Bombay High Court
Bharat Shashikant Patel And 4 Ors vs Uday Upendra Patel And 6 Ors on 2 December, 2019
Author: Bharati Dangre
Bench: Pradeep Nandrajog, Bharati Dangre
(9) Comap 513-19
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Amk
COMMERCIAL APPEAL NO. 513 OF 2019
IN
NOTICE OF MOTION NO. 1438 OF 2019
IN
COMMERCIAL SUIT NO. 846 OF 2019
WITH
INTERIM APPLICATION NO. 1 OF 2019
Bharat Shashikant Patel & Ors. .. Appellants
Vs.
Uday Upendra Patel & Ors. .. Respondents
Mr. Shiraz Rustomjee, Senior Advocate a/w. Mr. Karl Tamboly, Ms.
Savita Suryavanshi i/b Ashish Suryavanshi for the Appellants.
Mr. G. R. Joshi, Senior Advocate a/w. Mr. Saurabh Pakale, Mr. Vishal
Kanade, Mr. Abhijit Kadam, Mr. Sandeep Patade i/b Kayval Shah for
Respondent No.1.
Mr. Atul Damle, Senior Advocate a/w. Mr. Sandesh Patil, Mr. Prithviraj
Gole for Respondent No.7.
CORAM : PRADEEP NANDRAJOG, C.J. &
SMT. BHARATI DANGRE, J.
DATE : 2nd DECEMBER, 2019.
P. C. :
1. From the perusal of impugned order dated 30.09.2019 it is apparent that the contesting parties are the Appellants (Plaintiffs) and Respondent Nos.1 and 7 on the other hand (D1 & D7).
2. Challenge in the Appeal is to the order dated 30.09.2019 passed in Notice of Motion 1438 of 2019 directing the Notice of Motion to be listed after the pleadings are completed. Ad-interim relief prayed for has 1/4 (9) Comap 513-19 been refused.
3. Thus, the legal issue which arises for consideration in the Appeal would be: Whether keeping in view the claim of the Appellants in the plaint denial of ad-interim relief would frustrate the claim in the suit?
4. A perusal of the plaint would show that the plaintiffs as also defendant Nos.1 to 4 had a joint/co-ownership interest in the immovable property in village Bhayandar, Taluka and District Thane.
The common ancestor was one Nagjibhai Bhailalbhai Patel.
5. The parties to the suit, as pleaded in the plaint, after deliberations, agreed that the share of the parties would be an tabulated in paragraph 4(iii) of the plaint. It is pleaded that it was agreed that Respondent No.1-Defendant No.1 would settle the claims of third parties from his own fund and would be recompensed for the same. It was agreed that he would facilitate the sale of the joint property. Such documents would be executed to empower Defendant No.1 to deal with third parties and in furtherance of said oral agreement the 1st Defendant forwarded a written memorial of the documents to be executed, which included a Deed of Release recording therein that for release of their share the Plaintiffs and Defendant Nos.2 to 4 shall receive a total sum of ₹ 19.5 19.5 Crores. The amount was received. It is pleaded that there was a distinct oral agreement between the parties as per which Defendant No.1 had agreed to pay to the Plaintiffs and Defendant Nos.2 to 4 such amounts which would be payable as per their share in common properties from out of the sale price released by Defendant No.1 from one Mr. Mehta.
6. Conceding to the fact that the Plaintiffs and Defendant Nos.2 to 4 had received ₹ 19.5 19.5 Crores from Defendant No.1, it is pleaded that the 2/4 (9) Comap 513-19 realizable market value of the joint property would not be less than ₹ 19.5 68 Crores and on said pleadings prayer made is to declare void, invalid and null the Release Deeds dated 02.11.2018 and other documents such as Special Power of Attorney, Irrevocable Power of Attorney etc. as also the Agreement of Sale entered by Defendant No.1 with Defendant No.7. It is prayed that Defendant No.1 should be directed to pay damages in a sum of ₹ 19.545,93,33,990/- as damages.
7. It was in the aforesaid backdrop of the claim in the suit that the learned Single Judge has declined ad-interim relief pending consideration of the Notice of Motion and the core of the reasoning is that having executed and having got registered the Deed of Release recording no consideration passing between the parties but admitting that in the draft Release Deed forwarded consideration mentioned ₹ 19.5 19.5 Crores was received, no case is made out at this stage to grant interim relief prayed for.
8. We concur with the reasoning of the learned Single Judge for the reason the pleadings in the plaint refer to a distinct oral agreement between the parties which would have the effect of varying a written terms in one of the two Release Deeds executed and the dispute warrants that pleadings be completed in the suit. Thereafter a Notice of Motion to be decided on the issue whether pending final hearing in the suit interim relief as prayed needs to be granted.
9. Dismissing the Appeal we would request the learned Single judge to try and dispose of the Notice of Motion as expeditiously as possible. Whereas Defendant No.1 has filed the written statement, requiring Defendant No.7 to file a written statement within 30 days from today, 3/4 (9) Comap 513-19 replication, if any, required to be filed to the written statements within 45 days from today, the Notice of Motion would be listed for direction before the learned Single judge after 45 days from today.
10. At this stage, learned Counsel for the Appellants states that parties had attempted a mediation before Mr. Naushad Engineer, a practicing Advocate of this Court. Learned Counsel desires parties to meet before the mediator again. Learned Counsel for Respondent Nos.1 and 7 state that they have no objection.
11. Thus, we direct that the Plaintiffs, Defendant Nos.1 and representative of Defendant No.7 would appear in the office of Mr. Naushad Engineer, Advocate on 07.12.2019 at a time which learned Counsel would obtain from Mr. Naushad Engineer.
12. Needless to state that observation of the learned Single Judge in the impugned order as well as the ones made by us are restricted to a consideration of the facts relatable to a plea of ad-interim injunction to be issued and thus while deciding the Notice of Motion the learned Single Judge shall decide the same unenfluenced by any observation made in the impugned order or by us, for the reason capturing of the pleadings and the facts at this stage of final disposal of Notice of Motion are different than the requirement of doing so at ad-interim stage.
[SMT. BHARATI DANGRE, J.] [CHIEF JUSTICE]
Arjun Digitally signed
by Arjun M.
Kadam
M. Date:
2019.12.03
Kadam 15:27:22 +0530
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