Sagar Construction Company vs Manoharlal Kishorilal Gupta HUF

S.J. Kathawalla, J.—The Plaintiff has filed the above Suit against the Defendants inter alia seeking specific performance of an Agreement for Sale dated 16th October, 1985 (Exhibit -C to the Plaint), for sale of property situate at Mulund in the registration sub -district and suburban district at Bandra bearing Survey No. 315, Hissa No. 1 (p) admeasuring 8958.59 sq. mtrs. and Survey No. 316, Hissa No. 1A (p) corresponding to CTS No. 844 admeasuring 83.6 sq.mtrs. or thereabouts, in all admeasuring 9042.17 sq. mtrs. along with the structures standing thereon ("the suit property").

By an ad -interim order dated 15th December, 1987, the Court Receiver, High Court, Bombay, was appointed as Receiver of the suit property. By an order dated 25th October, 1990, the ad -interim order dated 15th December, 1987, was confirmed. It was further directed that the Court Receiver, High Court, Bombay, should not dispossess Defendant Nos. 1, 3 and 4 and the heirs of Defendant No.2 from the second floor premises, but should continue them as agents of the Court Receiver without any security or costs. The Court Receiver took possession of the suit property without dispossessing the aforesaid Parties from their premises.

The State Bank of India had filed a suit against the Defendants being Suit No. 199 of 1986 for recovery of its loan and to enforce an equitable mortgage on the suit property. A decree on admission was passed in the said Suit on 4th February, 1997. The Plaintiff was impleaded as Defendant No. 5 in the said Suit and the mortgage in respect of the suit property was redeemed by the Plaintiff herein. Thereafter the Plaintiff took out several proceedings seeking directions against the State Bank of India to hand over the title deeds in respect of the suit property to the Plaintiff. The title deeds were to be deposited by the State Bank of India with the Court Receiver, High Court, Bombay, as per the directions of this Court. Though the State Bank of India contended that it has deposited all the title deeds/documents in their possession qua the suit property with the Court Receiver, the Plaintiff contended otherwise. In view thereof, by an order dated 16th January, 2014, passed by this Court in Notice of Motion No. 1436 of 2010, this Court granted liberty to the Plaintiff to initiate appropriate proceedings in the matter for obtaining the title deeds in respect of the suit property.

According to the Plaintiff, during the pendency of the present Suit, the Plaintiff came across a Notice dated 18th July, 2011, in the Free Press Journal. The said Notice inter alia stated that the Respondents M/s. Ashapura Developers had agreed to purchase the suit property from Defendant Nos. 1, 2b (i) to (iii), 2c, 2e, 4 (a) to (c ) and 5 vide a Memorandum of Understanding ("MOU") dated 28th April, 2010. After certain correspondence exchanged between the Advocates for the Plaintiff and the Advocates for the Respondents , the Plaintiff filed the above Notice of Motion for reliefs prayed therein. The Plaintiff has now pressed only prayer clause (c ) of the Notice of Motion, which is reproduced hereunder:

"(c) that pending the hearing and final disposal of the Suit, the Defendant Nos. 1, 2(b) (i) to 2 (b) (iii), 2 (c ) and 2 (e) and the Respondents Nos. 1 and 2 herein be restrained by an order and injunction of this Hon''ble Court from in any manner dealing with or alienating or disposing of or encumbering or alienating or creating any third party right or interest in favour of anyone else in respect of, or inducting anyone into the said property described in Exhibit "A " to the Plaint or any part thereof or acting upon or claiming or asserting any rights under the purported Memorandum of Understanding dated 28th April 2010 referred to Exhibit E to the Affidavit in support of Notice of Motion and/or any other document/s."

In Paragraph 19 of the Affidavit -in -Support of the Notice of Motion, the Plaintiff has sought liberty from this Court to file contempt proceedings against the Defendant and the Respondents for their acts which according to the Plaintiff constitutes interference with the Court Receiver "''s possession, breach of order of this Court and interference in the process of law/justice/Court. However, it appears that the Plaintiff has in the last 3 years not taken out any contempt proceedings under the Contempt of Courts Act or under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908.

Since the Respondents have already handed over a copy of the MOU dated 28th April, 2010 to the Plaintiff, and the particulars of the transaction have also been disclosed, the Plaintiff is now only pressing for prayer clause (c ) of the Notice of Motion which is reproduced in paragraph 4 above.

The main contention raised by the Respondents -Defendants in the present Notice of Motion is that the Court Office cannot entertain/register a Notice of Motion against a party which is not joined as a party to a suit. In support of this contention, the Respondents have relied on an unreported judgment of the Division Bench of this Court 1 more particularly paragraph 14 which is reproduced hereunder:

" 14. While parting with the matter, it has come to our notice that in many matters, the Advocates join the parties directly in a Notice of Motion without joining them in original proceedings which is not in consonance with the Code of Civil Procedure and office has not taken any objection in this regard. We make an observation that whenever it is found in the suit while executing the interim orders that third party is in possession of the suit property, the interim order shall not be executed against the third party unless the third party is made a party to the main suit and pre -contests on merit to the interlocutory orders. Otherwise, the Plaintiffs and other parties to the suit may obtain interlocutory orders without disclosing to the Court that some other party is in possession of the property and which we find is a fraudulent move to be adopted in the Court and therefore we have observed that henceforth no Notice of Motion should be entertained by the office wherein the party who is not party in the suit and is made a party in the Motion only."

The Learned Senior Advocate appearing for the Plaintiff has correctly pointed out that in the facts of the above case there was a third party in possession of the suit premises when the suit was filed. The said judgment applies only when a third party was already in possession of the premises on the date of institution of the suit and the plaintiff was trying to execute interim orders against such third party already in possession without making such third party a party to the suit.

In my view, it cannot be argued that the decision of the Hon''ble Division Bench in the case of Movin F. D "''Souza (supra) would apply to each and every case where a Notice of Motion is directed against a party without joining such party as party to the suit. To give an illustration, in an application taken out under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908, if a plaintiff joins a party from whom the defendant has to recover a particular amount and to secure such amount seeks directions against such party to deposit the amount due to the defendant in Court, it can by no stretch of imagination be said that such third party should also be joined as a party to the suit. Therefore, before applying the direction given by the Hon''ble Division Bench of this Court in the case of Movin F. D "''Souza (supra), the factual situation of a case has to be considered. The Hon''ble Supreme Court has in its judgment in the case of Ashwani Kumar Singh vs. U.P Public Service Commission IR 2003 SC 2661 set out the manner in which a precedent should be followed. The Hon''ble Supreme Court has held:

"11. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the factual situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid''s theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of statute, it may become necessary for Judges to embark into lengthy discussions, but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton, (1951) AC 737 at p. 761, Lord Mac Dermot observed:

"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J, as though they were part of an Act of parliament and applying the rules of interpretation appropriate thereto This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge."

In Home Officer V. Dorset Yacht Co., [1970] 2 All ER 294 Lord Reid said, "Lord Atkin''s speech.........is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megarry, J in Shepherd Homes Ltd. v. Sandham, (No. 2) (1971) 1 WER 1062 observed: "One must not, of course, construe even a reserved judgment of Russell, L.J. as if it were an Act of Parliament." In Herrington v. British Railways Board, (1972) 2 Wl R 537 Lord Morris said :

"There is always peril in treating the words of a speech or judgment as though they are words in legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."

Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

The following words of Lord Denning in the matter of applying precedents have become locus classicus:

"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."

xxx xxx xxx xxx

"Precedent would be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches, else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it."

I therefore hold that the observations in paragraph 14 of the judgment in Movin D "''Souza "''s case are not of universal application but have to be read in the light of the facts of each case.

Having said so, in any event in the present Suit, the Respondent No.2 as sole proprietor of Respondent No. 1 has taken out Chamber Summons being Chamber Summons (L) No. 228 of 2014 seeking their impleadment as party Defendant to the Suit, which I have allowed by my separate order passed in the said Chamber Summons. Respondent No.2 is therefore now allowed to be joined in the Suit as Defendant No.9. The issue therefore as to whether the relief sought in the above Notice of Motion can be granted without the Respondent being joined as a party Defendant to the Suit is also put to rest.

Admittedly, in the instant case, the Agreement dated 16th October, 1985 ( Exhibit -C to the Plaint) executed by and between the Plaintiff and the Defendants has been terminated by the Defendants which, inter alia is the subject matter of challenge in the above Suit. The Court Receiver, High Court, Bombay is appointed as a Receiver in respect of the suit property with a direction not to dispossess Defendant Nos. 1, 3, 4 and the heirs of Defendant No. 2 from the said premises, but to continue them as agents of the Court Receiver without any security or costs. A MOU dated 28th April, 2010, is thereafter executed by and between the Defendants and the Respondents, whereunder the Respondents have agreed to purchase and the Defendants have agreed to sell the entire suit property for a consideration of Rs. 15 crores. The Respondents are aware that the Court Receiver is in possession of the suit property and have not in any manner claimed possession of the suit property and are also not interfering with the physical possession of the suit property. However, the Plaintiff is justified in apprehending that the Defendants and/or the Respondents may further act upon or claim or assert rights under the MOU dated 28th April, 2010 and create further third party rights/interest in respect of the suit property. By the above Notice of Motion, the Plaintiff has therefore sought an order and injunction of this Court restraining the Defendants/Respondent from doing so. The Defendants have already submitted that they have entered into another MOU in respect of the suit property with Shreeji Builder which MOU is not challenged by the Plaintiff till date. If the Defendants - Respondents are allowed to keep on creating further third party rights in respect of the suit property, the same may cause grave harm and inconvenience to the Plaintiff. The balance of convenience is therefore in favour of the Plaintiff. Though the Plaintiff has reserved its right to take out contempt proceedings against the Defendants/Respondents for committing alleged breach of the order appointing Receiver of the suit property, the Plaintiff has in the present Notice of Motion argued that the Defendants are guilty of committing breach of the order appointing Receiver of the suit property and therefore the MOU dated 28th April, 2010 executed by and between the Defendants and the Respondents is null and void. Since the present Notice of Motion is pressed only for relief in terms of prayer clause (c ), the question of deciding the said issue in the present Notice of Motion does not arise.

In the circumstances I pass the following order :

(i) The Notice of Motion is allowed in terms of prayer clause (c ) which is once again reproduced hereunder :

"(c) that pending the hearing and final disposal of the Suit, the Defendant Nos. 1, 2(b) (i) to 2 (b) (iii), 2 (c ) and 2 (e) and the Respondents Nos. 1 and 2 herein be restrained by an order and injunction of this Hon''ble Court from in any manner dealing with or alienating or disposing of or encumbering or alienating or creating any third party right or interest in favour of anyone else in respect of, or inducting anyone into the said property described in Exhibit "''A "'' to the Plaint or any part thereof or acting upon or claiming or asserting any rights under the purported Memorandum of Understanding dated 28th April 2010 referred to Exhibit E to the Affidavit in support of Notice of Motion and/or any other document/s."

(ii) This Order shall not preclude the Plaintiff from taking out contempt proceedings against the Defendants/Respondents on the grounds stated in paragraph 19 of the Affidavit -in -support of the Notice of Motion, and in the event of such proceedings being taken out, the same shall be decided on its own merits without being influenced by anything stated in this Order.

(iii) All contentions of the parties are kept open.

1 Appeal No. 41 of 2008 from Chamber Summons No. 1189 of 2007 in Suit No. 3432 of 1996 (Movin F. D "''Souza vs. Vivian daughter of Wilfred Fonseca and wife of Ravi Shetty and others)