PARRY AND CO. LTD. Vs. BINNY LTD.

JUDGEMENT

(1.) The above appeal is against a common order passed by a learned single Judge in Application Nos. 2361 and 2458 of 1995 in O.A. No. 347 of 1995 in C.S.No. 503 of 1995. The suit has been filed by the appellant for a permanent injunction restraining the respondent from in any manner acting in breach of the restrictive covenants found in the Indenture of transfer and Assignment dated 26th March, 1950 by which the respondent acquired the properties bearing Door No. 1, Boat Club III Revenue, No. 8 Boat Club III Revenue No. 17, Boat Club Road, No. 14, Boat Club Road and open space behind No. 14 Boat Club Road, Madras 28, the deed of Mutual Covenant dated 8th March 1967 and the Indenture of Amendment to the said deed executed in November/December 1992 and in particular, through offering any of the said properties for sale to any third parties without giving first option to the plaintiff and other parties to the said indentures or by making or allowing any construction to be made on the said properties of more than two dwelling units per plot of four grounds or our dwelling unit in not less than two complete grounds of land and which dwelling units will consist of only ground and first floor. Pending the suit, the appellant has applied for interim injunction on the same terms in O.A.No. 347 of 1995. When notice was ordered in the said application on 7-4-1995, interim injunction was also granted. The respondent filed application No. 2361 of 1995 for suspending the operation of the said order and Application No. 2458 of 1995 to vacate the same. All the three applications were heard along with O.A.No. 346 of 1995 and Application No. 2370 of 1995 in C.S.No. 502 of 1995 which was a similar suit filed by the appellant against another party, viz. ITC Limited. A common order was passed on 16-5-1995 by which the learned single Judge dismissed O.A. Nos. 346 and 347 of 1995 and vacated the interim orders passed on 7-4-1995. Consequently, Application No. 2361 of 1995 was dismissed as unnecessary. The appellant filed O.S.A. Nos. 135 and 136 of 1995. O.S.A.No. 135 of 1995 has already been disposed. This appeal could not be heard along with the same as this was not ready at that time.

(2.) The above application O.S.No. 593 of 1995 is filed in O.S.No. 774 of 1995, which is a suit similar to C.S.No. 503 of 1995, filed by different parties but against the same defendant, who is the respondent herein. There are seven plaintiffs in the said suit and the prayer is the same as the prayer in C.S.No. 503 of 1995 with respect to the same property. With the consent of both sides in the application, it has been withdrawn to our file by order dated 10th July 1995 to be heard along with the above appeal in view of the fact that the contentions are the same and the relevant records to be considered are also the same.

(3.) The common case of the plaintiffs in the two suits is in short as follows:- The plaintiffs in both the suits and the defendant are owners of properties in the Adyar Boat Club Area. An extent of 40 acres of land situated in R.S.No. 3901 in what was known as Mowbrays Gardens previously and now known as Adyar Boat Club Area belonged to one John De. Monto, who died leaving behind a will, in which the Rt. Rev. Bishop of Mylapore was made the Trustee of the testator's property. After the will was probated, the Bishop executed a deed of absolute conveyance on 26-3-1449 in favour of two persons, one of them being a Director of the defendant Company and the other being a Solicitor, as trustees for eight purchasers mentioned in the Second Schedule there to for and on behalf'of the said purchasers. The defendant was one of the eight purchasers and the plaintiff in C.S. No. 503 of 1995 was another. The two persons who purchased the properties as Trustees, executed deeds of transfer on 26-5-1950 in favour of the said eight purchasers. The first plaintiff in C.S.No. 774 of 1995 was incorporated in 1949 prior to the execution of the deeds of transfer referred to above, with seven share holders for the purpose of acting as a holding company with the object of monitoring and executing the proposed development work and maintenance of the extents of land. The aforesaid eight purchasers were the shareholders of the said company. The Company purchased approximately 2.40 areas in its own name. After completion of the development works including the formation of the roads, the same was handed ever to the Madras corporation, while the first plaintiff continued to be involved in the future maintenance of the area. The company also leased out approximately 1.25 acres of land, for the formation of Madras Boat Club and thus the locality came to be known as Adyar Boat Club Area. The defendant was also one of the eight purchasers referred to' above.