- 1 ­ Order below Exh. 5 in SCS No. 1002/2012.

In the Court of 2nd Joint Civil Judge Senior Division, Pune.

( Special Civil Suit No. 1002/2012 )

Ali Jafari. ... Plaintiff.

­ Vs.­
Smt. Kashmira Dara Khambata … Defendants.
and others.

Appearance :
Shri. Pathak, Ld. Counsel for the plaintiff.
Shri. Katariya, Ld. Counsel for the defendants.

Order below Exh.5

( Passed on 13/03/ 2014 )

The plaintiff has filed the suit for specific performance of

contract. However, in order to seek the interim relief he has filed
instant application under Order 39 Rule 1 & 2 of Civil Procedure Code.

02. The facts in brief are narrated as under ;

According to plaintiff, he had cordial relationship with
Dara Rashid Khambata and his brother Mr. Sohrab Eruchshaw
Khambata. As per plaintiff, one Amirbhai Gafoorbhai Chamdia had
sold his properties as described in para 1(a) to Mr. Dara Khambata for
the consideration of Rs.4,15,120/­. Whereas Ms. Farida Amirbhai
Chamdia had sold her properties as described in para 1(b) to Mr.
Sohrab Khambata for consideration of Rs. 3,09,340/­ vide saled deed
dated 30/04/1996. Further it is alleged that the plaintiff had advanced
some amount to Mr. Dara and Sohrab in the month of September
1994. At the time of purchasing of said properties by Mr. Dara and
Sohrab as they did not have funds to buy the said properties as shown
in para 1(a) and 1(b). According to plaintiff, the defendants made a
request to him for advance of entire consideration for the above said
sale­deed by way of loan for a short duration, so as to enable Mr. Dara
 - 2 ­ Order below Exh. 5 in SCS No. 1002/2012.

and Sohrab to purchase the suit properties. Thus, the plaintiff had
advanced total amount of Rs.7,24,460/­ to Mr. Dara and Sohrab.
Thereafter Mr. Dara was conferred with the power to deal with the
properties as described in para 1(b) of Mr. Sohrab Khambata. Thus,
Mr. Dara Khambata has got a right and authority to deal with and
dispose of the suit properties described in para 1(a) and 1(b)
respectively in the plaint.

03. According to plaintiff, both Mr. Dara and Sohrab failed to

repay the loan amount advanced by the plaintiff despite several
demands made by him on time to time. But Mr. Dara and Sohrab have
failed to repay the amount and entered into mutual negotiations with
the plaintiff in respect of the suit properties as described in para 1(c).
i.e. mentioned in para 1(a) & 1(b). Therefore, after due negotiations
Mr. Dara and Sohrab were agreed to sell the suit properties as
described in para 1(c) to the plaintiff against the lump sum
consideration of Rs.2,00,000/­ over and above the amount loan of
Rs.7,24,460/­. By that way Mr. Dara and Sohrab were discharged their
respective liability to repay the loan amount to the plaintiff.
Accordingly, the plaintiff also paid the entire lump sum consideration
of Rs.2,00,000/­ to Mr. Dara and Sohrab Khambata. In short, the
plaintiff has paid an amount of consideration of the suit properties.
Subsequently, Mr. Dara Khambata for himself and on behalf of Sohrab
Khambata as a Power of attorney addressed to the plaintiff in writing
dated 15/05/1996 titled as Memorandum of Understanding (MOU) in
which they have admitted the consideration paid by the plaintiff
regarding suit properties as mentioned in para 1(c) of the plaint and
handed over peaceful and vacant possession of the suit properties as
described in para 1(c) to the plaintiff. Thus, the plaintiff is in actual,
 - 3 ­ Order below Exh. 5 in SCS No. 1002/2012.

physical and peaceful possession of the suit properties as shown in

para (1).

04. According to the plaintiff, the time was not essense of

contract in said agreement as Mr. Dara and Sohrab have not executed
the sale deed regarding the suit properties during their life time.
Thereafter the present defendants assured the plaintiff to execute the
sale deed and plaintiff has relied on the assurance given by the
defendants and thereby due to cordial relation between plaintiff and
defendants the plaintiff was awaiting for the execution of the sale deed
regarding the suit properties. Meantime, the plaintiff has published a
public notice through his Advocate because the plaintiff came to know
that the defendants are proposed to be executed a sale deed regarding
the suit properties.

05. In short, according to the plaintiff, he is in possession of

the suit properties by virtue of alleged agreement (MOU) and thereby
it is necessary to restrain the defendants from disturbing his
possession over the suit properties. As per the plaintiff, he has prima
facie case, balance convenience also lies in his favour and if the relief
as sought by him is not granted then he will have to suffer irreparable
loss which cannot be compensated in terms of money. Lastly, plaintiff
prayed that his application be allowed.

06. To wipe out the contentions of the plaintiff the

defendants no. 1 to 3 have filed their common written statement
below Exh. 19 and the defendants no. 4 to 7 have filed their common
written statement below Exh. 53. They have strongly resisted the
application and denied most of the allegations levelled against them.
 - 4 ­ Order below Exh. 5 in SCS No. 1002/2012.

It is specifically denied by the defendants that Mr. Dara and Sohrab

have entered into an agreement as alleged regarding suit properties.
The defendants have strongly denied that Mr. Dara and Sohrab have
executed MOU in favour of the plaintiff in respect of the suit
properties on 15/05/1996 and also receipt of the entire consideration
from the plaintiff and submitted that the defendant no. 4 has paid
huge and substantial consideration of the suit properties of Rs. 11
Crores to the owners and executed the registered sale deed by taking
peaceful and vacant possession of the suit properties from its owners
and have started development on the land by spending huge amount.

07. According to defendants, alleged MOU/Agreement is

absolutely false, forged and fabricated one. Moreover, the plaintiff has
concealed the material facts before the court and therefore, it is
necessary to dismiss the application as the plaintiff have not
approached the Court with clean hands. Lastly, the defendants
submitted that the plaintiff have no prima facie case, balance of
convenience also does not lies in his favour and if the relief as sought
by the plaintiff is granted then the defendants will have to suffer
irreparable loss and prayed that instant application is liable to be
dismissed. ­

08. Considering the rival contentions of the parties, following

points arise for my determination. I have discussed the same and
given my findings thereon for the reasons recorded therefor.
No Points Findings
1. Does plaintiff prove that, he has
made out prima­facie case ? .... In negative.
2. Whether balance of convenience is
lies in favour of the plaintiff ? .... In negative.
 - 5 ­ Order below Exh. 5 in SCS No. 1002/2012.

3. Whether plaintiff will suffer .... In negative.

irreparable loss ?
4. What order ? …. As per final order.
REASONS
As to point No. 1 :­
09. In order to establish his claim, Ld. Counsel for the plaintiff
took me through the several documents filed vide list Exh.3. Ld.
Counsel also drew my attention towards MOU filed by him vide
document No. 3 below list Exh. 3 and vehemently submitted that, as
per the recital in said MOU dated 15/05/1996 Mr. Dara Khambata has
executed an agreement to sale for lump­sum consideration for above
Rs.2,00,000/­than the amount paid by the plaintiff to Mr. Dara and
Sohrab as a hand loan for a short duration.

10. Ld. Counsel for the plaintiff also submitted that though
the nomenclature of the said document is shown as MOU but in fact
the said agreement is a agreement to sell. However, the defendant no.
4 has purchased the suit properties from the defendants no. 1 to 3 to
which defendants no. 5 to 7 are the consenting party. According to
plaintiff, he has filed a caveat on 04/08/2012 and thereafter present
suit on 22/08/2012 whereas a Lis Pendent lite was registered on
22/08/2012. But even then the defendant no. 4 has purchased the suit
properties though he was well aware about the dispute regarding the
suit properties therefore, the defendant no. 4 is not a bonafide
purchaser of the suit properties. Consequently, the plaintiff is in
apprehension that the defendants or anybody else on their behalf may
be tried to disturb his peaceful possession over the suit properties.
Moreover, the plaintiff made out his case prima facie hence the
plaintiff is entitled for the equitable relief of injunction because his
MOU/agreement to sale dated 15/05/1996 is much earlier than the
 - 6 ­ Order below Exh. 5 in SCS No. 1002/2012.

sale deed dated 29/08/2012 executed by the defendants no. 1 to 3 in

favour of the defendant no. 4.

11. To wipe out the contentions of the plaintiff learned

Counsel for the defendants argued that, the plaintiff has not specified
the material facts that, how much amount is given by the plaintiff to
the deceased Dara and Sohrab. Likewise, the plaintiff has not
disclosed the date and mode of the payment of alleged amount paid
to Mr. Dara Khambata and Sohrab Khambata as a hand loan to
purchase the suit properties in their alleged transaction. Moreover,
the plaintiff has not filed any documents on record to show that
Sohrab Khambata has executed a Power of attorney in favour of Mr.
Dara Khambata therefore, Mr. Dara Khambata has no power at all to
deal on behalf of Sohrab Khambata.

12. Ld. Counsel for the defendants also pointed out towards
alleged agreement/MOU dated 15/05/1996 and submitted that the
said MOU is not registered or duly stamped. However, it is merely a
letter and not an agreement thereby the said MOU alleged to be
executed by Mr. Dara Khambata for himself and on behalf of Sohrab
Khambata as a Power of Attorney is absolutely false, forged and
fabricated which cannot be acted upon.

13. Ld. Counsel for the defendants also drew my attention

towards document No. 5 of list Exh. 58 and submitted that the alleged
Article of Agreement dated 20/01/2005 executed by the plaintiff in the
capacity of Power of Attorney of the deceased Dara and Sohrab
Khambata in favour of Hiranandani Properties Pvt Ltd submitted that
at the time of execution of alleged Articles of Agreement dated
 - 7 ­ Order below Exh. 5 in SCS No. 1002/2012.

20/01/2005, Mr. Dara and Sohrab Khambata were not alive. Moreover,
there is no Power of Attorney on record to show that Mr. Dara and
Sohrab Khambata have executed a Power of Attorney in favour of the
present plaintiff and given their rights to the plaintiff in respect of the
suit properties. According to the defendants, the plaintiff is in habit to
enter into such kind of transaction with intent to grab the properties.
Therefore, the plaintiff is not entitled for equitable relief as he has not
come before the Court with clean hands.

14. Considering rival submissions on behalf of the parties

and the documents placed before me it clearly seems that plaintiff has
not come before the court with clean hands as he has resorting on
alleged MOU dated 15/05/1996 which is in a form of letter wherein
not a single document annexed by the plaintiff to show that he had
any transaction with the Dara and Sohrab Khambata as alleged.
Moreover, he has not filed even a least document of revenue on record
to show his possession over the suit properties.

15. It is pertinent to note that though the plaintiff has

submitted that he has paid the entire consideration of the suit
properties to Mr. Dara and Sohrab Khambata. However, I am not
inclined with the facts put­forth by the plaintiff because no prudent
man will enter into such a vague transaction. Likewise, I am unable to
understand when the plaintiff was intending to purchase the suit
properties within 15 days from Dara and Sohrab Khambata by giving
hand loan amount of Rs.7,24,460/­ to above said purchaser from his
own pocket, then why he had not purchased the same on his name.
 - 8 ­ Order below Exh. 5 in SCS No. 1002/2012.

16. In short, prima facie the alleged transaction seems like a

Benami transaction or sham or fake transaction. Otherwise the
plaintiff had no reason to choose a way which he had choosen for this
alleged transaction to get back his amount given by him to Mr. Dara
and Sohrab Khambata as a hand loan because of their friendly
relations.

17. It is worth to mention here that the plaintiff has stated in

para 14 of the application Exh. 5 that he has paid Rs.2,00,000/­ over
and above the amount of loan Rs.7,24,460/­ to Mr. Dara and Sohrab
Khambata. But they failed to repay the same. I have carefully gone
through the contents of para no. 14 of the application and do find that
the contents are vague and very difficult to understand because the
plaintiff himself is not certain what he wants to say exactly because
when the plaintiff was a close friend of the Mr Dara and Sohrab
Khambata then what was the necessity for the plaintiff to pay the
excessive amount of Rs. 2,00,000/­ than the consideration of alleged
transaction to Mr. Dara and Sohrab Khambata within 15 days from the
alleged MOU dated 15/05/1996. Obviously, the reason best known to
the plaintiff only.

18. If one has to go through the alleged MOU dated

15/05/1996 clearly shows that there are no witnesses before whom the
said MOU was executed. Likewise, the plaintiff has not placed the
copy of Power of Attorney executed by Sohrab in favour of Dara
Khambata. The defendants no. 1 to 3 have strongly denied the said
MOU by submitting that the signature appears on said MOU is not of
Dara Khambata and the alleged MOU is scribed in a form of letter.
 - 9 ­ Order below Exh. 5 in SCS No. 1002/2012.

19. In short, the said MOU dated 15/05/1996 is highly

suspicious which is not sufficient to support the claim of the plaintiff,
in any way and in any manner.

20. Obviously, the plaintiff has not come before the Court
with clean hands and merely relying on ambiguous and vague
document i.e. MOU dated 15/05/1996 and trying to seek an equitable
relief. As I have already mentioned above that there is no single
document on record to show the possession of the plaintiff over the
suit properties. Under such circumstances, I am not inclined with the
submission of the plaintiff that he has made out prima facie case.
Obviously, the plaintiff has absolutely failed to make out his prima
facie case. Hence, I have recorded my finding in negative as to point
No.1.

As to issue No. 2 & 3 :­

21. As I have already recorded my finding in negative as to
point No. 1 and do find that, the plaintiff has no prima­facie case at
all. Likewise, the balance of convenience does not lies in favour of the
plaintiff. Therefore, question does not arise to cause any irreparable
loss to him because he has not come before the Court with clean
hands. However, it seems that the plaintiff failed to bring real facts
before the Court.

22. On the contrary, the balance of convenience lies in favour

of the defendants and therefore, if the relief as sought by the plaintiff
is not granted then certainly, the defendants will have to suffer
irreparable loss which cannot be compensated in terms of money
because by virtue of alleged sale deed dated 30/04/1996 the
predecessor of defendants no. 1 to 3 are the original owner of the suit
 - 10 ­ Order below Exh. 5 in SCS No. 1002/2012.

properties. Therefore, there is no question to cause any irreparable

loss to the plaintiff because he has entered into alleged MOU with
deceased Dara and Sohrab Khambata on 15/05/1996 and since then
he absolutely kept mum for a considerable period of 15 years from the
date of alleged execution of MOU. Said delay on the part of plaintiff
itself sufficient to conclude me that the plaintiff is not entitled for
equitable relief as claimed.

23. Resultantly, the plaintiff has absolutely failed to prove

that, the balance of convenience lies in his favour and he will have to
suffer irreparable loss. Hence, I have recorded my findings in negative
as to point No. 2 & 3. In the result, I proceed to pass the following
order.
ORDER
I. Instant application (Exh.5) is hereby dismissed.

II. No order as to costs.

(P. J. Modak)
Date/­ 13/03/2014 2nd Jt. Civil Judge Senior Division,
Pune.
 - 11 ­ Order below Exh. 5 in SCS No. 1002/2012.

Remark

“I affirm that the contents of this PDF file judgment are

same word for word as per original judgment.”

Name of the Steno : Shivaji N. Patil, (Steno L.G.)

Court : P. J. Modak,
2nd Jt.C.J.S.D., Pune.
Date/­ : 13/03/2014.
Judgment signed by P. O. on : 13/03/2014
Judgment upload on : 01/04/2014