Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO : MHCC010000342020. 1 Notice of Motion No.17/2020.
in L.C. Suit No. 2598/2019.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 17 OF 2020.
IN
L.C. SUIT NO. 2598 OF 2019.
Phulora CHS Ltd. .................................…………... … PLAINTIFF.
V/s.
V.B.Infra Projects India Pvt. Ltd. and the Others. ... … DEFENDANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 05th July, 2024.
APPEARANCES :
Mr. Deepak Pandey, Ld. Advocate for the Plaintiff.
Mr. Jitendra Tiwari, Ld. Advocate for Defendant No. 1.
Ms. Pratiksha Kalamb, Ld. Advocate for Defendant No. 2.
Mr. S.R. Yadav, Ld. Advocate for Defendant No. 3/ MCGM.
****************
01. The plaintiff has taken out this Notice of Motion - ‘the NM’,
restraining defendant No.1, its Officers, its servants and the authorized
representatives from conducting any business activity at the store room,
duly described in para 4 of the plaint. Perused the NM, the supporting
affidavit of Mr. Sudhir Shivanand Gokarn, the Secretary and Authorized
Representative of the plaintiff and written statement of defendant No.1,
adopted as his reply to this NM. Heard.
02. Considering the record, the point for determination, along -
with my finding and the reasons therefor, are as under :
Sr. No. POINTS FINDINGS
(i). Whether the plaintiff has a prima facie
case in his favour? …..........…................. … No.
(ii). Whether balance of convenience lies in
favour of the plaintiff? ….…..…............. … No.
(iii). Whether the plaintiff would suffer an
irreparable loss, if the interim reliefs, as
prayed for, are not granted?.................... … No.
(iv). What Order? …..........….…..................... … As per final Order.
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CNR NO : MHCC010000342020. 2 Notice of Motion No.17/2020.
in L.C. Suit No. 2598/2019.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS. 1 TO 3 :
03. As these points are interconnected, to maintain the brevity,
I am taking the same for joint discussion. By this NM, the plaintiff’s only
anxiety is to restrain defendant No. 1 from carrying any sort of business
activities from the store room. In view of this suit, he came with a case
that defendant No. 1 encroached on the store room, whereas defendant
No. 2, who is the developer, illegally sold the same to defendant No. 1.
Being so, this suit is filed for eviction of defendant No. 1 from this store
room, which situated in basement of the Society’s building. Initially, the
plaintiff entered into a re-development agreement with defendant No. 2
and he constructed 8 floors multi storied building, consisting of G + 1st
floor as commercial tenements and the rest as residential tenements. As
per the sanctioned Location Plan, issued by defendant No. 3, defendant
No. 2 also constructed this store room. Earlier, in view of the agreement
of dtd. 04.11.2008, he sold shop Nos. 1 to 3 at 1st floor and shop Nos. 3
and 4 on the ground floor of the said building to defendant No. 1. This
Agreement was silent about the store room. However, thereafter, in view
of unregistered Supplementary Agreement dtd. 20.12.2008, he illegally
sold this store room to defendant No. 1. As such, since execution of this
agreement, defendant No. 1 is in unlawful occupation thereof. Time and
again, he was requested to handover its vacant possession, for which he
refused. While transferring the store room in favour of defendant No.1,
defendant No. 2 did not seek any permission or NOC from the plaintiff
and hence, he could not have sold the same. Hence, he had to file this
suit and this NM. Defendant No. 1 admitted his written statement as his
reply to NM. He contended that the very suit is bad for mis-joinder and
non-joinder of the parties. It is barred by limitation and the plaintiff had
no locus to institute this suit. Moreover, this Supplementary Agreement
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CNR NO : MHCC010000342020. 3 Notice of Motion No.17/2020.
in L.C. Suit No. 2598/2019.
was duly registered, in view of the Confirmation Deed dtd. 04.08.2015.
He is in peaceful possession of the store room. Rather, he lodged many
complains against mismanagement of the plaintiff Society and its Office
Bearers and therefore, he filed this suit. On this backdrop, he preyed for
dismissal of this NM.
04. Considering the rival submissions, at the outset, it is worth
notable that by filing this suit, the plaintiff prayed for a declaration that
the said Supplementary Agreement and Confirmation Deed are null and
void. This suit is also filed for directing defendant No. 1 to handover the
vacant possession of the store room and for other ancillary reliefs. Bare
perusal of the record shows that initially, by registered Agreement dtd.
04.11.2008, defendant No.1 purchased the said shops and thereafter, as
per the Supplementary Agreement dtd. 20.12.08, defendant No. 2 even
sold this store room to defendant No. 1. That apart, the execution of the
Confirmation Deed dtd. 04.08.2015 is not disputed. Nor, it is in dispute
that since execution of this Supplementary Agreement, defendant No. 1
is in occupation of this store room. On this backdrop, it is worth notable
that by this NM, the plaintiff only prayed for restraining defendant No.
1 to carry any sort of business activities from this store room. However,
the fact remains that at this stage of the matter, defendant No. 1 seems
to have better rights and a propriety over this store room. Whereas, the
plaintiff has to prove all his contentions, which would require trial. If it
is put differently, the plaintiff is still due to establish that defendant No.
2 was having no right to sell the store room to defendant No. 1. Being
so, his possession over this store room is unlawful. Again, coming to this
NM, apparently, it is silent to gather what kind of business activities, if
any, are presently carried by defendant No. 1 from this store room. Nor,
the plaintiff bothered to explain it's nature and the fact that whether it
was causing any inconvenience to the other occupants of the Society. At
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CNR NO : MHCC010000342020. 4 Notice of Motion No.17/2020.
in L.C. Suit No. 2598/2019.
this stage, it would be pertinent to note that defendant No.1 is having
some of the shops, for commercial purpose, in the said Building and this
store room was sold to him as per the Supplementary Agreement, which
was later on registered. Consequently, until some otherwise is proved on
trial, his claim stands on a better footing as compared to this plaintiff. In
the circumstances, restraining defendant No. 1 from carrying any sort of
business activities, which also can't be supervised, would multiply chain
of litigation between the parties and create chaos. In the result, I am of
the opinion that the plaintiff has no prima-facie case and the balance of
convenience also does not tilt in his favour. As such, non-granting of the
interim reliefs would not cause any prejudice to him. Hence, I answered
point Nos. 1 to 3 in the negative and in the answer to point No. 4, I pass
the following Order:
-: O R D E R :-
(i). Notice of Motion No. 17/2020 stands dismissed.
(ii). Notice of Motion No. 17/2020 is, accordingly, disposed of.
{A.G. Santani}
Mumbai. Judge,
Dated : 05.07.2024. City Civil Court, Mumbai.
Dictated on : 05.07.2024.
Transcribed on : 08.07.2024.
Checked and Signed on : 10.07.2024.
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CNR NO : MHCC010000342020. 5 Notice of Motion No.17/2020.
in L.C. Suit No. 2598/2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
12.07.2024 at 11.46 a.m.
Name of the Stenographer
Mrs. S.R. Mejari
Name of the Judge (with Court Room No.) HHJ Shri A.G. Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 05.07.2024.
Judgment/Order signed by P.O. on 10.07.2024.
Judgment/Order uploaded on 12.07.2024.
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