Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 502/2020
MHCC010013032020
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 502 OF 2020
IN
SUIT NO. 138 OF 2020
Mrs. Aparna Gautam Sabnis ...Plaintiff
Vs.
1. Mr. Vijay Keshav Sabnis & Ors. ...Defendants
Appearance :
Adv. Mr. Dhananjay Pathak & Mr. Sanjay Prabhala for the plaintiff.
Adv. Mr. S.S. Redekar for defendant Nos.1 and 2.
CORAM : HHJ Rajesh A. Sasne
(C.R.NO.62)
Date: 1st April, 2023
O R D E R
This Notice of Motion is taken out by the plaintiff for
following interim reliefs:
a) That pending the hearing and final disposal of the suit, the defendants, their
family members, their agents, servants and anybody on behalf of them be
restrained by an order and injunction of this Hon'ble Court, not to sale and
transfer possession of the suit premises viz. Flat No.401, 4th Foor, Ornate
Galaxy, Plot No.774, Tilak Road, Parsi Colony, Opp. B.E.S.T. Workshop,
Dadar T.T., Dadar (E), Mumbai 400 014, admeasuring about 953 sq.fts.
Carpet area, to anybody else;
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b) That pending the hearing and final disposal of the suit, the defendants, their
family members, their agents, servants and anybody on behalf of them be
restrained by an order and injunction of this Hon'ble Court, not to create any
further third party interest in respect of Flat No.401, 4th Floor, Ornate Galaxy,
Plot No.774, Tilak Road, Parsi Colony, Opp. B.E.S.T. Workshop, Dadar T.T.,
Dadar (E), Mumbai 400 014, admeasuring about 953 sq.fts. Carpet area, to
anybody else;
c) That pending the hearing and final disposal of the suit, this Hon'ble Court may
be kindly appoint Receiver High Court or any other fit and proper person as
Receiver of 'Suit Premises viz. Flat No.401, 4th Floor, Ornate Galaxy, Plot
No.774, Tilak Road, Parsi Colony, Opp. B.E.S.T. Workshop, Dadar T.T., Dadar
(E), Mumbai 400 014, and appoint the plaintiff as agent of the Court Receiver
and put her in possession of the suit premises as the suit premises is her
matrimonial house and presently defendant Nos.3 and 4 who are having no
concern with the suit premises are residing in the suit premises, under Order
40, Rule1, of the Code of Civil Procedure, 1908 with directions to Court
Receiver to preserve and maintain the suit premises;
d) That pending the hearing and final disposal of the suit, the defendants, their
family members, their agents, servants and anybody on behalf of them be
restrained by an order and injunction of this Hon'ble Court, not to restrict the
entry of the plaintiff to the suit premises viz. Flat No.401, 4th Foor, Ornate
Galaxy, Plot No.774, Tilak Road, Parsi Colony, Opp. B.E.S.T. Workshop,
Dadar T.T., Dadar (E), Mumbai 400 014, and not to restrict the plaintiff to
stay in the suit premises as the suit premises is her matrimonial house;
e) That pending the hearing and final disposal of the suit, this Hon'ble Court be
pleased to grant leave to the plaintiff under orderII, Rule2, of the Code of
Civil Procedure, 1908, to file substantial suit in respect of the suit premises viz.
Flat No.401, 4th Foor, Ornate Galaxy, Plot No.774, Tilak Road, Parsi Colony,
Opp. B.E.S.T. Workshop, Dadar T.T., Dadar (E), Mumbai 400 014, and for
other incidental reliefs by adopting appropriate proceedings and be permitted
to file present for permanent and temporary injunction as prayed in the plaint;
f) That pending the hearing and final disposal of the suit, this Hon'ble Court may
be pleased to appoint Court Commissioner to visit 'Suit Premises' viz. Flat
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No.401, 4th Floor, Ornate Galaxy, Plot No.774, Tilak Road, Parsi Colony, Opp.
B.E.S.T. Workshop, Dadar T.T., Dadar (E), Mumbai 400 014, and inspect the
same with permission to take photographs of the suit premises in order to
ascertain and to find out as to who are in actual use, occupation and
possession of the suit premises for the purpose of elucidating the deispute in the
matter and submit a reort to the same to this Hon'ble Court;
g) Interim and adinterim reliefs in terms of prayers (a) to (f) be granted;
h) Costs of the notice of motion be provided for,
i) Such other and further reliefs as the nature and circumstances of the case may
and in the interest of justice.
2. It is the case of the plaintiff that defendant No.1 is the
paternal uncle of her husband Mr.Gautam Sabnis. Defendant No.2 is
wife of defendant No.1. Defendant Nos.3 and 4 are the occupants of the
suit premises. The plaintiff is wife of Mr.Gautam Sabnis. After her
marriage, for some days she cohabited with said Mr.Gautam in the suit
premises. Due to marital discord, she left the suit premises and started
residing with her daughter at her parents' house. The suit premises is
purchased by defendant Nos.1, 2 and father and mother of the plaintiff's
husband. The father and mother of the plaintiff's husband are expired in
the year 2018. The suit premises is still standing in the name of
defendant Nos.1, 2 and the plaintiff's late inlaws. The plaintiff's
husband Mr.Gautam is one of the beneficiary of the suit premises.
According to the plaintiff, being wife of Mr.Gautam, she is successor to
the suit property. By notice dated 02.05.2018 she claimed her
right/share in the suit property on behalf of her husband. She
apprehends that defendant Nos.1 and 2 by disposing of the suit
premises wants to exclude the plaintiff and her daughter from the gains
after selling the suit premises. It is her contention that suit premises is
her matrimonial home. Therefore, she filed the suit for perpetual
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injunction, restraining the alienation of the suit premises and therein by
this motion prayed for aforesaid interim reliefs.
3. By affidavitinreply defendant Nos. 1 and 2 resisted the
motion. It is their contention that the suit premises is owned by
defendant Nos.1 and 2 and plaintiff has no right therein. These
defendants admit that the plaintiff is wife of their nephew Mr.Gautam.
The plaintiff's husband Mr.Gautam is still alive. These defendants are
residing in USA. For the purchase of suit premises these defendants
transferred Rs.2.5 crores from USA to their account at Thane Branch.
Said amount was used towards payment of consideration for purchase
of suit premises. Since, these defendants were not present in India at
the time of purchase of the suit premises, they had executed power of
attorney dated 18.03.2009 in favour of plaintiff’s father in law Mr.
Satish K. Sabnis for dealing in purchase of residential property. After
execution of the agreement to sell, the present defendants shocked and
surprised to see that said agreement also contained the name of
Mr.Satish K. Sabnis and Mrs. Ranjana S. Sabnis (parents of
Mr.Gautam). On inquiry, Late Mr.Satish informed the plaintiff that as
the defendant Nos.1 and 2 did not have PAN number which were
necessary for financial transaction, therefore, to complete the formality
name of Satish Sabnis and name of the plaintiff's motherinlaw was
also added in the agreement for sale. To avoid any conflict, these
defendants did not protest the action of the plaintiff's fatherinlaw.
After obtaining PAN Cards and OCI (Overseas Citizenship of India)
Cards, these defendants informed the inlaws of the plaintiff to delete
their names from the said agreement. Satish Sabnis and Ranjana Sabnis,
promised defendant No.1 that they would give their no objection if the
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present defendants want to sell the suit premises. These defendants
have appointed Ramakant Ghanate as Power of Attorney to manage and
to rent out the suit premises. Said Mr. Ghanate used to let out the flat
for paying guest. The plaintiff has left the suit premises prior to six
years. The plaintiff is trying to take advantage of death of the parents
inlaws. The plaintiff wants to extort money from the defendants. These
defendants denied that the plaintiff's fatherinlaw and motherinlaw
also purchased the suit premises. The plaintiff and her husband never
had good relation. It is denied that the plaintiff will be entitled for the
reliefs of injunction, receiver. With these contentions defendant Nos.1
and 2 have requested to dismiss the motion.
4. Advocate for the plaintiff filed pursis submitting that the
plaintiff does want to proceed against defendant Nos.3 and 4 in this
motion hence, this motion is only against defendant Nos.1 and 2.
5. Heard learned advocate for defendant Nos.1 and 2. Read
the written submissions filed by the plaintiff. No oral submissions of the
plaintiff. Points for determination along with my findings thereon with
reasons are as follows :
POINTS FINDINGS
1 Whether the plaintiff has prima facie case ? No
2 Whether the balance of convenience lies in
favour of the plaintiff ?
No
3 Whether the plaintiff would suffer
irreparable loss, if injunction is not granted?
No
4. Whether the Court Receiver needs to be
appointed ?
No
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5. Whether the plaintiff is entitled for Leave
under Order 2 Rule of the C.P.C. ?
Yes
6. Whether the Court Commissioner is required
to be appointed ?
No
7 What order ? Motion dismissed
for relief of
injunction. Relief
under O.2 R.2 is
allowed
REASONS
AS TO POINT Nos. 1 TO 3 :
6. All these points are interlinked with each other hence, to
avoid repetition of findings they are taken together for consideration.
This suit is for simplicitor injunction to restrain the defendants from
alienating the suit premises and for relief not to restrict the entry of the
plaintiff to the suit premises. No declaration is sought by the plaintiff.
After going through the pleadings in the plaint, it appears that the sole
plaintiff Mrs. Aparna claiming her rights in the suit premises through
her husband Mr.Gautam. She has filed this suit in capacity of wife of
said Mr.Gautam. According to her, this suit premises was purchased by
defendant Nos.1, 2 and her parentsinlaw. Her parents in law had
expired. Therefore, according to her, after her parents inlaw, her
husband is one of the owner of the suit premises. She claims right in the
suit premises as a wife of her husband. Admittedly, her husband is alive.
Even if it is considered that the suit premises was originally purchased
by defendant Nos.1, 2 along with parentinlaw of the plaintiff, after
death of plaintiff's parents inlaw, at the most her husband will succeed
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to the share of his parents. Share of the plaintiff's parentsinlaw will
not directly devolve on the plaintiff. Therefore, prima facie the plaintiff
in the lifetime of her husband has no rights in the suit premises.
7. Though the plaintiff claims that the suit premises is her
matrimonial house, she admits that she has left the suit premises and
started residing with her parents' house. Therefore, it is not the case
that the plaintiff is residing in the suit premises and the defendants are
obstructing her possession. According to her, defendant Nos.1 and 2 are
also owners of the suit premises. She cannot restrict the owner's right in
the suit premises. She cannot claim injunction as prayed, against true
owner.
8. The copy of agreement for sale dated 25.06.2009 bears
name of the purchasers as defendant Nos.1, 2 and father and mother of
the plaintiff's husband. The plaintiff's fatherinlaw Mr. Satish Sabnis
has signed this agreement for himself and as constituted attorney of
defendant Nos.1 and 2. This agreement is also signed by motherinlaw
of the plaintiff. They all are shown as purchasers of the suit premises. It
is the case of defendant Nos.1 and 2 that the amount for the purchase
of suit premises was actually paid by them. It is their case that for
purchase of the said flat they have transferred Rs.2.50 crores from their
account at Associate Bank N.A. in USA to ICICI account at Thane
Branch and out of said amount, the consideration for purchase of said
flat was paid. It is their case that at the time of execution of said
agreement for purchase of the flat they were not in India. They had
already executed power of attorney dated 18.03.2009 in favour of the
plaintiff's fatherinlaw. It is their case that the plaintiff's fatherinlaw
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informed to defendant Nos.1 and 2 that as these defendants did not
have PAN number, which was necessary for the transaction and
therefore, the name of the plaintiff's parentsinlaw are mentioned in
the agreement for sale. These defendants have relied on the copy of
accounts statement of ICICI Bank Exh.A. Said statement bears certain
entries of withdrawal of cash and amounts paid to Ornate Developer. It
may be a matter of fact about who has actually paid the amount of
consideration. That may be a mutual understanding between defendant
Nos.1, 2 and parentsinlaw of the plaintiff. Except the contentions in
the reply to the motion, no action has been initiated by defendant Nos.1
and 2 to claim their exclusive title of the suit premises. The suit
premises was purchased in the year 2009. Till filing of this reply in the
year 2020, no such claim is made by defendant Nos.1 and 2. As
aforesaid, it may be fact of mutual understanding between defendant
Nos.1, 2 and parentsinlaw of the plaintiff. Even though this fact is not
considered, the plaintiff needs to prove her prima facie case
independently. She claims right in the property of her parentsinlaw.
Her husband is alive. In the lifetime of her husband, she has no right
independently in the said premises. Hence, the plaintiff has no prima
facie case.
9. On the point of relief of interim injunction the advocate for
the plaintiff relied on following judgments:
a. Smt. Shefali Roy V/s. Jaswant Dass and others, (AIR 1972
Allahabad 254);
b. Smt. Rajnibai alias Mannubai V/s. Smt. Kamla Devi and
others, (AIR 1996 Supreme Court 1946);
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c. Nagorao and others V/s. The Nagpur Improvement Trust and
others, (AIR 2001 Bombay 402);
d. Billimoria Jehan Bux Tehmuras and others V/s. Indian
Institute of Architects and another, (2005 (2) Mh.L.j.
2016);
10. The Judgment in Shefali Roy’s case supra describes
principles to be followed for grant of temporary injunction. As aforesaid
the plaintiff has no primfa facie case therefore, this judgment is not
helpful to the plaintiff.
11. The Judgment in Smt. Rajnibai alias Mannubai’s case
supra, it is held that in the suit for declaration of title simplicitor, court
has power to grant adinterim injunction. In case before me, the suit is
not for declaration, it is for simpliciter injunction therefore, this
judgment is not helpful to the plaintiff.
12. The Judgment in Nagorao’s case supra, it is held that
court must see that prima facie case is made out for grant of injunction.
In case before, no primfa facie case is made out hence, this judgment is
not helpful to the plaintiff.
13. The Judgment in Billimoria’s case supra also discussed
about principles for grant of injunction, it is held that for grant or
refusal to grant injunction is covered by three well established
principles viz. i) whether the petitioner has made out a prima facie
case; ii) whether the petitioner would suffer irreparable injury; and iii)
whether the balance of convenience lies in his favour. The burden to
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prove these three necessities lies on the person seeking injunction. In
case before me, the plaintiff failed to prove prima facie case. Therefore,
this judgment is not helpful to the plaintiff.
14. Learned advocate for defendant Nos.1 and 2 relied on
following citations in support of his contentions on the point of interim
injunction:
1. Premji Ratansey Shah and Others V/s. Union of Indian &
Others, (1994) 5 Supreme Court Cases 547.
2. Punja C. Dhotrale V/s. Vithoba L. Dhotrale, 1980
Bom.C.R.577
15. The judgment in Premji Shah’s case supra, it is held that
no injunction can be granted against true owner. In Punja Dhotrale’s
case supra, it is held that the plaintiff is not entitled to relief of
temporary injunction unless he is in possession. Mere suit for
injunction does not make him entitled to such relief. In this case
injunction was claimed to protect possession. In case before me, the
plaintiff is not in possession. She is claiming injunction against the
alienation not for protecting possession. Therefore, this judgment will
not be helpful to the defendants.
16. As aforesaid, the plaintiff has no independent right in the
suit premises. Even if it is considered that her inlaws are dead, her
husband will be entitled for the succession in respect of the suit
premises to the extent of share/rights of his parents. Therefore, prima
facie the plaintiff has no independent right in respect of the suit
premises. Therefore, the judgments relied upon by the plaintiff in case
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of Krishnaswamy, Smt. Shefali Roy, Rajnibai, Nagorao and Billimoria’s
case supra are not helpful to the plaintiff.
17. As the plaintiff has no independent right in respect of the
suit premises balance of convenience is not in her favour, no irreparable
loss will be caused to her if injunction is not granted. Hence, I answer
Point Nos.1 to 3 accordingly.
AS TO POINT No. 4 :
18. The learned advocate for the plaintiff on the point of
appointment of receiver has relied on judgment in T. Krishnaswamy
Chetty V/s. C. Thangavelu Chetty & others,(A.I.R. 1955 Madras
430). Wherein it is held that, the appointment of receiver is recognized
as one of the harshest remedy, which will be allowed in the extreme
cases and in circumstance where the interest of the person is exposed to
manifest peril. In case before me there are no such circumstances exist.
When the plaintiff has no independent right in the suit premises,
receiver cannot be appointed. Hence, this judgment is not helpful to
the plaintiff.
19. In said Krishnaswamy’s case supra five requirements are
provided for appointment of Court Receiver, one of which is that prima
facie the plaintiff has a very excellent chance of succeeding in the suit.
In case before me, the plaintiff has no independent right in respect of
the suit premises. Therefore, the plaintiff has no excellent chance in
succeeding the suit. Hence there are no circumstances, which required
to appoint the Court Receiver.
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20. The plaintiff also relied on judgment in S.B. Industries,
Freegunj and another V/s. United Bank of India and others, (AIR
1978 Allahabad 189). It is held therein that the plaintiff must establish
a reasonable possibility that he will ultimately succeed in obtaining the
relief claimed in the suit. He must establish a good prima facie case.
These elements are absent in case before me hence, this judgment is not
helpful to the plaintiff. Therefore, Court Receiver cannot be appointed.
21. The plaintiff has prayed for appointment of Court Receiver
High Court. The advocate for the defendant relied on judgment in
Girish M. Joshi V/s. Jagat Manubhai Parik & Ors., Writ Petition
No.2527 of 2009 decided by the Hon'ble Bombay High Court on
11.09.2009. Wherein its is held that there is no provision of law under
which any Court subordinate to the High Court can appoint the Court
Receiver High Court Bombay as a Receiver therefore, no such Court
Receiver can be appointed. As aforesaid, no case is made out for
appointment of Court Receiver. Hence, I answer point No.4 in the
negative.
AS TO POINT No. 5 :
22. The plaintiff has filed this suit only for perpetual
injunction. She prays for leave under Order 2 Rule 2 of the CPC to file
substantial suit for other reliefs by adopting appropriate proceeding.
She relied on judgment in Canning Mitra Phoenix Ltd., V/s. M/s.
Popular Constructions and another, (1994 Mh.L.J. 812). Wherein it
is held that such leave can be obtained at any stage before disposal of
the suit. As the plaintiff wants to file another suit for the substantial
relief, the leave is required to be granted. Hence, the plaintiff is entitled
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for such relief. Hence, I answer point No.5 in the affirmative.
AS TO POINT No. 6 :
23. The plaintiff prays for appointment of Court Commissioner
to visit suit premises to inspect it, to take photographs in order to
ascertain and to find out as to who are in actual use, occupation and
possession of the suit premises. In my view, it is nothing but collection
of evidence by appointment of Court Commissioner, evidence as to
possession cannot be collected. Admittedly, the plaintiff is not in
possession. She is not claiming to be in possession.
24. The learned advocate for the defendants relied on
judgment in Sanjay Namdeo Khandare V/s. Sahebrao Kachru
Khandare and others, (2001(2) Mh.L.J. 959) and Pandurang
Nandlal Chandak and another V/s. Sandip Mukundrao Pensalwar
and another, (2009(2) Mh.L.J. 487). In Sanjay Khandare’s case and
Chandak’s case it is held that Court Commissioner cannot be appointed
for collecting evidence, it can be appointed if the Court finds a local
investigation is necessary for the purpose of deciding matter in dispute.
In case before me, the plaintiff wants to appoint the Court
Commissioner for collecting evidence of the possession, which cannot
be allowed. Therefore, relief for appointment of Court Commissioner
cannot be allowed. In the result, I answer Point No.6 in the negative.
AS TO POINT No. 7 :
25. In view of aforesaid findings notice of motion cannot be
allowed for the relief of injunction, Court Receiver and Court
Commissioner. The plaintiff's request for leave under Order 2 Rule 2 of
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CPC is required to be allowed. In the result in answer to point No.7, I
pass the following order.
ORDER
1. Notice of Motion No.502/2020 is dismissed for the relief
of interim injunction, appointment of court receiver and
appointment of Court Commissioner.
2. Relief sought in the notice of motion for leave under
Order2, Rule2 of the Code of Civil Procedure is allowed.
The leave is granted accordingly.
3. Costs shall follow the event.
4. Notice of Motion No.502/2020 is disposed of accordingly.
Date : 01.04.2023 (Rajesh A. Sasne)
Dictated on : 01/04/2023. Judge, C.R.No.62,
transcribed on : 03/04/2023. City Civil Court,
Signed on : 05/04/2023. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
05.04.2023 at 5.40 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. R.A. SASNE
(C.R.No.62)
Date of pronouncement of Order 01/04/2023
Order signed by P.O. on 05/04/2023
Order uploaded on 05/04/2023
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