Skip to content


Purshottam Visindas Raheja Vs. Life Insurance Corporation of India and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Contract
CourtMumbai High Court
Decided On
Case NumberNotice of Motion No. 1303 of 1981 (in Suit No. 1593 of 1981)
Judge
Reported inAIR1982Bom523
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 28; Code of Civil Procedure (CPC), 1908 - Order 7, Rule 11 - Order 40, Rule 1; Specific Relief Act, 1963 - Sections 5 and 20
AppellantPurshottam Visindas Raheja
RespondentLife Insurance Corporation of India and ors.
Appellant AdvocateA.K. Sen,;Atul Munim and;S.R. Pandit, Advs.
Respondent AdvocateN.H. Seervai and;S.D. Parekh, Advs.
Excerpt:
a) the case questioned whether a suit was covered by section 28 of the bombay rents, hotel and lodging house rates control act, 1947, when all the claims that were arising under the act were covered by section 28 of the said act even though the parties were not a landlord or a tenant - it was held that the question regarding whether the claim would be the one under the said act or not depends upon the substance of claim mentioned in the complaint - hence, the said suit was not covered by section 28 of the said act;b) the case debated on the suit filed for the specific performance regarding the agreement of sale - a notice of motion was issued for the appointment of receiver and injunction under order 7, rule 11 of the civil procedure code, 1908 - also, a part of the cause of action was.....order1. the plaintiff is the karta and manager of a joint hindu family called raheja sons (h.u.f.) which carries on business in the name and style of shri tirupati builders. the plaintiff entered into an agreement with the life insurance corporation of india (defendant no.1) for the purchase of the suit property at dadasheb phalke road, parel, bombay under an agreement of sale dated 21st jan., 1981. life insurance corporation which is defendant no.1 is the owner of the suit property which consists of serveral structures, some of which are used as a cinema studio, one t.tarahand was a tenant of life insurance corporation in respect of the said entire property including the said studio. t.tarachand died on or about 18th september 1972. defendants 2 to 8 are his surviving heirs and legal.....
Judgment:
ORDER

1. The plaintiff is the karta and manager of a joint Hindu family called Raheja sons (H.U.F.) which carries on business in the name and style of shri Tirupati Builders. The plaintiff entered into an agreement with the Life Insurance corporation of India (defendant No.1) for the purchase of the suit property at Dadasheb phalke Road, parel, Bombay under an agreement of sale dated 21st Jan., 1981. Life Insurance corporation which is defendant No.1 is the owner of the suit property which consists of serveral structures, some of which are used as a cinema studio, one T.Tarahand was a tenant of Life Insurance corporation in respect of the said entire property including the said studio. T.Tarachand died on or about 18th September 1972. Defendants 2 to 8 are his surviving heirs and legal representatives. They claim tenancy rights in respect of the said property as the heirs of the deceased tenant. Defendant No.9, Roop Tara studios, is a partnership firm in which originally T.Tarachand was a partner. The said partnership firm claims that the tenancy rights of the said immovable property were held for the benefit of the partnership, One N.L. Mehta cinema Enterprises Pvt. Is defendant No.10.

2. The Life Insurance corporation advertised for the sale of the said property in 'as is where is' condition some time in June 1980. The plaintiff had submitted a tender for Rs. 37,50,000/- Defendant No.9 M/s. Roop Tara studios had submitted a tender for Rs. 20,07,000/- and N.L. Mehta cinema Enterprises private Limited (Defendant No.10) had submitted a tender for Rs.21,06,000/- There were other tenders also. The plaintiff's tender being the highest. Was accepted by the Life Insurance Corporation by a letter dated 4th July 1980. Thereafter a formal agreement between the plaintiff and Life Insurance corporation was entered into on 21st Jan. 1981.

3. Prior to the agreement of sale there were proceedings between the Life Insurance Corporation and the heirs of T.Tarachand in respect of the suit property. Life Insurance corporation had terminated the tenancy in respect of the suit property and had instituted proceeding under the public premises Eviction Act for eviction of defendants 2 to 8. Defendants 2 to 8 thereupon filed a writ petition in this court challenging the application of the public premises Eviction Act to the premises owned by the Life Insurance corporation. The writ petition was allowed. An appeal is pending from the decision in the writ petiton.

4. It is the case of defendants 2 to 10 that defendant No9 entered into an agreement with defendant No.10 in June 1980 whereunder defendant No.10 agreed to buy the business of defendant No.9 in respect of their studio division together with its goodwill and tenancy rights in respect of the said immovable property. Thereafter by an agreement dated 23rd sept. 1980 entered into between defendants 2 to 9 on the hand and defendant No.10 on the other hand, the defendants 2to 9 agreed to assign to defendant No.10 the studio business of defendant No.9 together with its stock-in-trade. Goodwill and tenancy rights in the said immovable property, Defendant No.10 claims to have paid to defendants 2 to 9 a sum of Rs. 3 Lakhs on 23rd sept. 1980 and to have obtained possession inter alia of the said studio on that day from defendants 2 to 9, Defendant No.10 thus claims to be in possession of the studio premises since 23r sept.1980.

5. The Plaintiffs have filed the present suit on or about 1st sept. 1981 against defendants 1to 10. In the plaint the plaintiff has asked for specific performance of the agreement of sale dated 21st Jan. 1981 as against defendant No.1 They have sought in addition. A declaration that the agreements entered into between defendants 2 to 9 on the one hand and defendant No.10 on the other hand are null and void and have asked for a cancellation of these agreements. They have asked for a declaration that defendants 2 to 9 are not in actual or symbolic occupation or possession of the suit property. They have also asked for a declaration that defendant No.10 has no right, title or interest in respect of the suit property and is a trespasser and have asked for possession of the premises from the defendant No.10 The present notice of motion is taken out by the plaintiff for the appointment of a receiver of the said immovable property, especially of the studio premises and for other reliefs set out in the motion.

6. Defendants Nos.2 to 10 have raised certain preliminary objections to the notice of motion.The first preliminary objection is to the effect that this court has no jurisdiction to entertain the suit as against defendants 2 to 10 in view of the provisions of S. 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Bombay Rent Act) Defendants Nos.2 to 10 have submitted that under S. 9(A) of the civil P.C. the issue as to jurisdiction must be tried at the stage of the Notice of motion as a preliminary issue and suit against defendants 2 to 10 should be dismissed on the ground that this court has jurisdiction.

7. Under S. 28 of the Bombay Rent Act the Court of small causes alone has jurisdiction to entertain and try any suit or proceedings between a land lord and tenant relating to the recovery of rent or possession of any premises and to decide any application made under that Act and to deal with any claim or question arising out of that Act or any of its provisions . Admittedly the present suit is not a suit between a landlord and a tenant for recovery of rent or possession of any premises . According to the defendants Nos. 2 to 10 however, the claim in the suit against them is a claim arising out of the Bombay Rent Act and its provisions and hence it is covered by S. 28 , of the Bombay Rent Act . Now it is true that a claim should arise under the provisions of the Bombay Rent Act , it is not necessary that the claim should be between a landlord and a tenant. Section 28 is wide enough to cover all questions which arise out of the Bombay Rent Act even though the parties may not have the legal relationship of a landlord and a tenant . The Supreme Court in the case of Sushila Kashinath Dhonde v. Harilal Govindji Bhogani reported in : [1970]2SCR950 has held that it is not necessary that there should be a relationship of landlord and tenant between the parties for a matter to be covered by Sec. 28 No doubt one type of action contemplated under that section viz. A suit or proceeding for recovery of rent or possession of any premises may be between a landlord and a tenant ; but in respect of other matters dealt with in that section it is not necessary that a relationship of a landlord and a tenant should exist between the parties before the Court. In the case before the Supreme Court the suit was to enforce a charge under the provisions of S. 18 of the Rent Act . It was held as covered under S. 28 of the Bombay Rent Act . There is a similar observation in an early case of Messrs. Importers and . V. Pheroze Framroze Taraporewala reported in : [1953]4SCR226 . In the present case we have to examine whether the claim of the plaintiff against defendants 2 to 10 is a claim which arises under the provisions of the Bombay Rent Act . It is now well established in order to decide this question one has to examine the substance of the case in the plaint and not merely the manner in which the claim framed . Ingenuity in drafting cannot confer jurisdiction on a court. According to the defendants Nos. 2 to 10 the suit is in substance for eviction against defendants Nos. 2 to 8 who are the heirs of the tenant and against defendant No. 9 who claim to be the tenants and for obtaining possession from their proposed transferee defendant No 10. According to these defendants there was admittedly a tenancy in respect of the suit property created by the first defendant in favour of T. Tarachand and defendants 2 to 8 are the heirs of the tenants . There is some dispute as to whether tenancy is now a statutory tenancy or a contractual tenancy . Defendants Nos. 2 to 9 have purported to enter into an agreement to transfer the business of defendant No. 9 together with its tenancy rights, stock-in-trade and goodwill in favour of defendant No. 10 in purported exercise of their rights under the notification issued under Sec. 15 of the Bombay Rent Act . According to these defendants the disputes between them and the plaintiff in the suit are thus under the Bombay Rent Act and they ought to be tried before the court of Small Causes. This contention is not tenable . The plaintiff has claimed reliefs against defendant No. 10 on the ground that they are trespassers and have no right , title or interest in the suit premises . It is true that in order to decide whether defendant No. 10 is trespasser on the premises or not, it will be necessary to examine the provisions of S. 15 of the Bombay Rent Act and the notification issued under it. But the court does not cease to have jurisdiction simply because , in order to decide the title of a person to any property , it may incidently have to examine the provisions of the Bombay Rent Act. In substance the suit against defendant No.10 is a suit on the basis of trespass and as such the suit cannot be considered as covered by S. 28 of the Bombay Rent Act . As against defendants Nos. 2 to 9 it is the plaintiff's case that they have parted with all their rights in the suit premises. They have also parted with possession of the suit premises. They therefore have ceased to be tenants of the suit premises. The plaintiff has therefore merely sought a declaration against defendants 2 to 9 that they are no longer in possession of the suit premises. The plaintiff has also asked for the cancellation of certain agreements executed between defendants 2 to 9 and defendent No 10 on the ground that these documents are illegal and /or null and void. Such a suit also cannot be considered as a suit which is covered by S. 28 of the Bombay Rent Act. In fact the court of Small Causes would not have jurisdiction to grant the relief of cancellation of documents. In substance, therefore, the claim of the plaintiff in the suit does not fall under S. 28 of the Bombay Rent Act.

8. My attention was drawn to the case of Thakkar Keshavalal Mohanlal v. Parekh Amrutlal Harilal reported in : AIR1973SC1099 . In that case a suit had been filed before the Competent Court under S. 28 of the Bombay Rent Act for eviction both against the tenant as well as his sub-tenant. The sub-tenant contented that since the claim against him was a claim in trespass, S. 28 would not apply to the suit against him and the court had no jurisdiction to entertain a claim against him. In negativing this contention the Supreme Court observed that the suit was essentially a suit between a landlord and tenant; and the joinder of the sub-tenant iun such a suit would not make the suit any the less a suit between a land lord and a tenant. The court referred to its earlier decision in Hiralal Vallabhram v. Kasthurbhai Lalbhai reported in : [1967]3SCR343 and observed that a suit on the basis of trespass was clearly a suit which was not covered by the provisions of the Bombay Rent Act. In substance the claim of the plaintiff is in trespass against defendent No. 10. Such a claim does not fall under S. 28 of the Bombay Rent Act . It is true that in the present case the tenants are also made parties to the suit. But no relief of eviction or possession is asked for against the tenants. This is not merely a technical camouflage as the defendants 2 to 10 would like to submit, because in substance, it is the plaintiff's case that the tenants have parted with their possession of the premises and have also parted with their rights title and interest as tenants. The plaintiff therefore seeks a declaration that the tenants have ceased to be tenants. Whether the plaintiff's case is correct or not is a matter which will be decided at the final hearing of the case after evidence is led, But whatever be the merits of the plaintiff's case, the fact remains that the basis of the suit against defendants Nos, 2 to 9 is that they have abandoned all their rights as tenants. Accordingly plaintiffs have not claimed any relief of possession against defendants Nos. 2 to 9 but are content with a declaration against them that they are no longer in possession or occupation of the suit premises. Under these circumstances it is not possible to hold that the claim in the suit against defendants session. Thus the suit against defendants Nos. 2 to 9 is not covered by the provisions of S. 28 of the Bombay Rent Act. This court therefore has jurisdiction, to entertain the present suit not merely against defendant No. 1 but also against defendants Nos. 2 to 10.

9. The next preliminary objection raised on behalf of defendants Nos. 2 to 10 is to the effect that the plaint discloses Nos. 2 to 10. The plaint should therefore be rejected under the provisions of O. 7 R. 11 of the Civil P. C. Now, the present suit is a suit for specific performance of an agreement for sale entered into between the plaintiff and defendant No. 1 Ordinarily in a suit for specific performance, persons who are not parties to the contract of which specific performance, persons who are not parties to the contract of which specific performance is sought, cannot be joined as party defendant, In this connection a reference may be made to decision of this Court in the case of Luckmsey Ockerda v. Fazulla Cassumbhoy reported in ilr(1880) 5 Bom 177 where it was held that a stranger to a contract of which specific performance is sought, cannot be a party to the suit. In that case the plaintiff has joined another person who claimed a charge on the land which was agreed to he sold and had asked for a declaration that that person was not entitled to any charge upon the said land, The court held that the latter defendant had been improperly mae a party. Similarly in the case of Mr. Nagi v. Damodar Jagobaji reported in , Hidayatullah. J. (As he then was) held that in a suit for specific performance of agreement for sale of land. Strangers claiming independent title are not proper parties to the suit. He observed that the scope of a suit for specific performance of an agreement for sale of land, coupled with a prayer for possession cannot be enlarged and the suit turned also into a title suit. The plaintiff could take action against strangers only after he had perfected his title by obtaining specific performance. He cited the observation of Lord Eldon in the case of Mole v. Smith (1820) Jac 490 to the effect that when a hill is filed for specific performance it should not be mixed with a prayer for relief against other persons claiming an interest in the estate. Lord Eldon observed:

'It is to be regretted that this opinion will prevent the parties from having the question between them so effectively decided as it might otherwise have been; but I cannot to avoid an inconvenience in a particular case, sanction a proceeding. Which I consider to be inconsistent with the rules of pleading, and which, if recognised, might lead to much difficulty and confusion in the proceedings of the Court.'

The only exception to this rule is in the case of a voluntary purchaser from the vendor and a purchaser who takes with notice of the agreement. Such persons can be joined as party defendants in a suit for specific performance. The reason is that any person who has taken the property subject to the plaintiff's rights can always be joined as a party defendant. In this connection a reference may also be made to the decision in Prem Sukh Gulgulia v. Habib Ullah : AIR1945Cal355 . There is therefore considerable substance in the contention of defendants Nos. 2 to 10 that they are not proper parties to a suit for specific performance, Mr./ Ashok Sen, learned counsel for the plaintiff submitted that just as a purchaser with notice and a voluntary purchaser can be joined in a suit for specific performance, in the present case, defendant No. 10 who has taken the property with notice of the plaintiff's agreement with defendant No. 1 can also he joined. But this submission cannot be accepted because defendant No. 19 is not a person who has purchased the right, title and interest of the vendor in the suit property with notice of the agreement of which specific performance is sought assuming for the time being that defendant No. 10 has taken possession with notice of the plaintiff's claim. The agreement for the sale between plaintiff and defendant No. 1 is an agreement for sate of a lessor's interest in the suit property. Admittedly at the date when the agreement of sale was entered into, there was a tenancy in respect of the property which was agreed to be sold subject to such existing tenancy. Defendant No. 10 purports to have agreed to acquire the tenant's interest in the suit property, from defendants 2 to 9. The agreement between defendants 2 to 10 inter as are in respect of the tenants interest in the property. Defendants 2 to 10 therefore are not concerned with the landlord's interest in the premises at all. In that sense they are, therefore, strangers to the agreement of sale which is in terms only in respect of the landlord's interest in the property. Prima facie therefore the plaintiff cannot join defendants 2 to 10 in the present suit.

10. The matter may also be looked at from a slightly different angle. The plaintiff is merely a person who has entered into up an agreement ot purchase an immovable property. He has a right to obtain specific performance of the agreement of sale and perfect his title, But, by virtue of an agreement of sale the plaintiff does not get any interest in the property which is agreed to be sold to him. The plaintiff, therefore, does not have in present any interest in the property which he has agreed to purchase. He cannot, therefore, taken any action against the tenants of the property, the sub-tenants of the property or even trespassers on the property. He may be entitled to seek protection of the property which is agreed to be sold to him. By virtue of the agreement of sale he is entitled to the benefits of the obligations which arise out of the contract and which are annexed to the ownership of the immovable property which he has agreed to purchase. He may also be able to call upon the seller to protect the property in the same manner as an owner of ordinary prudence would, until the property is conveyed to him . In this connection a reference may be made to the case of Sashi Bhusan v. Raichand, : AIR1950Cal333 , Since however, he does not himself have any interest in the property he cannot sue third parties who claim to have an interest in the property which is agreed to be sold. In that sense also it is possible that the plaintiff may not be able to sustain his cause of action against defendants Nos.2 to 10.

11. These, however, are matters to be decided at the final hearing of the suit, It is not possible at the stage of the notice of motion to hold that under the provisions of O. 7, R. 11 of the Civil P.C. Plaint should be rejected as not disclosing any cause of action. By and, large the provision of O.7.. R. 11 are contemplated to apply to the rejection of plaint as a whole where it disclosed no cause of action against the defendants. Where there is a joinder of causes of action and joinder of parties and a decree can be passed in respect of some of the causes of action against some of the defendants, provisions of o. 7, R. 11 cannot be invoked. My attention was drawn to the case of Balwant Singh v.Stte Bank of India (FB) reported in where a Full Bench of the Punjab High Court held that provision of O. 7, R. 11 will be attracted only in a case where by reason of the plea that the paint does not disclose a cause of action the plaintiff would be cause of action the plaintiff would be wholly non-suited. This rule would have no application to the cases where a plaint discloses a cause of action in respect of a part of the claim against some of the defendants. At the highest, in the present case a part of the caus of action would be found defective against some of the defendants. It is therefore not a fit case where the provision of O. 7, R. 11can be appliced. In any case such provision cannot be invoked in a notice of motion taken out by the plaintiff for appointment of a receiver and injunction.

12. Mr. S. D. Parekh, Learned counsel for defendants Nos.2 to 10 drew my 1982 Bom./34 XI G-17 attention to decision of the supreme court in T. Arivandandam v. T. V. Satyapal : [1978]1SCR742 in which the Supreme Court observed that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the trial court should exercise its power under O. 7. R. 11, of the Civil P. C. taking care to see that the ground mentioned therein is fulfilled. The case does not lay down that in a case where only a part of the claim may be defectives against some of the defendants, it is the duty of the court to reject the plaint under O. 7. R. 11. The ratio of that case has no application to the facts of the present case.

13. Mr. Parekh, learned counsel for defendants Nos. 2 to 10 also submitted that the suit against defendants Nos. 2 to 10 should be dismissed at the stage of the notice of motion. It is not possible to accept this contention or to hold that in a notice of motion taken out by the plaintiff for receiver and injunction it is the duty of the court to dismiss the suit is not maintainable against some of the defendants. This is a matter which will be adjudicated upon at the hearing of the suit or in a proper proceeding and not at the stage of the present notice of motion.

14. The question whether a Receiver should be appointed of the said property is therefore required to be considered on the merits of the case. It is submitted by the plaintiff that the original tenanats, whether statutory or contractual, have abandoned thier rights; there is a trespasser viz defendant No. 10 who is in occupation and therefore it is necessary to protect their rights and that a Receiver should be appointed of the property in dispute. The defendants Nos. 2 to 10 contend that defendant No. 10 is not a trespasser. According to these defendants. Under the notification issued under S. 15 of the Bombay Rent Act it is possible for a party to transfer his business as a going concern together with stock-in-trade, goodwill and tenancy rights, even though the tenancy rights may be only as statutory tenants. The contention of these defendants is contrary to decision of a Division Bench of this Court reported in Vasant Tatoba Hargude v. Dikkaya Muttaya Pujari reported in : AIR1980Bom341 . Defendants 2 to 10 also contend that the tenancy continues to be a contractual tenancy as there is an alleged waiver of the notice to quit. It is not necessary to examine these contention at the interlocutory stage. But they are relevant at present only for the purpose of showing that rightly or wrongly, defendant No. 10 claims to be in possession under a semblance of title and he claims to be possession as a person who has entered nto an agreement with defendants 2 to 9 to purchase the business of defendant No. 9 as a going concern together with stock-in-trade, goodwill and tenancy rights of the suit premises.

15. There is a dispute as to whether defendant No. 10 entered into possession prior to the agreement of sale between the plaintiff and defendant No. 1 or thereaftesr. There has been considerable argument on both sides on the question of possession of defendant No. 10 in respect of the suit premises. It seems that original tenant T. Tarachand was a partner in the defendant No. 9's firm. The 9th defendant had hired certain equipment and machinery for the studio from a third party, one Samulla Sunny. After the death of the said Sunny a suit was filed for the administration of his estate, being suit No. 6053 of 1980 in the Bombay City Civil Court at Bombay. In that suit a Receiver was appointed inter alia of the ordering that suit the court Receiver had gone to take an inventory of the said machinery lying in the suit premises. Thereafter the plaintiff filed a suit in the Bombay City Civil Court being Suit No. 7303 of 1980 against some of the defendants as well as the L.I.C. in which also a Receiver was appointed. There are various reports of the Receiver in that suit as well as at the ad interim stage in the present suit. Both the parties are relying upon various report which have been made by the Receiver. From a persual of these reports one thing at least is clear viz. That the Receiver had not put her locked when the Receiver went there and she put her seal on the premises. Ultimately when the studio premises which there were seals on the the premises. Ultimately when the studio premises which there locked throughout and on which there were seals of the Receiver appointed in these various litigations were opened by the Receive, the premises were opened with the keys which were in the possession of defendant No. 10. It is not necessary to go into the question as to how defendant No. 10 obtained the keys of the premises, but the fact remains that the keys of the locks on the premises were with defendant No. 10.

In view of this fact, prima facie it is not possible to hold, as contended by the plaintiffs, that the premises were abandoned premises and the nobody was in possession of these premises either when a Receiver was appointed in the City Civil Court Suit No. 6053 of 1980 or at any time thereafter, Self-occupied premises in the city of Bombay are extremely valuable. They may fetch for its occupier a large sum of money. It is difficult to accept the contention of the plaintiff that such valuable premises which may fetch for its possessor an amount running into leas of rupees would be simply abandoned by anybody, and would require a Receiver 18 take possession of the same in order to preserve them. Defendants 2 to 9 cannot be said to have abandoned the premises, They have entered into an agreement to transfer inter alia their rights in these premises to defendant No. 10 Defendant No. 10 appears to have been in possession of the suit premises under such an agreement before the filing of the suit. At present, therefore, the premises are not in an abandoned state.

16. We have next to examine whether the plaintiff has a present right to possession of these premises. Assuming for the sake of argument that the possession of defendant No. 10 is wrongful the plaintiff today has no interest in the property in dispute. He is merely a person who has entered into an agreement to purchase the property. He has not paid the full purchase price to the vendor nor has he obtained a conveyance in his favour. As such, he cannot claim any right to immediate possession of the suit property.

17. Mr. Parekh, learned counsel for the defendants Nos. 2 to 10 has challenged the plaintiff's right to obtain specific performance of the agreement of sale, He has alleged that the terms of the agreement of sale are different from the terms on which tenders were invited. He has alleged certain breaches of the agreement on the part of the plaintiff and he has also submitted that L.I.C. the first defendants are in the position of trustees of the property because they hold this property for the benefit of their policy holders. He has further submitted that at the stage when the tenders were opened, ans before the lender of the plaintiff was accepted. DefendantNo. 9 has raised his bid to Rs. 36,50,000/- which was Rs 1 lac more than the bid of the plaintiff, Relying upon the ratio of the decision of the Supreme Court in the case of M/s Kasturi Lal v. State of Jammu & Kashmir AIR 1989 Sc 1992 as well as Ramana Davaram Shetty v. The International Airport Authority, reported in : (1979)IILLJ217SC . He has submitted that it was the duty of the Life insurance Corporation to accept the highest bid and they acted wrongfully in accepting the bid of the plaintiff, According to him this could be a fit case where the court should not exercise its discretion in granting specific performance of the agreement of sale in favour of the plaintiff.

18. At the interlocutory state it is not necessary to examine the merits of the case. But these submissions merely highlight the fact that the plaintiff does not have an immediate right to possession of the property in respect of which they have entered into an agreement of sale, In fact specific performance of an agreement of sale is a discretionary remedy which may or may not be granted. It is quite possible that in a given case the party who asks for specific performance may, even when successful, get only damages in lieu of specific performance. Therefore, unless the plaintiff gets a decree of specific performance in the favour he does not get a right to possession. He cannot, therefore at the interlocutory stage, dispossess somebody who is in possession prior to the filing of the suit. In view of this position, it is not possible to uphold the contention of the plaintiff that a receiver should be appointed of the property described in Exhibit 'a' to the plaint. It may be noted that in the present proceedings the landlord namely. The Life Insurance Corporation has not advanced any arguments and has submitted to the orders of the court. The plaintiff is, however, entitled to some protection in respect of the property which be has agreed to purchase so that his rights may be protected in the event of his succeeding in the suit. Accordingly, I pass the following order:

Defendants 2 to 10, their servants and agents are restramed, from in any manner disposing of alienating encumbering, inducting any third party or creating or recognising any right in favour of any third party in respect of the property described in Exhibit 'A' to the plaint or parting with possession there of or any part thereof. Defendants 2 to 10 their servants and agents are also restrained from attiring the condition of the property described in Exhibit 'A' to the plaint or any part thereof.

Defendant No. 10 his servants and agents are further restrained from parting with the possession of the said premises or any part thereof in favour of defendants Nos. 2 to 9 or any of them.

Defendants 2 to 10 their servants and agents are restrained further from executing a deed of assignment pursuant by the agreement in question entered into between them.

The undertaking given by defendants 2 to 10 on 22nd Sept., 1981 is vacated.

And interim orders to continue till 15th June 1982. The receiver to make an inventory in respect of the property Exhibit 'A' to the plaint including the goods lying in the studio premises and to prepare a list of all persons in occupation of the property Exhibit 'A' Inventory to be made by the Court Receiver immediately by removing the sela of the studio premises and re-fixing the same after the inventory is completed.

Ad interim orders to stand vacated on 15th June 1982 and the Receiver to remove not seal forthwith thereafter.

Mr. Parekh learned counsel for the defendants 2 to 10 applies that the plaintiff should deposit in court a sum of Rs. 28,12,500 which, according to him, is the balance purchase price payable in respect of the agreement for sale.

Mr. Amin, learned counsel for the plaintiff states that the balance purchase pice of Rs. 23,12,500 has been deposited by the plaintiffs with their attorneys M/s. Bachubhai Munim & Co. In view of this statement application rejected.

Costs to be costs in the cause.

19. Ordered accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //