9911796707
TMI Blog2019 (9) TMI 1741X X X X Extracts X X X X X X X X Extracts X X X X ..... its purposes, when such alienation is in defiance of a restraint order.
The it is clear that the transfer of the immovable property in violation of an order of injunction issued by a Court of law, confers no right, title or interest in the transferee, as it is no transfer at all.
The agreement for sale dated 15th September 2015 in respect of the subject flat is held to be illegal, null and void, non-est, bad in law and not binding upon the Plaintiff. The Respondents No. 1 to 3 and Respondents No. 5 to 8 are directed to take all necessary steps to cancel the agreement for sale dated 15th September 2015 within a period of four weeks from the uploading of this judgment and order including by applying before the concerned Sub-Registrar of Assurances for the cancellation of agreement for sale dated 15th September 2015. In the event, the Respondents No. 1 to 3 together with the Respondents No. 5 to 8 fail to comply with these directions, the appointed Court Receiver shall carry out the same under the directions of this Court.
Conclusion - Transfers of property in violation of injunction or status quo orders are void ab initio.
Notice of motion disposed off. X X X X Extracts X X X X X X X X Extracts X X X X ..... no objection certificate for future transfer of the subject flat. In the Notice of Motion No. 543 of 2010, the Respondents No. 2 and 3 in Affidavit dated 6th August 2010, stated that during pendency of the above Suit, the Respondents No. 2 and 3, being Defendants No. 3 and 4 in the above Suit shall not dispose of and/or create third party rights in respect of any of the properties standing in their name. In view of this statement made by the Defendants No. 3 and 4 in the above Suit, this Court by order dated 11th August 2010 (the then R.Y. Ganoo, J.) accepted the statement and disposed of the ad-interim application in view thereof. 5. The Plaintiff had preferred a revision application against the order dated 31st August 2009 passed by the additional Chief Metropolitan Magistrate and which application was allowed on 20th March 2011. Pursuant to the said order, the Plaintiff took possession of the properties mentioned at Sr. Nos. 1, 2 and 3 in the Notice of Motion and these properties are in possession of the Plaintiff. The Respondents No. 2 and 3 filed 14 Criminal Writ Petitions challenging the order dated 28th March 2011 and this Court in the said Writ Petitions quashed the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in it is claimed that the Respondent No. 2 transferred the subject flat to the Respondents No. 5 to 7. This has been stated by the Applicant to be in breach of the orders passed by this Court on 11th August 2010 (the then R.Y. Ganoo, J.) and 4th July 2011 (the then B.R. Gavai, J.). Respondent No. 2 further reiterated the statement that the subject flat was in her possession in an Affidavit filed on 13th October 2015. 9. Five Notices of Motion i.e. Notice of Motion No. 395 of 2012, Notice of Motion 543 of 2010, Notice of Motion No. 964 of 2010, Notice of Motion No. 2538 of 2011 and Notice of Motion (L) No. 2659 of 2014 were heard together and an order dated 13th April 2016 was passed by the learned Single Judge (S.C. Gupte, J.) whereby the Court Receiver was appointed in respect of the properties. Regarding the subject flat, the learned Judge by the said order directed that the Plaintiff through, the Court Receiver, pay the balance outstanding to the Respondent No. 4 and take possession of the subject flat on the terms as directed in the said order. By the subsequent orders dated 25th June 2018 and 7th August 2018, this Court directed compliance of the said order dated 13th April 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal with the said properties (including the subject flat) in any manner and would maintain status quo in respect thereof. This was directed to continue until appropriate orders are passed by the learned Single Judge in the proceedings of the above Suit and parties were at liberty to apply to the learned Judge in the above Suit for further orders regarding the subject flat. 12. He has submitted that these orders continued until appropriate orders were passed by the learned Civil Judge in the above Suit. He has submitted that the order dated 22nd January 2013 passed by the learned Judge of this Court (the then A.M. Thipsay, J.) in the Criminal Writ Petition which had set aside the attachment of the said properties on a technical ground under Section 105E of the Code of Criminal Procedure, 1973, did not interfere with the status quo order passed by the then B.R. Gavai, J. which continues to operate. Further, in paragraph 8 of the order of the then A.M. Thipsay, J., it has been held noted that all disputes between the parties as to ownership and possession of the subject property are not capable of being raised or agitated in the Criminal Writ Petition and could only be settled in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has relied upon the judgments of this Court in (i) Keshrimal Jiviji Shah & anr. Vs. Bank of Maharashtra & Ors. 2004 Company cases (122) pg. 831, (ii) Satyabrata Biswas & Ors. Vs. Kalyan Kumar Kisku & Ors. AIR 1994 SC 1837 and (iii) Surjit Singh & Ors. Vs. Harbans Singh & Ors. (1995) 6 SCC 50 In support of his contention that the transfer of property in breach of injunction or status quo would be void ab initio regardless of whether the transferee is, claiming to be, a bona fide purchaser for value without notice. 15. He has submitted that it is the duty of the Court to treat the alienation which is in breach of the order of the Court as having not taken place at all. He has submitted that it is not necessary for the party who suffers consequence of breach of injunction to file contempt or any other like proceedings. As the Civil Court seized with the hearing, i.e. the lis in the Suit can have recourse to Section 151 of the Code of Civil Procedure, 1908 as it is the Court's duty to exercise its inherent power to set the wrong at naught or to treat the disobedient act in breach of the order as not having taken place at the first instance by restoring the status quo ante and to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... monetary decree and that the charge has been created not only by act of parties but also by operation of law by order of the then R.Y. Ganoo, J. who had accepted the statement of the Respondents No. 2 and 3. The statement being that these Defendants shall not deal with any of the properties standing in their names during the pendency of the Suit. She has submitted that under Section 100 of the Transfer of Property Act, 1882 where the charge is created on property by an act of party or operation of law and made security for payment of money, such charge cannot be enforced against the property in the hands of the person to whom such property has been transferred for consideration and without notice of the charge. She has submitted that the charge created in the present case by act of parties or by operation of law towards security for payment of money to the Plaintiff, the Respondents No. 5 to 7 not having notice of the charge, such charge could not be enforced against the subject flat in the hands of the Respondents No. 5 to 7. 18. She has relied upon the judgment of the then Nagpur High Court in Bapurao Dajiba Vs. Narayan Govind Kale AIR 1950 Nagpur 117 to contend that the phrase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been paid by the Respondents No. 5 to 7 to Respondent No. 2 for purchase of the subject flat. 22. Ms. Kranti S. Anand, the learned Counsel for the Respondents No. 1 to 3 has submitted that the possession of the subject flat was with Respondent No. 2, as the Respondent No. 2 had made payment of the purchase consideration under the agreement for sale which entered into with the Respondent No. 4 for purchase of the subject flat. She has submitted that the Respondents No. 2 and 3 being in possession of the subject flat had accordingly, transferred the subject flat to Respondents No. 5 to 7. She has submitted that the order of the then R.Y. Ganoo, J. was only an ad-interim arrangement on the basis of the statement having been made by the Respondents No. 2 and 3 in that Affidavit which was made in view of negotiations for settlement between them and the Plaintiff. This statement made by the Respondents No. 2 and 3 was an interim arrangement conditional upon a settlement being arrived at with the Plaintiff and upon the order passed by the learned Judge of this Court (K.R. Shriram, J.) dated 23rd December 2014 recording that the negotiations for settlement was not agreed upon by the Plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable under the agreement for sale had in fact being paid by the Respondents No. 2 and 3. Accordingly, she submits that the Notice of Motion be rejected on account of the relief now sought being in the nature of cancellation of the agreement for sale which can only be granted in a separate Suit filed and after trial in the Suit. 25. Having considered the submissions, the law seems to be well settled that where the property is transferred in breach of an order of injunction or an order of status quo, regardless whether the transferee is claimed to be a bona fide purchaser for value without notice, such a transfer is void ab initio and is required to be quashed and set aside. This can be seen from the judgment of the Supreme Court in Satyabrata Biswas (supra) at paragraph 29, which reads thus:- "Apart from the fact whether A.K. Ghosh had a legal authority to sublease or not it was not open to him to grant a sublease in violation of the order. It is no use contending as Mr. Chidambaram, learned counsel for the respondents does, that there was a bar to such a sublease under the terms of the status quo order. It has the effect of violating the preservation of status of the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or benefit from such transfer merely because he is not party to the proceedings in which order of injunction or other prohibitory direction or restraint came to be issued. It is enough that the transferor is a party and the order was in force. These two conditions being satisfied, the transfer must not be upheld. If this course is not adopted then the tendency to flout orders of Courts which is increasing day by day can never be curbed. The Court exercises its powers on the foundation of respect and regard for its authority by litigating public. People would loose faith and respect completely if the Court does not curb and prevent this tendency. The note of caution of the Supreme Court must be consistently at the back of everybody's mind. Therefore, Shri Naphade is not right in the distinction which he is trying to make." 28. Thus, it is clear from the above decisions that the transfer of the immovable property in violation of an order of injunction issued by a Court of law, confers no right, title or interest in the transferee, as it is no transfer at all. In the present case, there were two orders of this Court viz. order of the then R.Y. Ganoo, J. and order of the then B.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the then B.R. Gavai, J. It is therefore, the duty of this Court to exercise its inherent powers under Section 151 of the Code of Civil Procedure, 1908 to set the wrong at naught or to treat the disobedient act as not having taken place in the first instance by restoring the status quo ante. This exercise of inherent powers without requiring the party who suffers the consequence of any breach of injunction to file contempt proceedings under Order XXXIX Rule 2A of the Code of Civil Procedure, 1908 or any other akin proceedings is well settled by the judgment of this Court in Municipal Council, Shirdi (supra) and the Supreme Court in Delhi Development Authority (supra) and All Bengal Excise Licensees Association (supra). 30. I do not find any merit in the submissions either on behalf of the Respondents No. 5 to 7 or on behalf of the Respondents No. 1 to 3. There is no question of any charge being created either by act of parties or by operation of law in respect of the subject property as submitted by the learned Counsel for the Respondents No. 5 to 7. The statement of the Respondents No. 2 and 3 in the Affidavit that they will not deal with the said properties including the subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present Notice of Motion cannot be granted as it goes beyond the prayers in the Suit cannot be accepted. It is not open for these Respondents to contend the same, as the prayers in the Suit would have been considered by the then R.Y. Ganoo, J., the then B.R. Gavai, J. as well as S.C. Gupte, J., whilst granting their respective orders of injunction, status quo as well as relief as sought for by the Applicant in the Notices of Motion. Further, it is not necessary for this Court to consider whether full consideration has been paid by the Respondents No. 1 to 3 to the Respondent No. 4 for the subject flat as this had already been considered in the order of S.C. Gupte, J. where it was held that the full consideration had in fact not being paid and that there was a balance consideration due to the Respondent No. 4. This balance consideration was permitted to be paid by the Plaintiff to the Respondent No. 4 towards the transfer of the subject flat to the Plaintiff. Further, whether full consideration has been paid by Respondents No. 5 to 7 to Respondent No. 2 under the agreement for sale between them is also not required to be considered by this Court, particularly in view of my find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (a), (b) and (c). The agreement for sale dated 15th September 2015 in respect of the subject flat is held to be illegal, null and void, non-est, bad in law and not binding upon the Plaintiff. The Respondents No. 1 to 3 and Respondents No. 5 to 8 are directed to take all necessary steps to cancel the agreement for sale dated 15th September 2015 within a period of four weeks from the uploading of this judgment and order including by applying before the concerned Sub-Registrar of Assurances for the cancellation of agreement for sale dated 15th September 2015. In the event, the Respondents No. 1 to 3 together with the Respondents No. 5 to 8 fail to comply with these directions, the appointed Court Receiver shall carry out the same under the directions of this Court. 35. The Court Receiver who is appointed shall upon cancellation of the agreement for sale forthwith take physical possession of the subject flat with the assistance of the local police and handover the same to the Plaintiff and thereafter make a Report as to possession of the subject flat. 36. The Notice of Motion is accordingly, disposed of in the above terms without any order as to costs. 37. The learned Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
