3 Defendant No.4 and their servants and agents be restrained by an order and injunction of this Honble Court from honouring any Cheques signed by Defendant No.1 on or acting on any instructions given by Defendant No.1 relating to Account No.002 236586 006 with Defendant No.
The joint bank account would be allowed to be operated only to the extent of paying off the liabilities insofar as the suit property and its development, which shall include payment to companytractors and other agents.
550/2009 against the order of a Single Judge dated 9.9.2009 in Notice of Motion No.
operating or signing any Cheques on or giving any instructions relating to or withdrawing any amounts from Account No.
1 and 2 and their servants and agents be ordered and decreed to deliver to the Plaintiff documents listed in Exhibit U hereto and all other documents, companyrespondence and records belonging to the Plaintiff in the possession or power of Defendant No.1 or Defendant No.2.
Two sisters of the two brothers have filed their joint affidavit in this Motion supporting the companytention raised by Appellants herein that there was a family settlement on 30.01.1992 and as per the terms of the settlement, the Byculla property came to Appellant No.1 and their father, and some other properties were given to Respondent No.1.
1 herein.
The Notice of Motion taken out in the Suit had the following prayers a that pending the hearing and final disposal of the Suit, Defendant Nos.
002 236586 006 with Defendant No.
The facts leading to this appeal are as follows Respondent No.1 the original Plaintiff is the elder brother of Petitioner No.1 Defendant No.1 in the Suit .
1and 2 and their servants and agents be restrained by interim orders and injunctions of this Honble Court from in any manner, directly or indirectly.
The Appellant No.
20006421901 with Defendant No.
He further pointed out that since Respondent No.1 had failed to effect the necessary transfers of various properties, discussions took place with the assistance of lawyers for an understanding, and in spite of that he was making a dishonest claim on the property knowing fully well what had companye to his share, viz.
He specifically pleaded that the Powers of Attorney were executed to enable him and his son to develop those properties.
It was companytended that user was in his own right.
However, such payment shall be made only on production of necessary proof and it is only thereafter the first defendant can release the sums from this joint account in favour of the companytractors agents third parties.
The plea of the Appellants had to be examined particularly when their sisters were supporting the Appellants with respect to family settlement which was allegedly arrived at when their father was alive.
Hence, the prayers restraining the Appellants as attorneys or agents of first Respondent or restraining them from entering into the property companyld number be granted.
Thereafter, he pointed out that although the property stood in the name of first Respondent, as per the family settlement which took place on 30.1.1992, two flats on the 15th floor of Arihant Tower first building developed together with terrace, one shop, one room and six chawls together with land appurtenant thereto and interest therein were allotted to him and his father.
Thereafter, it was specifically pleaded that after the demise of their father in the year 1994, the first Appellant started work on the property to get the No Objection Certificate from the government authorities, spent good amount and time on the companystruction, provided initially temporary accommodation, and thereafter permanent accommodation to the occupants of the shops and chawls, developed the property by spending crores of rupees.
It is his case that he has taken steps to develop that property under the Development Control Rules by removing one old bungalow and several chawls situated thereon.
only ten percent 10 of the property.
In that matter, Appellant No.1 being the registered proprietor of a Trade Mark had entered into an agreement with the Respondent permitting it to manufacture certain pharmaceutical product.
Being aggrieved by that limited order and seeking full interim relief, Respondent No.
In view the dispute between the parties, the Appellant called upon the Respondent to stop manufacturing the particular product, and entered into an arrangement with another companypany.
relating to the property.
Needless to state that the payment for the works which have been carried out through any companytractors, sub contractors, agents would be made only upon the Architect of the project certifying the said works and issuing the necessary and relevant certificates to certify the companypletion thereof.
The third Power of Attorney was executed on 24.10.2000 which is a specific power in favour of Appellant No.1 for giving evidence on behalf of the Respondent No.1.
1 and 2 and their servants and agents be restrained by a permanent order and injunction of this Honble Court from in any manner directly or indirectly acting or holding themselves out as Attorneys or Agents of the Plaintiff or dealing with any of the properties or businesses of the Plaintiff, including property bearing Cadastral Survey No.764 of Mazgaon Division situate at 119, Chinchpokali Cross Lane, Byculla, Mumbai 400 027 described in Exhibit A 3 hereto or any premises thereon or under companystruction thereon or any part thereof b Defendant Nos.
It was his case that all amounts deposited in that account belong to him.
He pointed out that Respondent No.1 was the legal heir to the extent of only one fifth share of his fathers fifty percent 50 share at the time of his demise, i.e. ten percent 10 only.
He executed second Power of Attorney on 21.9.2005 again in favour of his wife and Appellant No.1 as well as Appellant No.2 which is also in the similar fashion as the first one.
The learned judge held that numberprima facie case for a mandatory injunction was made out, yet in paragraph 22 of his order, he granted a limited interim order which reads as follows For the aforesaid reasons, it is held that numberprima facie case is made out by the plaintiff and companysidering that the development and companystruction work has progressed to a substantial extent and only some finishing works are remaining so also 23 flats have been already sold, interest of justice would be sub served if it is directed that the development and companystruction work can be companypleted at site.
The Indian Bank, Hong Kong Shanghai Banking Corporation HSBC Bank and the State Bank of India were joined as defendants No.3 to 5 respectively.
He, however, recorded that appellants had agreed to forward photocopies of those documents to Respondent No.1.
4 permitting any withdrawal of amounts by Defendant No.1 from Account No.
The Respondent filed a suit and sought a temporary injunction to restrain the Appellant and its new numberinee company from manufacturing the products companycerned.
Being aggrieved by this order, the present appeal has been filed.
It was his further case that though there was one Joint Account with Appellant No.1 in Indian Bank since 1993, one more Joint Account was opened on 10.10.2001, this time in HSBC Bank which was particularly for carrying the transactions relating to the property and developments thereon.
The Appellants had pointed out that although the property was purchased in the name of Respondent No.1, almost ninety percent of the amount for the purchase was companytributed by Appellant No.
Though the learned Judges numbered that the explanation given by the Respondent No.1 about opening of the joint account in the year 1993 was number satisfactory, they emphasized the fact that in the Powers of Attorney there was numberreference to the family arrangement.
Two buildings have already been put up on that property and the third one number named as Siddhagiri is under companystruction.
Acting or holding themselves out as Attorneys or Agents of the Appellant or dealing with any of the properties or businesses of the Plaintiff, including property bearing Cadastral Survey No.764 of Mazgaon Division situate at 119, Chinchpokali Cross Lane, Byculla, Mumbai 400 027 described in Exhibit A 3 to the Plaint or any premises thereon or under companystruction thereon or any part thereof entering upon property bearing Cadastral Survey No.764 of Mazgaon Division situate at 119, Chinchpokali Cross Lane, Byculla, Mumbai 400 027 described in Exhibit A 3 to the Plaint or any premises thereon or under companystruction thereon or any part thereof operating or signing any Cheques on or giving any instructions relating to or withdrawing any amounts form Account No.
1 and 2 and their servants and agents be restrained by a permanent order and injunction of this Honble Court from in any manner directly or indirectly entering upon property bearing Cadastral Survey No.764 of Mazgaon Division situate at 119, Chinchpokali Cross Lane, Byculla, Mumbai 400 027 described in Exhibit A 3 hereto or any premises thereon or under companystruction thereon or any part thereof c Defendant Nos.
They, however, numbered the fact that Respondent No.1 had number enough money to purchase the property in the year 1991 though he companytends that he had taken the money as loan from Appellant No.1 .
1 original plaintiff whereas by the Order passed by the Division Bench the Notice of Motion taken up by the original Plaintiff had been made absolute in terms of prayers a , b and c , and thereby granting full interim relief which was sought by Respondent No.
He was the person on the spot dealing with that property and only on the basis of the fact that the document of title stood in the name of the first Respondent the interim order as sought companyld number have been granted.
This led to the first Respondent to file the above mentioned suit against the appellants.
On Respondent No.1s protest, the investments in mutual funds were redeemed and substantial amount came back into the account.
5 Respondent No.1 filed affidavit in support companytaining the same submissions as above whereas the Appellant filed a reply based on the letters which have been pointed out above.
They also posed the question that if the Appellants had developed the property why there was numberreference to those dealings in their tax returns.
Besides this, the joint account in Indian Bank was opened way back in the year 1993 and the amount realized from the sale of the flats was being deposited therein.
They will be restrained from entering into that property or holding out as the attorneys of Respondent No.1 companycerning that property.
In view of these pleadings when this matter was heard before the learned Single Judge, he formed an opinion that it was number possible to hold at that stage whether the documents of powers of attorney were merely powers simpliciter given by the owner of the property, or whether they companytained agency companypled with interest as companytended by the Appellants herein.
1266/2009 filed by Respondent No.
417627508 in the joint names of the Plaintiff and Defendant No.1 with Defendant No.
The learned Judges of the Division Bench were impressed by the fact that the companyveyance of the property was in the name of the Respondent and the flats were being sold in his name.
The question for determination, therefore, is as to whether, in the facts and circumstances of the case, the mandatory order as passed by the Division Bench was justified, or whether the learned Single Judge having exercised his discretion appropriately, the Division Bench erred in interfering therein?
4 Defendant No.5 and their servants and agents be restrained by an order and injunction of this Honble Court from honouring any Cheques signed by Defendant No.1 on or acting on any instructions given by Defendant No.1 relating to Account No.20006421901 with Defendant No.
This was on the basis of companytinued user in respect of the Trade Mark of the product by the Respondent.
The Appellants also companytend that the prayers in the Notice of Motion are the principal prayers in the plaint and, therefore, it amounts to granting a decree at the interlocutory stage which was number justified in the present case.
However, an amount of about Rs.
1 were sold by the first Respondent in the year 1993.
Their case is that the interim relief as was sought, though in the nature of mandatory relief, was necessary in the facts and circumstances of the case.
This was followed by a detailed reply by the first Appellant to the first Respondent dated 12.5.2009 wherein it was specifically pleaded that the Powers of Attorney were executed for valid companysideration and the same were companypled with interest in the companycerned property.
Granting of the interim order as prayed would have meant that the Appellants will be required to withdraw themselves from the companycerned property.
In view of the demise of Respondent No.
He further pointed out that he had a larger companynter claim running into crores of rupees against Respondent No.1, and that the entire property was in his exclusive possession for several years and there was numberquestion of appointing anyone else as Project Manager.
Petitioner No.2 is the son of Petitioner No.1.
The Order by the learned Single Judge also records that with respect to the stage of the companystruction it was the companynsel for the Appellants who placed the facts before the Court on instructions that the companystruction was nearly companyplete, payments to various agencies had been made by the first Appellant and at this belated stage if any interim order was passed it would number only be inconvenient to Appellants, but also to the purchasers of the flats and other third parties.
The first one was executed on 8.8.2000 in favour of his wife and Appellant No.1 which was for performing various acts and deeds on his behalf as his Constituted Attorneys in furtherance of this project.
1 and 2 seeks to challenge the Judgment and Order dated 12.8.2010 passed by a Division Bench of the Bombay High Court allowing the Appeal No.
20006421901 in the joint names of the Plaintiff and Defendant No.1 with Defendant No.
The dispute between them is about the rights to a property which is being developed and is situated at Cadastral Survey No.
1 since deceased .
Apart from paying off these monies, the bank account shall number be utilized by the first defendant for any other purposes.
The grant of interim order would mean discontinuance of the scenario on the spot as it existed at that point of time.
He opened one more Joint Account on 1.2.2008 in the State Bank of India with the Appellant which was stated to be opened for payment of taxes etc.
764, Mazgaon Division in Mumbai.
A learned Single Judge of the High Court declined to grant the interim injunction which was granted in appeal by the Appellate Bench of Madras High Court.
1 surreptitiously withdrew amounts that were lying with the HSBC bank totalling to One Crore Forty Lakhs and invested in Birla Sun Life Mutual Funds.
002 236586 006 in the joint names of the Plaintiff and Defendant No.1 with Defendant No.
3 permitting any withdrawal of amounts by Defendant No.1 from Account No.417627508 with Defendant No.
It is the case of Respondent No.1 that by Conveyance Deed dated 27.3.1981 as rectified by Rectification Deed dated 11.9.1986, he had purchased the property from the original owners and necessary property entries are in his name.
The three principal prayers in the suit were as follows a Defendant Nos.
Appellate companyrt will number reassess the material and seek to reach a companyclusion different from the one reached by the companyrt below if the one reached by that companyrt was reasonably possible on the material.
As against that, the submission on behalf of the Appellants is that the learned Single Judge had exercised his discretion appropriately and there was numberreason for the Division Bench to interfere therein.
5 permitting any withdrawal of amounts by Respondent No.1 from Account No.
The flats can be sold on the basis of the documents executed but all sale proceeds must be deposited in the companycerned joint bank account alone.
As far as the prayer for the return of the documents in possession of the Appellants was companycerned, the learned Judge numbered that it was number possible to issue final orders with regard to them.
1, the heirs of Respondent No.
The case of Respondent No.1 is that he is the exclusive owner of that property whereas the Appellants very much dispute the same.
1 had suggested this investment to him which he had declined, and thereafter unilaterally this account was shifted.
On the basis of that arrangement, the respondent applied for the requisite license from the authorities companycerned.
1 have companye on record of the appeal.
It is his further case that since 1999, he has number been keeping well, and therefore, he executed three Powers of Attorney from time to time.
With respect to the bank account, he specifically pointed out that the bank account was being operated by him in his own independent right and the Respondent companyld number order him to refrain from operating the said account.
Thereafter, further affidavits from both the parties were filed.
6.9 lakhs was lost as it companyld number be redeemed.
1 filed an appeal to the Division Bench.
They also supported the submission of the Appellants that only on the demise of their father, the Respondent No.1 can claim ten percent 10 share in that property and numberhing more.
operating or signing any Cheques on or giving any instructions relating to or withdrawing any amounts from Account No.
b that pending the hearing and final disposal of the Suit, Defendant Nos.1 and 2 and their servants and agents be directed by an interim order and injunction of this Honble Court to deliver to the Plaintiff documents listed in Exhibit U to the Plaint and all other documents, companyrespondence and records belonging to the Plaintiff in the possession or power of Defendant No.1 or Defendant No.2 c that pending admission, hearing and final disposal of the Suit Defendant No.3 and their servants and agents be restrained by an order and injunction of this Honble Court from honouring any Cheques signed by Defendant No.1 on or acting on any instructions given by Defendant No.1 relating to Account No.417627508 with Respondent No.
He, inter alia, companyrdinated with the architects, took steps to obtain permissions and No Objection Certificates NOCs from the Housing Board and the Municipal authorities and attended companyrt matters.
Gokhale J. Leave granted.
This appeal by special leave by original Defendants Nos.
The learned Single Judge had granted a limited relief to Respondent No.
It is the case of Respondent No.1 that from time to time Appellant No.
