Case Details

Microsoft Word - Special Civil Suit 4.18..inj...doc Special Civil Suit No. 4/2018 Page 1 of 23 . IN THE COURT OF DISTRICT JUDGE-2, SOUTH GOA AT MARGAO. (Before: Mrs. Sayonara Telles Laad, District Judge-2, Margao) Special Civil Suit 4/2018 M/s. Herora Projects Pvt. Ltd. A private ltd. company having registered office at 105 Infinity Bay, Jaira Nagar, Dabolim, Goa. Through its Director Mr. Rohit Paul s/o. lt. Ravinder paul aged 44 years. ...Plaintiff V/s 1. Mr. Maxwell Dias alias Mahmood Mirza Son of Lt. Justiniano Dias, Aged 76 years r/o. Villa No. 4, C D Retreat Nuvem, Salcete Margao Goa. 2. Ms. Shabnam Paul Daughter of Mr. Mehmood Mirza alias Maxwell Dias, age 42 years, r/o. W 215 Regency Park 2, DLF Phase 4, DLF City Gurgaon Haryana 122009 3. Mr. Zulekha Mirza Wife of Mr. Mehmood Mirza alias Maxwell Dias, Age 70 years W 215 Regency Park, 2 DLF Phase 4, DLF City Gurgaon Haryana 122009. … Defendants. http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 2 of 15 Learned Adv. Shri M.J. Michael alongwith Shri P. Agarwal representing the Plaintiff. Learned Advocate Shri J. Godinho representing Defendant no. 1. Learned Advocate Shri C. Dias representing Defendants no. 2 and 3 O R D E R (Delivered on this the 19th day of the month of October of the year, 2018). Vide this order, i shall dispose of the application at exhibit 4 for temporary injunction filed by the Plaintiff under Order XXXIX Rule 1 and 2 r/w Section 151 CPC. 2. Alongwith the suit for recoveries of moneys and for perpetual and mandatory injunction and decree of possession under Section 73 of Indian Contract Act 1872, the Plaintiff filed the application for Temporary injunction to restrain the defendants, their successors, agents and assigns from in any manner, transferring, encumbering, alienating, encumbering or creating any third party interest in the properties and assets owned by the Defendants no. 1, 2 and 3 i.e. Deugoti Sordo admeasuring 811 hectares under survey no. 37, property under survey no. 38 with area admeasuring 760 hectares in Condubag, Nocodbag, Bati village Sanguem, Goa, flat No. 1101 Orchid Enclave Nahar Andheri East belonging to defendant no. 1, property bearing House no. 222/A Block 5, MM Residency D' Mello Waddo, Carmona, Salcete, Goa jointly owned by Defendant No. 1 and 2 and property W215 Regency Park 2, Gurgaon, Hariyana belonging to Defendant no. 2. 3. The case of the Plaintiff is that they filed the present suit for recovery of money in the amount of Rs. 3,40,00,000.00 and http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 3 of 15 interest as per market rate on the said amount from 18.7.2016 till present. It is further the case of the Plaintiff that the aforesaid amount was transferred by the Plaintiff into the accounts of Defendant No. 1 pursuant to discussion and in accordance with MOU initially entered into Mr. Ranjithkumar Haria Billawava a Director of the Plaintiff company which was thereafter merged into a subsequent MOU entered into between the parties dated 30.12.2015 in respect of the property purported to be owned by the Defendant No. 1, Defendant no. 2 daughter of Defendant no. 1 and Defendant No. 3 wife of the Defendant no. 1 and in accordance with the MOU dated 30.12.2015 a total amount of Rs. 3,40,00,000.00 were transferred by the Plaintiff to the defendants account on promise of sharing of profits, development benefits, Royalties and all gains to be realized out of properties belonging to and owned and or controlled by the Defendants. 4. The case of the Plaintiff further is that the Defendants have collectivity approached the Plaintiffs with the proposal that they needed the funds to agitate and establish defendants' rightful legal ownership rights on said property before the appropriate Government Revenue Authorities and that once their rights and title was established, Plaintiff would get a share as a percentage in the gains that would accrue from the sale of mining rights, lease hold rights and other gains emanating from the ownership rights on the said properties. Further that the Defendant no. 2 Ms. Shabnam Paul who was previously married to Mr. Rohit Paul, plaintiff's representative and divorced him in the year 2008 by mutual consent put undue pressure and inducement upon Mr. Rohit Paul knowing fully well that he would be able to convince Plaintiffs as he was the Director in the Plaintiff's http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 4 of 15 company to agree to fund Defendants efforts to secure clear title rights in the said property. 5. It is further the case of the plaintiffs that based on the collective representations and inducements made by defendants more particularly defendant no. 2, they entered into MOU Agreements and transferred the monies to the bank accounts of defendant no. 1 on the understanding that once clear title was acquired to the said properties any gains and profits that would accrue from the said property would be shared with the plaintiffs and/or would be sub-leased to plaintiffs for agricultural activities and in accordance with the agreement, plaintiffs transferred amount of Rs. 3 crores 40 thousand into the personal account of the defenestrate no. 1. that to the complete shock of the plaintiffs once defendants achieved the adjudication of title rights in their favour, they ignored the promises made to the plaintiffs and inspite of defendants being approached by Mr. Rohit Paul to perform their part of the agreement for which, they received the aforesaid huge consideration, the defendants ignored their request of the refund and instead the defendant no. 2 initiated Execution proceeding by filing Execution Petition , Exe. 305/2018 for non compliance of the divorce decree. That hence in the aforesaid circumstances, the plaintiffs were constrained to file the present suit. 6. Written statement came to be filed on behalf of defendant no. 1 contending that suit is bad for non-joinder and mis-joinder of necessary parties. That the court has no jurisdiction to decide the issues involved. That there is no cause of action to file the present suit. That plaintiffs have made a false claim with regard to Rs. 3,40,00,000.00. http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 5 of 15 7. Written statement came to be filed on behalf of defendants no. 2 and 3 that there is no privity of contract between the plaintiffs and the defendants no. 2 and 3 as well as that there is no privity of contract between defendants no. 1 and defendant no. 2 and 3. That the court has no jurisdiction to decide the issues involved. That there is no cause of action to file the present suit. That plaintiffs have made a false claim with regard to Rs. 3,40,00,000.00. 8. To the application for temporary injunction, reply came to be filed on behalf of the defendants no. 1 to 4 reiterating the contents of the written statement to which, the plaintiff filed their rejoinder again reiterating their case. Thereafter affidavit in sur- rejoinder came to be filed on behalf of the defendants. 9. Arguments were heard. I have considered the entire records as well as the arguments before me. On behalf of the Plaintiffs reliance was placed in the cases of Patel Roadways Limited, Bombay vs. Prasad Trading Company and ors. 1991 ACJ 1001, R.K. Dalmai vs. Delhi administration AIR 1962 SC 1821, (1961) 32 Comp Cas 699(SC) , [1963]1SCR 253, Surinder Singh v. Kapoor Singh (Dead) through L.Rs and ors. MAN/SC/0350/2005: (2005) 5 SCC 142 ,Syscon Consultants p. Ltd. Vs. Primella Sanitary Prod. P. Ltd. and ors. 2016(9)SCALE26, (2016)10SCC 353, AIR 2016SC4564, 2017(1) ALD38, A. Abdul Rashid Khan (Dead) and ors. V. P.A.K.A. Shahul Hamid and ors MANU/SC/2734/2000: (2000) 10 SCC 636, Enercon(India) ltd. and ors. Vs. Enercon GMBH and ors. AIR 2014 SC 3152 ; 2014 (2) SCALE 452, (2014) 5 SCC1, http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 6 of 15 2014(3) SCJ 742; Dhodha House v. S.K. Maingi MANU/SC/2524/2005: (2006)9 SCC 41 and The National Petroleum Company ltd. vs. Popatlal Mulji 1936(38) Bom.LR 610. 10. On behalf of the Defendant No. 1 reliance was placed in the case of Sudipta Chakraborty vs. Sanjeev Chakraborty 2009(2) Mh.L.J. , Shri Shanthi Homes Pvt. vs. Cref Finance Ltd. AIR 2002 Kant. 252, West Bengal Housing Board vs. Pramila Sanfui and ors. (2016) 1 SCC 743, Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunager vs. Chandran and ors (2017) 3 SCC 702. 11. The point that arises for my determination alongwith my findings is as under:- Sr.No. Points Findings 1 Whether the Plaintiff has made out a prima facie case ? yes 2 Whether balance of convenience tilts in favour of the Plaintiff ? yes 3 Whether grave and irreparable loss would be caused to the Plaintiff ? yes R E A S O N S 12. Point 1 :-Prima facie case Before proceeding to evaluate the material on record the following ratio as held in the case of Dalpat Kumar V/S Prahlad Singh AIR 1993 SC 276 is required to be kept in mind. The honourable Supreme Court has elaborately discussed the principles to be considered at the stage of grant or http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 7 of 15 refusal of temporary injunction. It has been held that an injunction is a judicial process by which a party is required to do or to refrain from doing any particular act. It is the nature of preventive relief to a litigant to prevent future possible injury. 13. The plaintiffs have prayed by way of temporary injunction from restraining the defendants, successors, agents and assignees from in any manner transferring, alienating, encumbering or creating any third party interest in the following properties and assets owned by defendants Nos. 1, 2 and 3 as follows:- a) Deugoti Sordo admeasuring 811 hectares under survey no. 37/0. b) Property under survey no. 38 admeasuring 760 hectares in Condubag, Nocodbag, Batim village, Sanguem Taluka, c) Flat No. 1101 Andheri East belonging to defendant no. 1, d) Property bearing House no. 222/A Block 5, MM Residency D' Mello Waddo, Carmona, Salcete, Goa jointly owned by Defendant No. 1 and 2 and e) Property W 215 Regency Park 2, Gurgaon, Hariyana belonging to Defendant no. 2. 14. It was argued on behalf of the Plaintiffs that the Defendant No 2 Shabnam is the key figure in the transaction and talks and the ex wife of one of the Directors of the Plaintiff company Rohit Paul. Further that though it is contended by the Defendants that the Shoib is under treatment for Paranoid Schizophrenia requiring long term medical care and attention as per the certificate issued by Chaitanya Institute for Mental Health issued on 02/04/2017 and that http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 8 of 15 they have not taken appropriate measures in such cases to follow procedures as provided legally for such persons under the laws and that as such Shoib cannot transact and that it is the Defendant No 1 who has purchased the flat No. 1101 Orchid Enclave Nahar Andheri East . On behalf of the Defendant No. 1 reliance was placed in the case of Sudipta Chakraborty vs. Sanjeev Chakraborty 2009(2) Mh.L.J. wherein it was held that the family court at Bandra has no jurisdiction to grant injunction with regard to the flat at Pune for want of territorial jurisdiction, Shri Shanthi Homes Pvt. vs. Cref Finance Ltd. AIR 2002 Kant. 252, wherein it was held that the agreement contained provision that only court of Bombay would have jurisdiction to try and adjudicate the dispute yet as the immovable property was situated at Bangalore, the suit could be filed only in Bangalore. West Bengal Housing Board vs. Pramila Sanfui and ors. (2016) 1 SCC 743, wherein it was held that each owner has independent right to maintain proceedings to protect the property and that no temporary injunction can be granted against a non party Executive Officer, Arulmigu Chokkanatha Swamy Koil Trust, Virudhunager vs. Chandran and ors (2017) 3 SCC 702 wherein it was held that that no relief can be granted with respect to the property which stood in the name of another person who was not party to the suit. 15. Whereas on behalf of the Defendant No 1 it was argued that the Plaintiff Director Rohit is trying to avoid paying the alimony awarded to his ex-wife Shabnam the Defendant 2 by filing this false case and that the Defendant No 2 and 3 are not parties to the transaction and that the property of Def No 3 cannot be included and which belongs to a company not before this court, that the http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 9 of 15 Government is not a party here though its name was included in Form I & XIV . 16. The MOU dated 24.2.2015 is executed between the defendant no. 1 Maxwell Dias alias Mehmod Mirza and Mr. Ranjithkumar Billawava and Rohit Paul. In this MOU it is mentioned that the first party who is defendant No. 1 is the co-owner of the leased properties and in possession of the said properties . It is further mentioned therein that the defendant no. 1 desires to carry out plantation and agriculture in the leased properties. Furthermore, the defendant no. 1 was to move the mining dumps and levelling of the properties for which, Ranjithkumar Billawava was to fund Rs.75,00,000/- and the defendant no. 1 agreed that the fund received from Mr. Ranjithkumar Billawava would be utilised for obtaining permission and licences as well as paying the fees for obtaining permissions and licences for clearing the dumps from the properties of which, the defendant no. 1 was solely responsible. The parties to the said MOU also agreed that immediately after obtaining the licence to clear the dump, the defendant no. 1 would give Mr. Ranjithkumar Billawava permission to clear the dumps and the third party who is the plaintiff herein who is the first party was permitted to clear the dumps on behalf of second party Mr. Ranjithkumar Billawava. It was also agreed between the parties that Ranjithkumar Billawava is entitled for the income from the clearing of dumps, selling of trees. It was agreed between the parties that the properties that are to be cleared of the dumps and trees and for levelling of the properties are survey no. 39/12, 39/8, 39/5, 38/0, 41/1 and 2 of Village Batim, Sanguem. Subsequently, the MOU dated 30/12/2015 was executed between the defendant no. 1 as First Party and the plaintiffs of the plaintiff http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 10 of 15 company represented by Mr. Rohit Paul as Second Party wherein the Plaintiff herein agreed to fund Rs 3,00,00,000/- and it was recorded that the Plaintiff had already funded the Defendant No 1 Rs 1,75,00,000/- and that thereafter the total income generated from the clearing of dumps and selling of trees in Sy No 38 would be shared equally 50% each , share the income from the sale of the property in Sy No 37 as per the slabs mentioned in the said MPU . The First party the Plaintiff was responsible for all the permissions and licenses from the authorities for regularizing the documentation of the properties. It was also agreed that after obtaining licences and permissions from the authorities the second party has the right to clear the dumps and clearing the trees without additional approval from the first party and that the second party agreed to share 50% of the total income generated from the clearing of dumps and selling of trees with the first party and the second party also has complete authority to hire third parties for carrying out all necessary work for clearing the dumps and removing the trees situated on the said property belonging to first party. It was also agreed between the parties to the said MOU that the second party will clear the dumps and trees in three years from the date of obtaining permission by first party from competent authorities. Further it was also agreed as per the MOU that, if the first party is unable to obtain requisite permissions and licences from authorities the first party will repay the fund to the second party within 180 days from taking such fund from the second party and the first party would obtain all such permissions and licences for regularising the properties within 3 months from signing the agreement. 17. The plaintiffs have stated that the cause of action arose after 6 months of defendants receiving the payment as the defendant http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 11 of 15 no. 1 had agreed to repay the amount of Rs. 3,40,00,000.00 within 6 months of receiving the payment, if unable to get all the required Government clearances. Further also in para 18 of the plaint, the plaintiff has gone on to mention the various occasions on which the cause of action arose in favour of the plaintiffs against the defendants. 18. Clause 12 of the MOU dated 30.12.2015 mentions that the first party has agreed that if the first party is unable to obtain the requisite permissions and licences from the authorities, the first party will repay the fund to the second party with 180 days from taking such funds from the second party. 19. The suit is for recovery of monies and for perpetual and mandatory injunction and decree of possession under Section 73 of Indian Contract Act 1872 arising from the fact that the cause of action is for a breach of MOU/Agreement which was concluded in the State of Goa. The parties to the MOU namely M/s. Herora Projects, is based in Goa and has its registered office and principal place of business in Goa. The Consideration in the amount of Rs. 34 crores was paid in Goa and it was received byte Defendant Mr. Maxwell Dias(Defendant no. 1) into his bank account based in Goa as can be seen from the copies of the statement of Account produced on record. It was argued on behalf of the Plaintiffs that as seen in the balance sheet for the period 01/04/2016 to 31/03.2017 the amounts mentioned as against the respective names of Shri H Hegde and Shri Ranjithkumar Billawava is shown as loan liability and that the monies were invested in Gold etc as seen from the assets. Whereas on behalf of the Defendants it was contended that Shri H Hegde and Shri Ranjithkumar Billawava are nowhere connected with the Plaintiffs. Perusal of MOU dated 24/02/2015 shows that the MOU is between the http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 12 of 15 Defendant No 1 and Shri Ranjithkumar Billawava and the Plaintiff. There is a MOU on record dated 22/08/2015 between the Defendant No 1 and Heggunge Hegde in respect of the property Deogotisordo under Sy No 38 which MOU is on similar lines as the other MOUs with the Plaintiff and Ranjithkumar Billawava . The correspondences on record show that the Plaintiff, the Defendants 1 and 2 and Shri H Hegde and Shri Ranjithkumar Billawava are all connected in the same transaction. It is true that Defendant No 2 and 3 are not the signatories to the aforesaid MOUs. It is contended on behalf of the Plaintiff that Defendant No 2 is a party to the transactions as per her various wassap messages in this connection to the Plaintiff. Therefore , there prima facie appears to be nexus in respect of the transactions reflected in the Balance sheet and the aforesaid parties. However, the issues being triable will have to be tested on the touchstone of evidence on merits. 20. Section 20 of Code of Civil Procedure reads as : Other suits to be instituted where defendants reside or cause of action arises. (a) The defendant, …..or each of the defendants (b) Any of the defendants, …. (c) The cause of action, wholly or in part, arises. [Explanation].-A corporation shall be deemed to carry on business at its sole or principal office in 3[India] or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. 21. In the instant case a corporation M/s. Herora Projects Pvt. Ltd, a private ltd. company is having registered office at 105 Infinity Bay, Jaira Nagar, Dabolim, Goa and is carrying on its business through http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 13 of 15 its principal office which is located in Goa therefore, the courts of Goa have jurisdiction to try this matter. 22. In the case of Patel Roadways ltd. Bombay vs. Prasad Trading Company and ors AIR 1992 C 1514 ; (1991) 4SCC270 the Honourable Apex Court held as follows- 13. As far as we can see the interpretation which we have placed on this section does not create any practical or undue difficulties or disadvantage either to the plaintiff or a defendant corporation. It is true that normally under Clauses (a) to (c) the plaintiff has a choice of forum and cannot be compelled to go to the place of residence or business of the corporation and can file a suit at a place where the cause of action arises. If a corporation desires to be protected from being dragged into litigation at some place merely because a cause of action arises there it can save itself from such a situation by an exclusion clause as has been done in the present case. The clear intendment of the explanation, however is that where the corporation has a subordinate office in the place where the cause of action arises it cannot be heard to say that it cannot be sued there because it does not carry on business at that place It would be a great hardship if, inspite of the corporation having a subordinate office at the place where the cause of action arises (with which in all probability the plaintiff has had dealings) such plaintiff is to be compelled to travel to the place where the corporation has its principal place. That place should be convenient to the plaintiff; and since the corporation has an office at such place, it will also be under no disadvantage. Thus the explanation provides an alternative locus for the corporation’s place of business not an additional one. http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 14 of 15 23. Furthermore in the case of Enercon(India) ltd. and ors. Vs. Enercon GMBH and ors. AIR 2014 SC 3152 ; 2014 (2) SCALE 452, (2014) 5 SCC1, 2014(3) SCJ 742; the Honourable court held as follows- “ it must be noticed that respondent no. 1 was initially having 51 percent shareholding of the appellant no. 1 company, which was subsequently increased to 56% . This would be an indicator that the respondent no. 1 is actively carrying on business at Daman. This court considered the expression “carries on business” as it occurs in section 20 of the Code of Civil Procedure. 24. In the case of Dhodha House v. S.K. Maingi MANU/SC/2524/2005: (2006)9 SCC 41 and observed as follows: 46. The expression “carries on business” and the expression “personally works for gain” connote two different meanings. For the purpose of carrying on business only presence of a man at a place is not necessary. Such business may be carried on at a place through an agent or a manner of through a servant. The owner may not even visit that place. The phrase “carries on business” at a certain place would, therefore, mean having an interest in a business at that place, a voice in what is done. A share in the gain or loss and some control there over. The expression is much wider than what the expression in normal parlance connotes, because of the ambit of a civil action within the meaning of Section 9 of the Code. The fact that Daman trial court has jurisdiction over the matter is supported by the judgment of this court in Harshad Chiman http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 15 of 15 Lal Modi (supra) which was relied upon by Mr. Nariman. The following excerpt makes it very clear 16…. The proviso to section 16 no doubt, states that though the court cannot in case of immovable property situated beyond jurisdiction, grant a relief in rem still it can entertain a suit where relief sought can be obtained through the personal obedience of he defendant…. The principle on which the maxim was based was that the courts could grant relief in suits respecting immovable property situate abroad by enforcing their judgments by process in personam i.e. by arrest of the defendant or by attachment of his property. In light of these two judgments it is clear that courts could grant relief in suits respecting immoveable property situate abroad by enforcing their judgments in personam and obtaining personal obedience of the defendant (defendant nos. 1 and 2 in the instant case ) i.e., by arrest of the defendant or by attachment of her/his property. Therefore, the properties listed in the suit which do not fall within the territorial jurisdiction of the State of Goa can still be proceeded against in Court under the CPC as enunciated by the Apex Court above. The MOU was to be performed in Goa and therefore the cause of action arose out of a breach committed in Goa in respect of a property which situated in Goa. 25. On behalf of the Defendants the bone of contention was the properties having co-owners/Joint owners cannot be attached/injuncted and that the Directors cannot act/pay money on behalf of an entity/company and that the property Flat H no. 222/A Block 5 MM residency D’Mello Vaddo Carmona Salcete Goa, listed as http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 16 of 15 “D” is owned by a company “Janet Handicrafts Private Limited” in which the directors of the said firm are Maxwell Defendant No 1 and Shabnam and hence cannot be subject matter of this suit as Shabnam is not signatory to the MOU. 26. To counter the aforesaid contentions on behalf of the Plaintiff , reliance was placed in the case of Syscon Consultants p. Ltd. Vs. Primella Sanitary Prod. P. Ltd. and ors. 2016(9)SCALE26, (2016)10SCC 353, AIR 2016SC4564, 2017(1) ALD38 . In A. Abdul Rashid Khan (Dead) and ors. V. P.A.K.A. Shahul Hamid and ors MANU/SC/2734/2000: (2000) 10 SCC 636 at paragraph 14 it has been held that 14.Thus we have no hesitation to hold, even where any property is held jointly and once any property to the contract has agreed to sell such joint property agreement, then even if other co-sharer has not joined at least to the extent of his share, he is bound to execute the sale deed. However in the absence of other co-sharer there could not be any decree of any specified part of the property to be partitioned and possession given, the decree could only be to the extent of transferring the share of the appellants in such property to other such contracting party. In the present case, it is not in dispute that the appellants have 5/6 share in the property. So the plaintiffs suit for specific performance to the extent of this 5/6th share was rightly decreed by the High Court which requires no interference. 27. In Surinder Singh v. Kapoor Singh (Dead) through L.Rs and ors. MAN/SC/0350/2005: (2005) 5 SCC 142 at paragraphs 3 and 20 it has been held that : http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 17 of 15 3. A letters patent appeal filed by the plaintiffs – Respondents herein against the said judgment and decree came to be allowed by a Division Bench of the high Court by reason of the impugned judgment holding that as the property was owned by the appellant and the said Tajinder Kaur in equal share, in view of Kartar Singh (supra) a decree for specific performance could be granted in favour of the plaintiffs- Respondents herein in respect of the share of the appellant subject to his right to apply for partition of the property for getting his share demarcated. As regard apportionment of the sale consideration, it was directed that the same would be reduced by 50% as the appellant would only be entitled thereto. As regard the objection of the appellant herein that no relief could be granted as the plaintiffs-Respondent failed to mention Khasra Nos. 39/4 and 39/3/2 in the plaint, the Division Bench held that such omission was inadvertent. It was pointed out that such an objection was raised only at the time of argument whereupon the plaintiffs filed an application for amendment of plaint. The appellant furthermore mislead the plaintiffs- Respondents by representing that he had the requisite authority to entire into an agreement for sale on behalf of his sister, which was found to be incorrect. In this situation, we are of the view that the equity lies in favour of grant of decree for specific performance of the contract respect of the share of the appellant rather than refusing the same. In any event if the appellant and/or his sister have claim as regard the arrears of rent, the same can be adjudicated upon by the appropriate court in any appropriate proceeding…. http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 18 of 15 The vehement contention, advanced by learned Senior Counsel Shri Dhruv Mehta based on Article 2177 of the Portuguese Civil Code, 1867 that there was an absolute bar for transfer of nay portion of the estate or a specific item of the estate, need not detain us both on account of factual matriz and on law. As we have already noted hereinabove, defendants 1to 8 had already given up on their right in the suit property by not taking steps to avoid the distress sale at the instance of the bank. Though there are different translated versions of the provision, we may extract Article 2177 as provided by defendants 7 and 8 in their appeal. It is not lawful to a co-owner however to dispose a specific part of the thing held indivisibly without the same being allotted to him in partition and a transfer of the right, which he has to the share belonging to him, may be restricted in accordance with the law. Suffice it to say, Article 2177 does not prohibit alienation of undivided interest which is in tune with the principle underlying section 44 of the Transfer of property Act, 1882. 28. It appears that the Defendant No 1 has represented to the Plaintiffs that he is in possession of the properties and had the authority to transact. Form I & XIV in respect of Sy No 37 shows the name of the Govt of Goa Forest Department and the Defendant No 1 Maxwell Dias as occupant. However it appears that there is dispute in respect of the eastern boundary of said survey No. 37. There is also inventory proceedings which are pending and according to Ld Advocate appearing on behalf of the Defendants , as there are co-owners to the http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 19 of 15 properties under dispute , no order of injunction can be passed restraining the defendants, their successors, agents and assigns from in any manner, transferring, encumbering, alienating, encumbering or creating any third party interest in the properties and assets owned by the Defendants no. 1, 2 and 3 i.e. Deugoti Sordo admeasuring 811 hectares under survey no. 37, property under survey no. 38 with area admeasuring 760 hectares in Condubag, Nocodbag, Bati village Sanguem, Goa. However considering the citations discussed herein , it is clear that even an undivided share of a property can be attached irrespective of the fact that the other co-owner may be the government or any other part(ies) who may not have been party to the agreement of sale in respect of that particular property. This would be allowed only to the extent of the share owned by the defendants and will not affect the shares owned by the other co- owners and/or the Government also listed as a co-owner/occupier of the property concerned. 29. The question is whether directors can act/pay money on behalf of an entity/company. The leading case on the issue is that of R.K. Dalmai vs. Delhi administration AIR 1962 SC 1821, (1961) 32 Comp Cas 699(SC) , [1963]1SCR 253. The Hon’ble Supreme Court held as under in the case of Palmer’s company Law, 20th Edition, is stated at page 517: Directors are not only agents but they are in some sense and to some extent trustee or in the position of trustees.” 36. In G.E. Ry. Co. v Turner I.LR. (1872) Ch. App. 149 Lord Selbrne said: http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 20 of 15 “The directors are the mere trustees or agents of the company – trustees of the company’s money and property – agents in the trisections which they enter into on behalf of the company. 30. In Re.forest of Dean etc. Co. I.L.R. (1878) Ch. D. 450 Sir Garage Jessel said: “Directors are called trustees. They are no doubt trustees of assets which have come into their hands or which are under their control”. We are therefore of opinion that Damlia and Chokhani were entrusted with the dominion over the finds of the Bharat Insurance Company in the Banks. 31. From the above it is amply clear that Directors of M/s. Herora Project as Agents on behalf of the firm paid money into the accounts of Mr. Maxwell Dias Defendant No. 1 located in Goa, which was partly recorded in the Balance sheet of Mr. M Dias and the said transaction was fully recorded in the MOU dated 30th December 2015 which is also not being disputed by the Defendant no. 1. When read in totality it is clear that MOU included not just the sale of the Dumps in the subject property but also the sale of the land asset itself. The Conversations of the Defendants No. 2 listed in the annexures in the Civil Suit shows her concern to somehow sell the subject property and get her share and move on in life. This it appears was the basic purpose for which the defendants needed the money to establish a clear marketable title to the land. It appears that the defendants collectively approached the plaintiffs through Mr. Rohit Paul who was director in the said plaintiff firm who was at that time undergoing financial distress of his own and in order to persuade him to convince the plaintiffs other Directors a separate promise of not pressing for http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 21 of 15 alimony was made by the defendant Shabnam as per her wassap message to the Plaintiff which was awarded to her and for which she had also filed Execution Petition before the Court of the Principal Judge , Family Court, District Court, Gurgaon . 32. In the case of The National Petroleum Company ltd. vs. Popatlal Mulji 1936(38) Bom.LR 610 relied upon on behalf of the plaintiffs is in respect of third party consideration and speaks about the merger of the contracts and payment made to third persons as discussed in para 15 of the said citation and which comes to the aid of the plaintiffs. On behalf of the Plaintiffs the report was pointed in the rent decision reported as first of its kind where the Honourable Supreme Court has ordered the auction of personal properties belonging to directors of real estate firm Unitech to refund hassled home buyers. A Chief Justice headed bench directed a court mandated committee led by former Delhi High Court Judge Justice S.N. Dhingra to go ahead with the sale of unencumbered assets of Unitech directors, according to a PTI report. https://www.businesstoday.in/current/economy-politics/unitech- directors-personal-assets-to-be-auctioned-to-refund-homebuyers- supreme court/story/281541.html. It was submitted on behalf of the Plaintiff that they have not been able to get the judgment itself from the Honourable Supreme Court website but applying this to the facts of the present case it would be clear that that the aforesaid flat which is owned by the company is actually an asset of the Defendant no. 1 and 2 who are the only two Directors of the said company and they got into this agreement to prevent the plaintiffs from being able to attach the said property in their money recovery suit and that the property can also be attached/injuncted. Be that as it may and apart http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 https://www.businesstoday.in/current/economy-politics/unitech-directors-personal-assets-to-be-auctioned-to-refund-homebuyers-supreme-court/story/281541.html https://www.businesstoday.in/current/economy-politics/unitech-directors-personal-assets-to-be-auctioned-to-refund-homebuyers-supreme-court/story/281541.html https://www.businesstoday.in/current/economy-politics/unitech-directors-personal-assets-to-be-auctioned-to-refund-homebuyers-supreme-court/story/281541.html Special Civil Suit No. 4/2018 Page 22 of 15 from the report , even otherwise Defendant 2 who is the daughter of Defendant 1 is one of the Directors alongwith Defendant No 1 who is also a Director of the company “Janet Handicrafts Private Limited” alongwith the Defendant 2 and would inherit rights in the share of the Defendant No 1 and as such this being the case it cannot be said that the aforesaid property cannot be attached/injuncted and or that the Directors cannot act/pay money on behalf of an entity/company. 33. Point 2 and 3 :-Balance of convenience and Irreparable loss Shoib the son of defendant no. 1 and 2 is under treatment for Paranoid Schizophrenia requiring long term medical care and attention as per the certificate issued by Chaitanya Institute for Mental Health issued on 02/04/2017 . The contention that though Shoib has not signed any of the MOUs, and the flat No. 1101 Orchid Enclave Nahar Andheri East is seen registered in the name of the Defendant 3 in the Deed of Sale, it is the Defendant No 1 who has purchased the flat No. 1101 Orchid Enclave Nahar Andheri East in the name of Shoib and similarly has assets/companies with others to wriggle out of legal action so as to defeat the efforts of the Plaintiffs to secure the refund of their moneys is a triable issue . The Plaintiff fears and is apprehensive that this being a suit for recoveries of monies the Defendants will alienate and or create third party rights so as to frustrate the attempts of the Plaintiffs in securing the refund of their monies . The Plaintiffs pointed out the communication from Span Communication which is on record in respect of their fears of transferring the property. The defendant no. 1 is the father of Defendant no. 2 and Shoib and the husband of defendant no. 3 and become co-owners of the properties. It also needs to be mentioned that temporary injunction is required to be granted only to the extent http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22 Special Civil Suit No. 4/2018 Page 23 of 15 of the share owned by the defendants and will not affect the shares owned by the other co-owners and/or the Government also listed as a co-owner/occupier of the properties concerned. It would do well for the plaintiffs to join Shoib and the Government of Goa as parties to the suit. The Government of Goa being formal party. Considering my observations and discussions above hence, this preventive relief is required to be granted to the Plaintiff to prevent future possible injury as the balance of convenience tilts in the aforesaid circumstances in favour of the plaintiffs and it will be the plaintiffs who shall suffer irreparable loss if the reliefs sought for are not granted at this stage . Hence the following:- O R D E R The application at Exhibit 4 is granted till further orders (only to the extent of the share owned by the defendants in the co ownership properties). No order as to costs. (Sayonara Telles Laad) District Judge-2 South Goa. Margao. ip/- http://www.pdfcomplete.com/cms/hppl/tabid/108/Default.aspx?r=q8b3uige22

Microsoft Word - Spl. C.S. _com._ 4.2018 _O_ exbt.40 _amend_ 6 Special Civil Suit (Com.)No.4/18 Exh.D/40 CNR No. GASG010007782018. Exbt.D/40 Special Civil Suit (Commercial) No.4/2018 ORDER BELOW EXHIBIT D/40 (Delivered on this the 30th day of the month of January, of the year 2020) 1. The defendant no.1 by the instant application has sought amendment of his written statement on the ground that he filed the written statement in a great hurry and in the bargain certain facts which are relevant and material concerning the payment made and the subject matter were not set out. The defendant no.1 has sought to amend the written statement by adding para 20(A) after para 20 of the written statement. 2. The plaintiff has objected to the application by their reply at Exbt.45/D on the ground that the application for amendment was filed subsequent to the plaintiff’s application for Judgment on admission based on the defendant no.1’s admission of having received rupees one crore five lakhs (part of the amount paid by the plaintiff) from the plaintiff. The plaintiff has stated that by virtue of the amendment application, the defendant no.1 is seeking to wriggle out of his said admissions which were made not only in his written statement but also in the appeals filed by him before the Hon’ble High Court and thereby the defendant no.1 is seeking to defeat the valuable right which has vested and accrued in favour of the plaintiff. 7 Special Civil Suit (Com.)No.4/18 Exh.D/40 CNR No. GASG010007782018. 3. The plaintiff has also objected to the grant of the application on the ground that the defendant no.1 had more than ample time to contemplate and file his written statement. The plaintiff has further stated that the proposed amendment would not only open a different or additional approach to the facts already stated but it changes the nature of the defence or sets up a new case and therefore, it should not be allowed. The plaintiff has also contended that the transactions which are now being shown are an afterthought to defeat the legitimate claim of the plaintiff and that the defendant no.1 cannot now be permitted to retract from these admissions. 4. Heard Ld. Advocate Shri J. Godinho for the defendant no.1 and Ld. Advocate Shri M. J. Michael for the plaintiff. Ld. Advocate for the plaintiff has also filed his written arguments. 5. I have perused the material on record and have considered the arguments advanced. 6. Ld. Advocate for the defendant no.1 has submitted that by the proposed amendment, the defendant no.1 wants to bring on record the fact that the defendant no.1 has paid ₹82,00,000/- (Rupees eighty two lakhs) to the plaintiff through its Director. He has submitted that by the proposed amendment, the admission made by the defendant no.1 in his written statement about the receipt of ₹ 1,05,00,000/- (Rupees one crore five lakhs) is not altered or withdrawn. He has submitted that the amendment is sought at the pretrial stage and therefore, ought to be liberally 8 Special Civil Suit (Com.)No.4/18 Exh.D/40 CNR No. GASG010007782018. granted. He has submitted that his application for amendment be decided first and thereafter the application filed by the plaintiff for judgment on admission be decided. 7. Per contra, Ld. Advocate for the plaintiff has submitted that the question that arises for consideration is whether the defendant no.1 can be allowed to withdraw the admissions made in his pleadings by resorting to Order VI, Rule 17 of the Civil Procedure Code (in short, the CPC) after the application under Order XII, Rule 6 of the CPC has been already filed and is pending adjudication. He has submitted that by the proposed amendment, the defendant no.1 is seeking to withdraw the admissions made by him in the written statement and thereby cause prejudice to the plaintiff. He has further submitted that the written statement was filed by the defendant no.1 in August 2018 and relying upon the admissions in the written statement, the plaintiff filed the application under Order XII, Rule 6 of the CPC in November 2018. He has submitted further that upon realizing the possibility of losing on the application for judgment on admissions, the defendant no.1 subsequently moved the application to amend his written statement on 28.01.2019, three months after the plaintiff’s application under Order XII, Rule 6 of the CPC. He has submitted that the proposed amendment would have the effect of defeating the valuable right which has accrued to the plaintiff in view of the admissions in the written statement. 8. On behalf of the plaintiff, it has been further submitted that the alleged payments sought to be incorporated by way of 9 Special Civil Suit (Com.)No.4/18 Exh.D/40 CNR No. GASG010007782018. amendment were made in 2015 and whereas the amendment application has been filed in 2019 and therefore, the amendment is barred by the law of limitation. He has also pointed out that the admissions are not only in the written statement but also in the appeals filed by the defendant no.1 before the Hon’ble High Court. 9. Ld. Advocate Shri M. J. Michael for the plaintiff has relied upon the decision of the Hon’ble Supreme Court in Ram Niranjan Kajaria Vs. Sheo Prakash Kajaria and others, 2015(10) Scale 98, in support of his submission that an amendment of the written statement to resile from the admission made therein cannot be permitted. The Hon’ble Supreme Court in the said judgment referred to its decisions in Gautam Sarup Vs. Leela Jetly and others, (2008) 7 SCC 85 and Modi Spinning and Weaving Mills Co. Ltd. Vs. Ladha Ram & Co., (1976) 4 SCC 320 dealing with the amendment on withdrawal of admissions in the pleadings. It was held in Modi Spinning and Weaving Mills Co. Ltd. case (supra) that if the amendment is seeking to displace the plaintiff completely from the admissions made by the defendants in the written statement, if such amendment is allowed, the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. 10. In Gautam Sarup’s case (supra), it was held that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. 10 Special Civil Suit (Com.)No.4/18 Exh.D/40 CNR No. GASG010007782018. 11. Ram Niranjan Kajaria’s case (supra) endorsed the view taken in Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and others, (1974) 1 SCC 242 and Gautam Sarup (supra) that a categorical admission made in the pleadings cannot be permitted to be withdrawn by way of an amendment. 12. In reply, Ld. Advocate Shri J. Godinho has submitted that the argument that the defendant no.1 is withdrawing admissions is misconceived. He has submitted that the defendant no.1 is not going back on his admission of receipt of an amount of rupees one crore five lakhs and is thus not withdrawing the admissions. He has further submitted that the defendant no.1 by the proposed amendment only wants to bring on record the fact of payment of rupees eighty two lakhs. On the aspect of limitation, he has submitted that the proposed amendment is not prima facie barred by limitation and therefore, the question whether it is barred by limitation or not would be a question to be decided on merits and not at this stage. 13. By the proposed amendment, the defendant no.1 wants to plead that the defendant no.1 has refunded an amount of rupees eighty two lakhs to the plaintiff through its Director. The defendant no.1 has given the details of the transaction. The proposed amendment also states that the plaintiff’s Director with ill motive and malafide intentions did not disclose the payment and that the plaintiff cannot seek a preliminary decree of the payment on the basis of the statement made in the written statement, without first 11 Special Civil Suit (Com.)No.4/18 Exh.D/40 CNR No. GASG010007782018. adjusting the amount paid to the plaintiff through its Director by the defendant no.1. 14. Admittedly, the defendant no.1 in his written statement has admitted the receipt of rupees one crore five lakhs from the plaintiff. The plaintiff’s claim of payment by the plaintiff to the defendants of rupees three crores forty lakhs has been denied by the defendant no.1. Paragraphs 2(i)(b), 12, 17, 19, 20, 25 and 26 of the written statement of the defendant no.1 indicate that the defendant no.1 has admitted the receipt of an amount of rupees one crore five lakhs only from the plaintiff. The proposed amendment is by way of addition of paragraph 20(A) after paragraph 20 of the written statement. The proposed amendment does not make any changes to any of the aforesaid paragraphs wherein the defendant no.1 has admitted the receipt of rupees one crore five lakhs from the plaintiff. As rightly submitted by the Ld. Advocate for the defendant no.1, the proposed amendment does not take away or withdraw the aforesaid admissions. It is only explanatory/clarificatory in nature. 15. The decision of the Hon’ble Supreme Court in Ram Niranjan Kajaria’s case (supra) does not come to the aid of the plaintiff in the instant case, as the facts and circumstances in that case were different from those at hand. In that case, the amendment was sought in an attempt to resile from the admissions made after 25 years. The legal position is clear that categorical admissions made in the pleadings cannot be permitted to be withdrawn by way of an 12 Special Civil Suit (Com.)No.4/18 Exh.D/40 CNR No. GASG010007782018. amendment. However, the admissions can be clarified or explained by way of an amendment. 16. It is settled principle of law that amendment sought at a pretrial stage ought to be liberally granted. The court is required to be more liberal in granting applications for amendment of written statement. The instant application is for a pretrial amendment and therefore, deserves to be liberally granted. 17. As regards the contention of the Ld. Advocate for the plaintiff that the application for amendment is moved only after the plaintiff filed the application for judgment on admissions and being an afterthought, the amendment ought not to be granted is concerned, there is no dispute about the factual position that the written statement was filed by the defendant no.1 in August 2018 and the proposed amendment is sought in January 2019 only after the plaintiff filed the application under Order XII, Rule 6 of the CPC in November 2018. This aspect however, is not sufficient to reject the amendment application more so, when it has been made at the pretrial stage and it does not have the effect of withdrawing the admissions of the defendant no.1 that he had in fact received rupees one crore five lakhs from the plaintiff. 18. As regards the contention that the proposed amendment is barred by limitation is concerned, Ld. Advocate for the defendant no.1 has rightly submitted that the question of limitation can be considered on merits of the case. 13 Special Civil Suit (Com.)No.4/18 Exh.D/40 CNR No. GASG010007782018. 19. The application for amendment of the written statement deserves to be allowed. 20. Hence, the application is granted. The defendant no.1 is allowed to carry out the amendment to his written statement within a period of 10 (ten) days from today. Pronounced in the Open Court. (Dvijple V. Patkar) District Judge-2, South Goa, Margao. Sp*

Microsoft Word - Spl. C.S. _com._ 4.2018 _O_ exbt.31 _O12,R6 of CPC_ 7 Special Civil Suit (Com.)No.4/18 Exh.D/31 CNR No. GASG010007782018. Exbt.D/31 Special Civil Suit (Commercial) No.4/2018 ORDER BELOW EXHIBIT D/31 (Delivered on this the 30th day of the month of January, of the year 2020) 1. The plaintiff has filed the instant application under Order XII, Rule 6 of the Code of Civil Procedure (in short, the CPC) for judgment and decree on admission. 2. The plaintiff has stated that the defendant no.1 in para no.2 (point a and b), para no.3 (point i), paras no.17, 19, 20, 25 and 26 of his written statement has admitted his (part) liability of having received ₹1,05,00,000/- (Rupees One Crore and Five Lakhs Only) from the plaintiff. The plaintiff has further stated that as the defendant himself has partly admitted his liability of receiving ₹1,05,00,000/- (Rupees One Crore and Five Lakhs Only) from the plaintiff and thus, preliminary decree may be passed in favour of the plaintiff on the above said admission of the defendant no.1. 3. The defendant no.1 has filed reply at Exbt.D/33 objecting to the grant of the application. The defendant no.1 has stated that the plaintiff has prayed in the suit, the specific performance of the contract, so also the recovery of the money, apart from the injunction concerning the immovable properties. The defendant no.1 has further stated that in view of the said prayers, the 8 Special Civil Suit (Com.)No.4/18 Exh.D/31 CNR No. GASG010007782018. application under Order XII, Rule 6 of the CPC is not maintainable. The defendant no.1 has stated that the plaintiff cannot claim both the reliefs simultaneously i.e. specific performance as well as recovery of alleged amount. The defendant no.1 has further stated that the plaintiff through its Director Mr. Rohit Paul has received a sum of ₹82,00,000/- (Rupees Eighty Two Lakhs Only) from the defendant no.1 by RTGS, NEFT and UTR. 4. The defendant no.1 has further stated that the plaintiff cannot seek a preliminary decree on the basis of statement made in the written statement, without first adjusting the amount paid to the plaintiff company through its Director by the defendant no.1. Therefore, the admission of a payment received, if any, by the defendant no.1 cannot give any right to pass preliminary decree under Order XII, Rule 6 of the CPC. 5. The plaintiff filed rejoinder to the reply of the defendant no.1 and thereafter, the defendant no.1 filed sur-rejoinder. 6. The plaintiff in the rejoinder has stated that the defendant no.1 is malafidely trying to wriggle out of his admissions and that the transactions which are now being shown are an afterthought to defeat the legitimate claims of the plaintiff. 7. The defendant no.1 in his sur-rejoinder has stated that the application under Order XII, Rule 6 of the CPC cannot be entertained since the relief now claimed by the application and the prayers in the suit are self-destructive. The defendant no.1 has 9 Special Civil Suit (Com.)No.4/18 Exh.D/31 CNR No. GASG010007782018. further stated that the plaintiff cannot seek a preliminary decree for specific performance as well as recovery of money. 8. Heard Ld. Advocate Shri M. J. Michael for the plaintiff and Ld. Advocate Shri J. Godinho for the defendant no.1. Ld. Advocate for the plaintiff has also filed his written arguments. 9. I have perused the material on record and have considered the arguments advanced. 10. Ld. Advocate Shri M. J. Michael for the plaintiff has submitted that an application under Order XII, Rule 6 of the CPC filed by the plaintiff can be allowed based on the admissions of the defendant no.1 in the written statement and the appeals before the Hon’ble High Court. He has further submitted that it is well established principle of law that when there are unequivocal, unambiguous and unconditional admissions of liability by the defendant, the Court can pass judgment on admissions under Order XII, Rule 6 of the CPC. He has submitted that the admissions of the defendant no.1 with regard to the receipt of ₹1,05,00,000/- (Rupees One Crore and Five Lakhs Only) from the plaintiff are not only in the written statement of the defendant no.1 but also in the appeals filed before the Hon’ble High Court. 11. On behalf of the plaintiff, reliance is placed on the decision of the Hon’ble Supreme Court in Uttam Singh Duggal & Co. Ltd. Vs. Union Bank of India and Others, AIR 2000 SC 2740 in support of his submission that when the claim of the plaintiff is admitted, the Court is competent to pass a judgment on the 10 Special Civil Suit (Com.)No.4/18 Exh.D/31 CNR No. GASG010007782018. admission of the defendant. In that case, it was observed that “As to the object of the Order XII Rule 6, we need not say anything more than what the legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled.” 12. Reliance is also placed on the decision of the Hon’ble Delhi High Court in Vijay Bhushan Arora Vs. Dipak Arora and Others, MANU/DE/4083/2015, wherein it was observed that “Having gone through the plaint, written statement and the averments made in the application, prima-facie, I am of the considered view that it is the defendant Nos.1 and 2 who are in violation of the MOU arrived at between the parties. Defendant Nos.1 and 2 now in the written statement have taken the contrary stand to some extent to the MOU arrived at between them. The MOU has not been denied by them, rather there are admissions made by the defendant Nos.1 and 2 in their written statement. Defendant Nos.1 and 2 have not denied that they have received Rs.12 lac from the plaintiff. Actually, as observed, they are in violation of the terms of the MOU. Therefore, they cannot forfeit the said amount, in view of merely reading the terms and conditions of the MOU. They cannot raise the pleas which are contrary to the terms and conditions of the written agreement 11 Special Civil Suit (Com.)No.4/18 Exh.D/31 CNR No. GASG010007782018. between the parties.” The Hon’ble Delhi High Court referred to the decision of the Hon’ble Apex Court in Uttam Singh Duggal & Co. (supra). 13. Reliance is also placed on yet another decision of the Hon’ble High Court of Delhi in Vijaya Myne Vs. Satya Bhushan Kaura, 142 (2007) Delhi Law Times 483 (DB), wherein it was observed that “the legal position is that the purpose and objective in enacting the provision like Order 12 Rule 6, CPC is to enable the Court to pronounce the judgment on admission when the admissions are sufficient to entitle the plaintiff to get the decree, inasmuch as such provision is enacted to render speedy judgments and save the parties from going through the rigmarole of a protracted trial. The admissions can be in the pleadings or otherwise, namely in documents, correspondence etc. These can be oral or in writing. The admissions can even be constructive admissions and need not be specific or expressive which can be inferred from the vague and evasive denial in the written statement while answering specific pleas raised by the plaintiff. The admissions can even be inferred from the facts and circumstances of the case. No doubt, for this purpose, the Court has to scrutinize the pleadings in their detail and has to come to the conclusion that the admissions are unequivocal, unqualified and unambiguous. In the process, the Court is also required to ignore vague, evasive and unspecific denials as well as inconsistent pleas taken in the written statement and replies. Even a contrary stand taken while arguing the matter would be required to be ignored.” 12 Special Civil Suit (Com.)No.4/18 Exh.D/31 CNR No. GASG010007782018. 14. Ld. Advocate for the plaintiff has also relied upon the decision of the Hon’ble Supreme Court in Sangramsinh P. Gaekwad and Ors. Vs. Shantadevi P. Gaekwad, (2005) 11 SCC 314, wherein it was observed that judicial admissions by themselves can be made the foundation of the rights of the parties. 15. Per contra, Ld. Advocate Shri J. Godinho for the defendant no.1 has contended that the plaintiff has sought the reliefs of recovery of money in the sum of ₹3,40,00,000/- (Rupees Three Crores Forty Lakhs Only) with interest at the rate of 18% on the principal amount, mandatory injunction/possession and perpetual injunction. He has submitted that the plaintiff has not sought the reliefs alternatively but it appears from the prayer clauses that the plaintiff wants money as well as the property and now, also the decree on admissions. He has submitted that only upon trial, the Court will have to decide whether the plaintiff is entitled to the relief of recovery of money as well as the other reliefs. He has submitted that only where a decree of specific performance is refused, the party would be entitled for the recovery of the amount paid as consideration. He has submitted that the plaintiff will have to wait for the final decree and cannot seek a judgment on admissions under Order XII, Rule 6 of the CPC. 16. In reply, Ld. Advocate for the plaintiff has submitted that the relief of specific performance also includes recovery of money and that the Court is empowered to mould the relief. 13 Special Civil Suit (Com.)No.4/18 Exh.D/31 CNR No. GASG010007782018. 17. The plaintiff has in prayer clause (i) sought a decree for recovery of an amount of ₹3,40,00,000/- (Rupees Three Crores Forty Lakhs Only) paid to the defendants by the plaintiff. It is the contention of the plaintiff that the defendant no.1 has admitted part of the liability by making statements in his written statement that he has received ₹1,05,00,000/- (Rupees One Crore and Five Lakhs Only) from the plaintiff. Undisputedly, the defendant no.1 has admitted having received a sum of ₹1,05,00,000/- (Rupees One Crore and Five Lakhs Only) from the plaintiff which is evident from the written statement. However, the defendant no.1 has claimed that he has paid ₹82,00,000/- (Rupees Eighty Two Lakhs Only) to the plaintiff through its Director and has contended that the said amount needs to be set off. The defendant no.1 has filed an application for amendment of the written statement to incorporate these facts of refund of ₹82,00,000/- (Rupees Eighty Two Lakhs Only) to the plaintiff. The amendment application has been allowed by this Court for reasons mentioned in the Order thereon. Considering the claim put forth by the defendant no.1 of refund of ₹82,00,000/- (Rupees Eighty Two Lakhs Only) by way of the amendment, a decree on admission of receipt of ₹1,05,00,000/- (Rupees One Crore and Five Lakhs Only) by the defendant no.1 cannot be passed at this stage. 18. Order XII, Rule 6 of the CPC empowers the Court to pass judgment on admission of facts made either in the pleadings or otherwise, whether oral or in writing which is a discretionary power. 14 Special Civil Suit (Com.)No.4/18 Exh.D/31 CNR No. GASG010007782018. 19. A reading of paragraph 14 of the plaint reveals that it is the plaintiff’s case that an amount of ₹3,40,00,000/- (Rupees Three Crores Forty Lakhs Only) was transferred to the defendants’ account as consideration for certain benefits to the plaintiff as agreed between the parties under the Memorandum of Understanding (MOU) dated 30.12.2015. Clause (ix) of para 14 of the plaint states that the defendants undertook that in the unlikely event of the defendants not succeeding in obtaining the requisite permissions and clear ownership/possessory rights in the properties, the defendants will repay the amount of ₹3,40,00,000/- (Rupees Three Crores Forty Lakhs Only) transferred in their account by the plaintiffs within 180 days from the receipt of the funds from the plaintiffs. It is thus obvious that the plaintiff is entitled for return of the amount paid by it only upon certain conditions recorded in the MOU. 20. The plaintiff has sought reliefs not only for recovery of money with interest but also mandatory injunction/possession in relation to two properties bearing survey nos.37 and 38 of Bati village, Sanguem taluka and perpetual injunction to restrain the defendants from alienating three other properties. Thus, as rightly submitted by the Ld. Advocate for the defendant no.1, since the plaintiff has sought reliefs in relation to the properties also, at this stage, the plaintiff would not be entitled to a judgment on admission of the defendant no.1 with regard to the receipt of ₹1,05,00,000/- (Rupees One Crore and Five Lakhs Only). 15 Special Civil Suit (Com.)No.4/18 Exh.D/31 CNR No. GASG010007782018. 21. The plaintiff has not sought the reliefs in the alternative. Only upon trial, the entitlement of the plaintiff to the reliefs sought by it can be considered. The plaintiff has not sought the relief of recovery of money only. If that was so, then there might have been no difficulty in passing a decree on admission of part liability by the defendant no.1. However, as noticed earlier, in the instant case, the plaintiff has sought other reliefs also. Further, the defendant no.1 has also claimed that he has refunded ₹82,00,000/- (Rupees Eighty Two Lakhs Only) to the plaintiff. In view of these circumstances, the plaintiff is not entitled to a decree on admission under Order XII, Rule 6 of the CPC. 22. Hence, the application is rejected. Pronounced in the Open Court. (Dvijple V. Patkar) District Judge-2, South Goa, Margao. Sp*