Dismissed

Kanayalal M. Thakkar v. Shree Padmanabh Builders

Bombay HC5 Dec 2005APP/799/2005

Case brief

AI extract

What is this about?

The High Court of Bombay, in Appeal No.799 of 2005, dismissed an appeal arising from a Motion Judge's order refusing permission for further construction. The court held that disposing of the underlying suit regarding agreement rights required prior examination of evidence, and allowing construction would prejudice the plaintiff's interests.

What did the court decide?

Permission to the appellant to proceed with further construction is denied; appeal dismissed in limine.

Kanayalal M. Thakkar Vs Shree Padmanabh… — Contract and Commercial Disputes | Bombay HC (2005)

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 IN THE HIGH COURT OF JUDICATURE OF BOMBAY

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 ORDINARY ORIGINAL CIVIL JURISDICTION

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 APPEAL NO.799 of 2005

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IN

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 NOTICE OF MOTION NO.1615 OF 2005

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in

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 COUNTER CLAIM NO.2508 OF 2004

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in

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 SUIT NO. 1330 OF 2000

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 Kanaylal M.Thakkar .. Appellant

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 versus

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 Shree Padmanabh Builders .. Respondents

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 Mr.V.A.Thorat, Senior Counsel i/b Mr.A.M.Gala for the
 Appellant.

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 Mr.T.N.Subramaniam i/b M/s.Puranand & Co for the

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 Respondents

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CORAM : R.M. LODHA AND

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 D.G. KARNIK, JJ

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DATED : 5th December 2005.

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 P.C.:

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 1. Heard Mr.V.A. Thorat, the learned Senior
 Counsel for the appellant and Mr.T.N.Subramaniam, the
 learned counsel for the respondent.

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 2. Assailing the order dated 22nd July 2005,
 Mr.V.A. Thorat, the learned Senior Counsel for the
 appellant submitted that the learned Motion Judge
 misdirected in refusing to consider the Notice of
 Motion on merits and dismissing the same on the ground
 that there were no changed circumstances warranting
 modification of the order dated 12th February 2001.

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 3. The learned Senior counsel would submit that
 the learned Motion Judge ought to have adverted to the
 prima facie case.

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 4. The respondents herein are the original

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 plaintiffs. They filed the suit for declaration that
 the defendant (appellant herein) has no right, title
 and interest in excess of 2455 sq.ft. FSI pursuant to
 the agreement dated 1st October 1989. Some incidental
 reliefs were prayed as well in the suit. The original

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 plaintiffs took out a Notice of Motion against the
 defendant for restraining them from making any further
 construction in the suit property and from transferring
 the said units beyond 2455 sq.ft. to third parties.
 In opposition to the said Notice of Motion, the
 defendant stated before the Court that the construction
 on 4th, 5th, and 6th floor of the building has been
 completed and the units have already been transferred
 to third parties. On behalf of the defendant, the
 statement was also made that no further construction
 shall be carried out. After the order came to be
 passed on 12th February 2001, the defendant filed
 counter claim seeking specific performance of the
 agreement dated 1st October 1989 and subsequent
 agreements and other reliefs. Thereafter, the
 defendant took out the Notice of Motion for permission
 to proceed with further construction in the suit
 property.

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 5. It is clear from the plaint as well as counter
 claim that the plaintiff and the defendant have
 basically founded their claim on the agreement dated
 1st October 1989. There being serious dispute
 regarding the respective rights of the parties under
 the agreement dated 1st October 1989 and the said

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 rights shall be determined after the evidence is
 recorded, we find no justification to grant permission
 to the defendant to proceed with further construction.
 We find no fault in the consideration of the matter by
 the learned Motion Judge.

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 6. Besides that, further construction in the suit
 property if allowed to be made by the defendant may be
 seriously prejudicial to the interest of the plaintiff
 in the suit.

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 7. All in all, we are satisfied that the
 appellant (defendant) cannot be permitted to raise
 further construction in the suit property until
 disposal of the suit.

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 8. Appeal is accordingly dismissed in limine.

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 (R.M. LODHA, J)

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 (D.G. KARNIK, J)

Kanayalal M. Thakkar v. Shree Padmanabh Builders

Case brief

What is this about?

What did the court decide?

Kanayalal M. Thakkar v. Shree Padmanabh Builders

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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