Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 185-18 in NM 1804 of 2010
in Suit no. 1772-10
1 Date : 20.02.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 185 OF 2018
IN
NOTICE OF MOTION NO. 1804 OF 2010
IN
SUIT NO. 4005 OF 2010
(H.C.SUIT NO. 1772 OF 2010)
(CNR NO.MHCC01-000718-2018)
Rapid Inexci Services Pvt. Ltd. & Anr. .. Plaintiffs
Versus
Ram Asare Baburam Vishwakarma & Ors. .. Defendants
Appearances :-
Plaintiff in person.
Adv.R.S.Yadav h/f Adv.R.R.Sharma for defendant no.1 and 2.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 20.02.2020
ORDER
1. The plaintiff has filed instant Notice of Motion praying for
following reliefs :
(a) That, pending the hearing and final disposal of the Suit,
Court Receiver, High Court, Bombay or any other fit and
proper person be appointed as the Receiver of the Suit
Flat i.e. , Flat No. 202 situated at “A” Wing, on the
Second floor of the building known as “Laxmi Palace”,
Jankalyan Nagar, Marve Road, Malad (West), Bombay
400 095, with all the powers under the provisions of
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NM 185-18 in NM 1804 of 2010
in Suit no. 1772-10
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Order XL Rule 1 of Code of Civil Procedure and Plaintiffs
be placed in possession of the Suit flat as its agents
without furnishing security or royalty.
(b) that, pending the hearing and final disposal of the Suit,
the defendants be restrained by an Order of injunction
of this Hon’ble Court from selling, transferring,
encumbering, alienating or parting with the possession
and/ or creating third party rights of what so ever
nature in respect of of the Suit flat i.e. , Flat No. 202,
situated at “A” Wing, on the Seconf floor of the building
known as “Laxmi Palace”, Jankalyan Nagar, Marve Road,
Malad (West), Bombay 400 095, or any part thereof, in
any manner whatsoever, and to anybody whatsoever.
(c) that, ad-interim reliefs in terms of prayer (a) and (b)
above be granted.
2. It is contended by the plaintiff that he has filed instant suit
under Section 6 of the specific relief Act and seeking possession of
the suit Flat No. 202, situated at “A” Wing, on the Seconf floor of
the building known as “Laxmi Palace”, Jankalyan Nagar, Marve
Road, Malad (West), Bombay 400 095.
(hereinafter shall be
referred to as suit flat).
3. It is contended by the plaintiff that Under Memorandum of
Understanding dated 30.11.2001, Development Agreement dated
26.01.2002, Power of Attorney dated 26.01.2002, Consent Letters
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in Suit no. 1772-10
3 Date : 20.02.2020
dated 29.11.2001 and 30.11.2001, he undertook completion of
under construction building known as “Laxmi Palace” and have
incurred various expenses. In Agreement, plaintiff was given right
to sale shops and flats constructed in the said building and to
receive flats as consideration amount and also to appropriate the
same and further to receive balance of consideration amount in
respect of flats and shops sold by the defendant no. 1.
4. It is contended that the plaintiff was in occupation of the suit
flat by way of remuneration. However on 03.11.2010, he was
dispossessed forcefully by the defendant. Therefore, the plaintiff
constrained to file present suit alongwith the Notice of Motion.
5. The defendant opposed Notice of Motion by filing say on the
ground that defendant no. 4 purchased the suit flat in the year
2010 from defendant no. 1 and he is in possession since then.
Therefore, the question of dispossession does not arises. The
defendant contended that the plaintiff was never in possession of
the suit flat and the suit filed beyond limitation. Hence, on this
count itself, Notice of Motion needs to be rejected.
6. Heard both the sides. Perused Notice of Motion, reply and
plaint. Plaintiff filed suit under Section 6 of Specific Relief Act
seeking possession of the suit premises. It is not in dispute that the
plaintiff was appointed as Sub-Developer for construction of
building “Laxmi Palace”. It also reflect from the Agreement that he
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was allowed to sale shops and flats and he has retained the suit
flat as remuneration. The maintenance Bill shows it is issued in
the name of plaintiff. In my view, on the basis of the aforesaid
material, it is sufficient to held that the plaintiff has made out
prima-facie case. In the event, the property is transferred, great
prejudice would caused to the plaintiff hence, in my view, the
injunction restraining the defendants from creating third party
interest in the suit flat needs to be granted.
7. In my view, the issue of limitation and maintainability of suit
can not be decided at preliminary stage which required full fledge
trail. Hence, at this juncture, I am not inclined to accept the
submission of defendant that suit is barred by limitation. In view
of the above discussion, in my view, Notice of Motion needs to be
allowed. Thus, I proceed to pass the following order :
ORDER
1. Notice of Motion no. 185 of 2018 is hereby allowed in terms
of prayer clause (b) only.
2. Notice of Motion No. 185 of 2018 is disposed off accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 20.02.2020 Greater Bombay.
Dictated on : 24.02.2020
Typed on : 24.02.2020
Draft Submitted on : 24.02.2020
Checked on : 26.02.2020
Signed on : 26.02.2020
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NM 185-18 in NM 1804 of 2010
in Suit no. 1772-10
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
26/02/2020 at 3.25 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
20/02/2020
JUDGMENT/ORDER signed by P.O.
on
26/02/2020
JUDGMENT/ORDER uploaded on 26/02/2020
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