Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 N/M No.520 of 2019 in
Suit No. 182 of 2019
MHCC010013572019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO. 520 OF 2019
IN
SUIT NO.182 OF 2019
Mrs. Bano Saiyed Parwaz ]
An adult Indian Inhabitant of Mumbai ]
Age: 43 years, Occupation: Business, ]
residing at 19, Namakwala Building, ]
2nd Sankli Street, Byculla, Mumbai- 400 008.] ...Plaintiff
Versus
Mr. Samsuddin Shabuddin Shaikh ]
An adult Indian Inhabitant of Mumbai ]
Age not known, Occupation: Business, ]
having his address at 48, Ground Floor, ]
Simla Nagar, Nepaensea Road, Mumbai ]
-400 036, and at present occupying ]
Room No.5, 12/14(185/187), 1st Floor, ]
Raoji Mansion, Kazi Street, Masjid (W), ]
Mumbai- 400 009. ] ...Defendant
Appearances :-
Learned advocate Deepanjali Mishra for plaintiff.
Learned advocate C. A. Waheed for defendant.
CORAM : HER HONOUR JUDGE
SMT. ANITA B. SHARMA
COURT ROOM NO.03
DATE : 31.08.2024
-- 1 of 7 --
2 N/M No.520 of 2019 in
Suit No. 182 of 2019
O R D E R
The plaintiff has taken out present notice of motion for
claiming the relief inter alia;
a) During the pendency and final hearing of the suit to
restrain the defendant, his servants, his agents and any persons
claiming through him from surrendering the tenancy/or creating any
third party rights and/or disposing of the suit premises and/or
inducting any third person in the suit premises i.e. being room No.5 on
the first floor in the building known as Raoji Mansion bearing building
No. 12/14 (185/187) situated at Kazi street, Masjid(W), Mumbai-400
009 (hereinafter refer as ‘suit premises’).
b) To grant interim and ad-interim relief in terms of prayer
clause (a) above,
c) To provide Costs of notice of motion.
d) To grant other and further reliefs as the facts and
circumstances of the case may require.
2. In affidavit in support, the plaintiff has contended that, she
is tenant of the suit premises. Prior to her becoming the tenant, her
sister namely Dilnaz Azmi Mirza was the tenant who had taken the said
room from her predecessor Mr. Deepak Laxmichand Shah and Mrs.
Vishakha Deepak Shah. It is further contended that, due to the personal
reasons the said Dilnaaz Azami Mirza had transferred her all rights,
title, interest and claim in respect of the suit premises in favour of the
plaintiff vide affidavit dated 18.08.2015. It is also contended that the
defendant approached the plaintiff as he wanted the suit premises for
-- 2 of 7 --
3 N/M No.520 of 2019 in
Suit No. 182 of 2019
residential purpose and it was decided that the defendant shall pay
Rs.8,00,000/-(Rupees Eight Lakhs) to the plaintiff to that effect of
Memorandum of Understanding which was executed between plaintiff
and defendant. It is also contended that some of the terms and
conditions of the said MOU have not been fulfilled by the defendant.
3. It is further contention of the plaintiff that, on or before
31.03.2016, the defendant was required to give cash of Rs.8 lakhs but
the defendant to ensure the said payment in cash, has given three post
dated cheques and the plaintiff handed over the suit premises to the
defendant. It is also contended that, the defendant has not paid cash
amount therefore, the plaintiff started demanding money. According to
the plaintiff, when she deposited the aforesaid cheques, the same were
dishonored. It is the contention of the plaintiff that, thereafter, the
defendant went on promising the plaintiff to pay Rs.8 lakhs however, on
15.12.2018 the defendant threatened the plaintiff that he will not give
any cash amount and he will remain possession on the suit premises
and the plaintiff cannot object about the same. According to the
plaintiff, the defendant with the help of anti-social elements as well
higher authorities trying to dispose of the suit premises by creating third
party rights hence, a present notice of motion to restrain him.
4. The defendant has opposed present notice of motion by
filing his affidavit in reply on the ground that, the suit as well as notice
of motion are not maintainable. It is submitted that the rent receipt of
the suit premises is not in the name of the plaintiff and plaintiff has no
locus to file the present suit as well as notice of motion. It is further
-- 3 of 7 --
4 N/M No.520 of 2019 in
Suit No. 182 of 2019
submitted that, the plaintiff had agreed to provide residential
accommodation to the defendant i.e. the suit premises. It is also
submitted that the said suit premises and the rent receipt would be
transferred in the name of the defendant. Therefore, the defendant
demanded execution of written agreement and the plaintiff has given
him one surrender affidavit dated 01.01.2016 whereby the plaintiff has
surrender all her rights, title and interest in the suit premises.
5. According to the defendant, vide the said affidavit the plaintiff
has surrender in favour of the defendant and also handed over the
possession of the suit premises. It is specifically submitted that the
defendant was put in possession of suit premises prior to execution of
the affidavit dated 01.01.2016 and the execution of MOU. The
defendant has already paid an amount of Rs.6 lakhs to the plaintiff by
three cheques prior to the date of execution of affidavit as well as MOU.
The plaintiff has already received Rs.6 Lakhs. According to the
defendant the plaintiff has promised him that the suit premises is a
residential premises but after taking possession the defendant came to
know that the suit premises was the Commercial premises without
having WC, bathroom and/ or kitchen. The defendant was required to
carry out substantial renovation in the suit premises and he had
incurred expenses of Rs.2 lakhs. Therefore, the plaintiff has no prima
facie case for grant of temporary injunction against the defendant. On
all these grounds, the defendant prays to dismiss the notice of motion.
6. Perused notice of motion, reply and documents. Heard
learned advocate for plaintiff. The defendant has filed affidavit in reply.
Despite of giving several opportunities, the defendant failed to argue.
-- 4 of 7 --
5 N/M No.520 of 2019 in
Suit No. 182 of 2019
Hence, his reply is considered as his argument.
7. At the out set, the plaintiff has filed suit for declaration and
possession alongwith injunction. The documents filed on record indicate
that one Memorandum of Understanding was prepared between the
plaintiff and defendant. Prima facie, it appears that, three post dated
cheques for an amount of Rs.8 lakhs were issued by the defendant in
favour of the plaintiff. According to the defendant, those cheques were
issued by him to ensure the payment of Rs.2 lakhs after the payment of
Rs.6 lakhs. The defendant has annexed the copy of his bank statement
which indicates that Rs.6 lakhs were paid by the defendant to the
plaintiff vide cheques No.000097, 000098, 000101. From the MOU it
appears, that the post dated cheques having numbers 000099, 000100,
000102. If the transaction was agreed between the parties of Rs.8 lakhs,
the question arises how the consideration of Rs.14 lakhs can be
recovered from the defendant.
8. It is pertinent to note that, the plaintiff has not given any
explanation about the payment of Rs.6 lakhs by the defendant
immediate prior 8 days of execution of Memorandum of Understanding.
In view of the aforesaid crucial aspects in respect of the payment, at this
stage it cannot be said that the defendant is not having any right in
respect of possession of the suit premises. By obtaining Rs.6 lakhs from
the defendant the plaintiff is seeking temporary injunction against the
defendant. If the injunction is granted, the defendant would suffer great
hardship and injustice.
9. Considering the pleadings and documents, I am of the view
that, the plaintiff has failed to establish her prima facie case and
-- 5 of 7 --
6 N/M No.520 of 2019 in
Suit No. 182 of 2019
balance of convenience lies in her favour. In the result, following order
is passed-
ORDER
1. The Notice of Motion No.520 of 2019 is hereby dismissed.
2. No order as to Costs.
(Smt. Anita B. Sharma)
Judge,
City Civil Court, Greater Bombay
Date : 31.08.2024 C.R. No.03
Dictation typed on :
Checked & Signed on :
-- 6 of 7 --
7 N/M No.520 of 2019 in
Suit No. 182 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
29.11.2024 at 05.30 p.m. Mrs. Vasanti Dattatray Bhosale
Name of the Judge (with Court Room no.) HHJ Smt. Anita B. Sharma
(Court Room No.03).
Date of Pronouncement of Judgment/Order 31.08.2024.
Judgment/Order signed by P.O. on 29.11.2024
Judgment/Order uploaded on 29.11.2024
-- 7 of 7 --