Final Order 1

Order Details: Notice of Motion
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MHCC010001052019 Presented on : 04.01.2019
Registered on : 04.01.2019
Decided on : 27.11.2024
Duration : 05 10 23
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT BOMBAY
NOTICE OF MOTION NO. 43 OF 2019
IN
SUIT NO. 3265 OF 2018
(CNR NO. MHCC010001052019)
1
2
Mr. Alpesh Shantilal Shah
Aged about : 40 years, Occ : Business
Mrs. Jyoti Alpesh Shah
Aged about : 41 years, Occ : Housewife
Both residing at 228 Bazargate Street,
Pannalal Terrace, Fort,
Mumbai 400 001 …. Plaintiffs
Versus
1
2
Korrehmand Homi Golwala
Aged about : 30 years, Occ : Not known
Residing at : B-305, Dosti Lilly
(Dosti Acres) Co-operative Housing
Society Ltd, 3rd Floor, S. M. Road,
Near Antophill Bus Depot,
Wadala (East), Mumbai 400 039.
Pervin Minbattiwalla
Aged about : 65 years, Occ : Housewife
Residing at : Room No.11,
Marwadi Chawl, Tardeo Road,
Ganga Jamuna Cinema, Tardeo,
Mumbai 400 007 …. Defendants
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CORAM : HIS HONOUR THE PRINCIPAL JUDGE,
SHRI A.SUBRAMANIAM
C.R.NO..
: 19
DATE : 27th DAY OF NOVEMBER, 2024
Appearances :-
Adv. Rahul Raut along with Adv. Jasmine Kaur instructed by M/s. N. N.
Vaishnawa and Co., Ld. Counsels for plaintiffs.
Adv. Atif Saheb, Learned Counsel for defendant No. 1 and 2.
ORAL ORDER
1. By present Notice of Motion, the plaintiffs are praying for interim
reliefs of grant of restraining the defendants by an order of
injunction from transfer or creating any third party rights with
respect of the suit premises.
2. It is the case of the plaintiffs in brief that the premises is a
tenanted premises in possession of the defendants and the
defendants by an oral agreement agreed to sell out tenancy rights
and accordingly it was sold and consideration was paid. It is
further contended that a fraudulent rent receipt and resolution
was also given to show compliance thereof. The total sum of
consideration of Rs.30,25,000/- was given for such transfer of
tenancy. It is contended that the entire transaction was fraudulent
and hence the plaintiffs have filed the suit for recovery of
consideration paid for the said transaction and for compensation
for breach thereof.
3. The said claim of the plaintiffs is resisted by defendant by
claiming that no such transaction ever took place. On similar
grounds another suit has been filed of property at Wadala. In the
said suit also, interim reliefs have been refused to the plaintiffs. It
is alleged that false documents had been prepared and false
litigation has been initiated against defendants. Defendant No.1
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suffers from mental illness and is at regular medication. Property
has been bequeathed to defendant No.1. Infact, it was a loan
transaction and said loan has been repaid. No such reliefs can be
granted.
4. Perused the Notice of Motion and reply. Heard both the sides.
Considered the written submissions advanced by the defendants.
Following points arise for my consideration and I answer the
same as under for the reasons stated hereinafter;
Sr.
No.
POINTS FINDINGS
1. Whether prima-facie case is made out
by the plaintiffs ?
:: In the negative.
2. Whether balance of convenience lies
in favour of the plaintiffs ?
:: In the negative.
3. Whether irreparable loss will be
suffered by the plaintiffs if the prayers
in Notice of Motion are denied ?
:: In the negative.
4. What order ? :: As per final order.
As to Point No.1
5. On consideration of the entire pleadings, it is apparent that suit
has been filed for recovery of alleged consideration as per oral
agreement with regard to the transfer of tenancy. The existence
and validity of said oral agreement of transfer of tenancy and
transaction thereof is the dispute which is to be decided in the
suit. At present, it is not very clear with regard to said transaction
and exchange of amounts and it cannot be said that from the
documents on record, a clear cut prima-facie case is made out of
existence of oral agreement. Thus, there exist no prima-facie case
with regard to the grant of interim injunction either by way of
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transaction or by way of apprehension allegedly expressed in the
Notice of Motion. Hence, I answer Point No.1 in the negative.
As to Point No.2
6. Moreover, reliefs claimed are of not to create third party rights
and there is nothing on record to show that the defendants intend
to create any such rights to defeat the purpose of the suit. The
defendant in their affidavit in reply have stated that they have no
intent to create third party rights. Apparently, the defendants are
in occupation of property and nothing is there on record to show
that it is likely to be alienated or could be alienated. In such
circumstances, balance of convenience also lies in favour of the
defendants. Hence, I answer Point No. 2 in the negative.
As to Point No.3
7. It is apparent that the dispute is quantifiable in terms of money.
Thus, the plaintiffs will not suffer from any irreparable loss or
injury if the prayers in Notice of Motion are denied. Hence, I pass
the following order.
O R D E R
1. Notice of Motion No. 43 of 2019 in Suit No. 3265 of 2018 is
dismissed.
2. Parties to co-operate and furnish draft issues on next date.
3. Notice of Motion No. 43 of 2019 is disposed off accordingly.
DATE : 27.11.2024 (A.SUBRAMANIAM)
PRINCIPAL JUDGE
CITY CIVIL COURT, MUMBAI.
(JO CODE MH01711).
Dictated and transcribed on : 27.11.2024.
Checked and signed on : 03.12.2024.
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER"
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(Grade-III)
DATE : 03.12.2024 at 05.57 pm Mr. Mohit M. Patange
Name of the Judge (with Court no.) : SHRI A.SUBRAMANIAM. C.R.NO.19.
Date of pronouncement of judgment/order : 27.11.2024
Judgment/order signed by the P.O. on : 03.12.2024
Judgment/order uploaded on : 03.12.2024
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