Dismissed

M/S Haware Engineers and Builders P. Ltd. v. Shri. Deepak S. Desai

Bombay HC19 Mar 2014NMS/37/2008

Case brief

AI extract

What is this about?

In a suit for specific performance and a notice of motion for injunction, the High Court at Bombay dismissed the motion. The plaintiff claimed an agreement to sell, but the defendant had already conveyed the property to a third party via registered deed. The court found the third party's purchase to be in good faith and denied the injunction.

What did the court decide?

The Notice of Motion is dismissed; no order as to costs.

M/S Haware Engineers and Builders P. Ltd. Vs Shri… — Specific Performance | Bombay HC (2014)

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

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NOTICE OF MOTION NO.37 OF 2008 IN

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SUIT NO.27 OF 2008

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M/s. Haware Engineers & Builders P. Ltd. ...Plaintiffs.

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vs.

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Shri. Deepak S.Desai and anr.

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...Defendants.

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Mr. Akhilesh Dubey along with Mr. A.A.Khan , Mr. Vagish Mishra and Mr. Rahul Sharma i/by M/s. M.Tripathi & Co. for the plaintiffs. Mr. Harihar Bhave along with Ms. Rupa Bhave and Ms. Aarti Khadilkar i/by Bhave & Co. for Defendant No.2.

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CORAM : M.S. SANKLECHA, J. DATE : 19 MARCH 2014

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PC:

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The plaintiffs have filed a suit on 13 December 2007 for specific performance of an agreement dated 27 June 2007 between the plaintiffs and defendant No.1 as recorded in Minutes of Meeting (MOM) by which defendant No.1 agreed to sell to the plaintiffs its property i. e. Plot No.50/11 TPS-III H ward on 6^th road, Santacruz (E), Mumbai-55 (suit property) for a consideration of Rs.1,11,11,111/-.

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The plaintiffs along with the suit also filed on 13 December 2007 this notice of motion seeking to restrain defendant No.1 from creating any third party rights in respect of the suit property. The plaintiffs moved the present notice of motion for ad interim injunction on 22 January 2008. At the hearing of the motion for ad interim relief the plaintiffs were informed that defendant No.1 had by

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registered deed of conveyance dated 10 December 2007 transferred/conveyed the suit property to defendant No.2. In view of the above, no ad interim relief was granted but the plaintiffs were granted leave to amend its pleadings and to implead the third party purchaser as defendant No.2 to the suit. The plaintiffs carried out the amendment to the plaint as well as to the present notice of motion on 7 April 2008.However, thereafter the plaintiffs did not move this Court for any ad interim relief in respect of the suit property against defendant No.2.

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It is the case of the plaintiffs that there was no occasion to move the court for any ad interim relief as there was no activity on the suit property. Moreover, the absence of an ad interim injunction would not estop them from seeking the relief sought in the notice of motion. In support of its contention that MOM dated 27 June 2007 was a concluded agreement for sale of the suit property as is evident from Public Notices dated 26 July 2007 in Free Press Journal and Navshakti Newspaper inviting objections to its proposal to purchase the suit property. No objections were received on publication of the public notices by the plaintiffs. Thereafter, some time in September 2007 a draft deed of conveyance which is titled as without prejudice was also exchanged between the parties. The plaintiffs thereafter by their letter dated 4 September 2007 informed defendant No.1 that they are ready and willing to complete the transaction and called upon defendant No.1 to execute the deed of conveyance in their favour.

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Defendant No.1 by his Advocate's letter dated 10

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September 2007 in response to the letter dated 4 September 2007 denied that there was any concluded contract and called upon the plaintiffs to restrain from making any representation of ownership and/or interest in respect of the suit property. In response the plaintiffs by its letter dated 19 September 2007 reiterated its earlier contention that there was concluded contract with defendant No.1 and called upon defendant No.1 to complete conveyance in terms of the MOM dated 27 June 2007. This the defendant No.1 again denied by a letter dated 29 September 2007. It was in the above view that the plaintiffs were forced to file the present suit on 13 December 2007 for specific performance of MOM dated 27 June 2007. It is submitted that on 22 January 2008 while moving this Court for ad interim relief for the first time they learnt that defendant No.1 had sold the suit property to defendant No.2 on 10 December 2007. It is submitted that the sale of the suit property is only to illegally deprive the plaintiffs of the same.

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In the mean time i.e. before the plaintiffs could file the present suit it appears that defendant No.1 by registered deed of conveyance dated 10 December 2007 had conveyed the suit property to defendant No.2. The defendant No.2 before purchase of the suit property had issued Public Notices on 17 October 2007 in Free Press Journal and on 19 October 2007 in Navshakti inviting objections, if any, to its proposed purchase of the suit property. The aforesaid fact was confirmed by a firm of Advocates in its certificate dated 5 December 2007.

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In support of its claim in the notice of motion, the plaintiffs

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submit that there is a concluded contract between defendant No.1 and the plaintiffs by virtue of MOM dated 27 June 2007. This agreement is prior in point of time to the conveyance entered into by defendant No.1 with defendant No.2 in respect of the suit property. It is also submitted that defendant No.2 had not done any due and proper search before purchasing the suit property. Thus no rights in respect of the suit property is with defendant No.2.

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As against the above, it is the case of the defendant No.2 that he purchased the suit property after due diligence by issuing public notices. My attention is also invited to the written statement filed by defendant No.1 as well as the letter dated 10 September 2007 by the Advocate for defendant No.1 to the plaintiffs disputing that there is any concluded contract between the plaintiffs and defendant No.1. Besides attention is also drawn to the fact that two cheques of Rs.1.00 lacs each which were paid over to defendant No.1 at the time of MOM dated 26 June 1997 had not yet been deposited by defendant No.1. In the above circumstances, the Advocate for defendant No.2 submits that the present notice of motion be dismissed.

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I have considered the rival submissions. The MOM dated 27 June 2007 prima facie does not appear to be a concluded agreement between the plaintiffs and defendant No.1. This is for the reason that subject to the MOM dated 27 June 2007 the plaintiffs issued public notice on 26 July 2007 of its intention to purchase the suit property and invited objections, if any, to the same. Therefore, till 26 July 2007 prima facie there does not appear to be any concluded contract. Moreover, in

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correspondence with the plaintiffs also the defendant No.1 has been consistently disputing that there was any concluded contract for sale of the suit property by it to the plaintiffs. It is only on 13 December 2007 that the plaintiffs filed a suit and moved for ad interim injunction on 22 January 2008 at which time they were informed that defendant No.1 had by registered conveyance transferred the suit property to defendant No.2 and were given liberty to amend the suit as well as notice of motion and thereafter move for appropriate relief. The plaintiffs amended the plaint and notice of motion only on 7 April 2008 and did not apply to the Court for any ad interim injunction to restrain defendant No.2 from creating any third party rights in the suit property. As against the above I find that defendant No.2 has purchased the property by registered deed of conveyance dated 10 December 2007. Prima facie it does appear that purchase by defendant No.2 from defendant No.1 was a bonafide purchase. The plaintiff has not shown anything to doubt the genuineness of the sale of the suit property by Defendant No.1 to Defendant No.2. The defendant No.2 had issued Public Notices before entering into contract for purchase of the suit property. Besides the plaintiffs have not moved the Court for seeking any reliefs after having amended the plaint and notice of motion adding defendant No.2 on 7 April 2008. Moreover, the defendant No.2 is in possession of the suit property under registered deed of conveyance dated 10 December 2007 which prima facie appears to be a bonafide purchase without notice of any alleged agreement of sale of the suit property between the plaintiffs and defendant No.1.

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ASN 6/6 NM-37-08.sxw 9) In the above circumstances, I see no reason to grant any interim relief in favour of the plaintiffs. Accordingly, the Notice of motion is dismissed. No order as to costs.

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(M.S. SANKLECHA, J.)

M/S Haware Engineers and Builders P. Ltd. v. Shri. Deepak S. Desai

Case brief

What is this about?

What did the court decide?

M/S Haware Engineers and Builders P. Ltd. v. Shri. Deepak S. Desai

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Coram

Case details

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