Bombay High Court
Pankh Properties Private Limited vs Rusi Sorabji Khambatta on 4 March, 2026
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2026:BHC-OS:5548
IA.7408.2025+IA(L).2426.2026.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 7408 OF 2025
IN
SUIT NO. 359 OF 2025
Pankh Properties Private Limited .. Applicant
IN THE MATTER OF:
Pankh Properties Private Limited .. Plaintiff
Versus
Rusi Sorabji Khambatta and Ors. .. Defendants
WITH
INTERIM APPLICATION (L) NO. 2426 OF 2026
IN
COUNTER CLAIM (L) NO. 2369 OF 2026
IN
SUIT NO. 359 OF 2025
Rusi Sorabji Khambatta .. Applicant
IN THE MATTER OF:
Rusi Sorabji Khambatta Counter Claimant
.. (Orig. Defendant No.1)
Versus
Rusi Properties Pvt. Ltd. and Ors. .. Defendants
....................
Mr. Mayur Khandeparkar a/w. Ms. Lata Dhruv, Ms. Jahnavi Pandey
and Ms. Namrata Kondavale, Advocates i/by Dhru & Co. for
Applicant / Plaintiff in Interim Application No.7408 of 2025.
Mr. Aloukik R. Pai a/w. Mr. Saharsh Sakhare, Mr. Suryajeet
Ravrane and Ms. Rashmi Nikam, Advocates i/by Bina R. Pai for
Applicant in Interim Application (L) No.2426 of 2026 and
Defendant Nos.1 and 4.
....................
CORAM : MILIND N. JADHAV, J.
DATE : MARCH 04, 2026.
JUDGMENT:
1. Heard Mr. Khandeparkar, learned Advocate for Applicant /
Plaintiff in Interim Application No.7408 of 2025 and Mr. Pai, learned
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Advocate for Applicant in Interim Application (L) No.2426 of 2026
Defendant Nos.1 and 4. In Suit No. 359 of 2025, Interim Application
No. 7408 of 2025 is filed by Plaintiff for grant of interim reliefs under
Order XXXIX Rules 1 & 2 of CPC. In Counter Claim (L) No. 2369 of
2026, Interim Application (L) No. 2426 of 2026 is filed by Defendant
No.1 Counter Claimant to pay an amount of Rs.16,50,75,700/- to
Defendant and for grant of ad-interim reliefs under Order XXXIX Rules
1 & 2 of CPC. By consent of parties both Interim Applications for grant
of interim reliefs are taken up for hearing and disposal together as
facts identical. Pleadings are completed in both Interim Applications.
Parties shall be referred to as Plaintiff and Defendants for convenience.
Lis is essentially between Plaintiff and Defendant No.1
2. Briefly stated, Plaintiff and Defendant No.1 executed
registered Deed of Assignment dated 20.11.2012 and registered
Irrevocable Power of Attorney dated 20.11.2012 whereby Defendant
No.1 transferred and assigned his entire right and title in leasehold
land bearing Plot No.626 equivalent to new Survey No. 1109 (part)
and C.S. No. 633/10 of Matunga Division, Dadar – Matunga Estate
Scheme ad-measuring approximately 1092.81 square meters within
Municipal Ward of “F” North together with building comprising of
ground plus 3 upper floors constructed thereon nomenclatured as
Adenwalla Building (for short “suit property”) upon receiving
consideration of Rs.12,00,00,000/-to the Plaintiff. Defendant Nos. 2, 3
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and 4 are Confirming Parties to the Deed of Assignment dated
20.11.2012.
2.1. Defendant No.1 admittedly in 2012 received the entire
consideration of Rs.12 Crore from Plaintiff and in lieu thereof handed
over possession of suit property along with all original title deeds and
documents of the suit property to Plaintiff and executed Declaration
confirming the same. Defendant No.1 addressed individual Letters of
Attornment to all tenants residing in the suit Building on the property
intimating them that their tenancies were attorned in favour of
Plaintiff and all future dues would be payable to Plaintiff (as landlord)
except for attorning tenancy in respect of Flat No.9 being one Darius
Rutton Kavasmaneck against whom Defendant No.1 was prosecuting
eviction proceedings in the Small Causes Court bearing number RAE &
R Suit No.525/1251 of 1993 at the then time.
2.2. Simultaneously, by an unregistered Agreement Defendant
No.1 expressed interest to purchase 7,750 square feet at the rate of
Rs.7,250/- per square foot in the proposed redevelopment on the Suit
property plot if Plaintiff carried out the same in future. This
unregistered Supplemental Agreement dated 20.11.2012 was executed
separately between Plaintiff and Defendant No.1. Plaintiff and
Defendant Nos. 2 to 4 executed 3 individual PAAA’s all dated
20.11.2012 giving their consents to redevelopment of the suit property
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and to receive ownership flats with 35% additional area in comparison
to their then existing flat areas. Plaintiff addressed letter dated
26.12.2013 to all tenants proposing commercial terms for
redevelopment of the building and stated that upon acceptance
requisite legal documents would be executed to proceed with
redevelopment process, however since no response was received from
the tenants, Plaintiff took no further steps to redevelop the suit
property.
2.3. On 26.02.2010, Small Causes Court passed Decree and
Judgment in RAE & R Suit No.525/1251 of 1993 in favour of
Defendant No.1 directing the tenant Darius Rutton Kavasmaneck to
vacate Flat No. 9 in the building on the suit property and handover
vacant and peaceful possession to Defendant No.1. The tenant filed
Appeal No.183 of 2010 against the Decree and Judgment dated
26.02.2010 before the Small Causes Court Appellate Bench which was
allowed vide judgment dated 30.10.2015 against which Defendant
No.1 filed Civil Revision Application No.185 of 2016 challenging the
said Judgment dated 30.10.2015 in which Plaintiff has filed
Intervention Application. Civil Revision Application No.185 of 2016
was to be settled however the same failed due to change in ownership
in favour of Plaintiff – Developer and thus it remains pending till date.
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2.4. In March 2025, one Yasmine Cursetji and her husband one
Rustom Cursetji (for short “the Cursetjis”) claiming to be co-tenant
alongwith Defendant No.4 in Flat No.7 of suit premises filed Suit for
dispossession being Suit No.971 of 2025 in City Civil Court, Bombay
along with Notice of Motion under Section 6 of Specific Relief Act,
1963 against Defendant No.4 and Plaintiff on the ground that
Defendant No.4 unlawfully dispossessed the Cursetjis from Flat No.7.
By Order dated 07.10.2025, City Civil Court Bombay allowed the
Notice of Motion and restrained Defendant No. 4 from selling,
disposing off, assigning, leasing or creating third party rights in respect
of Flat No.7.
2.5. Plaintiff received Notice dated 11.06.2025 addressed by
Advocates for Defendant No.1 purporting to terminate Deed of
Assignment and Irrevocable Power of Attorney, both dated 20.11.2012.
Advocate for Defendant No.1 issued Public Notices stating that Deed of
Assignment and Irrevocable Power of Attorney stood terminated and
requested the public to refrain from dealing with Plaintiff in respect of
the suit property. On 17.06.2025 and 30.08.2025, Plaintiff addressed
detailed replies to the aforementioned notice refuting all statements
contained therein and called upon Defendant No.1 to withdraw the
notice however Defendant No.1 failed to do so and continued to act
contrary to Plaintiff’s interest, hence Plaintiff filed present Suit and
Interim Application for interim reliefs.
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3. Mr. Khandeparkar, learned Advocate for Plaintiff while
drawing my attention to Interim Application No.7408 of 2025,
Affidavit in Reply dated 21.01.2026 and Affidavit in Rejoinder dated
04.11.2025 filed by Mr. Talha Kapadia, authorised representative of
Plaintiff would submit that Defendant No.1 transferred and assigned
the suit property to Plaintiff by registered Deed of Assignment to which
Defendant Nos.2 to 4 were confirming parties and registered
Irrevocable Power of Attorney all dated 20.11.2012 for consideration
of Rs.12,00,00,000/-. He would submit that Defendant No.1 has
admitted receipt of the same. He would submit that Defendant No.1
handed over possession of suit property along with all title documents
to Plaintiff and executed Declaration to that effect. He would submit
that Deed of Assignment confirms receipt of Rs.12 crores as
consideration along with all benefits under the Head Lease as well as
accompanying, incidental and ancillary rights flowing therefrom. He
would submit that Defendant No.1 addressed Letter of Attornment to
all tenants attorning their tenancies to Plaintiff. He would submit that
recitals of the Deed of Assignment and Letter of Attornment addressed
by Defendant No.1 to all tenants show that Plaintiff was to develop the
suit property which was tenanted and all requisite legal documents for
redevelopment would be executed at a future date if Plaintiff
redeveloped the same.
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3.1. He would submit that Defendant No.1 wished to purchase
7,750 square feet in the new building if Plaintiff redeveloped the suit
property hence a separate unregistered Supplemental Agreement dated
20.11.2012 was executed between Plaintiff and Defendant No.1 and
confirmed by Defendant Nos. 2 to 4. He would vehemently submit that
Supplemental Agreement was independent of the Deed of Assignment
and in no way connected to the same. He would submit that
Supplemental Agreement is merely an understanding and expression of
intent to enter into an agreement to develop the suit property. He
would submit that fructification of Supplemental Agreement was
wholly subject to three conditions being:- (i) tenants of suit property
consenting to redevelopment; (ii) feasibility of layouts and (iii)
redevelopment actually happening. He would submit that
Supplemental Agreement lacked key details pertinent to
redevelopment; viz there being (i) no time period stipulated for
completion of construction mentioned; (ii) no identification of the
7,750 square feet agreed to be given to Defendant No.1; (iii) design of
construction; (iv) no plan or number of flats and floors; (v) no details
of the quality of fixtures and fittings agreed and (vi) no requisite legal
documents to be executed with existing tenants. He would submit if
Plaintiff were to redevelop the suit property, these details would be
finalized in subsequent legal documents to be executed at a later date
is what was agreed.
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3.2. He would submit that Defendant No.1’s claim that the
Supplemental Agreement and Deed of Assignment are connected
documents and by such linkage Defendant No.1 seeks to modify a
registered document by an unregistered document is impermissible
and unenforceable in law. In support of this submission he would refer
to and rely on the decisions of the Supreme Court in the cases of M.B.
Constructions vs. Vibhit Enterprises Pvt. Ltd.1 and Chandrakant
Shankarrao Machale vs. Parubhai Bhairu Mohite (Dead) Through Lrs.2
3.3. He would submit that Plaintiff commenced the process of
redevelopment and addressed letter dated 26.12.2013 to all tenants
informing them of redevelopment terms, however no response was
received from the tenants, hence redevelopment failed to materialize
and the Supplemental Agreement stood frustrated. He would submit
that despite being aware of frustration of the Supplemental
Agreement, Defendant No.1 did not take steps to seek performance of
the Supplemental Agreement nor did he or other Defendants who were
confirming parties to the Deed of Assignment follow up with Plaintiff
on the redevelopment status of the suit property.
3.4. He would submit that Defendant No.1’s eviction proceedings
against Darius Rutton Kavasmaneck came to decided in favour of
Defendant No.1 by the Trial Court. He would submit that further
1 Appeal No.271 of 2012 decided on 20th March 2013
2 (2008) 6 SCC 745
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rounds of litigation ensued which culminated in Defendant No.1 filing
Civil Revision Application No. 185 of 2016 before this Court in which
Plaintiff has filed Intervention Application. He would submit that there
was change in Plaintiff’s shareholding due to which Defendant No.1
has alleged collusion between Darius Rutton Kavasmaneck and
Plaintiff to cause harm and detriment to Defendant No.1. He would
submit that Defendant No.1 has falsely alleged collusion between
Darius Rutton Kavasmaneck and Plaintiff to deprive the benefit of the
eviction Suit to Defendant No.1. He would submit that on execution of
Deed of Assignment, Defendant No.1 assigned benefits and burdens of
the suit property to Plaintiff and one such burden being the ongoing
eviction suit proceedings between Darius Rutton Kavasmaneck and
Defendant No.1. He would submit that as the entirety of the suit
property was sold and assigned to Plaintiff along with all benefits and
encumbrances arising therefrom, Defendant No.1 has no surviving
right or interest left in the eviction suit proceedings.
3.5. He would submit that the suit property was assigned and
transferred to Plaintiff – Company. He would submit that shareholders
of Plaintiff – Company owe no obligation to Defendant No.1 and it is
free to sell and transfer its shares to any person of its choice. He would
submit that since shareholders of Plaintiff – Company sold their shares
to a company owned / controlled by Darius Rutton Kavasmaneck and
his family, it does not give rise to any cause of action to Defendant
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No.1 to terminate the Deed of Assignment nor can any question be
raised to Plaintiff’s title over the suit property without following the
due process of law.
3.6. He would submit that Defendants saw Plaintiff’s stand in the
eviction Suit proceedings as adverse to Defendants’ interest, hence
Defendant No.1 through his Advocate issued notice dated 11.06.2025
terminating the Deed of Assignment and the Irrevocable Power of
Attorney. He would submit that this notice is bad in law and issued
with malafide intention since Defendant No.1 did not question
Plaintiff’s possession of Suit property from November 2012 until
Plaintiff filed its Affidavit in the eviction Suit proceedings in June
2025. He would submit that Defendants took adverse inference from
Plaintiff’s stand in the eviction Suit proceedings and published Public
Notices in the Free Press Journal and Nav Shakti newspapers declaring
that the Deed of Assignment dated 20.11.2012 and Irrevocable Power
of Attorney dated 20.11.2012 stood terminated and further warning
the public not to deal with Plaintiff in relation to the suit property. He
would submit that these Public Notices were not only published but
were addressed to the Plaintiff and this was done with intention to
deliberately cast doubt and slander Plaintiff’s title over the suit
property in the eyes of the public. He would submit that Notice dated
12.06.2025 addressed by Defendant No.1 terminating the Deed of
Assignment and Irrevocable Power of Attorney is illegal, non-est, null
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and void on the legal ground that registered documents cannot be
unilaterally terminated merely by issuing notices for termination. In
support of this submission, he would rely upon the decisions of the
Supreme Court in the cases of Thota Ganga Laxmi and Another Vs.
Government of Andhra Pradesh and Others 3 and Bhram Dutt Vs.
Sarabjit Singh 4.
3.7. He would submit that failure to seek permission from the
Municipal Commissioner under Section 92(dddd) of Mumbai
Municipal Corporation Act, 1888 (for short “MMC Act“) for assignment
of the leasehold right does not invalidate the registered Deed of
Assignment, instead provides for conditions to be imposed and penalty
fee to be paid for transfers effected without obtaining permission. He
would submit that it does not empower the transferor – Assignor to
annul or terminate the registered documents unilaterally by a legal
notice. He would submit that bare reading of the Deed of Assignment
shows that Defendant No.1 obtained all permissions to convey and
assign the suit property hence he cannot take advantage of his own
inadvertence to invalidate the Deed of Assignment especially when he
has received the entire consideration of Rs. 12 Crore thereunder in
2012 and has enjoyed the same.
3 (2010) 15 SCC 207
4 2017 SCC OnLine P&H 5489
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3.8. He would submit that Plaintiff through their Advocate
addressed reply letters dated 17.06.2025 and 30.08.2025 stating that
the Deed of Assignment dated 20.11.2012 was absolute, unconditional
and executed with consideration of Rs.12,00,00,000/- paid fully and
finally by Plaintiff to Defendant No.1 who admitted receipt of the
same, hence assignment of right, title and interest in the suit property
was complete and Deed of Assignment was incapable of being
unilaterally terminated by Defendant No.1 merely by Notice. He would
submit that, Plaintiff undertook no obligation to redevelop the suit
property and it was only an entitlement which stood frustrated due to
no response received from the tenants. He would submit that the
Supplemental Understanding was void, unenforceable and stood
terminated not for the reasons mentioned in Defendant No.1’s notices
but for the aforementioned reasons set out in Plaintiff’s replies dated
17.06.2025 and 30.08.2025.
3.9. He would submit that as Defendant No.1 paid the
consideration stipulated in the Deed of Assignment, any additional
consideration that may be contemplated in the Supplemental
Understanding cannot terminate / cancel the Deed of Assignment
under Section 31 of Specific Relief Act, 1963 as transfer of the suit
property was complete and title had passed onto Plaintiff. In this
regard, he would refer to and rely upon the decision of the Supreme
Court in the case of Dahiben vs. Arvindbhai Kalyaniji Bhanusali (Gajra)
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Dead Through Legal Representatives and Others 5
3.10. He would submit that Plaintiff is in continuous and
uninterrupted possession of the suit property and has been regularly
paying assessment bills, rates and taxes since November 2012 till date.
He would submit that Defendant No.1 is estopped from terminating
the Deed of Assignment on the ground of failure to procure permission
under Section 92(dddd) of MMC Act since he has admitted to
obtaining all permissions prior to assigning the remainder of the lease
tenure to Plaintiff.
3.11. He would submit that issuance of Public Notices by
Defendant No.1 is a malicious act performed with a view to cause
damage and injury to Plaintiff’s name and reputation in the business
and financial industry. He would submit that the Public Notices issued
have caused building repair work being undertaken by Plaintiff to be
questioned and thwarted at the instance of Defendants causing
damages of upto Rs.105 crores to the Plaintiff.
3.12. He would submit that without affording any explanation,
Defendant claims an amount of Rs.310 crores as damages suffered by
him. He would submit that Defendant No.1 has sought unproven
damages however he has not sought specific performance of the
Supplemental Understanding, hence Defendant No.1 has forgone any
5 (2020) 7 SCC 366
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injunctive relief with regard to the suit property. He would submit that
Defendant No.1 failed to prove breach by Plaintiff and loss caused due
to such breach committed for damages to be awarded. In support of
this submission he would refer to and rely upon the decision of this
Court in the case of E-City Media P.Ltd. vs. Sadhrta Retail Ltd.6.
3.13. He would submit that Defendant No.1 falsely claims that
Deed of Assignment does not represent the true nature of the
transaction i.e. development of the suit property. He would vehemently
submit that the transaction entered into between Plaintiffs and
Defendants is an unconditional assignment of the suit property
undertaken through registered Deed of Assignment. He would submit
that Defendant No.1 has committed breach of Section 92(dddd) of
MMC Act as he was required to secure all permissions before executing
any document transferring the suit property to Plaintiff and pay the
requisite premiums to MCGM and that Deed of Assignment is not void
even if it was executed without permission of the MCGM. He would
rely on the decision of this Court in the case of Kalandi Baburao Raut
and Others Vs. Dattu Damu Thakare 7 in support of this submission. He
would submit that Section 92(dddd) of MMC Act would empower
MCGM to recover premium / penalty and this would not invalidate the
registered Deed of Assignment. He would submit that failure to obtain
permission from MCGM under Section 92(dddd) of MMC Act would
6 2009 SCC OnLine Bom 1813
7 2008 SCC OnLine Bom 553
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only result in MCGM regularizing the transfer and it cannot be a
ground to terminate the Deed of Assignment after 14 years neither is
there any harm to public interest or policy. He would submit that
Defendant No.1 cannot be allowed to claim benefit over his own
wrongs to terminate the registered Deed of Assignment executed 14
years after enjoying benefits arising therefrom. and that there is no
harm to public interest / policy.
3.14. He would submit that Defendant No.1 has referred to several
documents to show that Plaintiff’s alleged intention in redevelopment
of suit property, however they were merely draft documents which
were exchanged by parties as these documents were drafted at the
behest of Defendants. He would submit that Defendant No.1’s attempts
to claim ownership of the suit property by:-(i) soliciting offer to
redevelop suit property; (ii) claiming to be owner of the suit property;
(iii) claiming that there is no active litigation on the suit property; and
(iv) soliciting execution of term sheets and commercial offers
regarding the suit property during the subsistence of the Deed of
Assignment is impermissible in law. He would submit that on various
occasions Defendant No.1’s attempt to stop the repairs undertaken on
the suit property and he informing the tenants not to recognise
Plaintiff as their landlord is an illegal Act despite the Tenancies being
attorned to the Plaintiff in 2012 itself.
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3.15. He would submit that Defendant No.1’s actions are
prejudicial to the substantive legal rights of Plaintiff and if reliefs
prayed for in Plaintiff’s Interim Application are not granted then no
harm, loss or injury would be caused to the Defendant No.1 or other
Defendants, hence he would persuade this Court to allow Interim
Application filed by Plaintiff and reject the Interim Application of
Defendant No.1 as it being a complete afterthought and counterblast to
Plaintiff’s Suit in view of his above submissions.
4. Mr. Pai, learned Advocate for Defendant Nos. 1 and 4 would
draw my attention to Interim Application No.2426 of 2026, Affidavit in
Reply dated 16.10.2025, Additional Affidavit in Reply dated
09.12.2025 and Affidavit in Rejoinder dated 27.01.2026 and submit
that Plaintiff’s Interim Application is false, vexatious and filed with a
view to delay the Suit. He would submit that Plaintiff has a weak case
on merits and has filed the suit 4 months after issuance of Public
Notice terminating the Deed of Assignment dated 20.11.2012. He
would submit that Defendant No.1 has filed Counter Claim dated
22.01.2026 seeking termination of Deed of Assignment dated
20.11.2012 and for declaration that the transaction between Plaintiff
and Defendants was for redevelopment of suit property. He would
submit that Defendant No. 1 has filed Interim Application (L) No. 2426
of 2026 in Counter Claim (L) No. 2369 of 2026 seeking interim reliefs
against Plaintiff.
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4.1. He would submit that Deed of Assignment dated 20.11.2012
is void ab initio under Section 23 of the Indian Contract Act, 1872. He
would submit that a right of act cannot arise out of fraud or
transgression of law, and it is necessary that favour should rest where
it lies. He would submit that when each party is equally guilty the
estate will lie where it starts and the approach to be adopted ought to
be the one which is least injurious to public interest and policy. He
would submit that reliefs prayed for by Plaintiff are against public
policy since those reliefs give benefit to Plaintiff despite non payment
of premium to MCGM and non sanction of permission of alleged
assignment of lease. He would submit that reliefs sought by Defendant
No.1 in the Counter Claim are equitable as compared to Plaintiff’s
reliefs hence present Defendant’s Interim Application deserves to be
allowed.
4.2. He would submit that if prayer clause (A) of Plaintiff’s
Interim Application is granted, the rights of MCGM would be adversely
affected hence the present Suit is equally bad for misjoinder of parties.
4.3. He would submit that Plaintiff – Company was owned and
controlled by one Bharat Patel and his family and on behalf of Plaintiff
he had executed and registered the Deed of Assignment dated
20.11.2012. He would submit that Defendant No.1 executed
Irrevocable Power of Attorney dated 20.11.2012 giving power to
Bharat Patel and his son Hardik Patel to develop the suit property. He
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would submit that Plaintiff is a Private Limited Company and it has
used its corporate veil to encourage illegal acts of Darius Rutton
Kavasmaneck and his family, who are impleaded as Respondent Nos. 2
to 6 to Interim Application(L) No.2426 of 2026. He would submit that
the said Darius Rutton Kavasmaneck has orchestrated the takeover of
Plaintiff Company who was to develop the suit property. He would
submit that Defendants through their Advocates have time and time
again called upon Plaintiff to disclose names and addresses of its
shareholders however no response was received and these details are
suppressed. He would urge this Court to lift the corporate veil of
Plaintiff to disclose the true identities of its shareholders.
4.4. He would submit that the real transaction between the
parties was essentially for redevelopment under the Deed of
Assignment which cannot be undertaken unless prior permission and
payment of premium to Municipal Corporation of Greater Mumbai is
obtained. He would submit that though Deed of Assignment was
executed, name of Defendant No.1 still is reflected in the revenue
record of suit property as well as in municipal records. He would
submit that Plaintiff has played fraud upon Defendant No.1 by
agreeing to redevelop the suit property and after execution of Deed of
Assignment failed to carry out his obligation. He would submit that
Darius Rutton Kavasmaneck and his family members took control of
Plaintiff Company with malafide intention which resulted in Defendant
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No.1 losing confidence in the Plaintiff to redevelop the suit property,
hence Defendant No.1 terminated the Deed of Assignment and
Irrevocable Power of Attorney by issuing Public Notices and Notice
addressed to Plaintiff. He would submit that Plaintiff had agreed to
hand over area of 7,750 square feet valued at Rs.75,000 per square
foot to Defendant No.1 as per Supplemental Agreement, but since
redevelopment was stalled, Defendant No.1 suffered loss of more than
Rs.310 crores. He would submit that the Deed of Assignment was
never meant to convey ownership of the suit property and if that was
the case then there was no need to execute the Irrevocable Power of
Attorney to Bharat Patel and Hardik Patel, the erstwhile shareholders
of Plaintiff Company. He would urge the Court to invoke the Doctrine
of Lifting the Corporate Veil of Plaintiff Company on the ground that
fraud was played on Defendant No.1 by Darius Rutton Kavasmaneck
and his family. He would submit that Darius Rutton Kavasmaneck –
one of the tenant in the building and his family members
surreptitiously took over Plaintiff Company’s shareholding with
malafide intention to stall redevelopment of the suit property to the
prejudice of the Defendants.
4.5. He would submit that Plaintiff addressed letters to various
tenants seeking their cooperation to redevelop the suit property and
these letters would show that Plaintiff was appointed as the Developer
and he was not the assignee of the suit property. He would submit that
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Plaintiff addressed letter dated 26.12.2013 confirming its final
commercial offer which once again reflected Plaintiff”s intention to
develop the suit property. He would submit that Plaintiff circulated
various documents viz; Agency Agreement, Project Management
Agreement and Power of Attorney intending to redevelop the suit
property with all tenants. He would submit that since there is now a
price escalation in the area of location of the suit property over the
past few years and Plaintiff’s have stalled redevelopment of suit
property at the behest of one tenant viz; Darius Rutton Kavasmaneck
and his family members, therefore Defendant No.1 has terminated the
Deed of Assignment and Irrevocable Power of Attorney both dated
20.11.2012.
4.6. He would submit that Plaintiff has executed 6 Agreements
viz; Deed of Assignment, Irrevocable Power of Attorney, Supplemental
Agreement and 3 Agreements for Permanent Alternate Accommodation
(for short “PAAA”) on 20.11.2012 with Defendants. He would submit
that perusal of the Deed of Assignment and Irrevocable Power of
Attorney would show that Plaintiff undertook responsibility to develop
the suit property. He would submit that identical PAAA was executed
by Plaintiff with the children (Defendant Nos.2 to 4) of Defendant
No.1 which also show that development of suit property was to be
completed within 30 months. He would submit that Plaintiff seeks to
now wriggle out of its obligations to redevelop the suit property since
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it is now owned by Darius Rutton Kavasmaneck and his family
members.
4.7. He would submit that the said Darius Rutton Kavasmaneck
was originally a tenant of Flat No.9 in the suit property against whom
Defendant No. 1 was pursuing eviction suit proceedings in the Small
Causes Court since 1993. He would submit that Defendant No.1 came
to know of the said Darius Rutton Kavasmaneck and his family’s
takeover of Plaintiff Company and therefore he decided to terminate
the Deed of Assignment and the Irrevocable Power of Attorney since
not only the said tenant was opposing redevelopment but also that the
Deed of Assignment was executed in violation of Section 92(dddd) of
the MMC Act which Plaintiff agreed in the Deed of Assignment to
abide by. He would submit that Plaintiff was obligated to pay all dues,
charges, other payments and outgoings including the premium to
MCGM under Section 92(dddd) of MMC Act. He would submit that
Deed of Assignment did not transfer title of suit property to Plaintiff.
He would submit that since written permission of MCGM i.e. the head
lessor was not obtained, the Deed of Assignment is liable for
termination even though it may be a registered document.
4.8. He would submit that in the Suit plaint, Plaintiff did not pray
for refund of Rs.12,00,00,000/- consideration and neither has claimed
any relief against MCGM. He would submit that MCGM record still
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reflects Defendant No.1 as its lessee as he has been paying the lease
fees to MCGM since 2009. He would submit that the present
declaratory suit filed by Plaintiff is barred under the proviso to Section
34 of the Specific Relief Act, 1963 as Plaintiff has not claimed any
relief to restrain Defendant No.1 from creating third party rights in the
suit property hence Defendant No.1 is free to deal with the suit
property even if all reliefs prayed for are granted since the Suit is filed
for termination of Deed of Assignment which is executed in breach of
law and is therefore void.
4.9. He would refer to and rely upon two decisions of the
Supreme Court in the case of Immani Appa Rao and Others Vs.
Gollapalli Ramalingamurthy8 and Narayanamma and Another vs.
Govindappa and Others9 wherein it is held that when both parties have
committed unlawful acts, the Court will support the party whose claim
is for greater good. He would refer to and rely upon the decision of the
Supreme Court in the case of The Madras Refineries Ltd. vs. The Chief
10
Controlling Revenue Authority, Board of Revenue, Madras to
contend that that true meaning of a document is determined by the
nature of the instrument and not from its nomenclature. He would
draw my attention to another decision of the Supreme Court in the
case of Residents Welfare Association, Noida vs. State of Uttar Pradesh
8 (1962) 3 SCR 739
9 (2019) 19 SCC 42
10 (1977) 2 SCC 308
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and Ors.11 to contend that an assignment deed cannot be construed as
a Sale Deed. He would refer to and rely upon the decision of the
Supreme Court in the case of Midas Constructions vs. Navghar Road
Harikripa Cooperative Housing Society Limited. 12 to contend that even
if there is no specific provision in the Agreement for termination,
parties are not prohibited from terminating the agreement in the event
of parties committing breach of their obligations.
4.10. He would persuade this Court to therefore allow Interim
Application No.2426 of 2026 filed by Defendant No.1 in the Counter
Claim and seek rejection of Interim Application No.7408 of 2025 filed
by Plaintiff in the present Suit.
5. I have heard Mr. Khandeparkar and Mr. Pai at length and
with their able assistance perused the record of the case.
5.1. It is seen that in the present case Plaintiff has assailed the
Termination Notice dated 11.06.2025 by virtue of which Defendant
No.1 has unilaterally terminated two registered instruments namely
Deed of Assignment dated 20.11.2012 executed between Plaintiff as
Assignee, Defendant No.1 as Assignor and Defendant Nos.2 to 4 as
confirming parties whereby Defendant No.1 absolutely and
unconditionally assigned the Suit property for the remainder of the
lease period to Plaintiff for consideration of Rs.12 crores received by
11 (2009) 14 SCC 716
12 2018 SCC OnLine Bom 4867
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him and irrevocable Power of Attorney dated 20.11.2012 executed by
Defendant No.1 in favour of Plaintiff authorizing Plaintiff to carry out
the acts mentioned therein. It is an admitted position that by virtue of
these two documents Plaintiff was put in possession of the suit
property. It is seen that on the same date Defendant No.1 also
executed and issued a registered Declaration in support of handing
over possession wherein in Clauses 2 and 3 it was stated by him as
under:-
“2. That by the duly registered Deed of Assignment dated 20 th
November, 2012 I have sold, transferred and assigned the
said property along with all my rights, title and interest
therein for the total consideration duly received by me to and
in favour of Pankh Properties Pvt. Ltd. a company
incorporated under the Companies Act, 1956 and having its
Registered Office at 602 Boston House, Suren Road, Andheri
(E) Mumbai – 400 093. represented by its directors Mr.
Bharat Jayantilal Patel and Mr. Hardik Bharat Patel.
3. That pursuant to the aforesaid Deed of Assignment I confirm
having handed over physical possession of the said property
along with the original documents of title in respect of the
said property.”
6. Thus from the above it is prima facie clearly seen that
Defendant No.1 sold, transferred and assigned the suit property
alongwith all his rights therein unto the Plaintiff by virtue of the
already aforesaid 3 registered documents.
7. It is seen that Termination Letter dated 11.06.2025 has been
issued after 13 years of the Deed of Assignment and the irrevocable
Power of Attorney, both of which are registered documents. What is
intriguing is that the Deed of Assignment is duly acted upon by both
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the parties thereto admittedly and there is no denial of this fact. It is
seen that Defendant No.1 has received consideration of Rs.12 crores
under the Deed of Assignment and simultaneously he has handed over
possession of the Suit property to Plaintiff about which also there is no
denial. It is further an admitted position that Defendant No.1 has also
attorned all tenancies in respect of the Suit property in favour of
Plaintiff (as landlord) by issuing Attornments letters individually to all
tenants in the building standing on the Suit property and most
importantly Defendant No.1 has himself executed registered
declaration confirming possession having been handed over to
Plaintiff.
8. Thus it is seen that after receiving the entire benefit
construed under the Deed of Assignment and having acted upon the
terms and conditions of the Deed of Assignment whether Defendant
No.1 would be entitled to terminate the Deed of Assignment in the
manner in which it is done. Termination of the Deed of Assignment
rather the cause of action as stated by Defendant No.1 in the
Termination Letter dated 11.06.2025 has in fact nothing to do with or
it is not for breach of any of the terms and conditions of the Deed of
Assignment. It is seen that due to a completely different cause of
action, Defendant No.1 has issued the Termination Letter which has no
nexus whatsoever with the terms and conditions of the Deed of
Assignment. It is stated in the Termination Letter that the Deed of
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Assignment was conditional and was subject to the fulfillment of
redevelopment of the Suit property in terms of the Supplemental
Agreement. This is infact incorrect. Deed of Assignment is absolute and
unambiguous. It is not a conditional document subject to
redevelopment as can be seen on a plain reading of the same. What is
needed to be understood is that reference to the Supplemental
Agreement does not find any mention in the Deed of Assignment at all.
Secondly, the Supplemental Agreement is an unregistered and
unstamped document executed by Plaintiff and Defendant No.1 on the
same date in the year 2012 and has no nexus whatsoever with the
Deed of Assignment. Under the Supplemental Agreement Defendant
No.1 agreed to purchase 7750 square feet of redeveloped area @
Rs.7,250/- per square feet in the proposed redevelopment that would
be undertaken on the Suit property plot in future since Plaintiff desired
to redevelop the suit property in furture pursuant to the Assignment in
accordance with law.
9. It is seen that in so far as the Deed of Assignment is
concerned, it is expressly and unequivocally unconditional and
absolute and has no nexus with the Supplemental Agreement. It is
further seen that the Supplemental Agreement was subject to
redevelopment being undertaken on the Suit plot after completing
negotiations with the individual tenants by the Plaintiff, but the same
did not materialize and therefore independently on its own accord it
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stood frustrated and abandoned for a period of more than 13 years. By
virtue of the purported letter of Termination of Assignment, Defendant
No.1 is interpolating the issue of redevelopment of the Suit property as
an obligation stated in the Deed of Assignment which cannot be
accepted on the plain reading of both the documents.
10. The second legal ground agitated by Defendant No.1 to issue
the Termination Letter is that the Deed of Assignment was executed
and registered in breach of the provisions of Section 92(dddd) of the
MMC Act and it is therefore void. It is contended by Defendant No.1
that prior permission of the Municipal Corporation was required to be
obtained before the assignment could be fructified. In this regard, it is
seen that Defendant No.1 is the Assignor and he has given the
assignment and has also agreed to procure all consents to make good
his Assignment and convey clear, marketable, unencumbered
certificate of title to the Plaintiff as per Recital “U(ii)” of the Deed of
Assignment. Recital “U(ii)” of the Deed of Assignment reads thus:-
"U. The Assignor shall:-
(i) xxxxxx
(ii) obtain a certificate of title in respect of the said property more
particularly described in Schedule I hereunder written from his
Advocates M/s. B.R. Oza & Company inter alia stating that the
Assignor’s title to the said property is unencumbered, clear,
marketable and free from any encumbrances whatsoever and
furnish the same to the Assignee.”
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11. Therefore Defendant No.1 now cannot resile from his own
obligation of not having procured the permission of the Municipal
Corporation which was supposed to be procured by him after receiving
Rs.12 crores from the Plaintiff and seek invalidation of the Deed of
Assignment on this ground as stated in the Termination Notice.
12. In so far as the statutory provisions are concerned, the Deed
of Assignment is capable of being regularized by payment of
appropriate penalty and fees and is therefore not void even if it is
executed without obtaining permission of the Municipal Corporation.
In any event failure to obtain the permission from the Municipal
Corporation can at the highest only result in the Corporation taking
steps against the Plaintiff for regularizing the same, but it cannot
entitle the Defendant No.1 to plead the same as a ground to terminate
the Deed of Assignment especially in the wake of clear and
unambiguous terms of the Deed of Assignment and the Defendant No.1
being responsible for the same.
13. The third ground taken by Defendant No.1 to terminate the
Assignment is a factual ground. According to Defendant No.1, Plaintiff
is colluding with the tenant Darius Rutton Kavasmaneck to deprive him
of the fruits of his eviction proceedings against him. It is seen that by
virtue of the Deed of Assignment the eviction proceedings have been
assigned as a chose in action to the Plaintiff and the burden and
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benefit of the eviction proceedings shift entirely to the Plaintiff with
Defendant No.1 having no surviving right and interest in the eviction
proceedings. In this regard Clause 3 of the registered Irrevocable
Power of Attorney dated 20.11.2012 is most relevant and it reads
thus:-
“3. To pursue and/or continue and to initiate and/or defend the
litigation being Suit being R.A.E & R No.525/1251 of 1993
was filed in Small Causes Court at Bombay and/or the
Appeal, Writ, Revision etc. therefrom in the Small Causes
Court at Mumbai and if necessary in the Bombay High Court
and/or the Supreme Court of India including any execution
and enforcement proceedings, if any.”
14. Further it is seen that on the date of Deed of Assignment i.e.
20.11.2012 the eviction Suit that was filed by Defendant No.1 against
the said Darius Rutton Kavasmaneck had stood already decreed on
26.02.2010 and the Appeal was pending before the Appellate Bench
and therefore under Clause 3 of the Power of Attorney as seen above
the eviction proceedings were assigned in its entirely including all
future appeal, execution and enforcement proceedings to the Plaintiff.
Therefore it cannot lie in the mouth of the Defendant No.1 to agitate
this ground at all as prima facie it is seen that Defendant No.1 has
relinquished his entire right in the said Suit property to the Plaintiff on
accepting Rs.12 crores and handing him possession of the same.
15. The fourth factual ground taken by Defendant No.1 for
issuing the Termination Letter is that Darius Rutton Kavasmaneck has
fraudulently and secretly acquired control of Plaintiff – Company. In
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this regard, it is seen that the transaction regarding sale of shares by
Plaintiff and its shareholders to Darius Rutton Kavasmanek and his
family members is a completely different and separate cause of action
which is totally irrelevant to the present dispute and cannot constitute
as a ground for terminating the Deed of Assignment. The Deed of
Assignment executed between Plaintiff and Defendant No.1 is a
distinct and separate entity and cause of action altogether.
16. In so far as the transfer of shareholding / shares of Plaintiff –
Company to the tenant Darius Rutton Kavasmaneck is concerned, the
same is in accordance with law and Plaintiff is under no obligation
whatsoever to seek Defendant No.1’s permission for transfer of shares
of Plaintiff – Company. Thus there is nothing which is apparently
fraudulent or secretive whatsoever in a third party entity purchasing
shares of Plaintiff’s shareholders and/or acquiring the Plaintiff –
Company neither there is anything binding on the Plaintiff to act in
that manner. Hence this can never be a ground whatsoever for
terminating the Deed of Assignment altogether.
17. Defendant No. 1 has filed Counter Claim along with Written
Statement both dated 16.01.2026. In his Counter Claim what is
intriguing is that Defendant No. 1 calls both the parties i.e. Plaintiff
and Defendants as fraudulent therein. Prima facie, Defendant No. 1
can undoubtedly call his act fraudulent but the Plaintiff has contested
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the case of Defendant No. 1. The entire sequitur of the Counter Claim
of Defendant No.1 is on the premise that both the parties before Court
are confederates in fraud and according to Defendant No. 1 approach
of Defendant No. 1 is less injurious to the public interest than the
action of Plaintiff.
18. It is stated in the Counter Claim that it is only in May 2025,
Defendant No. 1 realized that the Deed of Assignment dated
20.11.2012 was in breach of the provisions of Section 92(dddd) of the
MMC Act and only on recent advice received by Defendant No. 1, he
realized that the Deed of Assignment was void ab initio. Claim of
Defendant No. 1 is that he has paid amount of Rs. 2.09 Lakhs towards
property tax pertaining to the bill generated in September 2024 and
Rs. 22,748/- towards repair cess in respect of the bill generated in
November 2023 and therefore he has been paying the outgoings.
Merely on this ground case of Defendant No. 1 cannot be accepted.
That apart from 2012 onwards as per the terms and conditions of the
Deed of Assignment and the Power of Attorney both being registered
documents, it is the Plaintiff who has been regularly paying the
property taxes and outgoings in respect of the suit property.
19. Next it is the case of Defendant No. 1 that the Deed of
Assignment has a dual consideration of Rs. 12 Crores being the
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consideration under the assignment and Defendant No. 1 being
entitled to 7750 square feet area of redevelopment from the Plaintiff.
This contention of Defendant No. 1 is prima facie false on the face of
record. There is no aspect of dual consideration stated in the Deed of
Assignment which is a registered document. The only commonality is
that the date of Deed of Assignment and the date of Supplemental
Agreement are executed on the same date. What is crucial and critical
is that in the Deed of Assignment, there is no reference whatsoever to
Defendant No. 1’s entitlement to 7750 square feet area to be received
from the Plaintiff on redevelopment.
20. As held above, both the issues namely Deed of Assignment
and rights flowing through the unregistered Supplemental Agreement
have different cause of action. If it is Defendant No. 1’s case that both
the causes of action are flowing from the same set of documents then
nothing prevented Defendant No. 1 to approach the Court at an
appropriate point of time previously. Defendant No. 1 enjoyed Rs. 12
Crores under the Deed of Assignment for 13 years and is now
contending that the said Deed of Assignment states that it has dual
consideration but when it is read, there is no clause or recital therein
which supports Defendant No. 1’s argument of dual consideration. By
virtue of Counter Claim Defendant No. 1 has submitted that he has
forfeited Rs. 12 Crores received under the Deed of Assignment towards
the satisfaction of partial loss incurred by Defendant No. 1. For
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enabling Defendant No. 1 to forfeit Rs. 12 Crores, there has to be an
obligation under the Deed of Assignment which is not found in the said
assignment. There is no obligation which has been left to be
completed on the part of Plaintiff prima facie which enables Defendant
No. 1 to forfeit Rs. 12 Crores. Defendant No. 1 in the Counter Claim
has stated that he claims further damages for losses incurred between
2012 and 2026 which on the face of record are not justified at all. This
is so because Defendant No. 1 has pressed his Interim Application on
the basis of the aforesaid submissions. The sum and substance of the
Counter Claim of Defendant is that Plaintiff has played a fraud on
Defendant No. 1 but the same is unsubstantiated as can be seen from
the reading of the Deed of Assignment altogether.
21. Defendant No.1 has filed his Counter Claim seeking punitive
damages against the Plaintiff. This Counter Claim was filed by
Defendant No.1 stating that Defendant No.1 has suffered huge
damages for not having received the redeveloped property under the
Supplemental Agreement between Plaintiff and Defendant No.1. It is
prima facie seen that Defendant No.1 did not take any steps
whatsoever for 13 long years and the Counter Claim has been filed
only as a counterblast after Plaintiff filed the present Suit proceedings.
It is seen that Defendant No.1 is now trying to re-claim ownership of
the Suit property and has interfered with the Plaintiff’s enjoyment of
the Suit property by slandering Plaintiff’s title to the Suit property
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derived under the Deed of Assignment. Thus after receiving and
enjoying the full benefit under the Deed of Assignment for more than
12 years, Defendant No.1 now cannot be permitted to cancel the Deed
of Assignment unilaterally by way of a termination notice and reclaim
ownership of the Suit property.
22. It is seen that Defendant No.1 is also attempting to stop
repairs being conducted to the Suit property by Plaintiff as its landlord
and Defendant No.1 is also approaching various tenants in the building
situated on the Suit property and asking them not to recognize the
Plaintiff as their landlord. Further in so far as the eviction proceedings
pending in the Court pertaining to one of the tenant namely Darius
Rutton Kavasmaneck are concerned, Defendant No.1 is also resisting
withdrawal of the said proceedings by Plaintiff even though the same
stands assigned to Plaintiff under the Deed of Assignment. However
this is a completely different cause of action unconnected to the
present lis.
23. When the Interim Application in the Counter Claim filed by
Defendant No.1 was argued before me, at the outset, I directed Mr. Pai
to deposit Rs.12 crores alongwith interest in order to show Defendant
No.1’s bonafides before he could press his case for interim relief. This
was because admittedly Defendant No.1 had received Rs.12 crores
under the Deed of Assignment and he was aggrieved with non-
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fructification of the Supplemental Agreement between the parties
thereafter. It is seen that there was no reason for Defendant No.1 to
wait for more than 12 years and he could have approached the Court
earlier. Thus Defendant No.1 did not choose do so primarily because
Defendant No.1 received Rs.12 crores admittedly from the Plaintiff and
the Deed of Assignment stood duly fructified. Claim of Defendant No.1
at the interim stage that Plaintiff should be asked to deposit
humongous amounts for the losses which has been caused to
Defendant No.1 is on the face of record, preposterous, untenable,
illegal, arbitrary and high handed. The claim of Defendant No.1 is
totally unjustified and it is merely stated on paper and nothing more.
If Defendant No.1 had to levy such a claim, then he would have
approached the Court of law within a reasonable period after
executing the Supplemental Agreement for seeking specific
performance and shown his readiness and willingness which he failed
miserably, Defendant No.1 should not have waited for a period of
more than 12 years for the same to be challenged. The challenge by
Defendant No.1 in the Suit filed by the Plaintiff is therefore nothing
but a counterblast and an attempt to silence the Plaintiff and nothing
more. Defendant No.1 after enjoying Rs.12 crores duly received by him
for more than 12 years cannot now be heard to say that he has been
wronged. It is infact the Plaintiff who has been wronged by Defendant
No.1.
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24. From the facts emanating on the face of record, it is an
admitted position that redevelopment of the Suit property as agreed
between Plaintiff and Defendant No.1 under the Supplemental
Agreement was subject to the tenants agreeing to redevelopment and
only if redevelopment would be undertaken in future on the Suit
Property.
25. In so far as Plaintiff is concerned, it is prima facie seen that
Plaintiff had shared the terms for redevelopment with each and every
tenant which is once again an admitted position but save and except
Defendant Nos.1 and 4, no other tenants replied to Plaintiff and
accepted the terms for redevelopment.
26. In that view of the matter, the redevelopment as envisaged
by Plaintiff and Defendant No.1 under the Supplemental Agreement
did not fructify. If at all it was Defendant No.1’s case that the Deed of
Assignment and redevelopment of the property were both interlinked,
then there was no reason for Defendant No.1 to keep quiet for more
than 12 years and only thereafter come to the Court by way of Counter
Claim in the Suit filed by the Plaintiff. Defendant No.1 could have
rather filed original proceeding which he did not. Defendant No.1’s
actions of attorning the tenancies and allowing the Plaintiff to operate
and function as the landlord of the suit property for 12 years fructified
the Deed of Assignment fully.
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27. The submissions made on behalf of Defendant No.1 by Mr.
Pai seeking invocation of the doctrine of lifting the corporate veil of
Plaintiff – Company have no nexus whatsoever with the registered
Deed of Assignment and the registered irrevocable Power of Attorney
issued by Defendant No.1 in favour of the Plaintiff. Though it would be
argued that by virtue of the Deed of Assignment, Irrevocable Power of
Attorney, Supplemental Agreement and 3 PAAAs entered into on the
same date between the parties it was an indictor of the fact that
Plaintiff undertook the responsibility to redevelop the Suit property,
still there is no reasonable and direct nexus with respect to the cause of
action whatsoever between the Deed of Assignment and the
Supplemental Agreement between the parties.
28. The steps taken by Plaintiff for redevelopment of the Suit
property are prima facie emanating from the record of the case.
Plaintiff’s intention to develop the Suit property is reflected by
Plaintiff’s actions, Plaintiff after becoming the landlord has written to
all other tenants seeking their co-operation to redevelop the Suit
property in the year 2013 itself. Plaintiff has as far as in December
2013 given its final commercial offer for redevelopment of the Suit
property to all tenants. It is seen that Plaintiff circulated various
documents namely Agency Agreement, Project Management
Agreement, Power of Attorney seeking redevelopment of the Suit
property to all tenants. Therefore in so far as the Deed of Assignment is
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concerned and the issue of redevelopment of the Suit property is
concerned, both issues cannot be juxtaposed together and linked to
each other by Defendant No.1. It is seen that once the Deed of
Assignment has fructified fully and it subsisted in that fashion for more
than 12 years, there was no reason for Plaintiff to continue recognizing
Defendant No.1 as the owner of the Suit property.
29. Thus for considering the prima facie case and balance of
convenience, Plaintiff has made out a very strong case for grant of
interim reliefs. In so far as the irreparable loss and harm is concerned,
admittedly Plaintiff is out of pocket by Rs.12 crores as far back as in
2012 and has already suffered loss of consideration under the Deed of
Assignment which has been fructified otherwise at the hands of
Defendant No.1. When called upon to bring back Rs.12 crores along
with interest for 12 years to show bonafides, Defendant No.1 has failed
to do so. In his Counterclaim he has not even prayed for specific
performance of the Supplemental Agreement. If that be the case, he
cannot be entitled to any alternate reliefs of damages.
30. That apart, Defendant No.1’s case in the Counter Claim that
he has suffered losses for not having received the redeveloped property
cannot be attributed to Plaintiff’s inaction. Whatever was within the
realm of Plaintiff, Plaintiff had taken affirmative steps for
redevelopment and therefore the Interim Application taken out by
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Defendant No.1 in his Counter Claim seeking a direction to Plaintiff to
deposit amounts for the losses suffered by Defendant No.1 cannot be
countenanced in the facts and circumstances of the present case as
such a claim is completely unsubstantiated and unjustified apart from
the fact that it is a dishonest claim on the face of record. Conduct of
the Defendant No.1 also militates against seeking any relief in his
Counter Claim.
31. In view of the above observations and findings, Interim
Application No.7408 of 2025 in Suit No.359 of 2025 filed by the
Plaintiff stands allowed in terms of prayer clauses “a, a(i), a(ii) and b”
which read thus:
“a. That pending the hearing and final disposal of the Suit this Hon’ble
Court be pleased to pass a temporary order and injunction restraining
the Defendants, by themselves or through their servants and / or
agents, or otherwise howsoever, from directly or indirectly, or in any
manner:
(i) Acting upon / or taking any steps pursuant to the purported
termination of the Deed of Assignment dated November 20,
2012 (Exhibit “B” of the Plaint) and / or the Power of Attorney
dated November 20, 2012 (Exhibit “C” of the Plaint).
(ii) for holding out the 1st Defendant as the owner of the Suit
Property.
b. That pending the hearing and final disposal of the Suit, pass a
temporary order staying the operation and implementation of
Impugned Notice dated June 11, 2025 (Exhibit “K” of the Plaint)
purporting to terminate the Deed of Assignment dated November 20,
2012 and the Power of Attorney dated November 20, 2012.”
32. Resultantly, in view of the above order and the observations
and findings, Interim Application (L) No.2426 of 2026 in Counter
Claim (L) No.2369 of 2026 filed by Defendant No.1 stands rejected
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with costs of Rs.25,000/- to be paid by the Defendant No.1 to the High
Court of Bombay Original Side Library, Room No.39 within a period of
2 weeks from today.
[ MILIND N. JADHAV, J. ]
33. After this Judgment is pronounced in Court, Mr. Pai, learned
Advocate for Defendant No. 1 seeks stay of this Judgment. In view of
the observations and findings which are returned in regard to
Defendant No. 1’s Application and conduct, I am not inclined to accede
to the request made by Mr. Pai. Hence, the request stands declined.
[ MILIND N. JADHAV, J. ]
Ajay
Digitally signed
by AJAY
AJAY TRAMBAK
TRAMBAK UGALMUGALE
UGALMUGALE Date: 2026.03.04
17:29:40 +0530
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