Bombay High CourtE-Park Structure Private Limited ... vs Mr. Jayesh Hasmukh Shah And Ors on 24 January, 2020Bench: A.S. Gadkari901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc\n\n\nDond\n              IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                      CIVIL APPELLATE JURISDICTION\n\n                        APPEAL FROM ORDER NO.1068 OF 2019\n                                      WITH\n                         INTERIM APPLICATION NO.1 OF 2019\n                                        IN\n                        APPEAL FROM ORDER NO.1068 OF 2019\n\n1) E-Park Structure Pvt. Ltd.\n2) E-Park Property Pvt. Ltd.\n3) E-Park Erector Pvt. Ltd.                                ..Appellants\n                                             (Original Defendant Nos.3,4, & 6)\n     Vs\n1) Mr. Jayesh Hasmukh Shah,\n2) Shree Pawansut Infotect Pvt. Ltd.,\n3) Mr. Somnath Vaijanath Sakre,                           ..Respondents\n                                             (Original Plaintiff Nos.1 to 3)\n4) M/s Siddhivinayak Enterprises,\n5) Mr. Rajendra Ashok Jasud,                             ..Respondents\n                                             (Original Defendant Nos.1 & 2)\n\n6) E-Park Places Pvt. Ltd.,\n7) Maharashtra Industrial Development Corporation       ..Respondents\n                                         (Original Defendant Nos.5 & 7)\n\n\n                                   WITH\n                      APPEAL FROM ORDER ST. NO.28530 OF 2019\n\nE-Park Places Pvt. Ltd.                                    ..Appellant\n                                             (Original Defendant No.5)\n\n      Vs.\n1) Mr. Jayesh Hasmukh Shah,\n2) Shree Pawansut Infotect Pvt. Ltd.,\n3) Mr. Somnath Vaijanath Sakre,                           ..Respondents\n                                             (Original Plaintiff Nos.1 to 3)\n4) M/s Siddhivinayak Enterprises,\n5) Mr. Rajendra Ashok Jasud,                             ..Respondents\n                                             (Original Defendant Nos.1 & 2)\n\n                                                                            1/18\n\n\n\n\n          ::: Uploaded on - 27/01/2020                   ::: Downloaded on - 18/03/2020 00:25:54 :::\n                                                    901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc\n\n\n\n6) E-Park Structure Pvt. Ltd.\n7) E-Park Property Pvt. Ltd.\n8) E-Park Erector Pvt. Ltd.\n9) Maharashtra Industrial Development Corporation       ..Respondents\n                                         (Original Defendant Nos.3,4,6 & 7)\n\n                                WITH\n                     APPEAL FROM ORDER ST. NO.29761 OF 2019\n\n1) M/s Siddhivinayak Enterprises\n2) Mr. Rajendra Ashok Jasud,                                       ..Appellants\n                                                       (Original Defendant Nos.1 & 2)\n\n      Vs.\n1) Mr. Jayesh Hasmukh Shah,\n2) Shree Pawansut Infotect Pvt. Ltd.,\n3) Mr. Somnath Vaijanath Sakre,                                     ..Respondents\n                                                       (Original Plaintiff Nos.1 to 3)\n4) E-Park Structure Pvt. Ltd.\n5) E-Park Property Pvt. Ltd.\n6) E-Park Places Pvt. Ltd.\n7) E-Park Erector Pvt. Ltd.\n8) Maharashtra Industrial Development Corporation       ..Respondents\n                                         (Original Defendant Nos.3,4,5,6 & 7)\n\n                                        ------------\n\nDr. Veerendra Tulzapurkar, Senior Advocate a/w Mr. Firoz Bharucha, Mr. Vikram\nTrivedi, Mr. Sunil Tilokchandani and Mr. Vatsal Parikh i/b M/s Manilal Kher\nAmbalal & Co., for the Appellants in A.O. No.1068 of 2019.\n\nMr. Janak Dwarkadas, Senior Advocate a/w Mr. Chirag Kamdar, Mr. Vikram\nTrivedi, Mr. Sunil Tilokchandani i/b M/s Manilal Kher Ambalal & Co., for the\nAppellant in A.O. St. No.28530 of 2019.\n\nMr. R.S. Apte, Senior Advocate i/b Mr. D.P. Shukla for Appellants in A.O.\nSt.No.29761 of 2019.\n\nMr. G.S. Godbole, i/b Mr. Vijay Upadhyay for respondent No.1.\n\nMr. Ankur Pahade i/b JY & Co for respondent No.7 in A.O.No.1068 of 2019.\n                                    ------\n\n                                                                                      2/18\n\n\n\n\n         ::: Uploaded on - 27/01/2020                              ::: Downloaded on - 18/03/2020 00:25:54 :::\n                                            901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc\n\n\n\n\n                                         CORAM : A.S.GADKARI, J.Reserved On : 9th January 2020.Pronounced On : 24th January 2020.JUDGMENT:-1]             By the present appeals, the appellants/Original defendant Nos.1 to 6\n\nhave impugned Order dated 1st October 2019 passed by the learned 22 nd Joint\n\nCivil Judge, Senior Division, Pune in Special Civil Suit No.1138 of 2019, thereby\n\nconfirming ad-interim relief granted by Order dated 9 th August 2019 passed by it\n\nand temporarily restrained defendant Nos.3 to 6 from making any kind of\n\nalienation or creation of any third party interest in the suit property Nos.1 and 2,\n\nmentioned in the plaint, till the disposal of the suit.2]             Heard Dr. Veerendra Tulzapurkar, the learned Senior Counsel\n\nappearing for the appellants/original defendant Nos.3,4 and 6 in A.O. No.1068 of\n\n2019,    Mr.    Janak       Dwarkadas,   the   learned    Senior      Counsel        for     the\n\nAppellant/original defendant No.5 in A.O. St. No.28530 of 2019, Mr. R.S. Apte,\n\nthe learned Senior Counsel for the Appellant/original defendant Nos.1 and 2 in\n\nA.O. St. No.29761 of 2019, Mr. G.S. Godbole, the learned counsel for the\n\nrespondent      No.1/original plaintiff No.1 and Mr. Ankur Pahade, the learned\n\ncounsel for the respondent No.7/M.I.D.C. Perused the entire record annexed to\n\nthe appeals.3/18::: Uploaded on - 27/01/2020                     ::: Downloaded on - 18/03/2020 00:25:54 :::901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc\n\n\n\n\n3]               For the sake of brevity and convenience, the parties herein are\n\nreferred as per their original nomenclature and as they stand before the Trial\n\nCourt in the suit i.e. the appellants as defendants and respondent Nos.1 to 3 as\n\nplaintiffs.4]               The record reveals that, the plaintiff No.1 is a creditor of plaintiff\n\nNo.2 i.e. plaintiff No.2 owed certain amount to plaintiff No.1. The liability of\n\nplaintiff No.2 to pay to plaintiff No.1 arising out of an Arbitral Award dated\n\n23.2.2015 for a sum of Rs.51.00 Crores (Rupees Fifty One Crores Only) along\n\nwith interest accrued thereon was taken over by the defendant No.1. A Deed of\n\nSettlement dated 18.2.2016 was accordingly executed amongst the parties\n\nwherein the defendant No.1 agreed to pay a sum of Rs.54.00 crores (Fifty Four\n\nCrores Only) to the plaintiff No.1 towards price of the suit property mentioned in\n\nthe schedule annexed to the said               Agreement i.e. the property No.1 mentioned\n\nin the plaint.That a Deed of Admission dated 20.2.2016, in which the plaintiff\n\nNo.1 as party of the first part, plaintiff No.2 as party of the second part, plaintiff\n\nNo.3 as party of the third part and the defendant No.1 as party of fourth part was\n\nexecuted wherein the plaintiff               No.2 agreed to transfer the suit property i.e.\n\nproperty No.1 mentioned in the plaint to the defendant No.1. The said Deed of\n\nAdmission dated 20.2.2016 is a registered document with the Joint Sub-Registrar,4/18::: Uploaded on - 27/01/2020                        ::: Downloaded on - 18/03/2020 00:25:54 :::901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc\n\n\nClass-II, Haveli bearing registration No.1751 of 2016.That by a registered Deed of Admission dated 10.8.2016 executed\n\namongst the plaintiff No.1, defendant No.1, defendant No.2 and plaintiff No.2,\n\nthe defendant Nos.1 and 2 admitted and acknowledged their indebtedness and\n\nliability to pay an aggregate sum of Rs.56.00 crores (Fiftty Six Crores Only) to be\n\npaid to the plaintiff No.1.That by registered Deed of Assignment of even date i.e. 10.8.2016\n\nbearing registration No.6758 of 2016 executed between the plaintiff No.2 and\n\ndefendant No.1 wherein the plaintiff No.1 is a consenting party, the plaintiff No.2\n\nassigned all his rights, title and interest in the suit property in favour of the\n\ndefendant No.1. The defendant No.1 thus became assignee/owner of the suit\n\nproperty. It is to be noted here that, in para No.1 sub-clause(d) of the said Deed\n\nof Assignment, the Assignor i.e. plaintiff No.2 has expressly represented the\n\ndefendant No.1 that, the "Scheduled Property" (suit property) is free from all or\n\nany tenancy, license, lease, lien, charge, encumbrance, mortgage, equitable\n\ninterest, prior assignment, conditional sales, contract, right of other person,\n\nclaim,   security    interest,      beneficial    interest,   title   defect,     interest,option,\n\ncommitment, restriction, easement or limitation of any nature whatsoever,\n\nincluding any reservation, acquisition, requisition, restriction, adverse possession\n\nwhich are of such nature which would prevent the Assignee from carrying out its\n\nactivities or exercise of any other attribute of ownership of the "Scheduled5/18::: Uploaded on - 27/01/2020                           ::: Downloaded on - 18/03/2020 00:25:54 :::901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc\n\n\nProperty" and/or rights therein. Further it has not created any third party\n\ninterests in respect of the same in any manner whatsoever and shall not do any\n\nsuch act even in future.In para No.2 of the said Deed of Assignment, it is agreed that,\n\nAssignor (plaintiff No.2) in consent with the consenting party (plaintiff No.1)\n\nhave on execution of the present "Assignment" granted transferred, assigned,\n\ndisposed off, conveyed and sold unto and in favaour of the Assignee and the\n\nAssignee hereby purchased, acquired suit property mentioned in the Schedule\n\nannexed to the said Assignment Deed and more particularly described in the\n\nSchedule of Property together with right, title, interest in the suit property.That the Board of Directors of the plaintiff No.2 on 3.8.2017 resolved\n\nby passing different Resolutions and confirmed the drafts of Agreement of Assign\n\nto be executed amongst defendant No.1 and defendant Nos.3 to 6. By the said\n\nResolutions, the plaintiff No.3 Mr. Somnath Vaijanath Sakre, the Director of the\n\nCompany was authorized to sign and execute the said Assignment Deed and all\n\nother Deeds, Documents in that behalf.That thereafter an Agreement to Assign dated 7.8.2017 bearing\n\nregistration No.7012 of 2017 came to be executed between the defendant No.1\n\nand 3 whereby the defendant No.3 purchased its suit property (separate\n\nAgreements are executed by defendant No.4 to 6 also for respective floors) in the\n\nsuit property No.1 mentioned in the plaint, by paying valuable consideration. The6/18::: Uploaded on - 27/01/2020                   ::: Downloaded on - 18/03/2020 00:25:54 :::901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc\n\n\nsaid Agreement is a registered Agreement. In the said Agreement to Assign, the\n\ndefendant No.1 represented to the defendant No.3 and confirmed that, the suit\n\nproperty is free from all encumbrances and the property is not encumbered in\n\nany way. It is further represented that, there is no secured creditor of the\n\ndefendant No.1 in respect of suit property or any part thereof. It is further\n\nrepresented that, there is no prior liability pending to be paid to the defendant\n\nNo.1 with respect to the suit property.That by further registered Deed of Assignment dated 17.10.2017\n\nbearing registration No.11705 of 2017, the defendant No.1 assigned a floor in the\n\nsuit property to defendant No.3. That the plaintiff No.2 is consenting party to the\n\nsaid Agreement. Distinct and separate registered Agreements are executed\n\nbetween the defendant No.1 and defendant Nos. 4 to 6 wherein the plaintiff No.2\n\nis a consenting party. The Defendants Nos.4 to 6 have thus purchased their\n\nrespective floors of the suit property No.1 mentioned in the plaint, from\n\ndefendant No.1 for valuable consideration and aforestated representations are\n\nmade in writing in different and distinct Indentures by the defendant No.1.\n\n5]           It further appears that, as the defendant No.1 did not pay the agreed\n\ndues as per Deed of Settlement dated 18.2.2016, the plaintiffs filed aforerstted\n\nSpecial Civil Suit No.1138 of 2019 on 16.7.2019. The plaintiffs have prayed for\n\ndeclaration that, the suit property Nos.1 and 2 mentioned in the plaint are\n\nsubject to charge of the plaintiff No.1 and for declaration that, various7/18::: Uploaded on - 27/01/2020                    ::: Downloaded on - 18/03/2020 00:25:54 :::901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc\n\n\nAgreements and Assignment Deeds executed between the defendant No.1 and the\n\ndefendant Nos.3 to 6 pertaining to the 2nd, 4th, 5th and 6th floors respectively, of\n\nthe suit property No.1 are illegal, bad in law and of no consequences and the\n\nsame stands cancelled forthwith and for other consequential relies.The plaintiffs also filed an Application below Exh.5 under Order 39\n\nRule 1 of the Code of Civil Procedure for temporary injunction. By its ad-interim\n\nOrder ated 9.8.2019, the Trial Court had restrained the defendant Nos.1 to 6 or\n\nany other person acting on their behalf from making any kind of alienation or\n\ncreation of any third party interest in the Suit Property Nos.1 and 2 or any part\n\nthereof till final hearing of Application below Exh.5. The learned Judge of the\n\nTrial Court by its impugned Order dated 1.10.2019 has confirmed its ad-interim\n\nOrder dated 9th August 2019 and has further temporarily restrained the\n\ndefendant Nos.3 to 6 or any other persons acting on their behalf from making\n\nany kind of alienation or creation of any third party interest in the Suit Property\n\nNos.1 and 2.6]           Mr. Tulzapurkar, the learned senior counsel appearing for the\n\nappellants/original defendant Nos.3 to 6 in A.O. No.1068 of 2019 submitted that,\n\nno charge is created on the suit properties in the Indentures namely Deed of\n\nAdmission dated 20.2.2016 and 10.8.2016 for the amount to be paid by the\n\ndefendant No.1 to the plaintiff No.1. He submitted that, in Deed of Admission\n\ndated 10.8.2016 the defendant Nos.1 and 2 have admitted their indebtedness8/18::: Uploaded on - 27/01/2020                   ::: Downloaded on - 18/03/2020 00:25:54 :::901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc\n\n\nand liability to the tune of Rs.56.00 Crores (Fifty Six Crores Only) to be paid to\n\nthe plaintiff No.1. However, in the Deed of Assignment dated 10.8.2016 executed\n\nbetween the plaintiff No.2 and defendant No.1, wherein the plaintiff No.1 is the\n\nconsenting party, whereby the defendant No.1 has become owner of the suit\n\nproperties, it was represented by the plaintiff No.2 that the Suit Property is free\n\nfrom all encumbrances. That in furtherance of the said Deed of Assignment dated\n\n10.8.2016, the defendant Nos.3,4 and 6 entered into Agreement to Assign dated\n\n7.8.2017 with the defendant No.1 and also executed Deed of Assignment dated\n\n17.10.2017. That both the said Agreements are registered Agreements. He\n\nfurther submitted that, even in Agreement to Assign, the defendant No.1 has\n\nrepresented that, the Suit Property is free from all encumbrances and there is no\n\nmention about charge created on the suit property by the plaintiff No.1. He\n\nsubmitted that, the appellants are the bonafide purchasers of the suit property\n\nfrom the defendant No.1, for valuable consideration without Notice from either\n\nof the plaintiffs. He submitted that, as a matter of fact in the Deed of Assignment\n\ndated 17.10.2017 the plaintiff No.2 is a consenting party and he also did not\n\ndivulge to the defendants any charge of the plaintiff No.1 being created on the\n\nsuit properties. He submitted that, in view thereof, temporary injunction against\n\nthe defendant Nos.3 to 6 is not tenable in the eyes of law and may be set aside by\n\nallowing the present appeal.9/18::: Uploaded on - 27/01/2020                   ::: Downloaded on - 18/03/2020 00:25:54 :::901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc\n\n\n7]            Mr. Dwarkadas, the learned senior counsel appearing for the\n\nAppellant in A.O. St. No.28530 of 2019 (Defendant No.5) in addition to the\n\narguments canvased by Shri Tulzapurkar submitted that, the plaintiff No.1 has\n\nalready filed Special Summary Suit No.77 of 2019 against the defendant Nos.1\n\nand 2 under Order 37 of the Code of Civil Procedure for recovery of the amount\n\nin pursuance of documents executed inter-se between the said parties. He\n\nsubmitted that, the defendant No.5 has purchased 5 th floor of the said building\n\nfrom defendant No.1 by executing Agreement to Assign and Deed of Assignment\n\nand is in actual use, occupation and possession of the property. He submitted\n\nthat, as per his instructions in the same building, floor Nos.1 and 3 are in\n\npossession of the defendant No.1 and the plaintiffs did not seek injunction\n\nagainst the defendant No.1. He submitted that, the Trial Court in its impugned\n\nOrder has taken into consideration all the criteria necessary for granting\n\ninjunction collectively and has failed to take into consideration the aforesated\n\nimportant aspect of the matter. He submitted that, in view thereof the plaintiffs\n\nhave failed to establish prima facie case qua the defendant Nos.3 to 6 and\n\ntherefore impugned Order needs to be modified and/or set aside qua the said\n\ndefendants.8]            Mr. Apte, the learned senior counsel appearing for the Appellants in\n\nA.O. St.No.29761 of 2019 (Defendant Nos.1 and 2) submitted that, the plaint\n\nmentions two properties in its Schedule, however, while confirming ad-interim10/18::: Uploaded on - 27/01/2020                   ::: Downloaded on - 18/03/2020 00:25:54 :::901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc\n\n\nOrder granting injunction with respect to the Property No.2, the Trial Court has\n\nnot given any reasoning for it. He submitted that, the aforestated documents\n\nmentioned in para No.4 above have not been considered by the Trial Court at all.\n\nHe submitted that, as a matter of fact, the defendant Nos.1 and 2 are having\n\ncounter claim against the plaintiff No.1 and they are also claiming set off against\n\nthe monetary claim of the plaintiffs. He submitted that, the plaintiff No.2 is not a\n\nparty to the Deed of Settlement dated 18.2.2016 and he has been arrayed in the\n\nplaint only to create charge on the property of these defendants. He submitted\n\nthat, in the documents referred to hereinabove, it no where discloses that the\n\ndefendant No.1 had at any point of time agreed to have charge of plaintiff No.1\n\non the suit property. He therefore submitted that, the Trial Court has committed\n\nan error in granting injunction against the defendants and therefore the\n\nimpugned Order may be set aside by allowing his appeal.9]           Per contra, Mr. Godbole, the learned counsel appearing for the\n\nrespondent No.1 vehemently opposed the appeals and submitted that, on\n\n2.9.2005 licence was granted to the plaintiff no.2 by the M.I.D.C. to develope the\n\nsuit property. That the plaintiff No.1 financed the plaintiff No.2 for development\n\nof the same. On 13.12.2013, M.I.D.C. granted Completion Certificate to the said\n\nProject. He submitted that, as the plaintiff No.2 was not able to pay the debts of\n\nthe plaintiff No.1, the Deed of Admission dated 20.2.2016 having registration\n\nNo.1751 of 2016 came to be executed between the plaintiff No.1, plaintiff No.211/18::: Uploaded on - 27/01/2020                   ::: Downloaded on - 18/03/2020 00:25:54 :::901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc\n\n\nand defendant No.1 wherein the plaintiff No.2 agreed to transfer suit properties\n\nto the defendant No.1 for consideration of Rs.54.00 Crores. He submitted that,\n\nClause No.7(b) of the said Indenture mentions about covenant for creating\n\ncharge over Property No.1 and in fact it is accordingly created. He further\n\nsubmitted that, in the Deed of Admission dated 10.8.2016 having registration\n\nNo.7335 of 2016 executed between the plaintiff No.2 and defendant No.1, the\n\ndefendant Nos.1 and 2 have admitted their indebtedness and liability of Rs.56.00\n\nCrores to be paid to plaintiff No.1. He submitted that, "what is charge on the\n\nproperty" has been mentioned in the recital of the said document. He submitted\n\nthat, Clause Nos.12 and 27 of the said document clearly lead to an inference that,\n\ncharge is in fact created over the suit property in favour of the plaintiffs. He\n\nfurther submitted that, the respondent No.7/M.I.D.C. has permitted to sublease\n\nin favour of the defendant No.1 from the plaintiff No.2. He submitted that, Deed\n\nof Assignment dated 18.10.2017 has been signed by the defendant No.5 and not\n\nby the defendant No.3 who had signed earlier document i.e. Agreement to Assign\n\ndated 7.8.2017. That the plaintiff No.1 was not informed about the execution of\n\nsaid Deed of Assignment dated 18.10.2017 by the defendant No.1 and therefore\n\nthe right of the plaintiffs to recover money from defendant No.1 is in jeopardy.\n\nHe submitted that, as far the Summary Suit filed by the plaintiff No.1 is\n\nconcerned, it is only to enforce the right to recover money from the defendant\n\nNo.1. He submitted that, as perSection 100of Transfer of Property Act, charge to12/18::: Uploaded on - 27/01/2020                   ::: Downloaded on - 18/03/2020 00:25:54 :::901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc\n\n\nrecover amount on immovable property is permissible. He submitted that,\n\nreasoning given by the Trial Court in para No.15 of the impugned Order needs no\n\ninterference by this Court. He lastly submitted that, no irreparable loss and/or\n\nharm will be caused to the defendants, if Order of injunction remain in existence\n\ntill the decision of the present suit and therefore all appeals may be dismissed.\n\n10]          The chronology of the transactions mentioned in para No.4 above\n\nhave been emerged on record from the documents produced by the respective\n\nparties and from their pleadings and are prima facie admitted facts.It is to be noted here that, perusal of the documents i.e. Deed of\n\nAdmission dated 20.2.2016 bearing registration No.1751 of 2016 wherein the\n\nplaintiff No.2 agreed to transfer the suit property in favour of the defendant No.1\n\nand the Deed of Admission dated 10.8.2016 bearing registration No.7335 of\n\n2016, wherein the defendant Nos.1 and 2 admitted and acknowledged their\n\nindebtedness and liability to pay a total sum of Rs.56.00 Crores to the plaintiff\n\nNo.1, would clearly indicate that, no charge of whatsoever nature is created on\n\nthe suit properties for the amount to be paid by the defendant No.1 to the\n\nplaintiff No.1.That by Deed of Assignment dated 10.8.2016 having registration\n\nNo.6758 of 2016 executed between the plaintiff No.2 and defendant No.1\n\nwherein the plaintiff No.1 is a consenting party, the plaintiff No.2 assigned all his\n\nrights, title and interest in the suit property in favour of the defendant No.1 and13/18::: Uploaded on - 27/01/2020                   ::: Downloaded on - 18/03/2020 00:25:54 :::901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc\n\n\ntherefore the defendant No.1 become assignee/owner of the suit properties. In\n\nthe said Deed of Assignment dated 10.8.2016, in para No.2,it was clearly\n\nrepresented to the defendant No.1 that, the said property is                           free from all\n\nencumbrances. It appears that the said representation was further made to the\n\ndefendant No.3 while executing Agreement to Assign dated 7.8.2017 bearing\n\nregistration No.7012 of 2017 and Deed of Assignment dated 17.10.2017 bearing\n\nregistration No.11705 of 2017 (separate Agreements are executed with the\n\ndefendant Nos.4 to 6). The relevant para Nos.12 and 27 of the Deed of Admission\n\ndated 10.8.2016 bearing registration No.7335 of 2016 reads as under:(12) The Parties hereto agree, acknowledge and consent that the Second Party,\n        Third Party, Fourth Party and Fifth Party herein has hereby acknowledged their\n        indebtedness and liability to pay an aggregate sum of Rs. 56,00,00,000/-\n        (Rupees Fifty Six Crores Only) to the First Party herein on terms contained\n        herein. Accordingly, the Parties hereto have further agreed that in any and all\n        transactions, executions, writings, deeds, documents, agreements etc. executed\n        or proposed to executed by the Second Party and/or Third Party herein, First\n        Party, shall join as a consenting party to all such agreements for sale/sale\n        deed/ writings/documents etc. being executed in connection with the Charged\n        Property and Additional Charged Property for effecting valid transfer of rights,\n        title and interest of said Property in favour of the any third party.(27) The Parties hereto agree and acknowledge that these presents does not\n        amount to transfer of rights in the said Charged Property and Additional\n        Charged      Property      but   is   a    mere    acknowledgment         of    charge     and\n        indemnification obligations of the remaining Parties in favour of the First party\n        and that in order to give effect to the terms of these presents, they shall enter14/18::: Uploaded on - 27/01/2020                             ::: Downloaded on - 18/03/2020 00:25:54 :::901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc\n\n\n         into and execute further Agreement to Sell/Sale Deed/Deed of Assignment\n         with respect to said Additional Charged Property on which the said Third Party\n         Purchaser shall pay the requisite stamp duty at prevalent rates on the\n         valuation of the said Property as per provisions of the Maharashtra Stamp Act,\n         1958. Accordingly, the present Deed of Admission is hereby executed on a\n         Rs.500/- (Rupees Five Hundred Only) reflecting the true set of events,\n         admitted facts and intention of the Parties thereto, which shall at all time be\n         binding on the Parties hereto.Plain reading of the said clauses would clearly reveal that, the 'charge' of\n\nplaintiff No.1 on the suit properties has not been created therein. It is to be\n\nfurther noted here that, it does not even remotely indicate that, the defendant\n\nNo.1 has agreed for creating charge of plaintiff No.1 on the suit properties and\n\nmore precisely on suit property No.1.Perusal of the said Indenture would reveal that, the plaintiff No.1 has\n\nnot retained right to be further informed about subsequent transfers to be\n\neffected by the defendant No.1 in favour of the third party and therefore I find no\n\nsubstance in the contention of the learned senior counsel for the plaintiff No.2\n\nthat, at the time of execution of the Deed of Assignment dated 17.10.2017\n\nbearing registration No.11705 of 2017 executed between the defendant No.1 and\n\nthe defendant No.3 to which the plaintiff No.2 is also a party, the plaintiff No.1\n\nwas not informed by the defendant No.1 and therefore his right to recover money\n\nfrom the defendant No.1 is in jeopardy.15/18::: Uploaded on - 27/01/2020                     ::: Downloaded on - 18/03/2020 00:25:54 :::901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc\n\n\n11]             As noted earlier, the defendant Nos.3 to 6 have purchased their\n\nrespective suit properties from the defendant             No.1, bonafide for valuable\n\nconsideration without Notice from either of the plaintiffs though the plaintiff\n\nNo.2 was a party to the said Deed of Assignment dated 17.10.2017.Though in the recital of the Indenture i.e. Deed of Assignment dated\n\n10.8.2016 the term "charged property" is used, a careful perusal of the said two\n\nparagraphs namely 12 and 27, would reveal that in fact the defendant No.1 never\n\nagreed to have any charge of the plaintiff No.1 on the suit properties. Thus it is\n\nclear that, in fact no charge is created by the plaintiff No.1 on the suit property\n\nwhile executing the Deed of Admission wherein the defendant Nos.1 and 2 have\n\nadmitted their indebtedness and liability to the tune of Rs.56.00 Crores. In the\n\npremise, this Court is of the view that, the contention of the plaintiff No.1 that,\n\nhe is having charge over the properties has no substance in it.It is thus clear that, no charge is created by the plaintiff No.1 on the\n\nsuit properties which have been transferred in favour of the defendant No.1. The\n\nrecord indicates that, no prima facie case is made out by the plaintiffs against the\n\ndefendant Nos.3 to 6. The balance of convenience qua the said defendants also\n\ndoes not lie in favour of the plaintiffs.In view thereof, Order of injunction passed against the defendant\n\nNos.3 to 6 is not justifiable and the same needs to be set aside and is accordingly\n\nset aside.16/18::: Uploaded on - 27/01/2020                   ::: Downloaded on - 18/03/2020 00:25:54 :::901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc\n\n\n12]          As noted earlier, the plaintiff No.1 has already filed Special Summary\n\nSuit No.77 of 2019 against the defendant Nos.1 and 2 under Order 37 of the\n\nCode for recovery of the amount in pursuance of documents executed inter-se\n\nbetween the said parties and the said proceedings are subjudice.As far as the defendant Nos.1 and 2 and the suit property No.2\n\nmentioned in the plaintiff is concerned, it is the defendant No.1 who initially by\n\nexecuting the Deed of Settlement dated 18.2.2016 and subsequently Deed of\n\nAdmission dated 10.8.2016 has admitted and agreed to pay the said amount\n\nmentioned in the said documents to the plaintiff No.1 and therefore with a view\n\nto have equity in the matter and to protect the interest of the plaintiff No.1, the\n\ninjunction granted against the defendant Nos.1 and 2 by ad-interim Order dated\n\n9.8.2019 by the Trial Court is hereby confirmed. The defendant Nos.1 and 2 by\n\nway of temporary injunction are restrained from making any alienation or\n\ncreation of any third party interest in the suit property No.2 or any part thereof\n\ntill the final adjudication of Special Civil Suit No.1138 of 2019.13]          In view of the above following Order:\n\n(I)          A.O. No.1068 of 2019 filed by the Original Defendant Nos.3,4 and 6and A.O. St. No.28530 OF 2019 filed by the Original Defendant No.5 are allowed\n\nin the aforesaid terms.(ii)         A.O. St. No.29761 of 2019 filed by the Original Defendant Nos.1 and\n\n2 is accordingly dismissed.17/18::: Uploaded on - 27/01/2020                   ::: Downloaded on - 18/03/2020 00:25:54 :::901-AO.1068-19-AOST-28530-10-AOST-29761-19.doc(iii)       In view of disposal of Appeal, Interim Application No.1 of 2019 in\n\nA.O. No.1068 of 2019 does not survive and the same is accordingly disposed off.\n\n14]         At this stage, Mr. Godbole, the learned counsel for the respondent\n\nNo.1/original plaintiff No.1 submitted that, plaintiff No.1 is intending to\n\nchallenge the present Order before the Honourable Supreme Court and therefore\n\nprayed that, implementation and operation of the present Order may be stayed\n\nfor a period of four weeks from today.Learned counsel for the appellants vehemently opposed the said\n\nprayer. However, at the request of Mr. Godbole, the effect, implementation and\n\noperation of the present Order is stayed for a period of four weeks from today.(A.S.GADKARI, J.)18/18::: Uploaded on - 27/01/2020                    ::: Downloaded on - 18/03/2020 00:25:54 :::