Partly allowed

Pansn Construction and Developers Private Limited v. Girish Vrajlal Sheth

Bombay HC13 Jul 2012APP/434/2012

Case brief

AI extract

What is this about?

The High Court of Bombay, in an appeal against an interlocutory order dismissing a notice of motion for interim relief in a suit for specific performance, deleted offending observations regarding the plaintiff's entitlement to specific performance before the trial concluded but dismissed the appeal on the notice of motion. The court directed the trial judge to treat prior observations as prima fac

What did the court decide?

Deleted underlined observations from paragraph 25 of the impugned order dismissing the notice of motion; directed trial judge to decide merits unaffected by interim observations.

Pansn Construction and Developers Private Limited Vs… — Specific Performance | Bombay HC (2012)

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appl(l)458.12

IN THE HIGH COURT OF JUDICATURE AT BOMBAY.

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ORDINARY ORIGINAL CIVIL JURISDICTION

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APPEAL (L) NO.458 OF 2012 IN NOTICE OF MOTION NO.745 OF 2012 IN SUIT NO.2631 OF 2007

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Pansn Construction and Developers Pvt.Ltd. ...Appellant v/s. Girish Vrajlal Sheth ...Respondent

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Mr.D.H.Mehta i/b S.Pathak & Co. for appellant. Mr.Robin Jaisinghania with Ms.Jacinta D'silva for respondent.

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CORAM: MOHIT S. SHAH, C.J. & N.M. JAMDAR, J. DATE : 13 July 2012.

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P.C.

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This appeal is directed against the order dated 3 May 2012 of the learned trial Judge of this Court dismissing the appellant/plaintiff's notice of motion for interim reliefs in respect of the suit property.

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After the order was pronounced on 3 May 2012, by subsequent order dated 11 June 2012, the learned trial Judge has also added one sentence to paragraph 16 of the order dated 3 May 2012, which reads as under:-

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“The learned Senior Advocate appearing for the Defendants, on instructions, has stated that the Defendants will not be taking any benefit of utilizing the TDR allegedly purchased by the Plaintiff and loaded on the suit property. The statement is accepted.”

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The learned counsel for the appellant/plaintiff has sought to raise various contentions on merits of the dispute between the parties and also made a serious grievance against the underlined observations in paragraph 25 of the final order. Paragraph 25 reads as under:-

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“25. In view of the above, I am not convinced that the plaintiff is entitled to an order and decree against the defendant to specifically perform his obligation under the MOU dated 27 February 2003 (Exhibit B to the plaint) read with the Agreement contained in the Draft Development Agreement (Exhibit N-1 to the plaint). In view thereof the question of granting any interim relief in favour of the plaintiff qua the suit property does not arise. The notice of motion is, therefore, dismissed. At the request of the of the learned advocate for the plaintiff, the ad-interim relief earlier granted in the notice of motion shall continue up to 6 July 2012.”

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It is vehemently submitted that the matter is yet to go to trial and still at this stage without the plaintiff getting an opportunity to lead its evidence, the learned trial Judge has gone to the extent of observing that the plaintiff is not entitled to an order and decree of

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specific performance.

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Having heard the learned counsel for the parties, we delete underlined words from paragraph 25 of the impugned order dated 3 May 2012. Accordingly, paragraph 25 of the order shall read as under:

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“The notice of motion is, therefore, dismissed. At the request of the of the learned advocate for the plaintiff, the ad-interim relief earlier granted in the notice of motion shall continue up to 6 July 2012.”

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As regards the arguments of the learned counsel for the appellant/plaintiff on merits of the controversy between the parties, we make it clear that the observations made by the learned trial Judge in paragraphs 1 to 24 of the impugned order shall be treated as expression of prima facie opinion at the interlocutory stage and learned trial Judge will hear and decide the dispute between the parties in accordance with law without being influenced by the observations made above in the impugned order.

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As regards the appellant/plaintiff having loaded TDR on the suit property, the learned senior counsel for the defendants had already stated before the learned trial Judge that the defendants will not take any benefits of utilizing the TDR purchased by the plaintiff and loaded on the suit property.

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The said statement is also reiterated before us.

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The learned counsel for the respondents/defendants states that the defendants propose to take out notice of motion before the learned trial Judge for appropriate directions to require the plaintiff to take away the TDR loaded by it on the suit property. We do not express any opinion on the above issue. It will be open to defendants to take out appropriate proceedings and it will be open to the appellant/plaintiff to contest such proceedings.

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Appeal stands disposed of accordingly.

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CHIEF JUSTICE

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(N.M. JAMDAR, J.)

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Pansn Construction and Developers Private Limited v. Girish Vrajlal Sheth

Case brief

What is this about?

What did the court decide?

Pansn Construction and Developers Private Limited v. Girish Vrajlal Sheth

Case brief

What is this about?

What did the court decide?

What the court decided

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