Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 187-18 in NM 1849 of 2011
in Suit no. 3561-11
1 Date : 17.10.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 187 OF 2018
IN
NOTICE OF MOTION NO. 1849 OF 2011
IN
SUIT NO. 3561 OF 2011
(CNR NO.MHCC01 0007202018)
Rapid Inexci Services Pvt. Ltd. & Anr. .. Plaintiffs
Versus
Ram Asare Baburam Vishwakarma & Ors. .. Defendants
Appearances :
Adv.Mayur Somaiya i/b Lex Conseiller present.
Adv.R.R.Sharma for defendant no.3 present.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 17.10.2019
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
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NM 187-18 in NM 1849 of 2011
in Suit no. 3561-11
2 Date : 17.10.2019
Flat i.e. , Flat No. 302 situated at “A” Wing, on the third
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
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. 302,
situated at “A” Wing, on the third 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, adinterim 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. 302, situated in “Laxmi Palace” “A” Wing, 3rd
Floor, Jankalyan Nagar, Marve Road, Malad (West), Bombay 400
095. (hereinafter shall be referred to as suit flat).
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NM 187-18 in NM 1849 of 2011
in Suit no. 3561-11
3 Date : 17.10.2019
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
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 and defendant
dispossessed him. 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.
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NM 187-18 in NM 1849 of 2011
in Suit no. 3561-11
4 Date : 17.10.2019
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 SubDeveloper for construction of
building “Laxmi Palace”. It also reflect from the Agreement that
he 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
primafacie 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. 187 of 2018 is hereby allowed in terms
of prayer clause (b) only.
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NM 187-18 in NM 1849 of 2011
in Suit no. 3561-11
5 Date : 17.10.2019
2. Notice of Motion No. 187 of 2018 is disposed off accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 17.10.2019 Greater Bombay.
Dictated on : 17.10.2019
Typed on : 17.10.2019
Draft Submitted on : 17.10.2019
Checked on : 22.10.2019
Signed on : 22.10.2019
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NM 187-18 in NM 1849 of 2011
in Suit no. 3561-11
6 Date : 17.10.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
22/10/2019 at 4.00 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
17/10/2019
JUDGMENT/ORDER signed by P.O.
on
22/10/2019
JUDGMENT/ORDER uploaded on 22/10/2019
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