Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 139-2019 in SU 2884-18
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.139 OF 2019
(CNR No.MHCC01-000396-2019)
IN
SUIT NO.2884 OF 2018.
(CNR No.MHCC01-011213-2018)
Jasmin B. Shah }...PLAINTIFF.
Versus
Sadhana Niwas Co-op. Housing Society Ltd. }
and Ors. }...DEFENDANTS.
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Smt.Marathe, learned advocate for the plaintiff.
Smt.Bhagawati, learned advocate for defendant No.1.
Defendant No.2 remained
exparte.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L O R D E R
(Delivered on 06/05/2022)
1. By filing this Notice of Motion, plaintiff has claimed reliefs
as under;
a) Pending the hearing and final disposal this suit, Hon’ble
Court be pleased to pass an order of injunction directing the
defendants, not to interfere and/or not to disturb plaintiffs
peaceful possession of the suit flat, either personally or through
their agents, servants, representatives or any other persons;
b) Pending hearing and final disposal of the present suit,
the Hon’ble Court be pleased to direct the Defendant No.1 to
accept the maintenance charges towards to suit flat OR allow the
Plaintiff to deposit the same in this Hon’ble Court;
2. Read the affidavits filed by the plaintiff and defendant No.1
in support of their respective contentions. Defendant No.2 did not
appear. Heard learned Smt.Marathe advocate for the plaintiff and
learned Smt.Bhagawati advocate for the defendant No.1. Perused the
entire record.
3. Following points arose for my consideration. I answered
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those points for the reasons stated thereunder.
POINTS FINDINGS
i) Whether
prima-facie case is made out by the
plaintiff ? ...Partly yes.
ii) Whether balance of convenience lies in his
favour? ...Partly yes.
iii) Whether irreparable loss will cause to the
plaintiff if interim reliefs as claimed are not
granted? ...Partly yes.
iv) What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iii):
4. All the points are taken together for consideration. Learned
advocate for the plaintiff argued that plaintiff has purchased the suit flat
from defendant No.2 in year 1994 and plaintiff is in continuous
possession of the suit flat since then yet, defendant No.1 Society has not
transferred Share Certificate in the name of the plaintiff till date. She
argued that on account of complaint filed with the police, transfer of
Share Certificate in the name of plaintiff has been kept on hold. She
argued that plaintiff learnt that Larsen & Tubro Company has filed a
Criminal Case against relative Ramesh Bhatt of defendant No.2 for
misappropriation of funds of said Company and it revealed during
investigation that suit flat has been purchased in the name of defendant
No.2 with the help of the misappropriated funds of Larsen & Tubro so
also, Criminal Case is filed against defendant No.2 and others which is
pending. She argued that the issue of non-occupancy charges is yet not
resolved because of which, plaintiff has not paid maintenance charges
though, plaintiff is in possession and occupation of the suit flat since
year 1994. She argued that plaintiff found on 25/09/2014 that lock of
the suit flat was broken, two suspicious persons by names Sunil Pawar
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and Pawar had entered into the suit flat and they told the staff of
plaintiff that defendant No.2 has asked them to occupy the suit flat on
leave & license basis in respect of which, plaintiff has lodged report with
police and those persons were remanded to the custody of police by the
Metropolitan Magistrate. She argued that again an attempt was made
by two persons by introducing themselves as Shri.Desai and Shri.Bhatt
to commit trespass in the suit flat but those persons left the suit flat as
staff of the plaintiff had called others for help. She argued that plaintiff
is under constant apprehension that he will be dispossessed from the
suit flat by defendants, defendant No.1 is not accepting maintenance
charges hence, plaintiff is entitled for interim reliefs as claimed. In
support of her argument, learned advocate for the plaintiff has placed
reliance on the law laid down by Hon’ble Supreme Court in a case of
M.Kallappa Setty Vs. M.V.Lakshminarayana Rao reported in
AIR 1972
SC 2299. I have gone through said authority.
5. As against this, learned advocate for defendant No.1 argued
that plaintiff is trespasser in respect of the suit flat, defendant No.1 has
received a letter dtd.06/08/1992 from Senior Inspector of PS Sakinaka
whereby defendant No.1 is directed by the police to maintain
statusquo
in respect of transfer of the suit flat, plaintiff is the illegal occupant of
the suit flat and plaintiff is using the suit flat for illegal and immoral
purposes so also, plaintiff himself is not residing in the suit flat. She
argued that Criminal Case has been filed by PS Sakinaka against one
Ramesh Bhat and others, there are allegations that suit flat has been
purchased from the amounts misappropriated by relative of defendant
No.2 from Larsen & Tubro Company, defendant No.2 has never
informed defendant No.1 that plaintiff is put in occupation & possession
of the suit flat, plaintiff will misuse the order of temporary injunction if
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granted in his favour due to which, Notice of Motion is liable to be
dismissed. She submitted that if plaintiff is ready, he may be permitted
to deposit maintenance charges with defendant No.1 but on his giving
undertaking to the court that he shall not seek parity before any court
on the ground that defendant No.1 Society is accepting maintenance
charges from him.
6. Contention of the plaintiff is that he has purchased the suit
flat from defendant No.2 under Agreement to Sale dtd.18/02/1994 for
a consideration of Rs.9.5 Lakhs and he is in possession of the suit flat
since then. Plaintiff has placed on record copy of said Agreement. It is
not a registered document. Material available on record shows that suit
flat is in the name of Sajani A. Tejwani. Copy of Agreement to Sale
dtd.19/02/1992 placed on record by the plaintiff shows that said Sajani
Tejwani has sold the suit flat to defendant No.2 for a consideration of
Rs.9,25,000/-. Said agreement also does not appear to be a registered
agreement. Copy of Share Certificate of defendant No.1 Society is
produced by the plaintiff which is still in the name of Sajani Tejwani.
7. In a case of
M.Kallappa Setty Vs. M. V. Lakshminarayana
Rao cited above on which reliance is placed by learned advocate for the
plaintiff, Hon’ble Apex Court has laid down as;
“...The Plaintiff can on the strength of his possession resist
interference from persons who have no better title than himself
to the suit property. Once it is accepted, as the trial court and the
first appellate court have done, that the plaintiff was in
possession of the property ever since 1947 then his possession
has to be protected as against interference by someone who is not
proved to have a better title than himself to the suit property...”
8. Here, in the matter in hands, plaintiff is claiming that he
has purchased the suit flat from defendant No.2 under Agreement to
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Sale dtd.18/02/1994 for Rs.9.5 Lakh. Defendant No.2 has not appeared
to contest the Notice of Motion despite service due to which, contention
of the plaintiff is
prima facie acceptable at this stage that he has
purchased suit flat from defendant No.2 especially because, it appears
that defendant No.1 has not disputed the transaction taken place
between the defendant No.2 and Sajani Tejwani. It appears from the
record that application filed by said Sajani Tejwani for transfer of share
certificate in the name of defendant No.2 is pending with defendant
No.1 as police has directed defendant No.1 to maintain
statusquo as
regards to transfer of the suit flat.
9. Plaintiff has placed on record copies of electricity bills in
respect of the suit flat to show that he is in possession of the suit flat.
Material produced on record by the plaintiff is
prima facie sufficient for
accepting that he is in occupation of the suit flat. It does not appear to
be in dispute that Larsen & Tubro has filed a Criminal Case against
Ramesh Bhat for misappropriation of funds of said Company and it has
been revealed during investigation that suit flat has been purchased by
said Ramesh Bhat in the name defendant No.2 by utilizing the
misappropriated funds of Larsen & Toubro. Defendant No.1 has
produced copy of Case No.1897/PW/1994. It appears that said case is
now registered under MPID Act however, learned advocate for plaintiff
& defendant No.1 submitted that suit flat is not attached in said
criminal matter by the police or Competent Authority till date. It
appears that plaintiff is in occupation of suit flat and defendants cannot
dispossess the plaintiff without following the due process of law. Said
entitlement of the plaintiff, of-course, would be without prejudice to the
prosecution pending under the MPID Act.
10. Plaintiff has prayed to allow him to deposit arrears of
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maintenance charges with defendant No.1 Society. Learned advocate for
the defendant No.1 has given the calculation of the arrears inclusive of
accrued interest to the tune of Rs.4,71,250/- by filing a pursis. Learned
advocate for plaintiff endorsed on said pursis that plaintiff is ready to
deposit said amount without prejudice. As mentioned above, learned
advocate for defendant No.1 submitted that plaintiff may be permitted
to deposit the arrears of maintenance charges but with direction that he
shall not seek parity on the ground that defendant No.1 Society is
accepting maintenance charges from him. Considering the fact that
Share Certificate is yet to be transferred in the name of the plaintiff and
MPID Criminal Case is pending, this court is of the opinion that interest
of justice will be protected if plaintiff is permitted to deposit the arrears
of maintenance charges with interest in court but without prejudice to
the rights and contentions of the defendants. Thus,
prima facie case &
balance of convenience do lie in favour of plaintiff partly as above. This
court is of the opinion that if defendants are not temporarily restrained
from interfering and obstructing into plaintiff's possession over the suit
flat without following due process of law, it will cause an irreparable
loss to the plaintiff. For all the above mentioned reasons, I recorded my
findings on Point Nos.(i) to (iii) accordingly and pass the following
order.
O R D E R
Notice of Motion No.139 of 2019 is partly allowed as under.
Pending final decision of the suit, defendants or anybody
claiming through them are hereby temporarily restrained from
interfering into and disturbing the possession of the plaintiff over
the suit flat, without following the due process of law.
Without prejudice to the rights and contentions of the
defendants, plaintiff is permitted to deposit an amount of
Rs.4,71,250/- (Rupees four Lakh Seventy One Thousand Two
Hundred Fifty Only) in the Court towards the arrears of
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maintenance charges alongwith interest as is calculated in pursis
filed on 11/04/2022 by the advocate for defendant No.1.
The above order is without prejudice to the prosecution
initiated already under MPID Act.
Plaintiff shall deposit the amount in the Court on or before
next date.
Date : 06/05/2022. (P.P.RAJVAIDYA)
Dictated on : 06/05/2022. Judge, C.R.No.62,
Checked on : 06/05/2022. City Civil Court,
Signed on : 06/05/2022. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
24.05.2022 at 12.30 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 06/05/2022
Order signed by P.O. on 06/05/2022
Order uploaded on 24/05/2022
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