SHANTILAL JETHABAI KHONA Vs. ANANDRAI SHIVLAL DAVE

JUDGEMENT

(1.) THIS motion by defendant No. 3 seeks amongst others reliefs, a declaration that the lis pendens notice registered under section 52 of the Transfer of Property Act with the Sub-Registrar at Bombay, on 29th April, 1999 be declared as null and void, illegal and ineffective and the same be set aside. The further prayer sought is that pending hearing and final disposal of the suit, this Court be pleased to forthwith deregister the notice of lis pendens dated 29th April, 1999. There are also some other prayers. The motion is supported by the affidavit of Pratap C. Lodaya, partner of defendant No. 3. Defendant No. 3 is the purchaser of the property from defendant No. 1. In the affidavit it is averred as to why the reliefs as prayed for should be granted. The plaintiff has filed his reply dated 5th September, 2000. In the said affidavit it is averred that the defendants motion is not maintainable and is liable to be dismissed. The plaintiff has then replied to the averments in the affidavit in support of the motion. It is pointed out that the 2nd defendant was a co-purchaser along with the plaintiff in the agreement entered into with defendant No. 1 for purchase of the property. Pending suit is for specific performance of that agreement. It is pointed out that in an earlier suit filed by the defendant No. 1 wherein both the plaintiff and the defendant No. 2 were parties, consent terms were filed and the suit against the present plaintiff was withdrawn. The consent terms as filed in the Court did not disclose that the defendant No. 3 had paid money to defendant No. 2 and to the 1st defendant. The object and consideration of that deal, according to the plaintiff, is unlawful and opposed to public policy. There are various other averments which I need not refer to for the reasons set out hereinafter. In sum and substance the contention of the plaintiff is that the reliefs prayed for in the motion ought not to be granted and the motion be dismissed.

(2.) THE plaintiff in the suit had also taken out Notice of Motion No. 1088 of 1999. In that motion the plaintiff had sought an interim injunction against the defendants. The suit filed by the plaintiff is for specific performance of a contract against defendant No. 1. The suit is based on a contract between the plaintiff and defendant No. 2 on the one hand as the purchasers and defendant No. 1 on the other hand as the seller. The defendant No. 1 for various reasons terminated the said agreement. Defendant No. 1 thereafter filed a suit for a declaration that the termination is valid and for recovery of possession. In that suit the plaintiff and defendant No. 2 were parties. The plaintiff was served. Consent terms came to be filed therein between the defendant No. 1 and defendant No. 2 herein. Pursuant to the said consent terms the defendant No. 2 herein handed over possession of the suit property. The suit against the present plaintiff was withdrawn. The plaintiff at the relevant time was not present though served. In the motion by the plaintiff in the present suit, considering that the defendant No. 2 has not joined the plaintiff in the suit for specific performance of the contract and further that the defendant No. 2 had handed over possession and as development had taken place on the property and also as the suit was filed with great delay subsequent to the termination of the contract by order dated 10th August, 2001, the motion came to be dismissed. It may be set out that while disposing of the motion, this Court has taken a view that the plaintiff in the present suit considering the facts and circumstances prima facie if so entitled can claim alternative relief by way of damages in lieu of specific performance. With the above back ground the present motion can now be heard and decided. Section 52 (1) of the Transfer of Property Act as amended in the State of Maharashtra reads as under:-

(3.) ON behalf of the defendant No. 3 it is contended that though lis pendens has been registered, the defendant No. 3 as the purchaser from defendant No. 1 should be relieved of the said registration. It is contended that lis pendens can be registered irrespective proof of the strength or weakness of the case of the parties. In the instant case, however, the suit is based on an agreement in respect of which specific performance is sought. Assuming there may be charge on the property however, no relief in so far as the consideration paid under the agreement been sought. In these circumstances this would be a fit and proper case where this Court relieves the defendant No. 3 from lis pendens. Reliance has been placed on the authorities which will be adverted to hereinafter. On the other hand on behalf of the plaintiff it is contended that there is a validly registered lis pendens in favour of the plaintiff. The object behind permitting registration of lis pendens in the course of a suit is to protect the plaintiffs interest in the suit property pending the suit. The property even if transferred or alienated in the course of the proceedings, the plaintiff has not to pursue such subsequent purchasers of the property. In such a suit if after registration of the lis pendens, the property is transferred or alienated the said transfer or alienation is not binding on the plaintiff nor does it confer a right or title in the property in the purchaser and the plaintiff is not bound to seek any relief against such third parties. They can seek possession in the suit itself. It is, therefore, contended that it is a right which can be registered irrespective of the strength of the case. In the instant case the plaintiff has registered the lis pendens after complying with the formalities as required in the State of Maharashtra. The suit filed by the defendant No. 1 was for a declaration that the termination was illegal, null and void. It has been withdrawn. No leave was sought from the Court to sue plaintiff in respect of the reliefs which were prayed for in that suit in subsequent proceedings. Possession of the property was not taken from the plaintiff. In these circumstances the motion should be dismissed.