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Saturday, November 23, 2013

Interim orders in suits filed by purchasers against developer - Single Judge of High Court directing not to register any agreement in respect of the flat of appellant, which was not subject matter of the suit - Notion of Motion by appellant - Interim order recalled - Appeals - Division Bench of High Court staying operation of order of Single Judge and directing the money deposited by plaintiff and appellant with developer to the credit of one of the suits and to be invested in FD - Held: Division Bench of High Court while deciding the Notice of Motion has exceeded its power and jurisdiction in commenting on the conduct of the appellant stating that she approached the court on the basis of false and fabricated documents - When the main suits are pending, particularly, the appellant is a stranger in the pending suits, such observation is not warranted and, as such, is deleted - The developer having deposited the money as directed by High Court, it safeguards the interests of plaintiff - Trial Court directed to decide the suits on merit - Administration of justice - Strictures. = Vasanti Bhat .... Appellant(s) Versus Premlata A Agarwal & Anr. Etc. .... Respondent(s) = Published in http://judis.nic.in/supremecourt/helddis.aspx

INTERIM ORDERS:

Interim orders in suits filed by purchasers against developer - Single
Judge of High Court directing not to register any agreement in respect of
the flat of appellant, which was not subject matter of the suit  - Notion
of Motion by appellant - Interim order recalled - Appeals - Division Bench
of High Court staying operation of order of Single Judge and directing the
money deposited by plaintiff and appellant with developer to the credit of
one of the suits and to be invested in FD - Held: Division Bench of High
Court while deciding the Notice of Motion has exceeded its power and
jurisdiction in commenting on the conduct of the appellant stating that she
approached the court on the basis of false and fabricated documents - When
the main suits are pending, particularly, the appellant is a stranger in
the pending suits, such observation is not warranted and, as such, is
deleted - The developer having deposited the money as directed by High
Court, it safeguards the interests of plaintiff - Trial Court directed to
decide the suits on merit - Administration of justice - Strictures.

The plaintiff-respondent no. 1, on 27.1.2009, filed four suits against
defendant-respondent no. 2 developer, for specific performance of agreement
of sale with regard to four flats.  The single Judge of the High Court by
order dated 10.2.2009 appointed a Court Receiver in respect of flat No.
703, which was not shown as suit property in any of the suits, and flat no.
801, and directed respondent no. 2 not to execute or register agreement or
create third party rights in respect of the said two flats, and by order
dated 20.3.2009 directed the Court Receiver to seal the suit flats and
communicate the same to the appellant.  The appellant filed Notice of
Motion in one of the four suits before the High Court praying for setting
aside the orders dated 10.2.2009 and 20.3.2009.  It was the case of the
appellant that out of a total sale consideration of Rs.39 lacs for flat no.
703, she had paid Rs. 38 lacs to respondent no. 2 developer pursuant to a
sale agreement and had been issued a possession letter on 30.9.3008.  The
single Judge by order dated 18.3.2010 set aside the orders dated 10.2.2009
and 20.3.2009 and directed the Court Receiver to return the possession of
flat no. 703 to the appellant.  Plaintiff-respondent no. 1 filed appeals.
During the pendency of the appeals, as directed by the High Court,
respondent no. 2 deposited Rs.98 lacs which had been paid by the appellant
and respondent no. 1.  The Division Bench ultimately allowed the appeals
and set aside the order dated 18.3.2010 and directed transfer of the amount
deposited by respondent no. 2, to the credit of Suit no. 251 of 2009 and to
be kept invested in an FD.

                           Disposing of the appeals, the Court

HELD:

1.1 It is significant to note that the main suits are pending and any
decision in respect of the issues raised by the parties would undoubtedly
affect the ultimate stand of the parties and will have bearing on the
suits. The Division Bench  of the High Court while deciding the Notice of
Motion has exceeded its power and jurisdiction in commenting on the conduct
of the appellant stating that she approached the court on the basis of
false and fabricated documents.  When the main suits are pending,
particularly, the appellant is a stranger in the pending suits, such
observation is not warranted and is, therefore, deleted. [para 6]

1.2 Pursuant to the orders of the High Court, the developer has
deposited a sum of Rs. 98 lakhs which safeguards the interest of respondent
No.1.
It is, therefore, directed:

 (i) The trial court before which the suits have been transferred from
 the original side of the High Court shall dispose of the suits
 within a period of one year.

(ii) The deposited amount of Rs.98 lakhs invested in a Nationalized Bank
be renewed periodically and disbursed subject to the orders of the court
concerned.

(iii) The trial court shall decide the issue on merits on the basis of
the materials to be placed before it.

(iv) The trial court shall adhere to the time schedule and dispose of
all the suits, after affording opportunity to all the parties including the
appellant.

(v) The limited protection granted by this Court on 20.04.2012
directing all the parties to maintain status quo prevailing as on that date
shall be continued till final decision in the suits. [para 7-8]


                                       REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                         CIVIL APPELLATE JURISDICTION

                                      1


                    2 CIVIL APPEAL NOs. 8202-8205 OF 2012


              3 (Arising out of SLP (C) Nos. 6388-6391 of 2012)






Vasanti Bhat                                             .... Appellant(s)

            Versus

Premlata A Agarwal & Anr. Etc.                    .... Respondent(s)






                               J U D G M E N T


P. Sathasivam, J.
1)    Leave granted.
2)    These appeals are directed against  the  final  judgments  and  orders
dated 29.09.2011 passed by the High Court of Judicature at Bombay in  Appeal
No. 202 of 2010 in Notice of Motion No. 3112 of 2009  in  Suit  No.  252  of
2009, Appeal No. 204 of 2010 in Notice of Motion No. 3114 of  2009  in  Suit
No. 253 of 2009, Appeal No. 205 of 2010 in Notice  of  Motion  No.  3115  of
2009 in Suit No. 254 of 2009 and Appeal No. 203 of 2010 in Notice of  Motion
No. 3113 of 2009 in Suit No. 251 of 2009 whereby the High Court allowed  the
appeals filed by respondent No.1 and set aside the  order  dated  18.03.2010
passed in Notices of Motions.
 3)   Brief facts:
(a)   An Agreement for  Sale  dated  06.10.2006  was  entered  into  between
Vasanti Bhat-appellant herein and M/s Zenal  Construction  Private  Limited-
respondent No.2 herein (the Developers)  wherein  the  appellant  agreed  to
purchase Flat No. 703 on the 7th Floor in ‘A’ Wing of the  Reserve  Bank  of
India Employees Kamdhenu Co-operative  Housing  Society  Limited  (in  short
‘the Society’) for a total consideration of Rs. 39 lacs  as  the  Developers
was having absolute right  to  develop  and  sell  the  flats  on  the  said
property pursuant to an agreement between the Developers  and  the  Society.
Out of the total sale consideration, a sum of Rs. 38 lacs has  already  been
paid through account payee cheques  on  different  dates.  Pursuant  to  the
above Agreement for Sale, respondent No.2 issued a possession letter to  the
appellant on 30.09.2008.
(b)   In the meantime, on 27.01.2009,  Respondent  No.1-Premlata  A  Agarwal
and her son Ravi A. Agarwal filed four suits being Suit Nos. 251,  252,  253
and 254 of 2009 in  the  Bombay  High  Court  against  respondent  No.2  for
specific performance of Agreement  for  Sale  with  regard  to  four  flats,
namely, 801 and 802 in ‘A’ Wing and 801 and 802 in  ‘B’  Wing  in  the  said
Society.  In none of the suits, Flat No. 703 in ‘A’ Wing was  shown  as  the
suit property.  When the matter came up for hearing, respondent  No.2-herein
(Defendant) informed the Court that they have sold out all the  said  flats.
But on being asked, they informed the Court that two flats  in  ‘A’  Wing  –
one on the 8th Floor and the other on the 7th Floor are yet  not  agreed  to
be sold to third parties under registered deed.
(c)   Learned single Judge of the High Court, vide  ad-interim  order  dated
10.02.2009, appointed a Court Receiver in respect of Flat Nos. 703  and  801
in ‘A’ Wing  and  directed  respondent  No.2  not  to  execute  or  register
agreement, alienate or create any third  party  rights  in  respect  of  the
aforesaid two flats.

(d)   Learned single Judge of the High Court, vide order  dated  20.03.2009,
after coming to know from the counsel for respondent  No.1  that  respondent
No.2 allowed the purchasers, namely, Vasanti Bhat and Bhavik K. Shah  to  do
furnishing in the suit  flats  and  the  construction  work  is  yet  to  be
completed,  directed  the  Court  Receiver  to  seal  the  suit  flats   and
communicate the same to Vasanti Bhat and Bhavik K. Shah.
(e)   Being aggrieved, on 07.08.2009, Vasanti Bhat filed  Notice  of  Motion
No. 3112 of 2009 in Suit No. 252 of 2009 before the High Court, inter  alia,
praying for setting aside the orders dated 10.02.2009 and 20.03.2009.
(f)   Learned single Judge of the High Court, vide  order  dated  18.03.2010
set aside the two orders dated 10.02.2009 and 20.03.2009  and  directed  the
Court Receiver to return the possession of Flat No. 703 in ‘A’ Wing  to  the
applicant-therein i.e. Vasanti Bhat.  Similar such  orders  were  passed  on
the other Notice of Motions.



(g)   Being aggrieved by and dissatisfied with the  order  dated  18.03.2010
passed by the single Judge of the High Court,  respondent  No.1  filed  four
appeals before the Division Bench of the Bombay High Court.
(h)   The Division Bench of the High Court,  vide  order  dated  22.04.2010,
while admitting the appeals directed respondent No.2 to deposit Rs. 98  lacs
which is paid by respondent No.1 and the appellant and stayed  the  impugned
orders in the said appeals until further orders.
(i)   Aggrieved by the order dated 22.04.2010, the appellant and  respondent
No.2 preferred separate special leave petitions  before  this  Court.   This
Court, by order dated 23.07.2010 disposed of  the  aforesaid  petitions  and
asked the parties to raise all objections  before  the  High  Court  with  a
request to consider and dispose of the same at an early  date.   During  the
pendency of the appeals before the High  Court,  respondent  No.2  deposited
the entire sum of Rs. 98 lacs which had  been  paid  by  the  appellant  and
respondent No.1 as directed by the High Court.
(j)   The High Court, by  impugned  orders  dated  29.09.2011,  allowed  the
appeals filed by the respondents and set aside the  order  dated  18.03.2010
passed in Notice of Motions in the respective suits. The High Court  further
directed that the amount which was deposited by  respondent  No.2  shall  be
transferred to the credit of Suit No. 251 of 2009 and the amount  should  be
kept invested in a FD in a Nationalized Bank.
(k)   Against the order passed by the Division Bench of the High Court,  the
appellant has filed this appeal by way of special leave before this Court.

4)    Heard  Mr.  Ravi  Shankar  Prasad,  learned  senior  counsel  for  the
appellant, Mr. Praveen Samdhani, learned senior counsel for respondent  No.1
and Mr. S.K. Katriar, learned senior counsel for respondent No.2.

5)    All the three senior counsel  appearing  for  the  contesting  parties
took us through the Agreement for Sale, averments  in  the  plaint,  reliefs
sought for in Notice of Motions and the order of the  learned  single  Judge
as well as the Division Bench of the High Court.  Mr. Ravi  Shankar  Prasad,
learned senior counsel by drawing our attention to the  Agreement  for  Sale
relating to Flat No. 703 in ‘A’ wing supported the conclusion arrived at  by
the learned single Judge and argued that the  Division  Bench  committed  an
error in allowing the appeal of the plaintiff by  rejecting  the  Notice  of
Motion filed by the appellant  herein.   On  the  other  hand,  Mr.  Praveen
Samdhani, learned  senior  counsel  for  respondent  No.1,  by  drawing  our
attention to the fact that the appellant herein is a stranger in the  suits,
submitted that the conclusion arrived at by the  Division  Bench  cannot  be
faulted with and according to him the only remedy open to the  appellant  is
to file a separate suit to secure relief in her favour.  Mr.  S.K.  Katriar,
learned senior counsel for respondent No.2 – the Developers  submitted  that
there cannot be any injunction against third party and the appellant  herein
being not a party to the suits, no injunction can be  granted  against  her.
He further submitted that by depositing a sum of Rs.98 lakhs,  the  interest
of  respondent No.1 is fully protected, hence, the  impugned  order  of  the
Division Bench is not warranted and the same  is  liable  to  be  interfered
with.

6)    All the learned senior counsel fairly admitted  that  as  per  Section
20(1) of the Specific Relief Act,  1963  it  is  only  discretionary  relief
depending upon various factual aspects to be  established  by  the  party(s)
approaching the Court.  All the counsel have also relied on  Section  14  of
the Specific Relief Act, 1963 as well as various provisions  of  Maharashtra
Ownership of Flats (Regulation  of  the  Promotion  of  Construction,  Sale,
Management and Transfer) Act, 1963.  It is also  not  in  dispute  that  the
main suits are still pending and it was also  brought  to  our  notice  that
because of the enhancement of jurisdiction,  in  October,  2012,  the  suits
filed by the plaintiff in the original side of the High  Court,  with  which
we are concerned, are being transferred to the  City  Civil  Court,  Bombay.
Taking note of the fact that the main suits are pending and any decision  in
respect of the issues raised by all the  parties  would  undoubtedly  affect
the ultimate stand of the parties and will have bearing  on  the  suits,  we
have decided not to analyse and arrive at a definite conclusion one  way  or
the other.  At the same  time,  Mr.  Ravi  Shankar  Prasad,  learned  senior
counsel for  the  appellant  is  fully  justified  in  contending  that  the
Division Bench while deciding the Notice of Motion has  exceeded  its  power
and  jurisdiction  in  commenting  the  conduct  of  the  appellant   herein
(respondent No.2 therein) stating that  she  approached  the  Court  on  the
basis of false and fabricated documents.  When the main suits  are  pending,
particularly, the appellant before us is a stranger in  the  pending  suits,
we are of the view  that  such  observation  that  respondent  No.2  therein
(appellant herein) had approached the  Court  on  the  basis  of  false  and
fabricated documents is not warranted and  those  observations  have  to  be
eschewed and we rightly do so.

7)    As stated earlier, we also noted the fact that pursuant to the  orders
of the Court, the Developers (respondent No.2 herein) has  deposited  a  sum
of Rs. 98 lakhs which safeguards the  interest  of  respondent  No.1  herein
(plaintiff in the suits).

8)    We intend to  dispose  of  these  appeals  by  issuing  the  following
directions:
(i)   The Court concerned, viz., City Civil  Court  (we  were  not  informed
about the exact Court before which the suits have been transferred from  the
original side of the High Court) is directed to dispose of the suits  within
a period of one year from the date of the receipt of copy of this judgment.
(ii)  The deposited amount of Rs.98 lakhs invested in  a  Nationalized  Bank
be renewed periodically and disbursed subject to the  orders  of  the  court
concerned.
(iii) All the observations/directions, particularly, the expression  of  the
Division  Bench  about  the  alleged  conduct  of  respondent  No.2  therein
(appellant herein) that she had approached the Court on the basis  of  false
and fabricated documents, is deleted and the  trial  Court  is  directed  to
decide the issue on merits on the  basis  of  the  materials  to  be  placed
before it.
(iv)  The Court concerned is directed to adhere to  the  time  schedule  and
dispose of all the suits, after affording opportunity  to  all  the  parties
including the appellant herein, uninfluenced by any of the reasoning of  the
High Court and this Court.
(v)   The limited protection granted by this Court on  20.04.2012  directing
all the parties to maintain status quo prevailing as on that date  shall  be
continued till final decision being taken in the suits as directed above.
9)    All the appeals are disposed of on the above terms.   There  shall  be
no order as to costs.

                             ...…………….…………………………J.


                                 (P. SATHASIVAM)






                              .…....…………………………………J.


                              (RANJAN GOGOI)


NEW DELHI;
NOVEMBER 22, 2012.























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