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Golden Tobacco Limited v/s Masonite Trading & Investment Company Private Ltd. & Others

    Notice of Motion No. 985 of 2015 & Suit No. 792 of 2014

    Decided On, 29 June 2020

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MRS. JUSTICE ANUJA PRABHUDESSAI

    For the Appearing Parties: Raj Sort, Meit Sampat, Little & Co, Anuj Narula, Meena Bhatta, Advocates.



Judgment Text

1. The Plaintiff has filed this Notice of Motion to restrain the Defendants nos.1 to 4 from creating any third party rights in respect of flat No. 6B/7B (602/ 702) in respect of 6th and 7th floor of A Wing, in building known as Gazdar Apartment, Juhu, Mumbai (which shall be hereinafter referred to as the suit flat". The Plaintiff has also sought appointment of Court Receiver with powers under Order 40 Rule 1 of Civil Procedure Code, 1908 with further powers to take possession of the suit flat from the Defendants nos.1 to 4 and 7 and 8, or any person claiming through them and to appoint any fit and proper person as Agent of the Court Receiver on terms and conditions as deemed fit.

2. Brief facts necessary to decide this Notice of Motion are as under:

The Plaintiff is a Public Limited Company registered under the provisions of Companies Act, 1956. Vide resolution dated 25.8.1988, Shri Pushkarmal Prakashmal Bhandari was appointed as Managing Director of the Plaintiff Company. The suit flat admeasuring 2600 sq/ft., owned by the Plaintiff, was allotted to Pushkarmal Prakashmal Bhandari, to be used for residential purpose for himself and his family till continuation of his service. Said Pushkarmal, vide resignation letter dated 14.1.1992, resigned from the post of Managing Director. Subsequently vide letter dated 6.4.1993 he expressed his desire to resign as Director. The resignation of said Pushkarmal was accepted and he ceased to be the Director of the Company w.e.f. 30.5.1993.

3. It is the case of the Plaintiff company that having resigned from the service said Pushkarmal Bhandari was required to vacate and hand over possession of the suit flat to the Plaintiff. Said Pushkarmal failed and neglected to hand over peaceful possession of the suit flat on one pretext or the other. Hence, by legal notice dated 20.2.2003 the Plaintiff called upon said Pushkarmal to hand over vacant and peaceful possession of the suit flat. Since said Pushkarmal did not comply with the request, the Plaintiff filed a Complaint under Section 630 of the Companies Act, 1956 before the Metropolitan Magistrate, 44th Court at Andheri, Mumbai alleging that said Pushkarmal had wrongfully withheld the suit flat which was allotted to him while in service of the Company. Said Pushkarmal Bhandari expired during the pendency of the proceedings under Section 630 of the Companies Act. Hence Defendant nos.2 to 5 who are the family members of said Pushkarmal came to be substituted in the said proceedings under the Companies Act.

4. The Plaintiff has alleged that sometime on 15.7.2012 the Defendant no.6 Society informed them that the Defendant nos.2 to 5 were not staying in the suit flat and that they had tried to alienate and induct third party in the suit flat. The Plaintiff was further informed that some unknown persons were causing alterations/modification without the consent of the Society. The Plaintiff therefore filed a civil suit being Regular Civil Suit No.1708 of 2012 before the City Civil Court at Dindoshi for a declaration that Defendants nos.1 to 5 are not entitled to transfer the suit flat. The Plaintiff also sought a relief of permanent injunction to restrain the Defendant nos.1 to 5 from alienating, transferring or creating third party right in respect of the suit flat.

5. By ad-interim order dated 26.7.2012 the learned Judge restrained the Defendants in the said suit from carrying out any repairs. The Plaintiff claims that in order to circumvent the said ad-interim order, the Defendant no.1 filed a frivolous suit for specific performance of Agreement for sale dated 11.12.1991, purportedly executed by the Plaintiff in favour of the Defendant no.1 Company. From the defence raised in the Civil Suit No. 1708/2012 and the averments made in the suit for specific performance, the Plaintiff for the first time learnt that the Defendant no.1 was claiming right to the suit flat on the basis of fabricated and manipulated documents viz. Agreement for sale dated 11.12.1991 and letter of possession dated 7.3.1991. The Plaintiff further claims that the Defendant no.1 has also fabricated tenancy Agreement dated 25.3.1995 in favour of Defendant no.4 and that the Defendant nos.3 and 4 in collusion of Defendant no.1 have fabricated a Deed of Assignment and put Defendant nos.7 and 8 in possession of the suit flat on the basis of a fabricated document. The Plaintiff has challenged the genuineness as well as validity of these documents and has claimed that possession of the Defendant nos.7 and 8 is illegal and unauthorized. The Plaintiff has therefore filed the present suit for a declaration that these documents have no legal efficacy and are void . The Plaintiffs has also sought recovery of possession of the suit flat in addition to the relief of permanent injunction and other consequential reliefs.

6. The Defendants have contested the suit mainly on the ground that by Agreement dated 11.12.1991, the Plaintiff had agreed to sell, transfer and assign the suit flat to the Defendant no.1. The parties jointly applied to the Income Tax Authorities for certificate under Section 269 of the Income Tax Act, which was granted on 26.2.1992. The Plaintiff received part consideration and under letter of Possession dated 7.3.1992, put the Defendant no.1 in possession of the suit flat. It is alleged that on account of cordial relationship with Pushkarmal Bhandari, the Directors of Defendant No.1 permitted him to occupy the suit flat till he found a suitable accommodation. Certain disputes and differences between the Defendant no.1 and Pushkarmal Bhandari over the suit flat were resolved with intervention of a common friend. It was agreed that Defendant no.1 would create tenancy in respect of the suit flat in favour of Defendant no.4, the daughter in law of Pushkarmal. Accordingly, tenancy Agreement dated 25.3.1995 came to be executed in favour of Defendant no.4, by virtue of which the Defendant no.4 became the tenant of the suit flat on payment of monthly rent of Rs.3000/-. It is averred that the Defendant no.4 also made payment of Rs.6,50,000/- as onetime payment for granting tenancy. In terms of the said Agreement, the Defendant no.4 was put in actual possession of the suit flat with authorization to deal with the housing society qua the suit flat.

7. The Defendants claim that the suit flat was not in habitable condition and costs of repairs and renovation were substantial. Hence by Deed of Assignment dated 215.2012, the Defendant no.4 assigned the tenancy right in favour of Defendant no.7 and 8 for an agreed consideration of Rs.1,20,00,000/-. It is alleged that though a formal letter of possession was executed on 21.5.2012, the actual possession of the suit flat was handed over to the Defendant nos,7 and 8 on 10.3.2012. It is averred that the entire work of repairs and renovation has been carried out by Defendant nos.7 and 8. The Defendants have denied that the documents are forged and fabricated or that their possession is wrongful or illegal. The Defendants have averred that the Civil Court, Dindoshi has declined to grant interim relief in Civil Suit No.1708 of 2012. They have also raised a plea of limitation.

8. Mr. Sort, the learned Counsel for the Plaintiff has relied upon the decision of the Apex Court in Masrur Ahmed Khan vs. State of Uttarakhand & Ors., 2018 15 Scale 392 wherein it has been held that "in order to prove that the possession of any person in any immovable property is legal, it is necessary for such person to prove prima facie that he is either the owner of such property or is in possession as a lawful tenant or is in its permissive possession with the express consent of its true owner." It is contended that in the instant case, the Defendant no.1 has entered in wrongful possession of the suit flat based on forged and fabricated documents. It is further submitted that Agreement to sell does not create any title and interest in the proposed vendee in the property. Since the Defendant no.1 had no title in the property, he was not competent to enter into any Agreement with the Defendant no.4.

9. Learned Counsel for the Plaintiff has relied upon the decision of the Apex Court in Rambhau Namdeo Gajre vs. Narayan Bapuji Dhotra, 2004 8 SCC 614 to contend that protection of possession on the doctrine of part performance is a personal right. Hence, the Defendant no.4, 7 and 8 with whom there is no privity of contract are not entitled to protect their possession on the doctrine of part performance under Section 53A of Transfer of Property Act,. The learned Counsel for the Plaintiff submits that the tenancy Agreement executed by Defendant no.1 in favour of Defendant no.4, and the Deed of Assignment executed by Defendant no.4 in favour of Defendant no.7 and 8 are prima facie void and illegal and do not create any right either in favour of Defendant no.4, or in favour of Defendant nos. 7 and 8.

10. Shri Sort, learned counsel for the Plaintiff submits that the Defendant no.1 has filed a suit for specific performance after about 21 years of purported Agreement to Sale dated 11.12.1991. He submits that the suit filed by the Defendant no.1 is beyond the prescribed period of limitation under Section 54 of the Limitation Act. He submits that even if the Defendant no.1 was put in possession of the property which was allegedly agreed to be sold, would not make any difference with regard to the limitation of filing the suit for specific performance. In support of this contention, he has relied upon the decision of the Apex Court in Fatehji & Co. & Anr. vs. L.M.Nagpal & Ors.,2015 AIR(SC) 230.

11. The learned Counsel for the Plaintiff submits that the averments in the written statement, taken on its face value, amply prove that the Plaintiff is the owner of the suit flat and that the Defendant nos.7 and 8 are in illegal occupation of the same. Relying upon the decision of the Apex Court in Karan Kapahi v. M/s. Lalchand Public Charitable, 2010 4 SCC 753 he contends that in view of the admitted facts the Plaintiff is entitled for judgment on admission under Order 12 Rule 6 of Civil Procedure Code.

12. Shri Sort, learned Counsel for the Plaintiff submits that the Plaintiff had already instituted proceedings under Section 630 of the Companies Act against Pushkarmal Bhandari for wrongfully withholding the property of the Plaintiff. He has relied upon the decision of Shubh Shanti Services Ltd. v. Manjula S. Agarwala air, 2005 AIR(SC) 2506 to contend that provision under Section 630 is strictly not penal in nature in the sense as understood under penal law. He submits that the main purpose of Section 630 is to provide a speedy and summary procedure for retrieving the property of the Company where it has been wrongly obtained by the employee or officer of the Company or where the property has been lawfully obtained but unlawfully retained after termination of the employment of the employee or the Officer of the Company. He submits that the Plaintiff had already taken recourse to the provision of Section 630 of the Companies Act against Pushkarmal Bhandari for wrongfully retaining the property of the Company.

13. It is further submitted that the Civil Suit No.1708 of 2012 was filed on the basis of the information that unknown persons were carrying out alterations in the suit flat, and that the Defendant nos.1 to 4 were trying to alienate or create third party rights in respect of the suit property. He submits that in the present suit, the Plaintiff has challenged the genuineness of the Agreement to sale dated 11.12.1991, possession letter dated 7.3.1992, tenancy Agreement dated 26.3.1995 and Deed of Assignment dated 21.5.2012 and has also sought recovery of possession of the flat in addition to other reliefs. He submits that the Plaintiff learnt about these fabricated and fraudulent documents only on going through the averments made in the suit for specific performance (Suit (L) No.2068 of 2004) filed by the Defendant no.1 and the defence raised by the Defendant in Civil Suit No. 1708 of 2012. It explains the delay in seeking the relief by asserting that the cause of action to challenge the authenticity of the fabricated documents and to seek recovery of possession arose in favour of the Plaintiff only after they were provided with the copies of the said documents.

14. Learned Counsel for the Plaintiff submits that the cause of action as well as the relief sought in the present suit is distinct from the cause of action and the reliefs sought in the previous suit and hence the bar of Order 2 Rule 2 of CPC is not applicable. In support of his contention he has relied upon the decision of the Apex Court in Gurbaxsingh vs. Bhuralal, 1964 AIR(SC) 1810 and Sidramappa vs. Rajashetty & Ors., 1970 AIR(SC) 1059.

15. Learned Counsel for the Plaintiff submits that the Defendant nos.7 and 8 are in unauthorized possession of the suit flat. They have no legal right to continue to occupy the suit flat, which is owned by the Plaintiff. He submits that the present case is fully covered by the principles enumerated in T. Krishnaswami Chetti vs. C. Thangvellu Chetti & Ors., 1955 AIR(Mad) 430. He therefore contends that this is a fit case for appointment of a Court Receiver in respect of the suit flat.

16. Per contra, Shri Narula, learned Counsel for the Defendants submits that by Agreement for Sale dated 11.12.1991, the Plaintiff had agreed to sell the suit flat to the Defendant no.1. The Plaintiff had received part consideration and had put the Defendant no.1 in possession of the suit flat. It is submitted that in response to the Plaintiffs notice dated 23.10.2003, the Defendant no.1 in its reply dated 10.1.2004, had made a categorical reference to the Agreement for Sale dated 11.12.1991 and had also claimed that they were in possession of the suit property since the year 1992. It is urged that the Plaintiff had thus acquired knowledge of the Agreement dated 11.12.1991, despite which the Plaintiff had not sought any relief against the Defendant no.1, but had chosen to proceed against Pushkarmal Bhandari and his family members. It is submitted that the Plaintiff has filed the present suit only after he failed to obtain relief in the previous suit. The present suit is filed beyond the period of limitation and is not maintainable in view of provisions under Order 2 Rule 2 of CPC.

17. I have considered the submission advanced by the respective parties and I have also gone through the records with the assistance of respective learned Counsel for the Plaintiffs and the Defendants.

18. It is not disputed that the suit flat was purchased by the Plaintiff by Deed dated 15.09.1986. By an Agreement for sale dated 11.12.1991 executed by Pushkarmal, allegedly on behalf of the Plaintiff, the suit flat was agreed to be sold to the Defendant no. 1. The Plaintiff has challenged the genuineness of the Agreement for Sale and letter of possession under which the Defendant No.1 was put in possession of the suit flat and subsequent transaction inter se between Defendant No.1 and 4 and transaction between Defendant No.4 and Defendants No. 6 and 7. The plaint proceeds on the basis that these documents are fabricated, sham, and unenforceable in law and that the Defendants are in unauthorized, illegal, and wrongful possession of the suit flat.

19. Hence, the core questions for prima facie consideration are:

(i). whether Pushkarmal Bhandari, the then Managing Director of the Plaintiff Company had authority to execute the Agreement for sale in favour of Defendant No.1.

(ii) Whether the Defendants are in illegal and unauthorised possession of the suit premises.

20. It is to be noted that the Defendants have placed on record the certified true extract of the minutes of the Meeting of Board of Directors of the Company held on 29.11.1991. A perusal of the same reveals that the proposal to sell the Company's right, title and interest to the suit flat was discussed in the of Board of Directors meeting held on 29.11.1991 and the Board had passed the following resolution:

"Resolved to sell all the Company's right, title and interest in the flat No. 6B/7B (602-702) A Wing, Gazder Apartment, Juhu Bombay 400049 admeasuring 2600 sq. ft. built up and terrace of 325 sq. ft. subject to obtaining necessary permission To Masonite Trading & Investment Co (P) Ltd. of 17/2, Suman House, S.N.Road, Mulund (W) Bombay 400 000 at a price calculated @ of Rs.2950/- per sq. ft. and Rs.1475/- per sq. mt. respectively and subject to such terms and condition, including the mode and manner of payment and executing of necessary conveyance, as may be agreed upon by and between Shri P.P.Bhandari, Managing Director on behalf of the Company and the aforesaid Company.

Further resolved that all papers necessary for the sale of the Company's right, title and interest in the Flat hereinabove mentioned be executed on behalf of the Company by P.P.Bhandari, Managing Director, and in the alternative, if the Common Seal of the Company is required to be affixed on any such paper, the same may be affixed in the presence of any one of the Directors and Shri Harjinder Singh, General Manager (Legal) & Secretary of the Company, who do sign the same in token thereof."

21. Pursuant to the said resolution, Pushkarmal Bhandari, executed an Agreement for Sale dated 11.12.1991 in favour of Defendant No.1, where under he agreed to sell the suit flat to the Defendant no.1 for a total sale consideration of Rs. 81,49,375/ and as per the terms and conditions stipulated in the said Agreement. Upon execution of the Agreement, the Plaintiff received from the Defendant No. 1 earnest money of Rs 5,00,000/ payable as per clause (3) of the Agreement, under receipt dated 11.12.1991.

22. The records prima facie indicate that Said Pushkarmal had not executed the said Agreement individually but had acted on the basis of the resolution taken by the Board of Directors of the Plaintiff Company and under the powers delegated to him by the Board. There is nothing to indicate that the resolution taken by the Board of Directors was not in conformity with the provisions of the Company Law or in Memorandum of Article of association of the Company. The Managing DirectorPushkarmal Bhandari having acted in conformity with the resolution of the Board of Directors and powers delegated to him by the Board of Directors, prima facie the Agreement for Sale is genuine and binding on the Plaintiff Company.

23. It is also pertinent to note that upon execution of the Agreement for Sale, the parties submitted a joint statement to the Income Tax Authorities, as required under the Act, for obtaining certificate under Section 269 UL of the Income Tax Act. In the said statement, the Plaintiff Company was shown as the Transferor whereas the Defendant No.1 was shown as Transferee. The said statement was signed by Pushkarmal for and on behalf of the Plaintiff Company. The Income Tax Department vide letter dated 30.12.1991 directed the Plaintiff and Defendant to submit further documents as mentioned therein. In response, by letter dated 7.1.1992, Shri N. V. Joshi, the Vice President Finance requested the Income Tax Authority to fix a fresh date as the General Manager (Legal) & Secretary who was looking after the matter was out of Bombay.

24. The records disclose that upon complying with all the prerequisites, the Income Tax Authority issued a Certificate dated 26.2.1992 under Section 269 of the Income Tax Act. Upon receipt of the said Certificate, Pushkarmal Bhandari, addressed a letter dated 7.3.1992 to the Defendant no.1 on behalf of the Plaintiff wherein he acknowledged receipt of the earnest money. He also informed the Defendant no.1 that Certificate dated 26.2.1992 had been granted under Sec. 269 of Income Tax Act 1991. The Defendant No.1 was informed that the Plaintiff was in the process of obtaining other requisite permissions under Sec. 230 and 281 of the Income Tax Act and that it would proceed with the registration of the Agreement after obtaining the necessary permissions. The Defendant no.1 was further informed that the balance payment would become due against registration of the Agreement. The letter records that in part performance of the Agreement, Defendant no.1 was put in actual and physical possession of the suit flat and that it would be entitled to use, occupy and possess the flat in the manner as deemed fit. The letter further states that the Plaintiff had relinquished all the rights in respect of the flat save and except to receive the balance consideration under the Agreement.

25. The Plaintiff has questioned the authority of Pushkarmal to part possession of the Suit flat. It is true that the resolution does not specifically authorize Pushkarmal to part with possession. Nevertheless, the Board had authorized Pushkarmal to decide the terms and condition of the sale and to execute all papers necessary for transfer of the right, title, and interest of the Company in the suit flat. Acting on these powers, Pushkarmal had entered into an Agreement for sale, received earnest money, obtained certificate under section 269 from the Income Tax Department and under letter dated 7.3.1992 put the Defendant No. 1 in possession of the suit flat, restricting the right of the Plaintiff only to receive the balance consideration.

26. The Plaintiff Company did not challenge the authority of Pushkarmal to enter into an Agreement or to hand over possession of the suit flat to Defendant no. 1 for a period of over 22 years. The Plaintiff has sought to explain the delay by contending that it was under a bonafide belief that the suit flat was in possession of Pushkarmal and his family members. The Plaintiff claims that it had learnt about execution of Agreement for sale and issuance of letter dated 7.3.1992 for the first time through the defence raised in Civil suit no.1708/2012 and the averments made by the Defendant No. 1 in the suit for specific performance. The contention that the Plaintiff was not aware of execution of the Agreement is prima facie unbelievable. As noted earlier, Pushkarmal had executed the Agreement for and on behalf of the Plaintiff Company, as per the resolution of the Board. The letter dated 7.1.1992, addressed by Shri N. V..Joshi, the Vice President Finance to the Income Tax Authority as well as the hand written note dated 13.1.1992 further fortifies that Pushkarmal had not acted deceitfully but had kept the directors in the loop of the matter.

27. It is also pertinent to note that though Pushkarmal had retired in the year 1993, the legal notice calling upon Pushkarmal to vacate the suit flat was issued in the year 2003. The Defendant no.1 had responded to the said notice, vide reply dated 30.1.2004, wherein the Defendant no.1 had denied that Pushkatmal was in possession of the suit flat. The reply makes a reference to the Agreement for sale dated 11.12.1991 and specifically asserts that the Defendant no.1 has been in possession of the suit flat since 1992, by virtue of the said Agreement. What is most important is that the Defendant no.1 had questioned the rationale behind issuing a notice to Pushkarmal, when the Plaintiff was aware that the Defendant no.1 was in possession of the suit flat. Despite such emphatic assertion, the Plaintiff did not enter into any further correspondence with the Defendant no.1 either refuting the contents of the reply or seeking further details, but a year later filed a complaint under section 630 of the Companies Act alleging that Pushkarmal had wrongly withheld the suit flat even after he had ceased to be the director of the Plaintiff Company. In the year 2012 the Plaintiff also filed a civil suit (C.S.No. 1708/2012) against the family members of Pushkarmal seeking to restrain them from alienating, transferring or creating third party rights in respect of the suit flat. Regardless of contention of the Defendant no. 1 that it has been in possession of the suit flat since 1992, the complaint under section 360 and the previous suit proceed on the basis that Pushkarmal and his family members had continued to be in wrongful possession of the suit flat. These proceedings suppress the material fact of execution of Agreement for sale, receipt of earnest money and the fact that Defendant no.1 was put in possession of the suit flat.

28. It is also pertinent to note that in an affidavit-in-reply filed in the main motion in Civil Suit 1708/2012, the Defendants 2 to 4 had disclosed that the Defendant no. 1 was put in possession of the suit flat in part performance of Agreement dated 11.12.1991. The Defendants had also brought on record subsequent transactions inter se between the parties and had specifically averred that the Defendant nos. 7 and 8 were inducted in the suit flat prior to filing of the suit. Despite disclosure of these facts by Defendants nos 2, 3 and 4 as well as by the Defendant no.1 in the suit for specific performance, the Plaintiff did not implead Defendant nos.1, 7 and 8 as parties to the said suit and did not seek relief of recovery of possession. On the contrary, the Plaintiff proceeded with the suit for declaration and permanent injunction and also sought appointment of court receiver and interim relief of temporary injunction on the premise that the Defendants no.2, 3 and 4 who were in possession of the suit flat were likely to alienate, modify and renovate the suit flat. Pertinently, this Court by order dated 22.11.2012 in an Appeal from Order No.1215 of 2012 set aside the order of appointment of Court Receiver with directions to decide the main motion. Subsequently, by order dated 19.3.2013 the learned judge dismissed the motion no.699/2013 and thus rejected the prayer for appointment of a Court Receiver. Having failed to get the interim relief in the previous suit, the Plaintiff has filed the present suit and has once again sought appointment of a Court Receiver on the same plea that the documents are fabricated and possession of the Defendants is unauthorized. The conduct of the Plaintiff and the delay and latches in filing the Motion does not justify grant of equitable relief.

29. As noted earlier, the Agreement for sale was executed by Pushkarmal on behalf of the Plaintiff Company and is binding on the Plaintiff Company. Whether the said Agreement is enforceable or whether the suit for specific performance is barred by the law of limitation are the issues which will be decided in the suit filed by the Defendant no.1 and are not germane to decide the Motion. What is relevant at this stage is that the Defendant No. 1 was put in possession of the suit flat in part performance of the said Agreement for Sale. The fact that the Defendant no.1 has paid maintenance charges including the dues payable under section 101 of the Maharashtra Co-operative Societies Act and incurred all other expenses in respect of the suit flat prima facie fortifies that the Defendant No. 1 had been in possession of the suit flat since 1992. Prima facie the possession of the Defendant No.1 cannot be termed as unauthorized or unlawful. Hence, the decision in the case of Masroor Ahmad Khan (supra) does not assist the Plaintiff in any manner whatsoever. Similarly reliance on the decision in Karam Kapahi (supra) is totally misplaced, as there is no admission either in the written statement or otherwise to justify judgment on admission.

30. The material on record further indicates that the Defendant no.1 had inducted Defendant no.4 in the suit flat in the year 1995 as a tenant. The Defendant no.4 continued to be in possession of the suit flat as a tenant till the year 2012. The records indicate that the Defendant no 4 has assigned these rights in favour of Defendant Nos.7 and 8 in the year 2012 i.e. much before filing of the previous suit. The Plaintiff has challenged the validity of these Agreements on the ground that doctrine of part performance protects only the vendee and not the third party.

31. In the case of Rambhau Gajre (supra), the owner of the property had put the proposed transferee in possession of the property in part performance of the Agreement for sale. The proposed transferee entered into an Agreement

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for sale with a third party without taking any steps to get the title of the property transferred in his favour. While considering the question whether the third party could claim benefit of equitable doctrine of part performance, the Apex Court has observed that the doctrine of part performance only protects possession of the proposed transferee, while the transferor remains to be the full owner of the property till such property is legally conveyed in favour of the proposed transferee. It is held that such right cannot be pressed in favour of third party, who has no privity of contract with the owner. 32. This decision is not applicable to the facts of the present case as the Defendant no.1, who was put in possession of the suit flat in part performance of the Agreement, has neither transferred nor agreed to transfer title in favour of Defendant no.4 or Defendants no.7and 8. The Defendant No.1 has only allowed the Defendant no.4 to occupy the suit flat and further consented to assign of possessory rights in favour of Defendant nos.7 and 8. At this stage it can only be said that the possession of these Defendants is only permissive. The Defendant No.4 and 5 were authorized by the Defendant No.1 to look after and manage the day to day affairs concerning the suit flat, to represent it and protect its interest in respect of the suit flat. This is evident from the letter dt.5.6.1995 addressed by the Defendant No.1 to the Defendant No.4 and letter dt.23.2.2010 addressed by the Defendant No.4 to the Chairman/Secretary of the Defendant No.6 Society. The Defendant Nos.4 and 5 or 7 and 8 have not claimed independent right or title in respect of the suit flat and have not sought protection of their possession under the doctrine of part performance. 33. Be that as it may, all contentious issues raised by the rival parties, particularly regarding validity of the documents/ transactions, legality of possession as well as maintainability of the present suit, would require adjudication on merits. This would only mean that at this interim stage, the court cannot exercise drastic powers of appointment of Court Receiver to dispossess the Defendants who are in physical possession of the suit flat since long; on a presumption that the documents are sham, bogus, or fabricated. 34. The records reveal that the Defendant nos.7 and 8 have incurred substantial expenses in repairing to the suit flat. These repairs were carried out much before filing of the previous suit, with due permission of the Corporation, as to keep the suit flat in habitable condition. Hence, the fear that the property is in the imminent danger of being wasted or damaged is not well founded. Having regard to the fact and circumstances, the case does not meet the 'Panch Sadachar' i.e. five essential requirements for appointment of Court Receiver, enumerated in T. Krishnaswamy Chetty vs C. Thangavelu Chetty And Ors., 1955 AIR(Mad) 430. 35. In view of the above prima facie findings, it is held that the Plaintiff has not made out a case for appointment of Court Receiver. The Notice of Motion has no merits and is accordingly dismissed.
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