Dismissed

Shri Harishchandra Panglo Gaonkar and 5 Ors., v. Shri Shambu Dacu Salelkar and 2 Ors.

Bombay HC1 Feb 2011CA/64/2010

Case brief

AI extract

What is this about?

In a civil application seeking temporary injunction to restrain development and sale of suit property, the Single Judge held that no interim relief was warranted at the stage as both courts below found applicants lacked title and possession, and substantial sales and development had already occurred, subjecting future rights to the final appeal outcome.

What did the court decide?

Application for temporary injunction and direction to maintain status quo dismissed; respondents' development and sales of ten sale deeds permitted but made not breach in future.

Shri Harishchandra Panglo Gaonkar and 5 Ors., Vs Shri… — Specific Performance | Bombay HC (2011)

¶1

¶2

IN THE HIGH COURT OF BOMBAY AT GOA

¶3

CIVIL APPLICATION NO.64 OF 2010

¶4

¶5

SECOND APPEAL NO.87 OF 2005

¶6

Shri Harishchandra Panglo Gaunkar,

¶7

Smt. Shanem Harishchandra Gaonkar,

¶8

Shri Shashikant Harishchandra Gaonkar (expired) through his legal representative: Master Gaurish Kanta Gaonkar, Through Appellant No.1.

¶9

Smt. Sashikant Gaonkar,

¶10

Shri Gajanan Harishchandra Gaonkar,

¶11

6.	Shri Ramesh Harishchandra Gaonkar All majors, residents of Bethora, Ponda-Goa.	…. Applicants
	V/s
1.	Shri Shambu Dacu Salelkar,
2.	Shri Nagesh Dacu Salelkar (expired) Through his legal representatives: a. Smt. Nagesh Salelkar, b. Smt. Samti Satarkar, c. Gurudas Nagesh Salelkar, d. Mrs. Gulabi Vijay Satarkar, e. Shri Vijay Satarkar, f. Revati Nagesh Salelkar, g. Salu Nagesh Salelkar, h. Vashit Nagesh Salelkar, All major and residents of Bethora, Ponda.
3.	Shri Mortu Shankar Salelkar, Major, resident of Bethora, Ponda, Goa.	…. Respondents

¶12

¶13

Mr. M.B. Da Costa, Senior Advocate with Mr. J.A. Lobo, Advocate for the Applicants.

¶14

Mr. S.D. Lotlikar, Senior Advocate with Mr. P.S. Lotlikar, Advocate for the Respondents.

¶15

CORAM : A.P. LAVANDE, J.

¶16

Reserved on : 28^th January, 2011

¶17

Pronounced on:1^st February, 2011

¶18

ORDER :

¶19

By this application, the applicants who are appellants in Second Appeal No.87/2005 seek temporary injunction against the respondents from developing and/in changing the nature of the suit property and/or selling and/or encumbering or creating third party rights or interest and further direction to the respondents to maintain status quo.

¶20

Application has been vehemently opposed by filing replies

¶21

on behalf of the respondents. It is the case of the applicants that the respondents are developing the suit property with the use of bulldozers and, therefore, it is necessary that the respondents are restrained from developing the suit property and/or creating third party rights. It is the case of the respondents that the respondents have entered into an agreement dated 4/02/2010 for development and sale of the suit property and pursuant to the said agreement, ten

¶22

¶23

Sale Deeds have been executed.

¶24

According to the respondents, the applicants/defendants have

¶25

no right absolutely to the suit property and, therefore, the application deserves to be dismissed.

¶26

Mr. D'Costa, learned Senior Counsel appearing for the applicants submitted that although the application seeking interim relief was filed on 7/04/2010, in the reply dated 5/10/2010 the respondents did not disclose the execution of the Sale Deeds and it is only thereafter that the respondents disclosed about execution of the development agreement and execution of Sale Deeds. Mr. D'Costa further submitted that the applicants/appellants have very good case on merits and, therefore, in the event, the interim relief sought for by the applicants is not granted, irreparable loss and injury would be caused to the applicants.

¶27

Mr. Lotlikar, learned Senior Counsel appearing for the respondents submitted that the application for stay of the decree passed by the lower appellate Court bearing Civil Application No.207/2005 filed by the applicants has been rejected by this Court in the year 2005 and present application has been filed only in the

¶28

¶29

year 2010 and, therefore, the applicants are not entitled to any relief. Learned Counsel further submitted that the applicants have

¶30

not given the details of the development carried out by the respondents. Mr. Lotlikar further submitted that pursuant to the agreement dated 4/02/2010, the respondents have executed ten Sale Deeds and, therefore, this is not a fit case in which the applicants deserve to be granted any interim relief at this stage. Learned Counsel further submitted that although the trial Court dismissed the suit filed by the respondents for injunction, the trial Court while holding that plaintiffs had not established title and possession also gave a clear finding that the applicants/defendants had neither proved title nor possession and in view of this fact and in view of the clear finding given by the lower appellate Court that the respondents/plaintiffs are in owner in possession of the suit property, the applicants herein are not entitled to any interim relief and grant of any such relief would cause serious prejudice to the respondents who have entered into a development agreement dated 4/10/2010.

¶31

Having considered the rival submissions and having perused the record, I am of the considered opinion that this is not a fit case in which the applicants are entitled to the interim relief sought for,

¶32

¶33

at this stage. Both the Courts below have held that the applicants/defendants have neither title nor possession in respect of the suit property. Moreover, the application for stay of the impugned decree filed by the applicants was dismissed by this Court in the year 2005. In addition, the respondents have already acted upon development agreement dated 4/02/2010 and have already executed ten Sale Deeds and the development in the suit property has already commenced.

¶34

In view of the above, I am not inclined to grant the relief sought for by the applicants. However, it is made clear that the Sale Deeds already executed and to be executed as well as development already carried out and that may be carried out by the respondents/plaintiffs or their transferees shall be subject to final result of the appeal and the respondents or their transferees will not be entitled to claim any equity on the ground that they have carried out development by incurring expenditure.

¶35

The application stands disposed of in aforesaid terms.

¶36

A.P. LAVANDE, J.

¶37

NH/-

Shri Harishchandra Panglo Gaonkar and 5 Ors., v. Shri Shambu Dacu Salelkar and 2 Ors.

Case brief

What is this about?

What did the court decide?

Shri Harishchandra Panglo Gaonkar and 5 Ors., v. Shri Shambu Dacu Salelkar and 2 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Mr. Peter Paul Clement Almeida Vs Mr. Rajaram Shantaram Salgaokar (Since Dec.) through Lr'S

Vinal Vishvanath Diukar Vs State through Officer-in-Charge and 2 Ors.

Mr. Rohit Diukar Vs State through Officer-in-Charge of Calangute Police Station

Mr. Virkkunen Olli Petterio Vs State of Goa through Officer-in-Charge

M/S. Manipal Sowbhagya Nidhi Limited, through Power of Attorney Holder Mr. H. Mohandas Vs All Goa Manipal Finance Group of Companies Creditors Association and 5 Ors.

Smt.Rukmini a.Joshi and 14 Ors., Vs Shri Somnath N.Sawant Desai and 24 Ors.