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TMI Blog2012 (11) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... ona fide purchaser for value or not being so, will be fully established at the trial - order of injunction has to be passed restraining the fourth defendant from transferring, encumbering or otherwise dealing with the property till disposal of the suit if the plaintiff succeeds in the suit the property has to be transferred to them, by any transferee - suit has to be expedited and the above order of injunction should be restricted in its operation to six months from date - G.A. No. 429 of 2011 C. S. No. 299 of 2007 - - - Dated:- 3-5-2012 - I.P. MUKERJI, J. For Plaintiff : Mr. Bimal Chatterjee, Senior Advocate with Mr. Surajit Nath Mitra, Senior Advocate Mr. Rudraman Bhattacharya, Mr. Pratik Ghose, Advocates, Advocates For Defendant No. 4 : Mr. Abhrajit Mitra, Advocate with Mr. Soumya Roy Choudhury, Mr. Chayan Gutpa, Mr. Abhijit Sarkar, Advocates For Defendant No. 1 : Mr. Pratap Chatterje, Senior Advocate with Mr. Jishnu Saha, Mr. Tirthaa Dey, Ms. Arunima Moitra, Advocates I.P. MUKERJI, J. BASIC FACTS Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest (SARFAESI Act) 2002 is a much dreaded Act. Under it the bank or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith another party unless the property has been purchased by the purchaser in good faith and without notice of the contract which the seller has with the other party. My attention was drawn to paragraph 4 (a) of the Affidavit-in-Opposition of the fourth defendant where it is only stated that they were a bona fide purchaser for value. Mr. Chatterjee submitted that this assertion in the Affidavit-in-Opposition is plainly indicative of the fact that this defendant had notice of the transaction. That is why whether the fourth defendant had notice was not averred. Then he cites Section 91 of the Indian Trusts Act, 1882. He argues that the fourth defendant had notice of the earlier transaction of the first defendant with the plaintiff. With notice of that contract the fourth defendant entered into an agreement for sale of the self-same property with the first defendant. Therefore, the fourth defendant is to hold the property as trustee for the plaintiff. The principles of law as stated in paragraph 13 of Vasantha Vishwanathan and others vs. V.K. Elayalwar and others reported in AIR 2001 SC 3367 were pointed out by Mr. Chatterjee. He also referred me to the case of Sm. Muktakesi Dawn a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The property is situated in Maharashtra. Section 52 of the Transfer of Property Act, 1882 was amended by the Bombay Amendment Act of 1939 so as to affect its operation in Maharashtra. That amendment says that only if the suit instituted by a party is registered under Section 18 of the Indian Registration Act, 1908 can the restraint of Section 52 upon the parties to the suit be operative. The suit in question was not so registered. Therefore, the fourth defendant is permitted to transfer this property to any other person. They cited paragraph 37 of the case of Anand Nivas Private Ltd. vs. Anandji Kalyanji s Pedhi and others reported in AIR 1965 SC 414 to submit that this registration under Section 18 of the Indian Registration Act was necessarily to be effected at the citus of the immovable property. b) A party seeking injunction has to make the necessary averments in the pleadings regarding transfer of the property. He has to aver whether the transferee took it with or without notice, with or without consideration, innocently or not and so on. They relied on Atkin s forms of pleadings to show that these averments have to be made. Mr. Mitra cited Purna Chandra Mukerji and anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lies to any immovable property in litigation. The immovable property may or may not be the subject matter of an agreement for sale of a property. Say a partition and administration suit. Therefore, in those cases neither Section 91 of the Indian Trust Act, 1882 nor Section 19(b) of the Specific Relief Act, 1963 would apply. Conversely in a suit for specific performance all three Acts will normally apply. But in this case a complication has arisen. Section 52 of the Transfer of Property Act, 1882 was amended by the Bombay Amendment Act of 1939 in the manner shown in italics: 52. Transfer of property pending suit relating thereto. (1) During the pendency in any court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, if a notice of the pendency of such suit or proceeding is registered under Section 18 of the Indian Registration Act, 1908, the property after the notice is so registered cannot be transferred or otherwise dealt with by any party to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1882, if the suit was registered. This is because the amendment says that protection against third party rights is available only if the suit is registered. As this suit was not registered, there would be no Section 52 protection for the plaintiff, in my opinion. If the first and third are the case, i.e., when some rights are created before institution of the suit, by execution of an agreement for sale with regard to a Maharashtra property, then such an agreement would seem to be protected by the said sections of the Specific Relief Act, 1963 and the Indian Trusts Act, 1882 on the principle that valuable rights have accrued prior to institution of the suit which are not stated to be taken away by the Bombay Amendment to the Transfer of Property Act, 1882. For protection of the property and the rights of the parties, for preventing creation of undesirable third party interests and a multiplicity of complex proceedings, the Court can grant an injunction upon the intending transferee or the transferees, restraining them from further alienating, encumbering or dealing with the property in question. (See the case of Sm. Muktakesi Dawn and others vs. Haripada Mazumdar and anothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstantial with substantial improvement on or before 31st March, 2007. It was also accordingly intimated to the plaintiff that the said cheque No. 7178759 had not been banked by the defendant No. 1 till date. This is also material suppression, which in itself disentitles the plaintiff to any relief in the instant application. I also accept Mr. Chatterjee s contention that in their application under Order VII Rule 11 of the Code of Civil Procedure, challenging the jurisdiction of this Court to try the suit, the first defendant had relied upon the forum selection clause of the self-same agreement, namely, Clause 9(ix) and Clause 4. The rules of estoppel or those relating to approbation and reprobation at the same time would prevent first defendant from urging this defence, in my opinion. Therefore, prima facie, the plaintiff and first defendant acted according to the agreement of 2007. Now, the issue regarding the guilt of the fourth defendant has to be examined. It is true that Atkin s Form No. 26 in Court Forms in Civil Proceedings prescribes pleading the knowledge of the defendant. It has not been so pleaded in the application by the plaintiff. In the decision in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order of injunction has to be passed restraining the fourth defendant from transferring, encumbering or otherwise dealing with the property till disposal of the suit, so that further third party interests are not created. For, according to my above opinion if the plaintiff succeeds in the suit the property has to be transferred to them, by any transferee. But in the facts and circumstance of the case the suit has to be expedited and the above order of injunction should be restricted in its operation to six months from date. Let written statements be filed by the first and fourth defendant within eight weeks from date. Cross order for discovery to be made within two weeks thereafter, inspection forthwith. Service of the writ of summons, if not already served on these defendants be dispensed with. The returnable date of the writ of summons on the second and fourth defendants is extended till 15th June, 2012. The said defendants may also file their written statements and discover documents within the time prescribed for the first and fourth defendants. This application is allowed to the above extent. Urgent certified photocopy of this judgment and order, if applied for, to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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