Bombay High Court
Ambalal Maganlal Patel
Versus
Indumati Narayan Mobile
Decided On:

Headnote:Order 39, Rule 1 and Order 40, Rule 1-Discretion of Court-Notice of motion for receiver and injunction-Trustees on belief of minor entered Into sale agreement of suit property- Minor on attaining majority sold property to another purchaser on higher price-- Subsequent purchaser spent huge amount on demolition and construction of new building-Subsequent sale being more favourable and profitable to the then minor, it should be maintained and prayer for receiver and injunction rejected.

       Counsel for the plaintiffs, vehemently contended that the plaintiffs were entitled to receive as also injunction. He was, however, unable to satisfy this Court the reasons for the gross delay and laches on the part of the plaintiffs in moving this Court by the present motion almost four to five years after the disposal of the earlier motion which was not pressed by the plaintiffs. It also cannot be overlooked that the property has been sold by registered conveyance in favour of Narendra Bhatia who, in accordance with the terms and conditions, has entered into arrangements with the tenants, as also promised alternative accommodation of .000 sq ft. free of cost to the original owners as also parted with the full consideration of Rs. 4,50,000/-. Interim reliefs such as those claimed in the present motion by the plaintiffs are basically in the discretion of the Court. Though discretion is expected to be exercised fairly and reasonably, this, in Court judgment, is not a case for exercising the same in favour of the plaintiffs. Even assuming that the plaintiffs had initially, when the suit was filed made out a case for interim re lief, the same stood virtually destroyed by their utter silence all these long years. Third party rights have intervened. The old building has been demolished. A new construction has come up to third floor level. And, as indicated, alternative arrangements have been made for the tenants. Agreements have also been entered into with flat purchasers. Again, whereas the consideration for the suit agreement in favour of the plaintiffs was of Rs. 1,00,001/-, the consideration under the agreement in favour of Narendra Bhatia was of Rs. 4,50,000/- plus 2000 sq. ft. of alternative accommodation free of cost to the owners plus proper arrangements with the erstwhile tenants of the old property. In the circumstances it can be seen that the earlier agreement entered into by the two trustees in favour of the plaintiffs can hardly be said to be one in the interests of the then minors, defendants Nos. 1-A and 1-B. This, of course, is a prima facie observation but a circumstance nevertheless not to be ignored while exercising discretion judicially.

       For Citation : AIR 1990 Bom 187 at 188