NOTICE OF MOTION (L) NO. 2304 OF 2018

5th September 2019

Petitioner Counsel: Mr. Rohaan Cama Ms. Sapana Rachure
Respondent Counsel: Ms. Kranti S. Anand Ms. Neeta Karnik
Act Name: Code of Civil Procedure, 1908 Code of Criminal Procedure, 1973 Transfer of Property Act, 1882

Section :
Section 105E Code of Criminal Procedure, 1973 Section 151 Code of Civil Procedure, 1908 Section 100 Transfer of Property Act, 1882

Cases Cited :
Paras 14, 27: Keshrimal Jiviji Shah & anr. Vs. Bank of Maharashtra & Ors., 2004 Company cases (122) pg. 831
Paras 14, 25: Satyabrata Biswas & Ors. Vs. Kalyan Kumar Kisku & Ors., AIR 1994 SC 1837
Paras 14, 26: Surjit Singh & Ors. Vs. Harbans Singh & Ors., (1995) 6 SCC 50
Paras 15, 29: Municipal Council, Shirdi Vs. Sau. Soniya Devidas Patil & Ors., 2009(2) ALL MR 847
Paras 15, 29: Delhi Development Authority Vs. Skipper Construction Company (P) Ltd. & Anr., AIR 1996 SC 2005
Paras 15, 29: All Bengal Excise Licensees Association Vs. Raghavendra Singh & Ors., AIR 2007 SC 1386
Para 18: Bapurao Dajiba Vs. Narayan Govind Kale, AIR 1950 Nagpur 117
Para 19: Abdul Ghaffar Khan & Anr. Vs. Ishtiaq Ali & Ors., AIR (30) 1943 Oudh 354
Para 30: K. Muthuswami Gounder Vs. N. Palaniappa Gounder, AIR 1998 SC 3118
Para 30: Oil and Natural Gas Corporation Ltd. Vs. Official Liquidator of M/s. Ambica Mills Company Ltd. & Ors., AIR 2014 SC 3011

JUDGEMENT

1. The Applicant who is the Plaintiff in the above Suit has taken out the Notice of Motion challenging the agreement for sale dated 15th September 2015 in respect of Flat No. 704, Evershine Woods, 7th Floor, B3(3) Building, Mira Road (E), District Thane (“the subject flat”) and for declaring the said agreement for sale to be illegal, null and void, non-est, bad in law and not binding on the Plaintiff.

2. The Applicant has further sought a direction against Respondents No. 1 to 3 and Respondents No. 5 to 8 to take all necessary steps to cancel the agreement for sale dated 15th September 2015 and failing which the Court Receiver to be directed to do the same as well as forthwith take physical possession of the subject flat and handover the same to the Plaintiff. Prayer (d) of the Notice of Motion has already worked itself out and hence, has become infructuous.

3. The Plaintiff had filed the above Suit claiming compensation on account of financial loss caused to the Plaintiff and compensation on account of the injury caused to the Plaintiff due to the acts of the Defendants. The Plaintiff has also sought sale of the 14 properties purchased and acquired in the names of Defendants No. 2 to 4 out of the amounts from the Plaintiff's bank account by forging cheques in the Plaintiff's name.

4. The Plaintiff upon learning of various amounts being siphoned by the Defendants No. 2 to 4 from the Plaintiff's bank account and which was utilised by these Defendants for purchase of 14 properties filed a First Information Report with the concerned police station. The police authorities made an application before the additional Chief Metropolitan Magistrate for confirmation of attachment which was confirmed by the additional Chief Metropolitan Magistrate on 16th May 2009. Thereafter, the Plaintiff made an application before the additional Chief Metropolitan Magistrate for return of the said properties, however, the same was rejected on 31st August 2009. The Plaintiff at the time of filing the captioned Suit had taken out Notice of Motion No. 543 of 2010 on 20th February 2010 for urgent relief. Around the same time, the Plaintiff addressed a letter to the Respondent No. 8-Society and requested not to grant a 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 dated 28th March 2011. However, the learned Judge of this Court (the then B.R. Gavai, J.) in the said order held that the parties were granted liberty to apply to the learned Judge in the above Suit for further orders regarding the said properties. It was also ordered that until appropriate orders are passed by the learned Civil Judge in the above Suit, neither the Petitioners (Respondents No. 2 and 3 herein) nor the Respondent No. 2 (the Applicant herein) shall deal with the said properties in any manner and would maintain status quo in respect thereof.

6. Notice of Motion (L) No. 2659 of 2014 and Notice of Motion No. 964 of 2010 were taken out by the Plaintiff inter alia seeking relief of appointment of Court Receiver for 11 properties as well as disclosure of deposit by the Respondents No. 2 and 3 of the total licence fees amount received by them.

7. Respondent No. 4-Evershine Builders Private Limited had filed a Criminal Writ Petition No. 3102 of 2010 challenging the attachment of the subject flat by the Economic Offence Wing (EOW). An order came to be passed by this Court dated 22nd January 2013 (the then A.M. Thipsay, J.) in this Criminal Writ Petition whereby the attachment was quashed and the investigating agency was directed to handover the said property to the person in possession.

8. Respondent No. 4 had by letter addressed on 21st June 2013 denied that the Respondents No. 1 to 3 have any right, title or interest in the subject flat and this was communicated to the advocates of the Applicant. Further, the Respondent No. 4 also filed Affidavit in Reply in the Notice of Motion (L) No. 2659 of 2014 wherein it is stated that since passing of the order dated 22nd January 2013 by this Court, the Respondent No. 4 has been in legal and physical possession of the said flat. By subsequent orders passed by this Court on 23rd December 2014, 7th September 2015, 23rd September 2015, 30th September 2015, Respondents No. 2 and 3 were directed to file an Affidavit disclosing the details of the properties including the subject flat. The Respondent No. 2 pursuant to the said orders filed an Affidavit on 16th September 2015 stating that the subject flat was in her possession. It is necessary to note that one day prior to this Affidavit i.e. on 15th September 2015, an agreement for sale had been entered into between Respondent No. 2 and Respondents No. 5 to 7 wherein 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 2016 and the Court Receiver's Report which were placed before this Court was considered and the Court Receiver's Report was disposed of by permitting the Plaintiff to make payment of the balance consideration to Respondent No. 4 in respect of the subject flat and take possession of the subject flat. Pursuant to the said orders, the Applicant has paid an amount of Rs. 10,00,000/- towards balance consideration of the subject flat.

10. The Court Receiver on 3rd September 2018 which was the date fixed for taking possession of the subject flat, visited the subject flat when it was found that the Respondents No. 5 to 7 were in possession and hence, the Plaintiff through the Court Receiver could not take possession of the subject flat. In the light of above, the Applicant/Plaintiff has taken out this Notice of Motion challenging the agreement for sale and/or transfer of the subject flat being in breach of the said orders of injunction and/or status quo of this Court.

11. Mr. Rohaan Cama, the learned Counsel for the Applicant/Plaintiff has submitted that the subsequent transfer by the purported agreement for sale entered into by Respondents No. 2 and 3 with Respondents No. 5 to 7 being in breach of an injunction or an order of status quo then regardless of the subsequent transferee (Respondents No. 5 to 7) claiming to be a bona fide purchaser for value without notice and regardless of the merits of the matter, such a transfer is void ab initio, entirely illegal and must be quashed and set aside. He has submitted that the Respondents No. 2 and 3 had made an express statement in their Affidavit that during the pendency of the present Suit, they shall not dispose of and/or create third party rights in respect of any of the properties (including the subject flat) standing in their name. This statement was accepted by this Court and ad-interim relief was granted in accordance with the statement by order dated 11th August 2010. Further, this Court in the 14 Criminal Writ Petitions filed by Respondents No. 2 and 3 challenging the orders in Civil Revision Application which had released the said properties to the Plaintiff by the order of the Sessions Court, by order dated 4th July 2011 (the then B.R. Gavai, J.) quashed and set aside the orders of the Sessions Court. In the said order, it was ordered that neither the Respondents No. 2 and 3 nor the Applicant shall deal 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 civil Court. Hence, there was no question of the order of the then A.M. Thipsay, J. in any manner diluting or affecting the order of status quo of the then B.R. Gavai, J., which operated subject to further orders to be passed by the Civil Judge in the above Suit. He has further submitted that the further order was ultimately passed by the Civil Judge of this Court viz. S.C. Gupte, J. in the above Suit on 13th April 2016, who observed that the prayers in the Suit which was for the financial loss caused to the Plaintiff on account of monies siphoned from the Plaintiff's bank account by Respondent No. 1 for purchasing the said properties in the name of his wife (Respondent No. 2) and his wife's brother (Respondent No. 3). The learned Judge had prima facie, held that there was significant fraud and forgery played by Respondents No. 1 to 3.

13. The learned Counsel for the Applicant has submitted that by the order of S.C. Gupte, J., the Court Receiver was appointed in respect of the said properties. It was expressly held in the order of S.C. Gupte, J. that the subject flat was with Respondent No. 4 and upon the Plaintiff paying the balance consideration through the Court Receiver to the Respondent No. 4 for the subject flat, the Court Receiver shall take over the subject flat and handover the possession thereof to the Plaintiff as agent of the Court Receiver. He has thus, submitted that it is now not open for the Respondents No. 2 and 3 to claim that the subject flat was in their possession and that they were in a position to transfer the subject flat to Respondents No. 5 to 7. He has submitted that the order of S.C. Gupte, J. dated 13th April 2016 has attained finality in the Notices of Motion which were before the learned Judge. He has submitted that the Respondents No. 1 to 3 had sought to challenge the said order, but the challenge had been rejected on the ground of office objection and thereafter, these Respondents had not restored their challenge to the said order.

14. He has submitted that the transfer by Respondents No. 2 and 3 to the Respondents No. 5 to 7 was made in violation of the two orders i.e. orders of the then R.Y. Ganoo, J. and the then B.R. Gavai, J. which had granted injunction or status quo albeit the order the then R.Y. Ganoo, J. being in terms of a statement made by the Respondents No. 2 and 3 which was accepted by this Court. He 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 cancel the transaction. He has relied upon the judgments of this Court in (i) Municipal Council, Shirdi Vs. Sau. Soniya Devidas Patil & Ors., 2009(2) ALL MR 847, (ii) Delhi Development Authority Vs. Skipper Construction Company (P) Ltd. & Anr., AIR 1996 SC 2005 and (iii) All Bengal Excise Licensees Association Vs. Raghavendra Singh & Ors., AIR 2007 SC 1386.

16. He has submitted that the Respondents cannot ask this Court to go behind the orders of injunction/status quo by contending that these orders go beyond the final relief sought for in the Suit. He has submitted that the orders passed by the then R.Y. Ganoo, J., the then B.R. Gavai, J. and S.C. Gupte, J. have after considering the prayers sought for in the above Suit passed their orders. Further, he has submitted that the order of S.C. Gupte, J. has set out the prayers sought for in the above Suit and has accordingly, granted the relief to the Plaintiff in respect of the subject flat. He has submitted that this Court not only has the power, but also the duty as a matter of judicial policy, and regardless of any other factors whatsoever to ensure that the status quo ante as on the date of the orders of the then R.Y. Ganoo, J. and the then B.R. Gavai, J. be restored and the subject flat be handed over as per the order of S.C. Gupte, J. He has submitted that the transfer done in breach of these orders is ex-facie illegal and void ab initio as held by the Supreme Court and must be undone.

17. Ms. Neeta Karnik, the learned Counsel for the Respondents No. 5 to 7 has submitted that the final prayer in the Suit does not seek title to the properties including the subject flat and absent that no interim relief can be passed in respect of the said properties including the subject flat. She has submitted that the final prayer sought in the above Suit is for a monetary decree for compensation claimed for financial loss caused to the Plaintiff due to the acts of the Defendants. She has submitted that prayer (c) in the Plaint seeks an order for sale of the properties for having been illegally purchased and acquired by the second Defendant by withdrawing the amounts from the Plaintiff's account by forging cheques and for the proceeds to be appropriated towards the part satisfaction of the decree to be passed by this Court. She has submitted that this prayer is akin to a charge on the properties in satisfaction of the 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 phrases 'act of party' and 'operation of law' must be read as exhaustive of all ways in which rights of parties can be affected. It has been expressly provided in this decision that an act of party is nothing more than expression of the will or intention of a party concerned, directed to the creation, transfer or extinction of a right and effective for that purpose. This decision also holds that an order of the Court is law between the parties and the resulting relations of the parties are governed by law and this being so, the Court has held that it cannot be said that the decrees are outside the pale of law or operation of law and the doctrine of notice would normally apply to the decrees or orders creating charges.

19. She has also relied upon the judgment of Full Bench of Oudh Court in Abdul Ghaffar Khan & Anr. Vs. Ishtiaq Ali & Ors., AIR (30) 1943 Oudh 354, which has also held that a charge created by a decree of a Court is a charge created by operation of law and comes within Section 100 of the Transfer of Property Act. She has accordingly submitted that in the present case, the charge which was created by act of parties as well as operation of law and which could be seen from the order of the then R.Y. Ganoo, J. would be a charge on the properties including the subject flat towards the monetary decree being sought for by the Plaintiff.

20. She has submitted that the Suit is not a Suit for specific performance of the subject property and hence, in terms of the prayers, the relief sought in the present Notice of Motion which seeks to cancel the agreement for sale between the Respondent No. 2 and the Respondents No. 5 to 8 cannot be granted as and by way of interim relief in the Suit as framed.

21. She has further submitted that full consideration has been paid by Respondents No. 5 to 7 under the agreement for sale between Respondent No. 2 and Respondents No. 5 to 7 and that Respondents No. 5 to 7 are residing in the subject flat since 2015. The agreement for sale having been entered into on 15th September 2015, the possession of these Respondents should now not been disturbed by granting relief in the present Notice of Motion. She has placed reliance upon the Affidavit of Respondent No. 6 filed on behalf of Respondents No. 5 to 7 dated 15th July 2019 in order to contend that the entire purchase consideration under the agreement for sale has 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 Plaintiff, the statement seized to operate. She has submitted that on the date of the order of the then R.Y. Ganoo, J., there were third party licensees in possession of the said properties and hence, third party rights had already been created when the order had been passed.

23. She has submitted that the Plaintiff had undertaken to withdraw the above Suit as recorded in the order of the Supreme Court dated 7th September 2015. This was on the ground that proceedings were before the National Consumer Disputes Redressel Commission between the Plaintiff and the original Defendant No. 1, Standard Chartered Bank. She has submitted that the Supreme Court had granted liberty to the Applicant to apply before the Commissioner seeking leave to proceed in the matter by dropping the above Suit. She accordingly, submits that the Notice of Motion had been taken out by the Respondents No. 1 to 3 seeking dismissal of the Suit on the said ground. However, the Notice of Motion No. 1244 of 2016 was dismissed by the order dated 13th March 2019 by this Court.

24. She has submitted that the prayers in the Suit are for monetary decree and that no prayer has been sought in respect of possession of the said properties including the subject property and hence, the order of the then R.Y. Ganoo, J. could not have been passed in the light of the prayers in the Suit. She has further submitted that the order of the then B.R. Gavai, J. was passed in criminal proceedings and hence, could not have any bearing on the civil proceedings in the above Suit and hence, upon the criminal proceedings being quashed, the said order could not be held to operate as a status quo order in the above Suit. She has submitted that in any event, the subsequent order of the then A.M. Thipsay, J. in Criminal Writ Petition has set aside the attachment of the said properties including the subject flat and the said order would nullify the order of status quo granted. She has submitted that the subsequent order of S.C. Gupte, J. had failed to appreciate that the possession of the subject flat was with the Respondents No. 2 and 3 by holding that the Applicant shall obtain possession of the subject flat through the Court Receiver by paying the balance consideration to the Respondent No. 4. She has submitted that in any event, there was no balance consideration payable to the Respondent No. 4, as the entire consideration 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. This will all the more be so when this is done without the leave of the court to disturb the state of things as they then stood. It would amount to violation of the order. The principle contained in the maxim 'actus curiae neminem gravabit' has no application at all to the facts of this case when in violation of status quo order a sub-tenancy has been created. Equally, the contention that even a trespasser cannot be evicted without recourse to law is without merit, because the state of affairs in relation to property as on September 15, 1988 is what the court is concerned with. Such an order cannot be circumvented by parties with impunity and expect the court to confer its blessings. It does not matter that to the contempt proceedings Somani Builders was not a party. It cannot gain an advantage in derogation of the rights of the parties, who were litigating originally. If the right of subtenancy is recognised, how is status quo as of September 15, 1988 maintained? Hence, the grant of sublease is contrary to the order of status quo. Any act done in the teeth of the order of status quo is clearly illegal. All actions including the grant of sublease are clearly illegal.

26. It has been expressly held in the above decision that an act done in the teeth of the order of status quo is clearly illegal. This has also been held by the Supreme Court in Surjit Singh (supra). This decision has held that when the Court intends a particular state of affairs to exist while it is in seizin of a lis, that state of affairs is not only required to be maintained, but it is presumed to exist till the Court orders otherwise. The Court has the duty as also right to treat the alienation as having not taken place at all for its purposes, when such alienation is in defiance of a restraint order.

27. This Court by relying upon the above two decisions of the Supreme Court has held in the judgment of Keshrimal Jiviji Shah (supra) thus:-
“It would mean that parties can breach and violate Court orders openly and with impunity and neither they nor the beneficiaries suffer any consequences. It is time that we recognise the principle that transfer of immovable property in violation of an order of injunction or prohibition issued by Court of law, confers no right, title or interest in the transferee, as it is no transfer at all. The transferee cannot be allowed to reap advantage 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. Gavai, J., which were orders of adinterim injunction and status quo to be maintained by the parties viz. the Applicant as well as the Respondents No. 2 and 3 in respect of the said properties including the subject flat. The first of the orders, i.e. the order of the then R.Y. Ganoo, J. was an ad-interim injunction in terms of the statement made by the Respondents No. 2 and 3 in their Affidavit that they will not deal with the said properties standing in their names during the pendency of the Suit. The second order of the then B.R. Gavai, J. although passed in a Criminal Writ Petition i.e. the criminal Writ Petition filed by the Respondents No. 2 and 3 herein, expressly ordered that neither the Respondents No. 2 and 3 nor the Applicant shall deal with the said properties in any manner and would maintain status quo in respect thereof. The learned Judge had granted liberty to the parties to apply in accordance with law in the above Suit for further orders regarding the said properties. This Application was made and which led to the order of S.C. Gupte, J. who appointed the Court Receiver in respect of the said properties including the subject flat. The Applicant was permitted to pay the balance consideration to the Respondent No. 4 and thereby obtain possession of the subject flat through the Court Receiver. I do not find that the order of the then A.M. Thipsay, J. in the Criminal Writ Petition filed by the Respondent No. 4 had in any manner upset the status quo order of the then B.R. Gavai, J. The said order had only set aside the attachment in respect of the said properties on the ground that the said properties has been seized in purported exercise of powers under Section 105E of the Code of Criminal Procedure, 1973 which had no applicability to the facts of the case. It was in fact held in the said order that it was for the Civil Court to settle these disputes and such disputes cannot be allowed to be raised in the Criminal Writ Petition. Thus, the orders of this Court of the then R.Y. Ganoo, J. and the then B.R. Gavai, J. continued to operate till the order of S.C. Gupte, J. who granted relief to the Applicant in the Notices of Motion filed in the above Suit.

29. I find that the agreement for sale entered into between the Respondent No. 2 and the Respondents No. 5 to 7 is in breach of the injunction and status quo orders of the then R.Y. Ganoo, J. and 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 flat during the pendency of the Suit and on the acceptance of which the ad-interim relief had been granted by order of the then R.Y. Ganoo, J. cannot in any manner be held to be a charge on the subject flat as security for the monetary decree prayed for in the above Suit. It is well settled by the Supreme Court in K. Muthuswami Gounder Vs. N. Palaniappa Gounder, AIR 1998 SC 3118 and Oil and Natural Gas Corporation Ltd. Vs. Official Liquidator of M/s. Ambica Mills Company Ltd. & Ors., AIR 2014 SC 3011 that a statement or undertaking to the Court that the parties will maintain status quo in respect of the property cannot be treated as a charge on the said property for satisfaction of a monetary decree. For a charge to be created there must be an obligation to make payment out of the property specified and thus, a clear recital should be there which creates an obligation to make payment of a decretal amount out of the property in question. The statement in the present case that the parties will not deal with the said properties cannot be treated as a charge on the subject flat for payment of an eventual monetary decree, which may be passed in favour of the Plaintiff. In fact, the charge cannot arise as there is no obligation to make payment out of the subject flat and in fact, it is a general statement that the Respondents No. 2 and 3 will not deal with the 14 properties which includes the subject flat which has been accepted by this Court. The decisions cited by the learned Counsel for the Respondents No. 5 to 7 including the decision of the then Nagpur High Court are not applicable in the facts and circumstances of the present case. In fact, the learned Counsel for the Applicant has referred to a decision of the Hon'ble Division Bench of this Court (Judgment pronounced on 4th June 2019 in Appeal (L) No.83 of 2019) in the present Suit in respect of one of the said properties which specifically recognised that the order of the then R.Y. Ganoo, J. was an order restraining the Respondents No. 2 and 3 from dealing with the said properties. Hence, it is not open for these Respondents to contend that the order of the then R.Y. Ganoo, J. was not in fact an order of injunction and/or in some way created a charge.

31. Further, the submission on behalf of the Respondents No. 5 to 7 as well as made on behalf of the Respondents No. 1 to 3 that the relief sought for in 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 finding that the transfer of the subject flat by agreement for sale between these Respondents is void ab initio on account of the transfer being in breach of an order of injunction and/or status quo granted by this Court.

32. Respondents No. 2 and 3 have sought to mislead this Court by referring to an order passed by the Supreme Court where the Supreme Court had in a dispute between the Applicant and the Original Defendant Standard Chartered Bank granted liberty to the Applicant to apply before the National Consumer Disputes Redressal Commission seeking leave to proceed in the matter by dropping the above Suit against the Bank. The proceedings in the National Consumer Dispute Redressal Commission was between the Applicant and the Standard Chartered Bank and was never between the Applicant / Plaintiff and Respondent Nos. 1 to 3 / Defendant Nos.2 to 4 in the above Suit. This has been expressly observed in the subsequent order dated 13th March 2019 passed by this Court which dismissed the Notice of Motion taken out by the Respondents No. 1 to 3 for dismissal of the above Suit by relying upon the Supreme Court Order. Further, the Plaintiff deleted the Standard Chartered Bank as original Defendant No. 1 in the above Suit and this was in accordance with statement made to the Supreme Court.

33. Further, the submission on behalf of the Respondents No. 1 to 3 that the order of the then R.Y. Ganoo, J. was only by way of an interim arrangement between the Applicant and these Respondents, pending the settlement which was being negotiated cannot be accepted. The order of the then R.Y. Ganoo, J. was clearly an ad-interim order of injunction passed by the learned Judge by accepting the statement of Respondents No. 1 to 3 that they will not deal with the said properties during the pendency of the Suit. This cannot be considered an interim arrangement pending settlement as contended by these Respondents. Further, the order subsequently passed by K.R. Shriram, J. on 23rd December 2014 has in the context of the purported settlement being negotiated as claimed by the Respondents No. 1 to 3 has recorded that the Applicant strongly denied that negotiation talks of any settlement was on. Hence, there is no merit in these submissions on behalf of the Respondents No. 1 to 3.

34. In view of the above findings, the Notice of Motion is required to be made absolute by granting prayer clauses (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, nonest, 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 SubRegistrar 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 the Respondents No. 5 to 7 applies for stay of the judgment and order for a period of eight weeks. Considering the findings in the judgment that the agreement for sale dated 15th September 2015 in respect of the subject flat under which Respondents No. 5 to 7 came into possession of the subject flat is illegal, null and void, non-est, bad in law and not binding upon the Plaintiff, the request is rejected.