TaxTMI 
TaxTMI 
TaxTMI 
2019 (9) TMI 1741
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....iff. Prayer (d) of the Notice of Motion has already worked itself out and hence, has become infructuous. 3. The Plaintiff had filed the above Suit claiming compensation on account of financial loss caused to the Plaintiff and compensation on account of the injury caused to the Plaintiff due to the acts of the Defendants. The Plaintiff has also sought sale of the 14 properties purchased and acquired in the names of Defendants No. 2 to 4 out of the amounts from the Plaintiff's bank account by forging cheques in the Plaintiff's name. 4. The Plaintiff upon learning of various amounts being siphoned by the Defendants No. 2 to 4 from the Plaintiff's bank account and which was utilised by these Defendants for purchase of 14 properties filed a First Information Report with the concerned police station. The police authorities made an application before the additional Chief Metropolitan Magistrate for confirmation of attachment which was confirmed by the additional Chief Metropolitan Magistrate on 16th May 2009. Thereafter, the Plaintiff made an application before the additional Chief Metropolitan Magistrate for return of the said properties, however, the same was rejected on 3....
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....filed a Criminal Writ Petition No. 3102 of 2010 challenging the attachment of the subject flat by the Economic Offence Wing (EOW). An order came to be passed by this Court dated 22nd January 2013 (the then A.M. Thipsay, J.) in this Criminal Writ Petition whereby the attachment was quashed and the investigating agency was directed to handover the said property to the person in possession. 8. Respondent No. 4 had by letter addressed on 21st June 2013 denied that the Respondents No. 1 to 3 have any right, title or interest in the subject flat and this was communicated to the advocates of the Applicant. Further, the Respondent No. 4 also filed Affidavit in Reply in the Notice of Motion (L) No. 2659 of 2014 wherein it is stated that since passing of the order dated 22nd January 2013 by this Court, the Respondent No. 4 has been in legal and physical possession of the said flat. By subsequent orders passed by this Court on 23rd December 2014, 7th September 2015, 23rd September 2015, 30th September 2015, Respondents No. 2 and 3 were directed to file an Affidavit disclosing the details of the properties including the subject flat. The Respondent No. 2 pursuant to the said orders filed an A....
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....said orders of injunction and/or status quo of this Court. 11. Mr. Rohaan Cama, the learned Counsel for the Applicant/Plaintiff has submitted that the subsequent transfer by the purported agreement for sale entered into by Respondents No. 2 and 3 with Respondents No. 5 to 7 being in breach of an injunction or an order of status quo then regardless of the subsequent transferee (Respondents No. 5 to 7) claiming to be a bona fide purchaser for value without notice and regardless of the merits of the matter, such a transfer is void ab initio, entirely illegal and must be quashed and set aside. He has submitted that the Respondents No. 2 and 3 had made an express statement in their Affidavit that during the pendency of the present Suit, they shall not dispose of and/or create third party rights in respect of any of the properties (including the subject flat) standing in their name. This statement was accepted by this Court and ad-interim relief was granted in accordance with the statement by order dated 11th August 2010. Further, this Court in the 14 Criminal Writ Petitions filed by Respondents No. 2 and 3 challenging the orders in Civil Revision Application which had released the said....
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....e order of S.C. Gupte, J., the Court Receiver was appointed in respect of the said properties. It was expressly held in the order of S.C. Gupte, J. that the subject flat was with Respondent No. 4 and upon the Plaintiff paying the balance consideration through the Court Receiver to the Respondent No. 4 for the subject flat, the Court Receiver shall take over the subject flat and handover the possession thereof to the Plaintiff as agent of the Court Receiver. He has thus, submitted that it is now not open for the Respondents No. 2 and 3 to claim that the subject flat was in their possession and that they were in a position to transfer the subject flat to Respondents No. 5 to 7. He has submitted that the order of S.C. Gupte, J. dated 13th April 2016 has attained finality in the Notices of Motion which were before the learned Judge. He has submitted that the Respondents No. 1 to 3 had sought to challenge the said order, but the challenge had been rejected on the ground of office objection and thereafter, these Respondents had not restored their challenge to the said order. 14. He has submitted that the transfer by Respondents No. 2 and 3 to the Respondents No. 5 to 7 was made in viola....
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....espect of the subject flat. He has submitted that this Court not only has the power, but also the duty as a matter of judicial policy and regardless of any other factors whatsoever to ensure that the status quo ante as on the date of the orders of the then R.Y. Ganoo, J. and the then B.R. Gavai, J. be restored and the subject flat be handed over as per the order of S.C. Gupte, J. He has submitted that the transfer done in breach of these orders is ex-facie illegal and void ab initio as held by the Supreme Court and must be undone. 17. Ms. Neeta Karnik, the learned Counsel for the Respondents No. 5 to 7 has submitted that the final prayer in the Suit does not seek title to the properties including the subject flat and absent that no interim relief can be passed in respect of the said properties including the subject flat. She has submitted that the final prayer sought in the above Suit is for a monetary decree for compensation claimed for financial loss caused to the Plaintiff due to the acts of the Defendants. She has submitted that prayer (c) in the Plaint seeks an order for sale of the properties for having been illegally purchased and acquired by the second Defendant by withdra....
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....ed by a decree of a Court is a charge created by operation of law and comes within Section 100 of the Transfer of Property Act. She has accordingly submitted that in the present case, the charge which was created by act of parties as well as operation of law and which could be seen from the order of the then R.Y. Ganoo, J. would be a charge on the properties including the subject flat towards the monetary decree being sought for by the Plaintiff. 20. She has submitted that the Suit is not a Suit for specific performance of the subject property and hence, in terms of the prayers, the relief sought in the present Notice of Motion which seeks to cancel the agreement for sale between the Respondent No. 2 and the Respondents No. 5 to 8 cannot be granted as and by way of interim relief in the Suit as framed. 21. She has further submitted that full consideration has been paid by Respondents No. 5 to 7 under the agreement for sale between Respondent No. 2 and Respondents No. 5 to 7 and that Respondents No. 5 to 7 are residing in the subject flat since 2015. The agreement for sale having been entered into on 15th September 2015, the possession of these Respondents should now not been dist....
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....the said ground. However, the Notice of Motion No. 1244 of 2016 was dismissed by the order dated 13th March 2019 by this Court. 24. She has submitted that the prayers in the Suit are for monetary decree and that no prayer has been sought in respect of possession of the said properties including the subject property and hence, the order of the then R.Y. Ganoo, J. could not have been passed in the light of the prayers in the Suit. She has further submitted that the order of the then B.R. Gavai, J. was passed in criminal proceedings and hence, could not have any bearing on the civil proceedings in the above Suit and hence, upon the criminal proceedings being quashed, the said order could not be held to operate as a status quo order in the above Suit. She has submitted that in any event, the subsequent order of the then A.M. Thipsay, J. in Criminal Writ Petition has set aside the attachment of the said properties including the subject flat and the said order would nullify the order of status quo granted. She has submitted that the subsequent order of S.C. Gupte, J. had failed to appreciate that the possession of the subject flat was with the Respondents No. 2 and 3 by holding that the....
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....ecognised, how is status quo as of September 15, 1988 maintained? Hence, the grant of sublease is contrary to the order of status quo. Any act done in the teeth of the order of status quo is clearly illegal. All actions including the grant of sublease are clearly illegal. 26. It has been expressly held in the above decision that an act done in the teeth of the order of status quo is clearly illegal. This has also been held by the Supreme Court in Surjit Singh (supra). This decision has held that when the Court intends a particular state of affairs to exist while it is in seizin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court has the duty as also right to treat the alienation as having not taken place at all for its purposes, when such alienation is in defiance of a restraint order. 27. This Court by relying upon the above two decisions of the Supreme Court has held in the judgment of Keshrimal Jiviji Shah (supra) thus:- "It would mean that parties can breach and violate Court orders openly and with impunity and neither they nor the beneficiaries suffer any consequences. It is time that....
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....with law in the above Suit for further orders regarding the said properties. This Application was made and which led to the order of S.C. Gupte, J. who appointed the Court Receiver in respect of the said properties including the subject flat. The Applicant was permitted to pay the balance consideration to the Respondent No. 4 and thereby obtain possession of the subject flat through the Court Receiver. I do not find that the order of the then A.M. Thipsay, J. in the Criminal Writ Petition filed by the Respondent No. 4 had in any manner upset the status quo order of the then B.R. Gavai, J. The said order had only set aside the attachment in respect of the said properties on the ground that the said properties has been seized in purported exercise of powers under Section 105E of the Code of Criminal Procedure, 1973 which had no applicability to the facts of the case. It was in fact held in the said order that it was for the Civil Court to settle these disputes and such disputes cannot be allowed to be raised in the Criminal Writ Petition. Thus, the orders of this Court of the then R.Y. Ganoo, J. and the then B.R. Gavai, J. continued to operate till the order of S.C. Gupte, J. who gra....
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....he property in question. The statement in the present case that the parties will not deal with the said properties cannot be treated as a charge on the subject flat for payment of an eventual monetary decree, which may be passed in favour of the Plaintiff. In fact, the charge cannot arise as there is no obligation to make payment out of the subject flat and in fact, it is a general statement that the Respondents No. 2 and 3 will not deal with the 14 properties which includes the subject flat which has been accepted by this Court. The decisions cited by the learned Counsel for the Respondents No. 5 to 7 including the decision of the then Nagpur High Court are not applicable in the facts and circumstances of the present case. In fact, the learned Counsel for the Applicant has referred to a decision of the Hon'ble Division Bench of this Court (Judgment pronounced on 4th June 2019 in Appeal (L) No. 83 of 2019) in the present Suit in respect of one of the said properties which specifically recognised that the order of the then R.Y. Ganoo, J. was an order restraining the Respondents No. 2 and 3 from dealing with the said properties. Hence, it is not open for these Respondents to cont....
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....t order dated 13th March 2019 passed by this Court which dismissed the Notice of Motion taken out by the Respondents No. 1 to 3 for dismissal of the above Suit by relying upon the Supreme Court Order. Further, the Plaintiff deleted the Standard Chartered Bank as original Defendant No. 1 in the above Suit and this was in accordance with statement made to the Supreme Court. 33. Further, the submission on behalf of the Respondents No. 1 to 3 that the order of the then R.Y. Ganoo, J. was only by way of an interim arrangement between the Applicant and these Respondents, pending the settlement which was being negotiated cannot be accepted. The order of the then R.Y. Ganoo, J. was clearly an ad-interim order of injunction passed by the learned Judge by accepting the statement of Respondents No. 1 to 3 that they will not deal with the said properties during the pendency of the Suit. This cannot be considered an interim arrangement pending settlement as contended by these Respondents. Further, the order subsequently passed by K.R. Shriram, J. on 23rd December 2014 has in the context of the purported settlement being negotiated as claimed by the Respondents No. 1 to 3 has recorded that the ....