Single judge oral order dismissing a writ petition challenging an appellate judgment that granted an injunction in a civil suit regarding the sale of property, upholding the validity of an agreement executed via power of attorney.
The writ petition is dismissed. No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
W.P.314.OF 2023
shakuntala
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 314 OF 2023 WITH
MISC.CIVIL APPLICATION NO. 533 OF 2023
WRIT PETITION NO.314 OF 2023 BRUNO NORONHA AND 3 ORS ... PETITIONERS Versus
MICHAEL TONY FERNS AND 7 ORS ... RESPONDENTS
WITH MISC.CIVIL APPLICATION NO.533 OF 2023 IN WRIT PETITION NO.314 OF 2023 BRUNO NORONHA AND 3 ORS ... APPLICANTS Versus MICHAEL TONY FERNS AND 7 ORS ... RESPONDENTS
Mr. Neelesh Takkekar, Advocate for the Petitioners. Mr. J.L. Dias for the Respondent No. 1. Mr. Dinesh E. Naik and Mr. Richal Shirodkar, Advocate for Respondent nos. 2 to 5.
CORAM:- A. G. GHAROTE, J. DATED :- 18th March, 2024
ORAL ORDER
Respondent nos. 6 to 8, as they are the petitioners in the petition.
Page 1 of 7 18th March 2024
W.P.314.OF 2023
Page 2 of 7 18th March 2024
W.P.314.OF 2023
be non est . Further, a plea is raised, that on account of provision of section 35 of the Indian Stamp Act, the learned Courts below, could not have relied upon the Memorandum of Understanding dated 03.01.2011 to grant an injunction in light of the language therein. It is, therefore, contended that the impugned judgment by the learned Appellate Court, granting an injunction even in respect of the undivided share of the Petitioner no. 1 also could not be sustained.
Page 3 of 7 18th March 2024
W.P.314.OF 2023
property. It is also an admitted position that the Petitioner Nos. 2 to 4, had on 06.12.2010 executed a Power of Attorney in favour of Petitioner No. 1, clause 18 of which permitted sub-delegation of the powers contained therein to a third person, by the Petitioner no. 1 (clause 18/page 248). Under the terms of this clause 18 of the Power of Attorney dated 06.12.2010, the Petitioner no. 1 as an attorney of Petitioner Nos. 2 to 4 had executed a General Power of Attorney in favour of the said Collin Savio Coelho on 30.12.2010 (page 286) which was notarised with the notary public on the same date, on the basis of which the said Colin Savio Coelho is claimed to have exectued the agreemetn of sale dated 14.06.2011 in favour of the Respondent No. 1 and an Memorandum of Understanding dated 03.01.2011(Page 252) also in favour of the Respondent No. 1. Paragraph 4, internal page 3, record page 288 of this Power of Attorney specifically states that the power as conferred upon the Petitioner No. 1 by the Petitioner Nos. 2 to 4 under the Power of Attorney dated 06.12.2010 were being delegated to the said Mr. Colin Savio Coelho. Consequent to the Power of Attorney dated 06.12.2010 an addendum was executed between the Petitioner No. 1 on the one hand and the Petitioner Nos. 2 to 4 on the other, on 27.12.2010 (page 250) which indicated, that the powers conferred upon the Petitioner
Page 4 of 7 18th March 2024
W.P.314.OF 2023
No. 1 by the Petitioner Nos. 2 to 4 could not be exercised by him without consent in writing of the Petitioner Nos. 2 to 4. It is in this context that in absence of the consent in writing of the Petitioner Nos. 2 to 4, the learned Appellate Court has set aside the order dated 02.03.2012 passed by the learned Trial Court visa-vis the Petitioner Nos. 2 to 4.
Page 5 of 7 18th March 2024
W.P.314.OF 2023
documents.
Page 6 of 7 18th March 2024
W.P.314.OF 2023
demonstrated to be parties to the agreement dated 14.06.2011 and therefore, would not be bound by the agreement, however, what is necessary to note is that there is no appeal filed by the Original Defendant Nos. 2 to 5, either against the order below exhibit D-4 passed by the learned Trial Court nor the judgment of the learned Appellate Court has being challenged by them. I, therefore, do not propose to go into that question, though it is contended by the learned Counsel for the Respondent Nos. 2 to 5 herein, who are Original Defendant Nos. 2 to 5 before the learned Trial Court, that the judgment of the Appellate court needs modification, on that count too.
AVINASH G. GHAROTE, J.
Page 7 of 7 18th March 2024
2 issues framed by the court
Whether the writ petition challenging the appellate court's order granting injunction is meritorious.
Whether the Power of Attorney validly executed by the petitioner bound him to the agreement of sale and Memorandum of Understanding.
BRUNO NORONHA AND 3 ORS
MICHAEL TONY FERNS AND 7 ORS
A. G. GHAROTE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
