Disposed

Mr. Firasat Ali Khan and 2 Ors., v. Mr. Javeed Shafy Kazi and Anr.

Bombay HC24 Jul 2015AO/21/2015

Case brief

AI extract

What is this about?

The High Court at Goa disposed of an appeal challenging the rejection of a temporary injunction application. The Court accepted that the respondents currently have no intention to create third-party rights and imposed a conditional order restraining them from doing so without trial Court permission, expressly keeping rival contentions on merits open.

What did the court decide?

Respondents restrained from creating third-party interest in suit property without trial Court permission; rival contentions kept open.

Mr. Firasat Ali Khan and 2 Ors., Vs Mr. Javeed Shafy… — Specific Performance | Bombay HC (2015)

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IN THE HIGH COURT OF BOMBAY AT GOA

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APPEAL FROM ORDER NO. 21 OF 2015

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MR. FIRASAT ALI KHAN AND 2 ORS., ... Appellants Versus MR. JAVEED SHAFY KAZI AND ANR., ... Respondents

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... Respondents

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Shri P.P. Singh, Advocate for the Appellants. Shri Gaurish N. Agni, Advocate for the Respondents.

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Coram:C. V. BHADANG, J. Date:24th July, 2015

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P.C:

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Heard Shri Singh, the learned Counsel for the appellants and Shri Agni, the learned Counsel for the respondents.

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The appellants, who are the original plaintiffs, have filed a suit for specific performance and consequential relief of injunction etc. In that suit, the appellants had filed an application seeking temporary injunction against the respondents, restraining them from creating any third party right in the suit property, pending disposal of the suit. That application has been rejected on 10.03.2015, which is the subject matter of challenge in this appeal.

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It is submitted by Shri Singh, the learned Counsel for the appellants that out of the total consideration of Rs.53,00,000/-, an amount of Rs.8,50,000/- is already paid to the respondents. It is submitted that the M.O.U. executed between the parties would show

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AO/21/2015

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that the appellants were aware that the flat was mortgaged to a Bank. It is submitted that the application for temporary injunction could not have been rejected on any such ground. The learned Counsel has placed reliance on clause 9 of the M.O.U., in order to submit that the appellants are entitled to specific performance.

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On the contrary, it is submitted by Shri Agni, the learned Counsel for the respondents that as per clause 12 of the agreement, payment was to be made within stipulated time, i.e. by 30.06.2014, failing which the M.O.U, was to stand terminated and the purchasers were only entitled to refund of advance, without any interest.

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It appears that the trial Court has found, that at the time of execution of M.O.U., the appellants were aware that the suit house was offered as security to Bank of Maharashtra, which had the first charge on the same, while entering into the M.O.U., no written permission or consent of Bank of Maharashtra was obtained. In such circumstances, transfer by the Mortgagor, is not binding on the Bank.

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The limited question involved in this appeal is, as to whether, the appellants are entitled to the order, restraining the respondents from creating any third party interest. It is submitted by Shri Agni, the learned Counsel, on instructions, that at present the respondents have no intention to create any third party rights/interest, in the suit

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AO/21/2015

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property. He submitted that if, at all occasion arises, the respondents would seek permission of the Court. If that be so, the appeal can be and is disposed of in the following terms:

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(a) The statement on behalf of the respondents that at this stage, they have no intention to create any third party interest, is accepted.

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(b) The respondents shall not create any third party interest in the suit property, without obtaining permission of the trial Court.

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(d) The appeal is disposed of, in the aforesaid terms, with no order as to costs.

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C. V. BHADANG, J.

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Mr. Firasat Ali Khan and 2 Ors., v. Mr. Javeed Shafy Kazi and Anr.

Case brief

What is this about?

What did the court decide?

Mr. Firasat Ali Khan and 2 Ors., v. Mr. Javeed Shafy Kazi and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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