dated 10.8.2016, the defendant Nos.3,4 and 6 entered into Agreement to Assign dated 7.8.2017 with the defendant No.1 and also executed Deed of Assignment dated 17.10.2017. That both the said Agreements are registered Agreements. He further submitted that, even in Agreement to Assign, the defendant No.1 has represented that, the Suit Property is free from all encumbrances and there is no mention about charge created on the suit property by the plaintiff No.1. He submitted that, the appellants are the bonafide purchasers of the suit property from the defendant No.1, for valuable consideration without Notice from either of the plaintiffs. He submitted that, as a matter of fact in the Deed of Assignment dated 17.10.2017 the plaintiff No.2 is a consenting party and he also did not divulge to the defendants any charge of the plaintiff No.1 being created on the suit properties. He submitted that, in view thereof, temporary injunction against the defendant Nos.3 to 6 is not tenable in the eyes of law and may be set aside by allowing the present appeal.
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901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc 7] Mr. Dwarkadas, the learned senior counsel appearing for the Appellant in A.O. St. No.28530 of 2019 (Defendant No.5) in addition to the arguments canvased by Shri Tulzapurkar submitted that, the plaintiff No.1 has already filed Special Summary Suit No.77 of 2019 against the defendant Nos.1 and 2 under Order 37 of the Code of Civil Procedure for recovery of the amount in pursuance of documents executed inter-se between the said parties. He submitted that, the defendant No.5 has purchased 5 th floor of the said building from defendant No.1 by executing Agreement to Assign and Deed of Assignment and is in actual use, occupation and possession of the property. He submitted that, as per his instructions in the same building, floor Nos.1 and 3 are in possession of the defendant No.1 and the plaintiffs did not seek injunction against the defendant No.1. He submitted that, the Trial Court in its impugned Order has taken into consideration all the criteria necessary for granting injunction collectively and has failed to take into consideration the aforesated important aspect of the matter. He submitted that, in view thereof the plaintiffs have failed to establish prima facie case qua the defendant Nos.3 to 6 and therefore impugned Order needs to be modified and/or set aside qua the said defendants.
8] Mr. Apte, the learned senior counsel appearing for the Appellants in A.O. St.No.29761 of 2019 (Defendant Nos.1 and 2) submitted that, the plaint mentions two properties in its Schedule, however, while confirming ad-interim 10/18 ::: Uploaded on - 27/01/2020 ::: Downloaded on - 18/03/2020 00:26:04 ::: 901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc Order granting injunction with respect to the Property No.2, the Trial Court has not given any reasoning for it. He submitted that, the aforestated documents mentioned in para No.4 above have not been considered by the Trial Court at all. He submitted that, as a matter of fact, the defendant Nos.1 and 2 are having counter claim against the plaintiff No.1 and they are also claiming set off against the monetary claim of the plaintiffs. He submitted that, the plaintiff No.2 is not a party to the Deed of Settlement dated 18.2.2016 and he has been arrayed in the plaint only to create charge on the property of these defendants. He submitted that, in the documents referred to hereinabove, it no where discloses that the defendant No.1 had at any point of time agreed to have charge of plaintiff No.1 on the suit property. He therefore submitted that, the Trial Court has committed an error in granting injunction against the defendants and therefore the impugned Order may be set aside by allowing his appeal.
9] Per contra, Mr. Godbole, the learned counsel appearing for the respondent No.1 vehemently opposed the appeals and submitted that, on 2.9.2005 licence was granted to the plaintiff no.2 by the M.I.D.C. to develope the suit property. That the plaintiff No.1 financed the plaintiff No.2 for development of the same. On 13.12.2013, M.I.D.C. granted Completion Certificate to the said Project. He submitted that, as the plaintiff No.2 was not able to pay the debts of the plaintiff No.1, the Deed of Admission dated 20.2.2016 having registration No.1751 of 2016 came to be executed between the plaintiff No.1, plaintiff No.2 11/18 ::: Uploaded on - 27/01/2020 ::: Downloaded on - 18/03/2020 00:26:04 ::: 901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc and defendant No.1 wherein the plaintiff No.2 agreed to transfer suit properties to the defendant No.1 for consideration of Rs.54.00 Crores. He submitted that, Clause No.7(b) of the said Indenture mentions about covenant for creating charge over Property No.1 and in fact it is accordingly created. He further submitted that, in the Deed of Admission dated 10.8.2016 having registration No.7335 of 2016 executed between the plaintiff No.2 and defendant No.1, the defendant Nos.1 and 2 have admitted their indebtedness and liability of Rs.56.00 Crores to be paid to plaintiff No.1. He submitted that, "what is charge on the property" has been mentioned in the recital of the said document. He submitted that, Clause Nos.12 and 27 of the said document clearly lead to an inference that, charge is in fact created over the suit property in favour of the plaintiffs. He further submitted that, the respondent No.7/M.I.D.C. has permitted to sublease in favour of the defendant No.1 from the plaintiff No.2. He submitted that, Deed of Assignment dated 18.10.2017 has been signed by the defendant No.5 and not by the defendant No.3 who had signed earlier document i.e. Agreement to Assign dated 7.8.2017. That the plaintiff No.1 was not informed about the execution of said Deed of Assignment dated 18.10.2017 by the defendant No.1 and therefore the right of the plaintiffs to recover money from defendant No.1 is in jeopardy. He submitted that, as far the Summary Suit filed by the plaintiff No.1 is concerned, it is only to enforce the right to recover money from the defendant No.1. He submitted that, as per Section 100 of Transfer of Property Act, charge to 12/18 ::: Uploaded on - 27/01/2020 ::: Downloaded on - 18/03/2020 00:26:04 ::: 901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc recover amount on immovable property is permissible. He submitted that, reasoning given by the Trial Court in para No.15 of the impugned Order needs no interference by this Court. He lastly submitted that, no irreparable loss and/or harm will be caused to the defendants, if Order of injunction remain in existence till the decision of the present suit and therefore all appeals may be dismissed. 10] The chronology of the transactions mentioned in para No.4 above have been emerged on record from the documents produced by the respective parties and from their pleadings and are prima facie admitted facts.
It is to be noted here that, perusal of the documents i.e. Deed of Admission dated 20.2.2016 bearing registration No.1751 of 2016 wherein the plaintiff No.2 agreed to transfer the suit property in favour of the defendant No.1 and the Deed of Admission dated 10.8.2016 bearing registration No.7335 of 2016, wherein the defendant Nos.1 and 2 admitted and acknowledged their indebtedness and liability to pay a total sum of Rs.56.00 Crores to the plaintiff No.1, would clearly indicate that, no charge of whatsoever nature is created on the suit properties for the amount to be paid by the defendant No.1 to the plaintiff No.1.
That by Deed of Assignment dated 10.8.2016 having registration No.6758 of 2016 executed between the plaintiff No.2 and defendant No.1 wherein the plaintiff No.1 is a consenting party, the plaintiff No.2 assigned all his rights, title and interest in the suit property in favour of the defendant No.1 and 13/18 ::: Uploaded on - 27/01/2020 ::: Downloaded on - 18/03/2020 00:26:04 ::: 901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc therefore the defendant No.1 become assignee/owner of the suit properties. In the said Deed of Assignment dated 10.8.2016, in para No.2,it was clearly represented to the defendant No.1 that, the said property is free from all encumbrances. It appears that the said representation was further made to the defendant No.3 while executing Agreement to Assign dated 7.8.2017 bearing registration No.7012 of 2017 and Deed of Assignment dated 17.10.2017 bearing registration No.11705 of 2017 (separate Agreements are executed with the defendant Nos.4 to 6). The relevant para Nos.12 and 27 of the Deed of Admission dated 10.8.2016 bearing registration No.7335 of 2016 reads as under:
(12) The Parties hereto agree, acknowledge and consent that the Second Party, Third Party, Fourth Party and Fifth Party herein has hereby acknowledged their indebtedness and liability to pay an aggregate sum of Rs. 56,00,00,000/-
(Rupees Fifty Six Crores Only) to the First Party herein on terms contained herein. Accordingly, the Parties hereto have further agreed that in any and all transactions, executions, writings, deeds, documents, agreements etc. executed or proposed to executed by the Second Party and/or Third Party herein, First Party, shall join as a consenting party to all such agreements for sale/sale deed/ writings/documents etc. being executed in connection with the Charged Property and Additional Charged Property for effecting valid transfer of rights, title and interest of said Property in favour of the any third party. (27) The Parties hereto agree and acknowledge that these presents does not amount to transfer of rights in the said Charged Property and Additional Charged Property but is a mere acknowledgment of charge and indemnification obligations of the remaining Parties in favour of the First party and that in order to give effect to the terms of these presents, they shall enter 14/18 ::: Uploaded on - 27/01/2020 ::: Downloaded on - 18/03/2020 00:26:04 ::: 901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc into and execute further Agreement to Sell/Sale Deed/Deed of Assignment with respect to said Additional Charged Property on which the said Third Party Purchaser shall pay the requisite stamp duty at prevalent rates on the valuation of the said Property as per provisions of the Maharashtra Stamp Act, 1958. Accordingly, the present Deed of Admission is hereby executed on a Rs.500/- (Rupees Five Hundred Only) reflecting the true set of events, admitted facts and intention of the Parties thereto, which shall at all time be binding on the Parties hereto.
Plain reading of the said clauses would clearly reveal that, the 'charge' of plaintiff No.1 on the suit properties has not been created therein. It is to be further noted here that, it does not even remotely indicate that, the defendant No.1 has agreed for creating charge of plaintiff No.1 on the suit properties and more precisely on suit property No.1.
Perusal of the said Indenture would reveal that, the plaintiff No.1 has not retained right to be further informed about subsequent transfers to be effected by the defendant No.1 in favour of the third party and therefore I find no substance in the contention of the learned senior counsel for the plaintiff No.2 that, at the time of execution of the Deed of Assignment dated 17.10.2017 bearing registration No.11705 of 2017 executed between the defendant No.1 and the defendant No.3 to which the plaintiff No.2 is also a party, the plaintiff No.1 was not informed by the defendant No.1 and therefore his right to recover money from the defendant No.1 is in jeopardy.
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901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc 11] As noted earlier, the defendant Nos.3 to 6 have purchased their respective suit properties from the defendant No.1, bonafide for valuable consideration without Notice from either of the plaintiffs though the plaintiff No.2 was a party to the said Deed of Assignment dated 17.10.2017.
Though in the recital of the Indenture i.e. Deed of Assignment dated 10.8.2016 the term "charged property" is used, a careful perusal of the said two paragraphs namely 12 and 27, would reveal that in fact the defendant No.1 never agreed to have any charge of the plaintiff No.1 on the suit properties. Thus it is clear that, in fact no charge is created by the plaintiff No.1 on the suit property while executing the Deed of Admission wherein the defendant Nos.1 and 2 have admitted their indebtedness and liability to the tune of Rs.56.00 Crores. In the premise, this Court is of the view that, the contention of the plaintiff No.1 that, he is having charge over the properties has no substance in it.
It is thus clear that, no charge is created by the plaintiff No.1 on the suit properties which have been transferred in favour of the defendant No.1. The record indicates that, no prima facie case is made out by the plaintiffs against the defendant Nos.3 to 6. The balance of convenience qua the said defendants also does not lie in favour of the plaintiffs.
In view thereof, Order of injunction passed against the defendant Nos.3 to 6 is not justifiable and the same needs to be set aside and is accordingly set aside.
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901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc 12] As noted earlier, the plaintiff No.1 has already filed Special Summary Suit No.77 of 2019 against the defendant Nos.1 and 2 under Order 37 of the Code for recovery of the amount in pursuance of documents executed inter-se between the said parties and the said proceedings are subjudice.
As far as the defendant Nos.1 and 2 and the suit property No.2 mentioned in the plaintiff is concerned, it is the defendant No.1 who initially by executing the Deed of Settlement dated 18.2.2016 and subsequently Deed of Admission dated 10.8.2016 has admitted and agreed to pay the said amount mentioned in the said documents to the plaintiff No.1 and therefore with a view to have equity in the matter and to protect the interest of the plaintiff No.1, the injunction granted against the defendant Nos.1 and 2 by ad-interim Order dated 9.8.2019 by the Trial Court is hereby confirmed. The defendant Nos.1 and 2 by way of temporary injunction are restrained from making any alienation or creation of any third party interest in the suit property No.2 or any part thereof till the final adjudication of Special Civil Suit No.1138 of 2019.
13] In view of the above following Order: (I) A.O. No.1068 of 2019 filed by the Original Defendant Nos.3,4 and 6
and A.O. St. No.28530 OF 2019 filed by the Original Defendant No.5 are allowed in the aforesaid terms.
(ii) A.O. St. No.29761 of 2019 filed by the Original Defendant Nos.1 and 2 is accordingly dismissed.
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(iii) In view of disposal of Appeal, Interim Application No.1 of 2019 in A.O. No.1068 of 2019 does not survive and the same is accordingly disposed off. 14] At this stage, Mr. Godbole, the learned counsel for the respondent No.1/original plaintiff No.1 submitted that, plaintiff No.1 is intending to challenge the present Order before the Honourable Supreme Court and therefore prayed that, implementation and operation of the present Order may be stayed for a period of four weeks from today.
Learned counsel for the appellants vehemently opposed the said prayer. However, at the request of Mr. Godbole, the effect, implementation and operation of the present Order is stayed for a period of four weeks from today.
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