IMPORTANT POINT
Plaintiffs not registered notice of lis pendens, balance of convenience not in favour of plaintiffs, in matter of grant of interim reliefs qua property.

M.S.Sonak, J.—This appeal is directed against the order dated 28 October 2013 in Chamber Summons No.2087 of 2011 in Suit No.1241 of 2007 declining the appellants (original plaintiffs) leave to implead subsequent purchaser of the suit property and for consequential amendments to the plaint.

2. We have heard Mr. Shailesh Shah, learned senior counsel for the appellants, Mr. Pradeep Sancheti, learned senior counsel for respondent No.5 (subsequent purchaser), Mr. Ramchandran N. for respondent Nos.1 to 3 (original defendant Nos.1 to 3) and Ms. Usha R. Tiwari for respondent No.4 (original defendant No.4). With the consent of learned counsel for the parties, we have taken up not merely this appeal, but also Notice of Motion No.2308 of 2007 in Suit No.1241 of 2007 (Motion seeking interim reliefs in the Suit), for final hearing and disposal.

3. For the purposes of present appeal, the parties shall be referred to by their descriptions in the trial court, i.e., the appellants shall be referred to as the plaintiffs, respondent Nos.1 to 4 as the defendants and respondent No.5 as the ‘subsequent purchaser’, for the sake of convenience.

4. By four separate agreements dated 2 January 2014, defendant Nos.1 to 4 agreed to assign their undivided rights in respect of the two properties being CTS No.725 and 515C at Matunga in favour of the plaintiffs for total consideration of Rs.3.20 Crores (approximately) payable by the plaintiffs in the following manner:

(i) 10% upon execution of the agreement dated 2 January 2014;

(ii) 40% on obtaining commencement certificate to erect new buildings in place of old buildings;

(iii) The balance 50% on obtaining building completion certificate for the newly constructed buildings.

5. In addition to the aforesaid, since defendant Nos.1 to 4 were occupants in the building situated upon the property bearing CTS No.515C, the plaintiffs have agreed to construct and allot to the said defendants six apartments in the new building to be constructe in or upon the said property.

6. In pursuance of the aforesaid, there is no dispute that defendant Nos.1 to 4 have received from the plaintiffs a sum of Rs.31,50,000/, which corresponds to the 10% of consideration due and payable at the stage of execution of the agreement dated 2 January 2004. Defendant Nos.1 to 4 have also executed a Power of Attorney in favour of the plaintiffs, in order to enable the plaintiffs to undertake development in or upon the said property. In pursuance of the agreement and/or Power of Attorney, the plaintiffs obtained clearance under the Urban Land (Ceiling and Regulation ) Act, 1976 on 29 July 2004.

7. It is the case of the plaintiffs that in pursuance of the agreements dated 2 January 2004, the plaintiffs obtained extract of property assessment in respect of the said properties; engaged services of competent architects to prepare plans for development and reconstruction of the said property; approached the tenants of the buildings in the suit properties with a view to obtain their consents for redevelopment; entered into agreement with one out of the two tenants in the building in property bearing CTS No.515C.

8. It is the case of the plaintiffs that in the building in or upon property bearing No.CTS No. 515C, apart from defendant Nos.1 to 4, there were two other occupants, i.e., Mr. K.R. N. Shenoy and Mr. Mody. In so far as Mr. K.R.N. Shenoy is concerned, the plaintiffs have entered into an agreement with him, which signifies his consent for the redevelopment. In so far as Mr. Mody is concerned, on account of noncooperative attitude of defendant Nos.1 to 4, the plaintiffs were unable to enter into any agreement with him. Further, it is the case of the plaintiffs that the Public Interest Litigation No.3189 of 2004, which concerns interpretation of D.C. Regulation 37(7) came to be instituted and this Court vide interim order dated 26 October 2004 restrained the Municipal Corporation of Greater Mumbai from sanctioning proposals for redevelopment of