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SUPREME COURT OF INDIA
GYAN SUDHA MISRA & V. GOPALA GOWDA, JJ.
Ramesh Vajabhai Rabari
Versus
Pratiksha Real Estate Pvt. Ltd. & Others
Special Leave Petition (Civil) Nos. 22430 of 2013 - 22432 of 2013
Decided On : 03-04-2014
Facts of the case:
An unregistered agreement was signed by one Edmond D'mello - deceased predecessor-in-interest of the vendor of respondent No.1 on 25.7.1973 to sell the suit land in favour of Shantilal Prabhubhai Patel but the execution of this agreement was to be completed within a period of two years. Subsequently, Shantilal Prabhubhai Patel assigned his rights in favour of M/s. Kirti Constructions Company. Thereafter, M/s. Kirti Constructions Co. also assigned its rights in favour of V.B. Patel & Co. vide the 3rd agreement dated.
All these agreements were unregistered agreements.
One of the heirs of deceased Edmond D'Mello, namely, Betram D'Mello filed a suit averring that neither the plaintiff Betram D'Mello nor during the lifetime of his deceased father Edmond B. D'Mello had executed any document creating any right, title or interest in favour of the defendant No.1 V.B. Patel and Co. and the said company did not have any right, title or interest of any nature in respect of the suit land. However, the plaintiff Betram D'Mello did not pursue the same and the suit land remained with V.B. Patel & Co.
A fresh development agreement was executed much later in favour of the petitioner herein Ramesh V. Rabari by the defendant Nos. 1 to 8 for the suit land.
A notice was published in the Free Press Journal on behalf of the plaintiff/petitioner recording that defendants 1 to 8 had entered into an agreement allowing the plaintiff/petitioner to develop the property. This was responded to by the advocate for V.B. Patel & Co. (VBP) stating that VBP had already entered into agreement of sale with Edmond D'Mello through the intermediaries - Shanti Patel and Kirti Construction and this was reflected even in the Will which was executed by the deceased Edmond D'Mello which was duly probated as a consequence of which VBP was in possession of the suit land for more than 30 years and hence the petitioner had no right to purchase this land through any heir of Edmond D'Mello as the interest had been created on VBP.
VBP filed a suit against the defendants 1 to 8 and the plaintiff for a declaration that his agreement for purchase of the suit property was valid, subsisting and binding and for specific performance of the agreement. The plaintiff/VBP in this suit also challenged the legality of the development agreement entered into between the petitioner and defendant Nos. 5 to 8 which was later termionated.
The single Judge allowed the application for injunction and restrained the defendants from selling, alienating or transferring the suit property besides which the 9th defendant was also restrained from carrying out further development of the property.
The petitioner herein filed a suit in the High Court on its original side and an application for injunction by way of a Notice of Motion was also filed seeking the relief of injunction against the defendants from selling, alienating, transferring and creating any 3rd party rights etc. during pendency of the suit.
The title and possession of VB Patel & Co. has been questioned by the petitioner as also the cancellation of the agreement of sale in his favour is further under challenge in the suit which is pending trial in the High Court.
The Division Bench reversed the decision of the single Judge.
Finding of the Court:
The single Judge was not justified in granting an order of injunction in favour of the petitioner and the same has rightly been reversed by the Division Bench of the High Court by assigning valid reasons.
Result:
SLPs dismissed.
Judgment :-
Gyan Sudha Misra, J.–
1. These special leave petitions assail the judgment and order dated 18.6.2013 passed by the Division Bench of the High Court of Bombay in Appeal No. 683 of 2012 arising out of Notice of Motion No. 16783 of 2007 in Suit No. 1280 of 2007 which has reversed the judgment and order of the learned Single Judge who was pleased to grant an order of injunction in favour of the petitioner Ramesh Vajabhai Rabari.
2. The special leave petitions are still at the admission stage and the entire dispute between the parties essentially revolves around the scrutiny of factual dispute and there is hardly any question of law much less substantial question of law involved in these special leave petitions so as to entertain the same under the parameters of Article 136 of the Constitution. In spite of this and in order to obviate any possibility of miscarriage of justice to either of the contesting parties on account of vacating the order of injunction, we granted liberty of hearing at some length to the counsel for the parties and hence thought it appropriate to assign the reasons substantially.
3. In order to examine the merits and demerits of the case of the contesting parties, we have examined even the factual dispute so as to consider whether the High Court was justified in reversing the order of injunction granted by the Single Judge in favour of the plaintiff/petitioner herein to his prejudice. On scrutinising the same, it appears that an unregistered agreement was signed by one Edmond D'mello - deceased predecessor-in-interest of the vendor of respondent No.1 on 25.7.1973 to sell the suit land comprising an area of 11,733 sq.mtrs. situated at Village Ambivally, Taluka Andheri I, Mumbai and a Suburban District in favour of Shantilal Prabhubhai Patel but the execution of this agreement was to be completed within a period of two years. Subsequently, Shantilal Prabhubhai Patel assigned his rights in favour of M/s. Kirti Constructions Company vide agreement dated 7.8.1975. Thereafter, M/s. Kirti Constructions Co. also assigned its rights in favour of V.B. Patel & Co. vide the 3rd agreement dated 21.9.1975. All these agreements admittedly were unregistered agreements which at one point of time had also been challenged by the successor/owner of the suit land Betram D'Mello as the original owner Edmond D'Mello had expired on 25.3.1976 leaving behind two sons namely Betram D'Mello and Arhtur D'Mello since deceased and two daughters Diana Mary Rita Chamorette and Elaine Mery Teresa D'Mello. As already referred to hereinbefore, one of the heirs of deceased Edmond D'Mello, namely, Betram D'Mello filed a suit in the City Civil Court, Bombay bearing Suit No. 7584/2000 on 24.12.2000 wherein it was averred that neither the plaintiff Betram D'Mello nor during the lifetime of his deceased father Edmond B. D'Mello had executed any document creating any right, title or interest in favour of the defendant No.1 V.B. Patel and Co. and the said company did not have any right, title or interest of any nature in respect of the suit land. However, this suit did not proceed further as the plaintiff Betram D'Mello did not pursue the same and the suit land remained with V.B. Patel & Co.
4. But it appears that a fresh development agreement much later was executed in favour of the petitioner herein by the defendant Nos. 1 to 8 on 30.12.2005 for the suit land for a consideration of?1 crore in favour of the plaintiff/petitioner Ramesh v. Rabari. Of this amount,?15 lac was payable by the petitioner by way of earnest money at the time of execution of the agreement, whereas the balance was payable to the owners after making out a clear and marketable title as and when the petitioner/developer obtained IOD/Intimation of Disapproval and CC/Commencement Certificate. The document was adjudicated upon by the Collector of Stamps on 21.12.2005 to have a value of?21.25 crores. The agreement that was entered into between the petitioner with defendant Nos. 1
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