Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.105/2019 1
CNR No.MHCC010002662019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.105 OF 2019
IN
COUNTER CLAIM (Exhibit.5)
IN
S.C. SUIT NO.1587 OF 2016
Smt. Kokilaben Himmatlal Manseta ..Applicant/Plaintiff in CC
IN THE MATTER BETWEEN
Smt. Kokilaben Himmatlal Manseta ..Plaintiff in C.C./
Org. Defendant in Suit
Versus
Smt. Triveni Navnitlal Manseta & Ors. ..Defendants in C.C.
Org. Plaintiff in Suit
And
Ghatkopar Laxminarayan Cooperative
Housing Society Ltd. & Anr. ..Respondents
Shri. R. A. Shaikh, advocate for Plaintiff in Counter Claim.
Smt. C.S. Savithri, advocate for Defendant in Counter Claim.
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 5th March 2019
ORAL ORDER
Notice of motion is taken out by original defendant/plaintiff in
Counter Claim namely Kokilben Himmatlal Manseta making prayer that
pending the hearing and final disposal of suit Respondent No.1
Ghatkopar Laxminarayan Cooperative Hosing society be directed to
maintain the record of the society in respect Flat No.10, 1st floor,
Laxminarayan Niwas, Hinjwala Lane, Ghatkopar (East), Mumbai – 77 as
on the date of filing of counter claim i.e. on 07/06/2018 and/or delete
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the names of defendants in counter claim from duplicate share
certificate, if any, issued by respondent No.1 Society and all other
record of the society carried out pursuant to order dated 21/04/2018
passed by Dy Registrar, MWard in execution of his order as aforesaid.
It is further prayed that pending the hearing and final disposal of suit
defendants in counter claim be restrained from entering into permanent
alternate agreement with respondent Nos.1 & 2 in respect of suit flat. It
is further prayed that pending the hearing and final disposal of suit
defendants in counter claim be restrained from collecting corpus funds
and monthly compensation from respondent No.2 i.e. M/s. Rashmi
Realty Developers in respect of suit flat. Alternatively it is payed that
pending the hearing and final disposal of suit respondent No.2 be
directed to distribute corpus funds and monthly compensation to the
plaintiff and defendants in counter claim in equal share of suit flat.
(Hereinafter plaintiff in counter claim and defendants in counter claim are
referred to as original defendant and original plaintiffs respectively ).
2. It is the contention of original defendant that original plaintiff
No.1 is her sisterinlaw and original plaintiff Nos.2 to 4 are children
born to her brotherinlaw late Navnitlal Manseta. Suit flat was
originally purchased by their fatherinlaw Mr. Chaturbhuj Manseta.
After his death said flat was transferred in the name of Mr. Navnitlal
Chaturbhuj Manseta, husband of original plaintiff No.1 and father of
original plaintiff Nos.2 to 4. Original plaintiffs have filed suit No.1587
of 2016 wherein original defendant has filed counter claim vide Exh.5
and her written statement interalia claiming 50% share of her late
husband Himmatlal Manseta who was elder son of original owner
Chaturbhujlal Manseta. At present share of her late husband Himmatlal
Manseta devolved upon her exclusively and share of Navnitlal Manseta
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devolved upon original plaintiffs. Respondent No.1 is the society
registered under the Cooperative Societies Act and respondent No.2 is
developer who has executed redevelopment agreement dated
21/06/2008 with respondent No.1 upon terms and conditions
mentioned therein. It is further contended that though agreement has
been executed in the year 2008, the redevelopment work has not
started and she is in possession of suit flat as well as original share
certificate which was given to her by her fatherinlaw prior to his
death. Her husband's brother Navnitlal Manseta was youngest male
member in the family hence as an abundant caution the share certificate
was transferred in his name for the benefit of all other family members.
3. It is further contended that her husband Himmatlal Manseta had
died in or about year 1976 i.e. before death of her fatherinlaw.
Original plaintiff no.1 had left the suit premises due to matrimonial
dispute with her husband i.e. Mr. Navnitlal Manseta and thereafter
petition was filed in family court wherein order was passed and she was
allowed to use one room in suit flat. Original plaintiff No.1 is in
possession of one room and kept the said room locked under her own
lock and key while rest of the area of suit flat is in occupation of
original defendant. It is further contended that with a view to claim
entire suit flat for herself original plaintiff no.1 started paying
maintenance to respondent No.1 society in or about 2016 without the
knowledge of original defendant. She has paid maintenance bills of
society till March 2015 which were issued in the name of Navnitlal
Manseta/Kokilaben Manseta. It is further contended that according to
her counter claim and rights, she is entitled for declaration that suit flat
is joint family property of original plaintiffs and original defendant. As
per development agreement dated 21/06/2008 their building will be
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redeveloped and according to her 50% right, title and interest in the
suit flat she is entitled for 50% of corpus funds and monthly
compensation from respondent No.2. It is learnt that original plaintiff
no.1 has approached respondent Nos.1 & 2 and transferred title of suit
flat in her own name and on that basis now original plaintiff no.1 has
approached to respondent No.2 to enter into alternate permanent
agreement in lieu of suit flat and thereby receive corpus funds and
monthly compensation amount for herself and family. The aforesaid act
of original plaintiff No.1 is prejudicial to the right of original defendant/
plaintiff in counter claim and would rendered her homeless.
Accordingly she has sought reliefs in above terms.
4. Original plaintiffs filed reply to the notice of motion and thereby
opposed the same. It is contended that notice of motion has been taken
out by the applicant/original defendant by suppressing many material
and relevant facts with ulterior motives. In December 2018 original
plaintiff No.1 received the copy of letter dated 07/12/2018 from Dy.
Registrar, N Ward, Cooperative Hosing Societies to attend hearing
before him on 27/12/2018 at 1.00 p.m. to decide issuance of duplicate
share certificate by the society. On that date Chairman of the society
attended the hearing before Dy. Registrar, N ward and requested for
time to issue duplicate share certificate to original plaintiff No.1 in
pursuant to his directions. Accordingly one week time was given by Dy.
Registrar, N ward. Thereafter, Laxminarayan Cooperative Housing
Society issued to her duplicate share certificate in respect of suit flat. It
is further contended that applicant has deliberately sought reliefs
against respondent No.1 society through this notice of motion without
impleading them as party to the suit. Notice of motion seeking prayer
to delete their names from duplicate share certificate and all other
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record of the society carried out pursuant to the order passed by Dy.
Registrar, N ward in execution of his earlier order is not maintainable
and it amounts to setting aside orders and direction passed by said
Authority which ought to have been challenged by the applicant if she
was aggrieved before the Appropriate Authority constituted under
Maharashtra Cooperative Societies Act. Applicant did not challenge the
order dated 05/12/2014 passed by Dy. Registrar, N Ward Cooperative
Societies and it has become final and name of applicant/original
defendant as a nominee has been removed from the record of society
and added the name of original plaintiff No.1 as member in respect of
suit flat. Original plaintiffs are lawful members of respondent No.1
society and they have been admitted as members of society. They being
members and owners of suit flat are entitled to exercise their right and
to enter into agreement with society and builder and to collect corpus
funds and monthly compensation on redevelopment of building.
Original plaintiffs have denied that suit flat was originally purchased by
fatherinlaw of original plaintiff No.1 namely Chaturbhuj Manseta. Suit
flat is separate property of Navnitlal Manseta. Share certificate was
issued in the name of husband of original plaintiff No.1 in the year
1992 and he was original owner of suit flat. After his death original
plaintiffs have inherited suit flat which is confirmed by grant of letters
of administration by Hon'ble High Court, Bombay. It is further
contended that at the time of death of Chaturbhuj Manseta his eldest
son Chabildas Manseta and youngest son Navnitlal Manseta were alive
along with their mother. Applicant has deliberately suppressed about
eldest son Chabildas to project her false case. Mere possession of suit
flat does not give any right to applicant/original defendant when she
has no title to the suit flat. In light of these contentions original
plaintiffs prayed for dismissal of notice of motion.
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5. None appeared on behalf of respondent Nos.1 & 2 despite
service of notice pertaining to present notice of motion.
6. In view of rival contention of parties following points arise for
my determination and I have recorded my findings to the same with
reasons to follow as under :
POINTS FINDINGS
1. Whether original defendant has got prima facie
case ?
...No.
2. Whether original defendant will suffer irreparable
loss if temporary injunction as sought is not
granted ?
...No.
3. Whether balance of convenience lies in favour of
original defendant ?
...No.
4. What order? As per Final
Order
REASONS
As to Point Nos.1 to 3
7. Read notice of motion, affidavit in support of it, reply of original
plaintiffs and perused whole record and proceeding.
8. Heard respective counsel for parties. They advanced their
submission in accordance with respective contention of parties.
9. Plaintiff in counter claim/original defendant has come with case
that suit flat was originally purchased by fatherinlaw of herself and
original plaintiff no.1/defendant No.1 in counter claim and after his
death said flat was transferred in the name of Mr. Navnitlal Chaturbhuj
Manseta, husband of original plaintiff no.1 and father of original
plaintiff nos.2 to 4. She has not filed any document in support of her
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contention in that regard. She has filed copy of share certificate Exh.A
which shows that said certificate was issued in the name of Navnitlal C.
Manseta on 20/04/1992. In counter claim original defendant has
mentioned in para 2 that after death of original flat purchaser
Chaturbhuj Manseta for the sake of convenience share certificate of suit
flat was transferred in the name of Navnitlal Manseta. But, as pointed
above share certificate relating to suit flat was issued in the name of
Navnitlal Manseta. It does not show that share certificate was issued in
the name of Chaturbhuj Manseta and after his death it was transferred
in the name of Navnitlal Manseta. Thus, prima facie contention of
plaintiff in that regard cannot be accepted at this stage. No doubt,
name of plaintiff in counter claim/original defendant has been recorded
in share certificate as nominee after the death of husband of original
plaintiff no.1 namely Navnitlal Manseta but it is settled law that mere
nomination does not either vest title or disrupt the title of persons who
are interested in the estate of deceased under the ordinary law of
succession. In present matter, original plaintiffs are legal heirs of
deceased Navnitlal Manseta. Prima facie they being legal heirs of
deceased Navnitlal Manseta entitled to inherit property left behind by
him.
10. It is pertinent to note that original defendant has claimed that
she is coowner of suit flat and along with original plaintiffs has
undivided 50% share in the suit flat. But, prima facie she has not filed
documents in support of her contention. It is pertinent to note that in
Regular Darkhast No.367/2011 which was pending in Family Court at
Bandra, Mumbai, original defendant has filed an application as
intervener for dismissing Darkhast and therein claimed that respondent
in the said matter namely Navnitlal Chaturbhuj Manseta had nominated
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her name in the suit flat as nominee. She has also filed Civil suit vide
S.C. Suit No.1071 of 2016 before this court against original plaintiff
no.1 seeking relief of perpetual injunction in relation to suit flat and in
the plaint she has claimed that the suit flat was earlier taken by her
husband Mr.Himmatlal Chaturbhuj Manseta on tenancy basis in the
name of his younger brother Navnitlal Manseta and at the time of
taking suit flat her husband had paid deposit and also paid money to
outgoing tenant and landlord of suit premises. It is further contended in
the aforesaid plaint that it was family arrangement and as a mark of
respect suit flat was taken in the name of Navnitlal Manseta and her
husband was actual original owner of suit flat. Thus, it is clear that
original defendant has changed statement on the aspect as to who had
acquired suit flat and now she claimed her right over suit flat. Her stand
in that regard is not consistent and prima facie it can be said that she
has not come with clean hands. Had her fatherinlaw purchased suit
flat then why she did not join her brotherinlaw namely Chabildas as
party to the counter claim when she is claiming partition in the suit flat.
She has also suppressed fact that Chabildas is also legal heirs of
deceased Chaturbhuj Manseta. No doubt, plaintiff in counter
claim/original defendant is in possession of portion of suit flat. But
merely on that basis it cannot be prima facie said that she has right, title
or interest in the suit property. Letter of administration has been
granted in favour of original plaintiff No.1 in relation to suit flat. Order
for entering the name of original plaintiff No.1 in the share certificate
relating to suit flat was passed by Dy. Registrar of Cooperative
Societies, N ward, Mumbai on 05/12/2014 in Appeal No.1/2014 and in
pursuance to said order share certificate of suit flat has been transferred
in the name of defendant No.1 in counter claim. By seeking relief to
correct the name in share certificate and record of the society pertaining
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to suit flat, plaintiff in counter claim/original defendant wants to set
aside said aforesaid order of Dy Registrar. She ought to have challenged
aforesaid order before the appropriate forum. By way of interim relief
effect of said order cannot be negated.
11. From above discussion, it is clear that prima facie original
defendant has not brought documentary evidence to show her title over
the suit flat to the extent of 50% share. That being so balance of
convenience is also not in her favour. She has not come with clean
hands and suppressed material facts. It cannot be said that she will
suffer irreparable loss in case relief sought is refused. Hence, my answer
to point Nos.1 to 3 is in negative.
In view of my findings to point Nos.1 to 3 in negative, notice of
motion taken out by plaintiff in counter claim/original defendant
deserves to be dismissed.
ORDER
Notice of Motion No.105 of 2019 stands dismissed and disposed off
accordingly.
(M. T. Asim)
Judge
Date : 05.03.2019 Gr. Bombay
Typed on : 05.03.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
07.03.2019, 12.30 p.m.
UPLOAD DATE AND TIME Mrs. J. U. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
05.03.2019
JUDGMENT/ORDER signed by P.O.
on
06.03.2019
JUDGMENT/ORDER uploaded on 07.03.2019
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