Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
MHCC010123662019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
COMMON ORDER BELOW
NOTICE OF MOTION NO. 4542 OF 2019
IN
SUIT NO. 8363 OF 1996
(HIGH COURT SUIT NO. 1401 OF 1996)
Vinay Amin and Ors. ... Plaintiffs
V/S.
M/s. Sajawat Consultants Bombay Pvt. Ltd.
and Ors.
... Defendants
MHCC010024472024
AND
NOTICE OF MOTION NO. 935 OF 2024
IN
SUIT NO. 8363 OF 1996
(HIGH COURT SUIT NO. 1401 OF 1996)
Vinay Amin and Ors. ... Plaintiffs
V/S.
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2
M/s. Sajawat Consultants Bombay Pvt. Ltd.
and Ors.
... Defendants
MHCC010007632024
AND
NOTICE OF MOTION NO. 260 OF 2024
IN
SUIT NO. 8363 OF 1996
(HIGH COURT SUIT NO. 1401 OF 1996)
M/s. Sajawat Consultants Bombay Pvt.
Ltd.
... Applicant
(Org. Defendant no.1)
IN THE MATTER BETWEEN
Vinay Amin and Ors. ... Plaintiffs
V/S.
M/s. Sajawat Consultants Bombay Pvt.
Ltd. and Ors.
... Defendants
CORAM : HIS HONOUR AD-HOC JUDGE
& ASSISTANT SESSIONS JUDGE
SHRI A.K.KALE.
CITY CIVIL COURT, GR. BOMBAY
(C.R. NO.63).
DATE : 10-05-2024
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Ld. Advocate Shri.Kishor Shriyan for plaintiffs.
Ld. Advocate Shri. Mishra for defendant No.1.
Ld. Advocate Shri. Sunil Kumar alongwith Ld. Advocate Shri. Jitendra
Yadav and Ld. Advocate Shri Rohit Updhyay for for defendant No.9.
Ld. Advocate Shri. Markand Raut for defendant No.15.
-COMMON ORDER-
1. The Notice of Motion No.4524 of 2019 filed by the plaintiffs for
appointment of Court Receiver and to put plaintiffs in vacate and
peaceful possession of the suit premises. Further for the relief that
pending hearing and final disposal of the suit to restrain defendants
from selling, transferring or creating third party rights including any
person in any manner in the premises. Further, for appointment of
Court Receiver to visit the premises and to make report. Further for
temporary injunction restraining defendants from interfering with or
disturbing the possession of the plaintiffs of their respective flats.
Further, pending hearing and final disposal of suit, defendant nos. 1
to5, 13 and 9, 10 be restrained demolishing building Sky Land. Further
pending hearing and final disposal of suit, defendant nos. 1 to5, 13 and
9, 10 be restrained from creating 3rd party interest in the suit premises
and from enforcing the documents executed between defendant nos. 1
and 9 to 17 and document between defendant no.14 in favour of
defendant no.11.
2. It is submitted in the affidavit in support that suit is filed
for declaration that the defendant No. 1 is liable to form a society or an
organization and to transfer, convey the building/property duly
completed in favour of society so formed. Defendants have falsely
represented to the Plaintiffs in respect of the plot of land and as to the
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construction of said three buildings and also as to forming of the
society or societies. The most of the Plaintiffs are office going persons
and are working in Government Organization. On the false
representation made by the Defendants, the Plaintiffs agreed to
purchase the said flat for which they have already paid substantial
amount as mentioned in the Plaint. Most of the Plaintiffs have
borrowed loan for the purpose of purchasing the flats and have
mortgaged their flats. Plaintiffs are now deprived of their own flats, for
which they are legally entitled to, by the act of the Defendants.
Defendants have taken undue advantage of Plaintiffs financial position
and the patience of the Plaintiffs who waited for such a long time for
getting their flats relying on the false representations made by the
defendants and at last wrongfully deprived, terrorised by the
Defendants. A grave and irreparable loss, harm, injury and prejudice
will be caused to the Plaintiffs if the reliefs as prayed by the Plaintiffs
are not granted and no such loss or injury will be caused to the
Defendants. In the aforesaid circumstances, the Plaintiffs have made
out a prima-facie case Balance of convenience is in their favour and it
is prayed to allow the notice of motion. Plaintiffs further filed affidavit
in support in order to incorporate further development in the matter.
It is submitted that plaintiffs moved Notice of Motion No. 1332 of
1996, whereas an order dtd. 25-04-1996 passed by the Hon'ble High
Court as ad- interim injunction against the defendant Nos.1 to 5 in
respect of remaining flats in Exh.C of the plaint i.e except flat at Sr.
Nos. 4,8,9,15 and 16 was granted. The Hon'ble High Court passed an
order dtd. 17-03-1997 were the Court Receiver was directed to take
possession of the flats . There plaintiffs are the purchaser of flats in the
building known as "Sky Land" constructed on the plot of land bearing
Survey no. 95, Hiss No. 2, City survey no. 172/Part and 272/Part of
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Village Kandivili, Taluka Borivili, Bombay Suburban District by the
defendant no. 1 of which Defendant nos. 2 to 5 are Directors and
hence, Defendant no. 1 is the promoter as defined under MOFA 1963.
The defendants have entered into registered sale Agreements with
Plaintiffs in respect of the flats purchased under the provision of MOFA,
1963 and that the Plaintiffs have paid more than 90% to the
consideration price of the said Defendant no. 1. The building "Sky
Land" was constructed by Defendant no. 1 and was almost completed
upto 90% prior to the year 1991 to 1992 or thereabout and was about
to give the possession of the said flats to the respective flat purchasers.
In the meantime there was a chaos on the site of the building, when
some unknown persons threatened the watchman and few flat
purchasers who were on the site with dire consequences to their lives.
Thereafter, the Directors of Defendant no. 1 were not traceable i.e
defendant nos. 2 to 5.
3. It is further submitted that, in the year 1995 or thereabout,
flat purchasers filed suit before the Hon'ble High Court of Bombay
being Suit No. 1401 of 1996 against Defendant no.1 to 5 for obtaining
possession of their respective flats and for other mandatory compliance
under The Maharashtra Ownership Flats Act, 1963. The plaintiffs
sought reliefs that defendant nos. 1 to 5 to forthwith complete the
building, from and registered a Co-operative Housing Society of the flat
purchaser and to execute Conveyance of suit land and building in
favour of the Society alongwith other reliefs. Since the purchase of the
said flats and after paying nearly 90% of the consideration price paid
by the majority of the flat purchasers to Defendant no. 1 in lieu of their
respective flats prior to the year 1995, the defendants not handing over
the possession of the respective flats and not complying with the
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statutory provisions of MOFA, 1963. The Plaintiffs came across public
notice dated 30 January 2017 in Free Press Journal issued by M/s SRM
Law Associates [Advocates and solicitors] inviting objections for sale of
the said property in favour of their client [name not revealed). By letter
dated 06 February 2017 plaintiffs through their advocate lodged their
objection for sale of the said property with the said Advocates SRM Law
Associates. The said Advocates received the notice but deliberately
failed to reply to the said notice. It was shocking and surprising to learn
on or about 14 March 2017, from the reliable source, whereby the
Plaintiffs obtained a copy of the Impugned Conveyance dated 02 April
2016 executed between Defendant nos. 11, 12 and Defendant no. 9, 12
and Defendant no. 1 and Defendant no. 13, when the Plaintiffs learnt
about the proceedings before the DRT filed by Defendant no. 14 as the
Secured Creditors against Defendant no. 1 who had mortgaged the said
property to Defendant no. 14. After perusing the said Impugned
conveyance dated 02 April 2016, it is surprising that Defendant no. 14
who had the knowledge that Defendant no. 1 had already sold the flats
to the Plaintiffs in the said building and despite knowing that the two
suits are filed before the Hon'ble High Court which lateron got
transferred to the City Civil Court, Mumbai, failed to make the Plaintiffs
party to the proceedings in the DRT, Mumbai. Pursuant to the
Assignment Agreement dated 13 September 2014, the said property
including the building was assigned to Defendant no. 11 without the
consent of the Plaintiffs. Defendant no. 14 after obtaining the
Judgment and Decree from DRT, behind back of the Plaintiffs assigned
its right in favour of Defendant no. 11 vide Assignment Agreement
dated 13.09.2014. Defendant no. 11 have illegally conveyed the suit
property, land alongwith the building "Sky Land" to Defendant no. 9
and Defendant no. 1 through its Director Defendant no. 13, by playing
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a fraud upon the Plaintiffs by signing the said impugned conveyance as
the Confirming Party for unlawful consideration obtained by
misappropriating huge amounts of the Plaintiffs. The suit is pending
since the year 1996 and the Plaintiffs and other flat purchasers are
deprived of their respective flats even after the substantial
consideration price paid to Defendant no. 1. The defendant no.1 with
evil intent and in connivance with Defendant nos. 9 to 13 have played a
fraud upon the Plaintiffs and other flat purchaser by becoming the
party to the said impugned Conveyance dated 02.04.2016 executed by
fraud in favour of Proposed Defendants no.9 for unlawful
consideration. As per order of the Hon'ble High Court dated 17 March
1997, the flats are in the possession of court receiver and cannot be
alienated or demolished without consent of Court. The Plaintiffs
intimated Defendant nos. 9 to 14 through notice of their advocate
dtd.22-03-2017 about their rights in the suit property and further call
upon them not to deal with the suit property in any manner or to create
any third party interest. After the Plaintiffs approached the site of the
suit property they were shocked to see that, Defendant no. 9 had
surrounded the suit property by partition wall of iron sheets and have
put up their board intimating about their possession thereon. The
Plaintiffs have better title to the suit property as they purchased the
flats from Defendant no.1. and they are absolutely entitled to obtain
Conveyance in the name of their registered society to be incorporated
by Defendant nos. 2 to 5 along with Defendant no.9 under the MOFA,
1963. Transaction between Defendant no. 1, 9, 11, 13 and 14 are
absolutely void and not binding on the Plaintiffs. Assignment
Agreement dated 03.09.2014 executed by Defendant no. 14 in favour
of Proposed Defendant no. 11 and further the impugned execution of
Conveyance dated 02.04.2016 executed by Defendant no. 11 in favour
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of Defendant no. 9 are not binding on these Plaintiffs. The Plaintiffs
apprehend that their flats are in jeopardy. Defendant nos 1 to 5,
Defendant nos. 13 and 9, 10 may demolish the building 'SKY LAND
constructed on the new building on the said plot and selling the flats to
prospective purchasers. The Plaintiffs also apprehend that Defendant
nos. 1 to 5, 13 and 9 to 12 and 14 may alienate, encumber, transfer,
create any third party interest or part with possession of any of the suit
flats. Hence, it is prayed that defendant nos. 1 to 5, 13 and 9, 10 be
restrained from demolishing the building 'SKY LAND'. It is further
prayed that above defendants be restrained by an order and injunction
from alienating, encumbering, transferring, creating any third party
interest of any nature or parting with possession of any of the suit flats.
They further be restrained from alienating or creating third party
interest or parting with possession in respect of suit property.
4. The plaintiffs filed Notice of Motion No. 935 of 2024 for
attachment of suit premises ie. Sky Land Building . Further for eviction
of Defendant nos.9,10 and 15 from the suit premises and building and
further for detaining defendant no.1 or such other person in the civil
prison for breach of the orders passed by the Hon'ble High Court. It is
further prayed for directing the Defendant no. 9 and 15 to evict
themselves from the suit premises and restrain Defendant no. 9 from
enforcing all documents executed between Defendant no.1 and 9 to 14
ie. Assignment Agreement and Deed of Conveyance. Further, an order
for directing the receiver which was appointment by the order dated
17 March 1997 to take possession of the suit flats by force, if necessary
with the help of police with further direction to complete the remaining
work and hand over possession to the plaintiffs. Further, defendant nos.
1 to 5, 13 and 9, 10 to be restrained from preventing the plaintiffs
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from entering in the suit building Sky Land and visiting their flats and
demolishing the Sky Land building. Defendants be restrained from
alienating or creating any third party interest or parting with possession
of the suit flats and in respect of the suit property. Further, for
issuance of directions be the Police Station, Kandivili to take suitable
action against the Defendant no. 9 and 15 from stopping/preventing
the Plaintiffs from entering the Skyland Building and their respective
Flats in the building and also prevent any demolition work at the
Skyland Building. In affidavit-in- support of Notice of Motion No. 935
of 2024 the plaintiffs repeated and reiterated the facts and contentions
mentioned in the affidavit in support to the Notice of Motion No. 4542
of 2019 which is filed on 13-02-2019. The plaintiff no.7 also filed
further affidavit in support of Notice of Motion No. 4542 of 2019 dtd.
23-01-2024.
5. Notice of Motion No. 260 of 2024 filed by the defendant
no.1 for restraining defendant nos. 9,10 and 15 from demolishing
building Sky Land further for directing the Court Receiver appointed by
order dtd. 25-04-1996 to visit the site of the suit property with the
adequate police protection, prepare spot panchnama/site report, do
videography of the current situation of the building Skyland and to
submit report and for further directing Charkop Police station to
provide adequate police protection to the Court receiver for the
purpose of carrying out the function.
6. It is submitted in affidavit-in support that defendant no.1
Company was incorporated and registered on or about 15th August
1984 with Registrar of Companies, Mumbai for want of funds, the
Defendant No.1 company could not run its business, therefore
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company availed a loan facility of Rs.11,90,98,616/- (Rupees Eleven
Crores Ninety Lakhs Ninety Eight Thousands Six Hundreds Sixteen
Only) from the Punjab National Bank/Defendant No. 14 by mortgaging
its various immovable properties including Plot of land bearing C.T.S
No. 172 & 272, near Gaurav Garden Complex, Bunder Pakhadi Road,
Charkop, Kandivali (West), Mumbai. They could not repay the loan
amount and accounts of the Defendant No.1 Company was classified as
Non Performing Assets ("NPA" for short") and to recover the loan
amount, Punjab National Bank has filed Suit No. 4768 before Hon’ble
High court in the year 1995. By an order dated 7th February 1997, the
Hon'ble High court has appointed receiver over the said property.
Subsequently, the said Suit was transferred to DRT-III, Mumbai and was
numbered as Original Application No.3083 of 2000. The said original
application No. 3083 of 2000 was decreed by an order dated
30.07.2004. The above property is owned by the Defendant no.1
Company and the loan was taken from Punjab National Bank by them
and later on due to the default of the said loan, the project known as
"Sky Land" building was held up since the year 1990. The bookings of
flats was done by the flat purchasers and they had filed present Suit
No. 8363 of 1996 (High Court Suit No. 1401/1906) & Suit No. 7927 of
1996 (High court Suit No. 2901/1996) now transferred to this court.
On 25 April, 1996, the Hon'ble High court had appointed court receiver,
including over un-occupied flats. The Hon'ble High court had also
passed detailed order on 17th March 1997 in the present suit. The said
property is in the hands of court receiver as per the orders dated
25.04.1996 & 07.02.1997. By virtue of the order of appointment of
court receiver, the property is subject matter of
Custodia Legis and
therefore the act of demolition of the suit properties and/or any
attempt to demolish on the part of the Defendant Nos.9, 10 and 15 is in
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teeth of that order and it is clear case of contempt of court. Thus, the
Defendant Nos. 9, 10 and 15 are liable to be prosecuted for contempt
of this Court. Defendant No. 9 claimed to have purchased the suit
property from Defendant No.11, who in turn has purchased it from
DRT-III. Defendants company has challenged the said sale transaction
between the defendant No.11 and defendant No.9 by filing Suit No.
139 of 2023 before the Hon'ble Bombay High court. On account of the
fraud, cheating and forgery committed by the Defendant No.9, 10, 15
and their respective directors, the Defendant no.1 Company has lodged
FIR No. 32 of 2018 with Kala chowkie Police Station. The Directors of
the Defendant No.9 are on bail from the Session Court. The mater is
under investigation by the Police and they are likely to file charge
sheet soon.
7. It is further submitted that, the defendant No.9 M/s.
Maysarah Properties Pvt. Ltd., have executed the consent terms in the
Civil suit No. 2791 of 2021, filed before the City civil court at Dindoshi
and have joined the hands with Defendant No.15 M/s. Ravi Real Estate
Developers Pvt. Ltd., and both of them are trying to snatch the valuable
rights in the property. One M/s. Divya Developments have also filed
Civil Suit No 2885 of 2023 before the City Civil Court at Dindoshi,
claiming right over the suit property. In the said suit No. 2885 of 2023,
both defendant nos.9 and 15, are party defendants. The court receiver
is appointed over both the plots of land and the property is subject
matter of custodia legis, the act of demolition of the suit property is
blatant violation of the order of this Hon'ble Court as well of the
Hon'ble High court. The defendant no.1 has requested the Charkop
Police station to visit the said building and to recover the machinery
being used and to arrest the people who are doing the said illegal act
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on the site and prepare the panchanama. However, Charkop Police
Station has not taken any step to prevent the demolition of the suit
property. The Defendant no.1 has approached the Kala Chowkie police
station. The above act of demolition of the building is in utter violation
of the order dated 25th April, 1996 and 7th February 1997. The
Defendant no.9,10 and 15 in connivance with each other, may
completely demolish the building, making the present suit infructious
and jeopardizing the valuable property rights of the Defendant no. 1 as
well as the Plaintiffs. The alleged claim of the Defendant no. 9 & 15 on
the Suit property is utterly sham and bogus and thoroughly dishonest.
They are not at all entitled to claim to be the owner of the suit property,
because right, if any acquired, is acquired by fraud. In order to deprive
Defendant no.1 and Plaintiffs from their lawful rights as owner of the
aforementioned property. Defendant No.1 continue to be owner of the
Suit Property and it is therefore prayed to allow the notice of motion.
8. Defendant no.9 contested the Notice of Motion No. 260 of
2024 by filing reply by way of affidavit of Ashutosh Chandra, Director
of defendant no.9. It is submitted that the notice of motion is filed with
malafide intention. It is also a result of collusion with further intention
of extortion on behalf of the applicant ie. original defendant no.1. The
applicant in the present notice of motion has approached this court
after 27 years. The applicant approached before this court with unclean
hand having no locus standi being defendant no.1 in the suit filed by
the flat purchaser. Since 1996 the Defendant has closed his eyes and
has done nothing from 1996 to 2023 for the welfare nor he taken any
steps for providing flats to the plaintiff. The applicant became defaulter
in making payment of Punjab National Bank and therefore the said
Bank filed an Original Application bearing No.3083 of 2000 and in that
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a Recovery Proceedings bearing No.451 of 2004 was taken up and in
the said Recovery Proceedings the Defendant No.14 has applied for
appointment of Receiver vide Exhibit-93. Pursuant to the Recovery
Certificate one Mr.Jayant R. Koli C/o. Punbjab National Bank, Asset
Recovery Management Branch was appointed as a Court Receiver. It
was directed that to acquire the possession of the properties in detailed
annexures attached on 10th December, 2008 and the list of the
properties were also mentioned in the list of the properties. The
Defendant No. 1 has totally suppressed the filing of Suit No.3074 of
2013 against Defendant No.14 and the said suit was heard by the City
Civil Court and an order was passed on 28.01.2014. In the said suit the
court comes to conclusion that the plaintiff therein and the Defendant
No.1 has failed to make out any prima facie case and all the
observations and case put up there in 2014 were framed as negative
against the Applicant/Defendant No.1. Therefore, the suit filed by the
defendant no.1 was dismissed long back in 2014.
9. It is further submitted that thereafter, on 03.09.2014 the
Punjab National Bank who is Defendant No.14 applied all the rights
title and interest by way of registered assignment agreement in favour
of Invent Assets Securitisation and Reconstruction Private Limited, who
is Defendant No.11 and has transferred all the rights title and interest
in respect of all 26 properties including the suit properties in favour of
the Defendant No.11. Thereafter, on 02.04.2016 Defendant No.11 has
sold the properties to Defendant No.9 in the present Motion which is
specifically mentioned in the schedule of the property and which also
includes the subject matter of the present motion which has been
deliberately suppressed and a false statement has been made before
this court. The Defendant No.1 is a confirming party to the said deed
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of conveyance and has received a monitory consideration or any
compensation best known to them. There is also an intimation letter
addressed to Mr. G.K. Sharma, Chief Executive Officer to Defendant.11
whereby all there then Directors including present Director has given a
clear intimation to sell the property and including the subject matter of
present motion. Thereafter, an order was passed on 21-12-2016
whereby the prayers in Exh. 260 in R.P. No. 1051 of 2016 was allowed
and it was observed, “in view of the property being sold under
SARFAESI Act 2002 the attachment levied by order dtd 07-02-2006 in
respect of the property mentioned below is raised applicants are
directed to hand over the possession of the said property to the
purchaser Defendant No.9. Thereafter, again on 31-01-2017 in a matter
pending between defendant no.11 and defendant no.1. Defendant no.1
was not present at all. An application was moved for seeking police
protection for handing over possession to the purchaser perusant to the
order dated 02.12.2016. The applicant for DRT Receiver is directed to
take assistance of the concerned police station for handing over the
possession to the auctioned purchaser after getting the property
vacated and cleared of encroachment. DRT receiver to submits a report
on the status of the security incurred by him at the site along with
reason of encroachment on the said premises.
10. It is further submitted that defendant no. 9 was not even
aware about the filing of High Court Suit No.1401 of 1996 and later on
the same being numbered as 8363 of 1996 and they were even not
aware that company is joined as Defendant No.9 in the present suit on
24.01.2018 whereby no representations were made on behalf of him.
Since no notices were issued to defendant no.9 therefore, defendant
no.9 submitted all my registered documents to the revenue authority
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and revenue authority after verifying the documents and after issuing
15 days' notice for inviting objections were pleased to record and
mutate the name of Defendant No.9 on the property cards in respect of
all the properties including the subject matter of the present suit.
Defendant No.1 not raised any objection before the revenue authorities
for not mutating name of defendant no.9 on 7/12 extract. Thereafter,
defendant no.9 proposed to the Building Proposal & Factory
Department of the Corporation for approval and sanction of the plan
for the development of all properties including the suit property and
thereafter, the Ravi Real Estate/ defendant no.15 has filed an objection
before the concerned department. The proposal and objections were
sent for the legal opinion by the Municipal Corporation to their legal
department and a legal opinion was received on 02.11.2021 whereby
the Designated Legal Officer directed the sanctioning authority of the
Corporation to proceed and to act accordingly on the basis of the
documents submitted by defendant no.9. Thereafter, defendant no.15
filed a suit before City Civil Court , Dindoshi bearing Suit No.2791 of
2021. The Suit was came to be disposed off by amicable settlement
between defendant no.9 and Defendant no.15. Thereafter, defendant
no. 9 made an application for conversion of the land from agricultural
to non-agricultural, which was granted and Certificate issued in
respect of the suit property. Thereafter, he made an application for
approval of the plans and pursuant to application the IOD and plinth
CC in respect of the property has been issued by the competent
authority. Corporation has also approved the application for demolition
of the suit property and vide letter dated 08.12.2023.
11. It is further submitted that the applicant is defendant no.1
in the suit has not taken any steps for welfare and protection of rights
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of flat purchaser and the said suit is on the evidence and trial. It is a
pure contractual obligation between the Defendant No.1 and the flat
purchaser in the original suit and the defendant No.9 has no concern in
respect of the private contract entered in between them. Defendant
No.1 is a bonafide purchaser and secondly the defendant No.9 has not
purchased the property under any darkness but on the contrary a legal
procedure was followed. The property was put into auction and the
property was purchased by succeeding the other bidders and the
Defendant No.9 was declared as a highest bidder and he has paid an
amount of Rs.25,65,92,607/- as full and final bidding amount for the
auction of all properties. Defendant No.9 is a bonafide purchaser and
the defendant No.9 has no concern with the private litigation being
pending between the plaintiffs and defendant no.1. The notice of
motion is not maintainable before this court on technical ground that
defendant, who has become applicant suddenly in this matter. He
himself is being prosecuted by the flat purchasers and just to shift his
burden of criminality and misappropriation of the funds of initial
bookings of the flat purchasers suit in 1996 and who are prosecuting
the Defendant No.1 and defendant No.1 realising that he will be
convicted and decree will be passed against him and therefore just in
order to divert the mind of this Hon'ble Court and even in order to stay
and put the original suit into abeyance and he is trying to escape from
the legal liability.
12. It is further submitted that the relief sought by the
defendant no.1 in absence of seeking declaratory reliefs cannot be
granted. The deed of conveyance has been signed, executed in the year
2016. The Defendant No. 1 is a confirming party and from 7 years the
Defendant No.1 has not challenged that deed of conveyance so once
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the transfer of rights including the suit property has been admitted on
the part of the company itself and when that transfer was made the
signatory of the company was a confirming authority at that time
cannot be raised in such a manner by simply putting a notice of motion
and attaching a simple piece of paper and asking for temporary reliefs
so that the 100 Crores investment made by the Defendant No.9 can be
ruined off and the personal satisfaction vendetta of the
Applicant/Defendant No.1 can be satisfied and this motion is also a
weapon and a shield for Defendant No. 1/Applicant to protect himself
from a prospective decree which he knows which will be decreed
against him for the return of the payment of earnest deposit accepted
by the flat purchaser who are the plaintiffs in the original suit of 1996
and just in order to avoid all these legal obligations and furthermore to
create hindrance in the smooth trial of the original suit filed against
Applicant /Defendant No.1 herein, the applicant has approached before
this Hon'ble Court which is not maintainable and has to be dismissed
with costs. On above and other grounds it is prayed to dismiss the
notice of motion and to vacate the ad interim relief of status quo. Ld.
Counsel for the defendant no.1 filed re-joinder to the reply filed by
defendant no.9.
13. Perused the notice of motions, reply and heard advocate
for plaintiff, defendant no.1, defendant no.9 and defendant no.15. It is
not disputed that an order of 25-04-1996 of appointment of court
receiver has been passed in the matter when the matter was before the
Hon’ble High Court. Further, it is not in dispute that thereafter, again an
order has been passed by the Hon’ble High Court on 17-03-1997,
whereby earlier order appointment of court receiver is confirmed. It is
further not disputed that the defendant no.1 became defaulter in
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making payment of Punjab Nation Bank, therefore, Punjab National
Bank filed before Hon’ble High Court. The suit was lateron transferred
to Hon’ble DRT and numbered as original Application No. 3083 of
2000. In that regard the Proceedings bearing R.P. No. 451 of 2004 was
taken up and in the said proceedings the defendant no.14 applied for
the appointment of receiver vide Exh.93 in the recovery certificate.
Pursuant to the recovery certificate the Manager of Punjab Nation Bank
was appointed as a court receiver of the properties including the suit
property. Defendant no.1 filed Suit No. 3074 of 2013 before the City
Civil Court and an order was passed on 28-01-2014 in the said suit. The
notice of motion in the said suit was dismissed. Thereafter, defendant
no.14 applied all the rights, title and interest by way of registered
Assignment Agreement in favour of defendant no.11 and has
transferred all rights and interest in respect of property in favour of
defendant no.11. Thereafter, on 02-04-2016 the defendant no.11 has
sold properties to the defendant no.9. So, it is clear that the defendant
no.14 filed suit against the defendant no.1 before the Hon’ble High
Court lateron the suit was transferred to the DRT. The suit was decreed
and the properties mortgaged by the defendant no.1 in favour of
defendant no.14 where attached by the decree of DRT. Thereafter,
defendant no.14 assigned the properties to defendant no.11 and
thereafter, defendant no.11 sold the propertied to defendant no.9 by
way of documents dtd.02-04-2016. So, the defendant no.9 came in
possession of the property by way of conveyance deed dtd. 02-04-2016.
It is true that the court receiver was appointed in the suit on the suit
properties. The same suit property was mortgaged by the defendant
no.1 with defendant no.14 Punjab National Bank. Due to default by the
defendant no.1, Punjab National Bank prosecuted defendant no.1 for
recovery before the DRT. The Hon’ble DRT appointed the court receiver
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and took the possession of the property and handed over the property
to defendant no.11. Presently, the property is in the possession of
defendant no.9. Defendant no.9 obtained various sanctions, it also
obtained the permission to demolish the old structure. It is the case of
defendant no.9 that it is the bonafide purchaser of the property and the
property has been purchased by judicial process ie. under the decree
and recovery certificate of DRT. Defendant no.1 is also one of the
signing party to the Assignment Agreement. The defendant no.1 denied
the agreement and a suit is filed by defendant no.1 before the Hon’ble
High Court which is pending. The work of demolition is sought to be
stayed on the reason that when the suit before the Hon’ble High Court,
the Hon’ble High Court has appointed court receiver so the property is
in custody of court and it is subject matter of the present suit. As per
defendant no.1 the property being in custody of the court cannot be
demolished or no change can be done without permission of the court.
In support of his submission, Ld. Counsel for defendant no.1 relied
upon case laws of the Hon’ble Bombay High Court in the case of
Mohamed Hanif Abdul Hamid and others V/s. Chunilal Ukabhai Padia
and others, 1981 SCC OnLine Bom 32. In the cited case the Hon’ble
Bombay High Court referred the following observation of the Hon’ble
Supreme Court in case of Kanhaiyalal Vs. Dr. D. B. Banaji: AIR 1958 SC
725.
“
The general rule that property in custodia legis through
its duly appointed Receiver is exempt from judicial process
except to the extent that the leave of that Court has been
obtained, is based on a very sound reason of public policy,
namely, that there should be no conflict of jurisdiction between
different Courts. If a Court has exercised its power to appoint a
Receiver of a certain property, it has done so with a view to
preserving the property for the benefit of the rightful owner as
judicially determined. If other Courts or Tribunals of co-ordinate
or exclusive jurisdiction were to permit proceedings to go on
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20
independently of the Court which has placed the custody of the
property in the hands of the Receiver, there was a likelihood of
confusion in the administration of justice and a possible conflict
of jurisdiction”.
14. In cited case the Hon’ble Bombay High Court also
referred the observations of Hon’ble Madras High Court in case of
Veerappa Chettiar Vs. Mohamed Mytheen Mana Pillai : AIR 1963
Madras 33, wherein it was observed as,
“ It is well settled that, where property has gone into the
possession of a receiver appointed by a Court, its sale either by
private treaty or by its own or in invitum as in a court sale,
without the leave of the court which appointed the Receiver, is
only voidable. This is not because the person, which is the owner
or the court which brings the property to sale has no right or
jurisdiction, as the case may be, to effect such a sale. But the
property being in the possession of the receiver and, therefore, in
custodia legis, no process without the leave of the court which
appointed the receiver can be levied upon such property. This
aspect is not specifically mentioned by Rule 1 of O.40 Civil
Procedure Code but is part of the common law of receivers. It is
only where there is a total lack of jurisdiction to being the
property to sale in execution through court can it be said that the
said that the sale is void as one without jurisdiction. But, where
the court is otherwise competent, and has jurisdiction, the sale
effected in exercise of that jurisdiction is not rendered void on
account of want of leave of the court which appointed the
receiver. This view of the effect of a court auction sale without
leave of the court which appointed the receiver”.
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21
15. In view of above observations, when the court is
competent and has jurisdiction and sale effected in exercise of that
jurisdiction is not rendered void on account of want of leave of the
court. In case in hand the Hon'ble DRT appointed the court receiver
and taken property in possession and lateron it was handed over to
defendant no.11 and thereafter, defendant no.9. The Hon'ble DRT is
having jurisdiction to effect the sell.
16. In Notice of Motion No. 260 of 2024, the defendant
no.1 prayed for restraining defendant nos. 9, 10 and 15 from
demolishing building Sky Land situated on suit property. As discussed
above, the defendant no.9 came to be in possession of suit property by
way of a judicial process. The property was taken over by the court
receiver appointed by the Hon’ble DRT. Defendant no.14 Bank assigned
its rights in the property as per recovery certificate in favour of
defendant no.11 and thereafter, defendant no.11 transferred the
property by way of Conveyance deed dtd. 02-04-2016. So, defendant
no.9 purchased the suit property and received the possession from the
Court Receiver appointed by the DRT. Therefore, it appears that
defendant no.1 is a bonafide purchasers. Defendant no.1 seeking
injunction against the defendants but it appears from conveyance deed
that defendant no.1 is a party to the said documents. Though the said
documents denied and it is challenged before the Hon'ble High Court
by way of suit but at this stage of deciding interim relief whatever
documents on record are to be considered.
17. The plaintiffs in two Notice of Motions (Notice of Motion
No. 4542 of 2019, Notice of Motion No.935 of 2024) prayed for
various reliefs. Plaintiffs are also praying for restraining defendants
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22
from making construction in the suit property. The plaintiffs also
sought the reliefs under Order XXXIX Rule 2(a) of CPC. As per
plaintiffs, the order of Hon'ble High Court dtd. 17-02-1997, wherein
it was directed not to change the nature of property and as per said
order the property is not to be sold. As discussed above the suit was
filed by the defendant no.14 Bank for recovery against defendant no.1,
lateron it was transferred to the Hon'ble DRT. In the said suit, decree
was passed. The Court Receiver was also appointed and he took
possession of the property. Lateron by way of assignment the rights
were given to defendant no.11 . Thereafter, defendant no.11 by way of
conveyance deed transferred rights in the suit property in favour of
defendant no.9. Though the court receiver was appointed by the
Hon'ble High Court when the suit was pending before the Hon'ble High
Court but the property has been taken in possession of court receiver
by the order of Hon’ble DRT and lateron it was transferred by the
judicial process. Thereafter, it can be said that there is breach of
injunction. Though the defendant no.1 is also shown as one of the
party in the documents of deed of conveyance but it was after issuance
of intimation of sell notice to defendant no.1, which defendant no.1
denied and the dispute is pending before the Hon'ble High Court. As
per Ld. Advocate for the plaintiff there is breach of order of Hon’ble
high Court and the defendants are necessary to be restrained from
demolishing the building. In support of his submission the Ld.
Advocate for the plaintiffs relied upon the case law the Hon’ble
Supreme Court in case Delhi Development Authority V/s. Skipper
Construction Co. (P) Ltd. and Another, (1996) 4 SCC 622, it is
observed that,
“To the same effect are the decisions of the Madras and Calcutta
High Courts in Century Flour Mills Limited v. S. Suppiah & Ors.
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23
[A.I.R.1975 Madras
270] and Sujit Pal v. Prabir Kumar Sun
[A.I.R.1986 Calcutta220]. In Century Flour Mill Limited, it was
held by a Full Bench of the Madras High Court that where an act
is done in violation of an order of stay or injunction, it is the duty
of the Court, as a policy, to set the wrong right and not allow the
perpetuation of the wrong-doing. The inherent power of the
Court, it was held, is not only available in such a case, but it is
bound to be exercise it to undo the wrong in the interest of
justice. That was a case where a meeting was held contrary to an
order of injunction. The Court refused to recognize that the
holding of the meeting is a legal one. It put back the parties in
the same position as they stood immediately prior to the service
of the interim order”.
18. He further relied in the case of Punjab National Bank V/s.
Delite Properties Pvt. Ltd. and others, AIR 2004 CALCUTTA 114, it is
observed that,
“ It is settled position of the law that if any person or persons in
breach of the order of court comes in possession in a suit
property they do not acquire any right or authority and they are
to be dealt with amongst other by passing the order of eviction
and further with an appropriate order of punishment”.
19. The case laws relied upon by the plaintiff, with due
respect, are not applicable to the facts in hand. As the defendant no.9
came in possession of suit property by a legal process ie. through a
litigation before the Hon’ble DRT. The property was taken over by
receiver appointed by DRT and the defendant no.9 received the
possession from court receiver of the Hon’ble DRT.
20. It is the submission of Ld. Counsel for defendant no.9 that
the proceeding before Hon’ble DRT under the SARFACIE Act and any
order passed under the SARFACIE Act cannot be challenged before the
Civil Court. He further submitted that the Civil Court has no
-- 23 of 26 --
24
jurisdiction in the matters under SARFACIE Act. In support of his
submissions the Ld. Counsel for defendant no.9 relied upon the
observations in following laws:
1 Varimadugu Obi Reddy V/s. B. Sreenivasulu and others,
(2023) 2 SCC 168.
2. Maharashtra Gramin Bank, Latur V/s. Anwar s/o Haji Ajij
Kachchi in Criminal Revision Application No. 43 of 2020
dtd. 23-04-2021. (2021 (6) Mh. L. J. ).
3. Bank of Rajasthan Limited V/s. VCK Shares and Stock
Broking Services Limited, (2023 1 SCC 1.
4. Utpala Mukherjee V/s. Aeromarine Logistics Pvt. Ltd. And
Others. 2022 SCC OnLine Del 1647
5. Celir LLP V/s. Bafna Motors (Mumbai) Private Limited and
Others, (2024) 2 SCC 1.
21. In case in hand the plaintiff and defenadant no.1 seeking
injunctions in the present suit on the basis of order of Hon’ble High
Court when the suit is pending before the Hon’ble High Court. The
plaintiff and defendants are not challenging any order of Hon’ble DRT
and not seeking any relief under the SARFACIE Act. Therefore, the
cited case laws with due respect are not applicable to the facts of case
in hand.
22. Defendant no.9 not filed reply to the notice of motion
which was filed by the plaintiffs. He submitted that the reply filed by
him to Notice of Motion No. 260 of 2024 is to be read as a reply to all
applications. Moreover, arguments of all three notice of motions were
taken together and all are being decided by common order. Though the
defendant no.9 not filed reply but he made arguments on the said
notice of motions. Considering the above discussion aspect the notice
of motion filed by the plaintiffs and defendant no.1 deserves to be
dismissed. Hence, I proceed to pass following order:
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25
-ORDER-
Notice of Motion No. 4542 of 2019, Notice of Motion No.935 of
2024 and Notice of Motion No. 260 of 2024 stands dismissed and
disposed off, accordingly.
(A.K.Kale)
Ad-Hoc Judge
& Assistant Sessions Judge
City Civil Court,
Date : 10-05-2024 Gr. Bombay.
Dictated on : 08-05-2024, 09-05-2024 & 10-05-2024
Typed on : 09-05-2024, 10-05-2024 & 13-05-2024
Checked on : 17-05-2024.
Signed on :17-05-2024.
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26
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
17-05-2024 4.00 p.m. K.M.Rana
Name of the Judge (with Court Room
no.63)
HHJ Shri A.K.KALE
(Court Room No.63).
Date of Pronouncement of Judgment/Order 10-05-2024
Judgment/Order signed by P.O. on 17-05-2024
Judgment/Order uploaded on 17-05-2024
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