Heard learned Advocates for the parties.
In this Writ Petition under Articles 226 and 227 of the Constitution of India, the petitioners / original defendants have challenged the order passed by the learned Additional Sessions Judge, Valsad dated 21.10.2011 in Miscellaneous Civil Appeal No.33/2010 by which the order dated 12.08.2010 passed below Exhibit V in Special Civil Suit No.61/2009 by the learned 2nd Additional Senior Civil Judge, Valsad, Camp at Vapi was not interfered with.
Initially, the plaintiffs one of the private respondents herein had filed a suit for seeking declaration and permanent injunction till the pendency and final disposal of the suit and restraining the defendants from transferring, alienating or putting up any construction over the subject property of the suit on the strength of the Agreement of June 2008, by which the vendors had agreed to sell the subject piece or parcel of an industrial open plot bearing No.1517 admeasuring 2030 sq. mtrs. situated at GIDC, Umbergaon Industrial Area, District Valsad. It is further not in dispute that upon an application submitted by the original allottee namely M/s. Modern Industries, the competent authority of GIDC intimated transfer of Plot No.1517 as above as per the communication dated 06.05.2009 and permission to transfer and it was stated in the communication that upon fulfillment of certain conditions, permission to transfer can be granted as provided in Clause 5 of License Agreement, i.e. between the Licensor - GIDC and Licensee - M/s. Modern Industries. It is the case of GIDC that conditions mentioned in the above communication dated 06.05.2009 were fulfilled.
In the above backdrop of facts, learned 2nd Additional Senior Civil Judge, Valsad, Camp at Vapi accepted the injunction Application Exhibit 5 and restrained the defendants from transferring, alienating and/or to putting up construction over the said property, which in Appeal came to be confirmed.
Learned Advocate for the petitioner would contend that the Courts below erred in law in restraining the original Licensee from putting up construction over the property contending dispute between Licensee and holder of rights arising out of the Agreement in question, since no registration had ever taken place for conveyance of transfer of the subject property. It is further submitted that even prima-facie case balance of conveyance and irreparable loss are not considered on the basis of the material on record when the suit was based on an Agreement for Sale under which title is claimed that is unregistered. It is therefore submitted that till the final decision in the Suit, the restriction of construction over the property be removed and/or modified and order by the Trial Court confirming the appeal deserves to be quashed and set aside accordingly to the above extent.
Learned Advocate for GIDC Mr. R.D. Dave would submit that the decision which was communicated by GIDC on 06.05.2009 to the Licensee - M/s. Modern Industries was only an intimation and transfer was to be approved upon fulfillment of conditions and permission of transfer was to be granted as per Clause 5 of the License Agreement and none of the conditions mentioned therein were fulfilled.
Learned Advocate Mr. Jal Unawala for respondents No.2 and 3 (for original plaintiffs) would submit that the Courts below have gone into prima-facie scrutiny of the record and after considering the communication dated 06.05.2009, the provisional transfer order dated 06.05.2009 was passed and though the agreement for sale may not have been registered, the terms and conditions mentioned therein would cast an obligation to be performed by the vendor in favour of the purchaser and if the orders passed by the Courts below are modified and/or quashed and set aside, it would result into irreparable loss and therefore, in exercise of powers under Articles 226 and 227 of the Constitution of India, no interference is warranted in a case like this where concurrent findings are recorded by the Courts below.
Upon consideration of overall facts and circumstances as above, prima-facie the intimation of 06.05.2009 by Licensor - GIDC to the Licensee - M/s. Modern Industries was passed on certain conditions and transfer was dependent on fulfillment of certain conditions and particularly, Clause 5 of the License. It is further not in dispute that the Agreement for Sale between M/s. Modern Industries and the purchaser - Mrs. Beenaben Jayeshbhai Gor was un-registered and performance of the said part of the Contract was dependent on GIDC taking a final decision. In the above circumstances, if the Licensee who is the lawful allottee of the subject plot in question would like to carry on construction over the property in accordance with law and rules and regulations prescribed by GIDC in this regard, any injunction restraining the said licensee would not only cause irreparable loss but undue hardship and the claim of the plaintiff is based only on the Agreement to Sell.
In the above circumstances, interest of justice would be met if the defendant is restrained from transferring/alienating the subject piece or parcel of an industrial open plot bearing No.1517 admeasuring 2030 sq. mtrs. situated at GIDC, Umbergaon Industrial Area, District Valsad in any manner to any one till final disposal of the suit and the order of the Trial Court confirmed in Appeal stands modified to the above extent. No order as to costs. Direct Service is permitted.
However, it is clarified that it is open for the parties to request the concerned Court to expedite the Suit and any construction put up by the defendants - M/s. Modern Industries would be subject to the outcome of the Suit.
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(Anant S. Dave, J.) Caroline Top