Partly allowed

m/s arvindkumar maganlal and Co. v. m/s jinsh and Co. and m/s rikita enterprises Pvt. Ltd.

Bombay HC22 Nov 2006NMS/860/2006

Case brief

AI extract

What is this about?

Counsel for the applicant sought to set aside an interim order restraining respondents from parting with property possession, passed ex-parte in the main suit. The court allowed the motion, staying the injunction temporarily to enable the plaintiff to challenge the order.

What did the court decide?

The Notice of Motion to set aside the order dated 1.12.2005 was allowed, and the stay order extended until 22.1.2007.

m/s arvindkumar maganlal and Co. Vs m/s jinsh and Co. and… — Property and Title | Bombay HC (2006)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

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NOTICE OF MOTION NO.860 OF 2006
IN
SUMMARY SUIT NO.3188 OF 2005

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M/s.Arvindkumar Maganlal & Co.....Plaintiff
V/s.
M/s.Jinsh & Co.....Defendants
And
M/s.Rikita Enterprises Pvt.Ltd.....Applicant

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Mr.D.D. Madon, Senior Advocate with Mr.G.S. Godbole
i/b Mr.H.V. Kode for the Applicant. .
Mr.D.H. Mehta with Ms.Yogini Gada i/b M/s.Harakhchand
& Co. for the Plaintiff. .
Mr.Lilani Shah i/b Linani Shah & Co. for the
Defendants.

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CORAM : S.J. VAZIFDAR, J.
DATED : 22ND NOVEMBER, 2006.

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P.C.:

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1.This is a Notice of Motion to set-aside an
order dated 1.12.2005 passed by me in Notice of Motion
No.3670 of 2005 in the above Summary Suit. By the
said order, the Defendants were restrained from
parting with possession of or creating any third party
rights etc. in respect of the property referred to in
the Notice of Motion.

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2.Notice of Motion No.3670 of 2005 in which I
had passed the said order dated 1.12.2005 was under
order 8 Rule 5 of the C.P.C. for attachment before

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judgment. When I passed the order, naturally the
Applicant was not before the Court.

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3.The Applicant’s case is that prior not only
to the order but even to the filing of the suit, it
had entered into an agreement dated 18.8.2005 for
purchase of the said property. The property had been
mortgage to Bharat Co-operative Bank Limited. The
mortgaged was redeemed by payment of the entire
consideration of about Rs.1,92,00,000/-. It is
established that the entire payment for the said
agreement had been made latest by 5.10.2005.

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4.The suit was filed only thereafter on
18.11.2005 and the said order was passed by me on
1.12.2005.

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5.There is nothing to indicate that the
agreement dated 18.8.2005 is false or fabricated. Nor
is there any doubt about the aforesaid payment having
been made. There is nothing on record to indicate
that the sale was at an undervaluation.

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6.There is a serious dispute as to whether even
the Defendants were served with a copy of the order
dated 1.12.2005. The Plaintiff is always at liberty

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to take out contempt or other proceedings and obtain
necessary reliefs / declaration regarding the
transaction. They have as of date not done so.

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7.Even assuming that the conveyance dated
3.12.2005 had been executed by the Applicant contrary
to the order dated 1.12.2005 and that the Applicant
had knowledge of the order dated 1.12.2005, it would
make little difference to the Applicant’s case for the
said order could not in any event affect the
Applicant’s right under the agreement for sale dated
18.8.2005 itself.

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8.Mr.Mehta stated that the Defendant had sold
the property to the Applicant contrary to and in
breach of the assurance given to the Plaintiff. by a
writing dated 1.10.2003. No proceedings have been
adopted by the Plaintiff for enforcement of the
alleged assurance. If the Plaintiffs desire to
enforce any right on the basis of the said agreement,
they ought to adopt appropriate proceedings for the
same.

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9.In the circumstances, Notice of Motion is
made absolutely in terms of prayer (a).

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10.The order is stayed till 22.1.2007 to enable

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the Plaintiff to challenge the order.

m/s arvindkumar maganlal and Co. v. m/s jinsh and Co. and m/s rikita enterprises Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

m/s arvindkumar maganlal and Co. v. m/s jinsh and Co. and m/s rikita enterprises Pvt. Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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