Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no.475-19 in L.C.Suit no.9880-1987
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 475 OF 2019
(CNR no. MHCC010011742019)
IN
L.C. SUIT NO. 9880 OF 1987
(CNR no. MHCC01 0058142012)
(HIGH COURT SUIT NO. 1496 OF 1987)
Mahendra Janardan Velinkar ]... Plaintiff
Versus
1. Mrs Vaishali Sharad Kulkarni & ors. ]... Defendants
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 26th February, 2019.
Mr. Kandekar with Ms. Rohini Bhadavkar, advocates for plaintiff.
Mr. Shekhawat, advocate for defendant no. 1.
Mr. Rohan Sawant, advocate for defendant no. 2(a) and 2(b).
Ms. Hetal Gala, advocate for defendant no. 4.
ORDER
1. The defendant no. 4 has taken out this motion seeking to
dispose off the suit qua defendant no. 4.
2. The learned advocate for the defendant no. 4 submitted
that the suit for specific performance was originally filed against
defendant Raghavendra Vinayakrao Wagh who expired on 12.03.1996
and consequently, the defendant nos. 1 to 4, being his son / daughters
were brought on record. According to him, the defendant no. 2, brother
of remaining defendants was looking after the matter with assurance to
protect interests of the other defendants. The defendant no. 4 never
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2 NM no.475-19 in L.C.Suit no.9880-1987
executed any power of attorney in favour of defendant no. 2. However,
the defendant no. 2 with the help of power of attorney executed by
defendant nos. 1 and 3, further executed an agreement dated
18.09.2010 with defendant nos. 5 and 6 for transfer of the suit flat, by
confirming that he was in exclusive possession of suit flat.
3. The learned advocate for defendant no. 4 further submitted
that the defendant no. 2 by letter dated 19.07.2011 confirmed that the
agreement executed by and between defendant nos. 1 to 3 and
defendant nos. 5 and 6 is not binding on defendant no. 4. According to
him, the defendant nos. 5, 6 and 7 are put in possession of the suit flat.
He further submitted that original defendant – father of the defendants
never apprised the defendant no. 4 and she relied on the false assurance
given by defendant no. 2. He further submitted that she will never claim
any rights in respect of the suit flat. According to him, if the suit is not
disposed off against the defendant no. 4, she will suffer great harm and
loss.
4. On the other hand, the learned advocate for the plaintiff
strongly opposed the motion by labelling it frivolous, misconceived and
malafide. According to him, all the defendants are equally liable. He
further submitted that the suit has been instituted for specific
performance of an agreement dated 14.10.1983 which was further
confirmed by agreements dated 11.12.1984 by which the original
defendant agreed to sell the suit flat for the consideration of amounts
borne by the plaintiff towards the fees Rs.23,000/ paid by the him for
approval of building plans and his outstanding professional fees
Rs.20,000/. According to him, the plaintiff does not know internal
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3 NM no.475-19 in L.C.Suit no.9880-1987
agreement executed inter se defendants.
5. It appears from the record that after death of original
defendant his son and daughters were brought on record as legal
representatives. Therefore, prima facie they are liable for the rights and
liabilities if any arising out of the agreements impugned in this suit in
the capacity of the legal representatives of the original defendant.
Merely because the defendant nos. 1 to 3 transferred the suit flat to
defendant nos. 5 to 7 will not absolve the defendant no. 4 from her
liabilities arising in capacity of the legal representatives of the original
defendant towards the agreements impugned in this suit and therefore,
she can not claim for disposal of the suit qua her. If she suffers any
harms or loss consequent to decision of this suit if decided in favour of
the plaintiff, that will be the concernancy inter se the defendant no. 4
and other defendants. Therefore, the motion appears absolutely
misconceived and moved with sole intention to protract final hearing
and decision of the suit which is pending since 1987. Therefore, the
motion deserves to be dismissed with costs. Thus, the following order is
passed:
ORDER
1. The Notice of Motion no. 475 of 2019 is dismissed with costs.
Sd/-
(Dr. M. S. Deshpande)
Judge,
Date : 26.02.2019 City Civil Court, Mumbai.
Dictated on : 26.02.2019
Transcribed on : 26.02.2019
Checked by HHJ on : 27.02.2019
Signed by HHJ on : 27.02.2019
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4 NM no.475-19 in L.C.Suit no.9880-1987
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 27.02.2019 at 4.15 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
26/02/2019
JUDGMENT/ORDER signed by
P.O. on
27/02/2019
JUDGMENT/ORDER uploaded
on
27/02/2019
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