Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. NM No.494-20 Suit 1358-19
MHCC010012932020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER
BOMBAY
NOTICE OF MOTION NO. 494 OF 2020
IN
S. C. SUIT NO. 1358 OF 2019
Nandu Vasant Meghji ]
Age: 46 years, Indian Inhabitant, ]
having address at Shop No.24, 2nd ]
Floor, 20/22, Kemraj Building No.5, ]
Khambhatta Lane, Khetwadi, ]
Mumbai-400 004. ] .. Plaintiff.
Versus
1. Shagun Constructions ]
having address at 202-203, Krishvi]
heights, 2nd floor, V.P. Road, Charni ]
Road (East), Mumbai-400 004. ]
AND ALSO AT :
3rd Floor, A-Wing, 302, Rajgiri ]
Apartments, 13th Khetwadi Back, ]
Road, Grant Road (East), ]
Mumbai-400 004. ]
AND ALSO AT :
Corporate Office, 6th Floor, ]
“D” Wing, Trade World, Kamla ]
Mill Compound, Lower Parel, ]
Mumbai-400 013. ]
2. Prakash B. Purohit ]
3. Kali Prakash Purohit ]
Both adults, Indian Inhabitants, ]
having address at 701, C-2, ]
Ganjawala Compound, 249, ]
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Dr. D.B. Marg, Near Chheda Colour]
Lab, Opp. Reliance Super, ]
Mumbai Central, Mumbai-400008.] .. Defendants.
Ld. Adv. A. Giriraj for Plaintiff.
Ld. Adv. Ashutosh Kaushik for defendant no. 1.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 20/04/2024
ORDER
The present notice of motion has taken out by the plaintiff
for claiming the relief inter-alia:
a. To pass an order of temporary injunction restraining the
defendants from creating any third party right, title and interest
in respect of the suit premises. Flat No. A-1903 on the 19th Floor,
admeasuring approximately 43.84 sq. mtrs. Situated on
C.S.No.829 & 830, Off Girgaon Division, bearing Cess No. D-
2160, D-2161 and D-2162, situated at Khambhatta Lane,
Mumbai-400 004;
b. To appoint a Court Receiver or any other person as private
receiver in respect of the suit premises I.e. Flat No. A-1903 on the
19th Floor, admeasuring approximately 43.84 sq.mtrs. Situated on
C.S.No.829 & 830, Off. Girgaon Division, bearing Cess No. D-
2160, D-2161 and D-2162, situated at Khambhatta Lane,
Mumbai-400 004 under order 40 of the Code of Civil Procedure,
1908 and further be pleased to appoint the plaintiff as agent of
the Court Receiver;
c. Interim and ad-interim reliefs in terms of prayer clauses (a) to (c)
hereinabove be granted;
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d. For costs of this notice of motion.
e. Any other reliefs as this court, may deem, fit and proper.
2. It is the contention of the plaintiff that the plaintiff was
tenant of Room No.4 admeasuring approximate 191 square feet on the
ground floor of the building known as Mangumal Multani Building,
situated at Khambhatta lane, Khetwadi, Mumbai-400 007, bearing
C.S.No.829and 830 of Girgaon Division (hereinafter referred as ‘the
tenanted premises’).
3. It is further contended that the defendant No.1 has
approached the plaintiff, in the year 2010 with a proposal for
redevelopment and accordingly, offered permanent alternate
accommodation in the form of premises being flat No.A-1903, on the
19th floor, admeasuring approximately 43.84 square meter, situated at
C.S.No.829 and 830 of Girgaon Division, (hereinafter referred as the
suit premises).
4. According to the plaintiff, he consented for the same
alongwith other tenants and it was also agreed upon, in between the
parties that the rent would be paid to the tune of Rs.13,000/- per
month, in lieu of temporary alternate accommodation till the time of
completion of the construction. In addition to that, the permanent
alternate accommodation i.e. till premises would be given to the
plaintiff. According to the plaintiff, it was the obligation and the duty of
the defendant No.1 to execute other documents in favour of the
plaintiff. However, despite of persistent requests, the defendant No.1
did not pay any attention and refused to comply his obligations. It is
further contended that at that time, it was represented to the plaintiff
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that the building would be constructed within a span of 7 years from
the premises being vacated and accordingly the plaintiff has vacated the
premises. Upon necessary permission being obtained by defendant
No.1, from the concerned authorities somewhere in the year 2010. It is
also contended that the plaintiff was in peaceful use, occupation and
possession of the said tenanted premises till about 2010.
5. It is the contention of the plaintiff that in the year 2009-
2010 the defendant No.1 being developer approached the owner and
tenants of Mangumal Multani building with proposal for redevelopment
and offered plaintiff an amount of Rs.22.00 lakhs for shifting into a
smaller tenanted premises which was also leased for permanent
alternate accommodation and accordingly the plaintiff agreed to
exchange the premises being Room No.1 on the second floor with the
earlier premises, being Room No.4 on the ground floor. It is further
contention of the plaintiff that the agreed transaction was that the
plaintiff would surrender the tenancy of Room No.1 on the second floor
and in return he would get a tenancy Room No.4 alongwith the
consideration of Rs.22.00 lakhs for the deficit area and would be further
entitled to permanent alternate accommodation in lieu of Room No.4 as
and when the building is constructed. The plaintiff and defendant No.1
agreed to accept the exchange as in any case, the building was going
into redevelopment and further even for the earlier premise, a larger
area would be given once the redevelopment is completed. It is also
contended that as the defendant No.1 informed the plaintiff for
exchange of tenancy at the earliest as once the MHADA NOC is
received, there would be no embargo on sale or transfer of the tenancy
and it is necessary that the entire transaction be concluded at the
earliest.
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6. It is further contention of the plaintiff that it was agreed
between the plaintiff and defendant No.1 that plaintiff would give up
his rights in the premises being Room No.1 on the second floor and in
return will be declared as tenant of the premises being Room No.4 on
the ground floor of the same building alongwith an amount of Rs.22.00
lakhs for the deficit area. According to the plaintiff, the defendant No.1
received NOC for redevelopment from MHADA on or about 26/08/2010
and the same has been renewed periodically from time to time. The
plaintiff further contended that from August 2010 onwards. There were
restrictions on the transfer of tenanted premises till the formation of co-
operative society. It is also contended that the certified list of tenants
was prepared and certified by MHADA. According to the plaintiff, in the
certified list of tenants the name of the occupants/allottee as the
plaintiff in respect of the earlier premises is reflected and therefore the
plaintiff is claiming that he is entitled for the alternate accommodation
i.e. the suit premises.
7. According to the plaintiff, the work of redevelopment
commenced in or about 2010 and he was informed that the building
would be ready for possession by October 2018. It is also contended
that the defendant No.1 asked the plaintiff to give up his tenancy right
but the plaintiff reminded the defendant No.1, the consideration as
promised for transfer of tenancy from Room No.1 to Room No.4 of
Rs.20,30,000/- has not been paid. In fact, the defendant No.1 had
promised that the same would be paid by way of staggered payment
and the defendant No.1 had paid an amount of Rs.2,00,000/- at that
time only. Thereafter, it was promised by plaintiff that after the plaintiff
agreed to execute the transfer of tenancy in respect of Room No.4, then
the amount to be paid for the deficit area for shifting from Room No.1
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to Room No.4 immediately. According to the plaintiff, it was agreed
that the defendant No.2 and 3 would make payment of Rs.2,00,000/- to
the plaintiff which would be appropriated against the debt of defendant
No.1 for the deficit area. On being amount first payable and
subsequently the defendant No.1 would pay an amount of
Rs.20,30,000/- as against the payment to be made under the agreement
of transfer of tenancy, in respect of the payment being made by the
defendant No.2 and 3. It is further contended that the suit premises and
the non-execution of the document would be security as against the
receipt of consideration. It is also contended that the plaintiff would
only sign an agreement for transfer of tenancy, but the same shall not
contain any clause in respect of the transfer of the rights in respect of
the suit premises, as the premises would be the security for the payment
of consideration under the agreement to be executed and further for the
payments already due and payable for the earlier tenancy. The plaintiff
also contended that he executed an agreement for transfer of tenancy
dated 08/07/2015, but the defendants requested for time to pay
consideration for transfer of the tenancy and the same has been
extended by mutual consent from time to time. However, the transfer
of suit premises was not yet effectuated and the plaintiff continuous to
be the owner of the suit premises as no document of transfer has been
executed in respect of the same.
8. It is further contended that Building was demolished in the
year 2010 and the tenanted premises was not in existence at that point
of time. It is the contention of the plaintiff that immediately after the
execution of the agreement, the defendant No.2 and 3 have paid an
amount aggregating of Rs.18,30,000/- which was to be adjusted against
the payment for the deficit area and the payment under the agreement
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was not made and the defendant No.1 sought time for payment from
time to time. Despite of the same, the amount has not been paid and
the property is presently at the stage of being finally concluded.
According to the plaintiff, that the agreement for tenancy was executed
only on misrepresentation by the defendants collectively, who had
entered into this transaction in order to deprive the plaintiff of his
rightful monies.
9. It is further contended by the plaintiff that the plaintiff is
not very literate and on account of cordial relations trusted the
defendants. The entire transaction was a sham and false and having
ulterior motive. The plaintiff is owner of the suit premises and the
obligation on the part of the defendant No.1 are not being complied
with which the plaintiff is entitled to cancel and terminate the
document i.e. agreement dated 08/07/2015. The plaintiff further
contended that when he made inquiry with MCGM and other
authorities, he came to know that the occupation certificate is likely to
be issued shortly. Thereafter the plaintiff sent letter dated 10/11/2018
to the defendant and thereby called upon them to handover the
possession of the suit premises to plaintiff immediately and requested
them not to create any third-party interest. The plaintiff also informed
them that the agreement has been cancelled in view of non-fulfillment
of the obligations and therefore question of any rights accruing in
favour of any of the defendants under the agreement dated 08/07/2015
would not arise.
10. According to the plaintiff, the defendants are likely to
handover the possession of the suit premises and also with intention to
create third party interest, plaintiff compelled to file the present suit.
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According to the plaintiff, electricity bill and other documents which are
shown by the defendants for obtaining NOC are not in respect of the
tenanted premises. Electricity bills are in the name of plaintiff and still
the plaintiff is owner of the suit premises in lieu of the tenanted
premises. He further contended that he has prima-facie case as by way
of misrepresentation the defendant No.1 got registered the deed of
transfer of tenancy by using the document of second floor by taking
undue advantage of the literacy of the plaintiff.
11. It is further submitted that the balance of convenience is
also in favour of the plaintiff. The defendant is likely to handover
possession of the suit premises and also tried to create third party
interest. If the defendants are not restrained, the plaintiff would suffer
irreparable loss which would not compensate in terms of money.
12. The present notice of motion has been resisted by the
defendants by filing reply on the ground that the defendant No.1 was
original landlord of the building known as Mangumal Multani Building.
The said building was subsequently redeveloped by the landlords as
developers. The plaintiff was original tenant of the premises being
Room No.1. On or around 12/02/2010 the plaintiff transferred his
tenanted premises and shifted from Room No.1 to Room No.4 on the
ground floor. It is submitted that the said transfer of tenancy agreement
was entered into between the plaintiff as a transferor and Mr. Shailesh
Mutha as the Transferee. It is further submitted that the defendants
were not made party to the transfer of tenancy agreement. In the year
2010, the defendants approached the owners and tenants of the said
building with the proposal for redevelopment and subsequently consent
for redevelopment was acquired from the plaintiff and other tenants. It
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is also submitted that the defendant received NOC from MHADA on
26/08/2010 wherein the plaintiff has been shown as tenant of Room
No.4 on the ground floor. It is further submission of the defendant that
somewhere around 2015, the plaintiff approached the defendant No.1
and informed that he was desirous for surrendering his tenancy of
Room No.4. Accordingly, on 08/07/2015 the plaintiff entered into a
transfer of tenancy agreement with the defendant No.2 and 3 and being
the transferees and the defendant No.1 being confirming party. The
said agreement was duly registered and thereafter, the plaintiff is no
longer remained as a tenant of Mangumal Multani Building and not
entitled to any premises in the new building. All the tenancy rights of
the plaintiff in respect of the said premises ceases to exist and he is not
entitled to make any claims with respect to the said premises as alleged.
13. It is further submitted that the plaintiff has received the
entire consideration under the said agreement and all the terms and
conditions of the same have been duly complied with. The plaintiff has
executed the registered permanent alternate accommodation agreement
on 04/12/2018, in lieu of Room No.4 on the ground floor, with
defendant No.2 and 3 in respect of the suit premises. In view of the
same the defendant No.2 and 3 are legal owners of the suit premises
under the registered agreement and the plaintiff has no right and title
of the same. According to this defendant, after lapse of three years, the
plaintiff has filed present suit for blackmailing and with intention to
extort money from the defendant. Therefore, he prays to dismiss the
notice of motion.
14. Perused the notice of motion, say and the documents.
Heard both sides.
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15. By filing this suit, the plaintiff is seeking cancellation of the
registered agreement dated 08/07/2015. It is seen that the said
agreement is a registered agreement and for the transaction, an amount
of Rs.2,00,000/- was paid to the plaintiff. It is argued by the defendant
that the total consideration amount was paid to the plaintiff and receipt
in that regard is also annexed with the said agreement. It is the case of
the plaintiff that when the document was executed only Rs.2,00,000/-
was paid to him and the defendant No.2 and 3 have not paid the entire
amount, therefore, vide notice cum letter dated 10/11/2018 informed
the defendant by mentioning that the obligations under the transfer of
tenancy was not complied and therefore the said agreement stands
cancelled. It is pertinent to note that thereafter on 10/11/2018 the
plaintiff has filed complaint with V. P. Road Police Station, Mumbai in
respect of noncompliance of the said agreement and fraud and
misrepresentation has been played upon him. At the time of considering
the prayer for interim relief, this court has observed in Para-5 as
follows;
“It is also admitted position that the plaintiff has been paid the
total consideration mentioned in the agreement”.
16. It is significant to note here that while advancing the
arguments of this notice of motion, the learned Advocate for the
defendant has drawn my attention towards the aforesaid observations
made by this court in Para-5 of the order dated 07/12/2018. According
to the defendants, the plaintiff has not filed any complaint in respect of
misrepresentation or fraud played upon him with MHADA. Prima-facie,
it is seen that in the registered transfer of tenancy agreement, it is
clearly mentioned that an amount of Rs.2,00,000/- only was received
by the plaintiff. It is pertinent to note that mere oral submission of
payment of whole consideration is not sufficient as the same is not
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supported by any document. From the said agreement, it is clearly
mentioned that the balance consideration/amount shall be paid by the
defendants to the transferor on or before execution of agreement.
Prima-facie it appears that vide the said agreement the consent and
confirmation in respect of transfer of all the rights, title and interest
were obtained by the defendant No.2 and 3, but there is no whispered
when and by which mode the balance consideration or balance amount
would be paid to the plaintiff.
17. The learned Advocate for the defendant has submitted that
the prayer clause “b” and “c” mentioned in the notice of motion become
infructuous as defendant No.1 has already handed over the possession
of suit premises. As per the alleged statement filed on record, it is seen
that in lieu of tenanted premises the suit premises proposed to be
allotted to the allotees i.e. defendant Nos. 2 and 3.
18. In the present case, the agreement dated 08/07/2015 is
under challenged. The said transaction is also under challenged. The
notice issued to the defendant and the police complaint lodged by the
plaintiff clearly indicate that he was not received the total consideration
amount in respect of the suit premises. It appears that the plaintiff is
out of possession of the suit premises and also not received money. The
plaintiff is claiming the misrepresentation and fraud played upon him at
the time of the execution of the agreement. Under this peculiar
circumstance, it is required to avoid the further unnecessary
complications and the multiplicity of the proceedings. Therefore, it is
required to protect the right of the plaintiff in respect of the tenanted
premises/suit premises as prima-facie the balance consideration amount
was not appeared to be paid to the plaintiff. Admittedly, the Room No.4
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is not in existence as the said property is redeveloped and in lieu of
Room No.4, the Flat No. A-1903 is constructed. Till the determination
of the genuineness of the registered document dated 08/07/2015, right
and interest of both the parties in respect of the tenanted premises/suit
premises, directions to that effect must be required. If the property is
not protected, the rights of the plaintiff would be infringed and he
would suffer irreparable loss which could not be compensated in terms
of money. Therefore, it is required to restrain defendants from creating
third party rights in respect of the suit premises.
19. Considering the pleadings, documents and submissions, it
appears that the plaintiff has established prima-facie case and balance
of convenience is also lies in his favour. Thus, I am of the view that the
plaintiff had made out his case for grant of discretionary relief of
temporary injunction. Hence, I proceed to pass the following.
ORDER
1. The Notice of Motion No. 494 of 2020 is partly allowed in
terms of prayer clause “a” only.
2. Costs in cause.
3. Notice of Motion No. 494 of 2020 is disposed of accordingly.
(Smt. Anita B. Sharma,)
Judge,
City Civil Court, Greater Bombay
Dated : 20/04/2024 C.R. No.03
Dictated on : 20/04/2024
Typed on : 24/04/2024
Signed on : 25/04/2024
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“Certified to be true and correct copy of the original signed order”.
25/04/2024
at about p.m.
(Dastagir Babalal Mulla)
Stenographer Grade-I (Gazetted)
Court Room No.03, Gr. Bombay
Name of the Hon'ble Judge : Smt. Anita B. Sharma,
Judge, Bombay City Civil Court &
Addl. Sessions Judge,
Court Room No.03, Gr. Bombay
Date of pronouncement of
Order
: 20/04/2024
Order signed by Hon'ble13 pt
Judge on
: 25/04/2024
Order uploaded on : 26/04/2024
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