Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion 661-2020 in SCSU 46-2020
IN THE CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.661 OF 2020
(CNR No.MHCC01-001704-2020)
IN
SHORT CAUSE SUIT NO.46 Of 2020
(CNR No.MHCC01-013000-2019)
1. Mr. Mohan Lazer Peter }
Age : 62 years, Occ.: Business, }
2. Cathreena Lazer Peter, }
Age : 66 years, Occ.: Retired, }
Both R/o.11/A, Shgankar Sheth Road, }
''Gulshan Mahal'', Opp Rohidas Garden, }
Pune-411 048. }
3. Rozina Lazer Peter }
Aged : 57 years, Occ.: Housewife, }
R/o. Flat No.205, 2nd Floor, }
Altis Manor Caranlem, Panjim 403001. }...PLAINTIFFS.
Versus
1. Sunita Ramesh Bherwani @ }
Bimala Mukhia also known as Salma Khan, }
Age : 59 years, Occ.: Business, }
2. Mohamed Salim Mohamed Yusuf Shaikh, }
Age : 47 years, }
Defendant Nos.1 & 2 both R/o.Flat No.24, }
2nd Floor, Colaba Kalpana Co-op. Housing }
Society Ltd., 2nd Pasta Lane, }
Colaba, Mumbai-400 005. }
3. Secretary/Chairman, }
Colaba Kalpana Co-op. Housing Society Ltd., }
2nd Pasta Lane, Colaba, Mumbai-400 005. } ...DEFENDANTS.
---------------------------------------------------------------------------------------------------
Shri.Mishra, learned advocate for the plaintiffs.
Shri.Kadu, learned advocate for defendants.
-----------------------------------------------------------------------------------------
CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.9)
-----------------------------------------------------------------------------------------
O R A L O R D E R
(Delivered on 18/02/2021)
1. By filing this Notice of Motion, plaintiffs have claimed relief
of temporary injunction to restrain the defendants from creating third
-- 1 of 9 --
2 Notice of Motion 661-2020 in SCSU 46-2020
party interests in the suit premises, pending final decision of the suit.
2. Read the affidavit filed in support of Notice of Motion and
affidavit in reply filed by the defendants. Heard learned Shri.Mishra
advocate for the plaintiffs and learned Shri.Kadu advocate for
defendants. Perused the entire record.
3. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i)Whether
prima-facie case is made out by the
plaintiffs? ...Yes.
ii)Whether balance of convenience lies in their
favour? ...Yes.
iii)Whether irreparable loss will cause to the
plaintiffs if injunction as prayed is not granted? ...Yes.
iv)What order? ...As per final order.
R E A S O N S
AS TO POINT NOS.(i) TO (iii):
4. All the points are taken together for consideration. Learned
advocate for plaintiffs argued that father of the plaintiffs had purchased
the suit premises in the name of mother of the plaintiffs but as the
father was serving as Major in Army, the family used to reside at the
service places of the father and not in the suit premises. He submitted
that father of the plaintiffs had given the suit premises for temporary
residence to one Yusufbhai but plaintiffs learnt in year 2013 that
defendant No.1 has got transferred the Share Certificate of the suit
premises in her own name from the name of mother of the plaintiffs. He
argued that defendant No.1 was using more than one name as are
mentioned in the title clause of the plaint and she was the Secretary of
defendant No.3 at the relevant time. He argued that complaint with
-- 2 of 9 --
3 Notice of Motion 661-2020 in SCSU 46-2020
police was lodged by the plaintiffs in respect of illegal transfer of the
suit premises in the name of defendant No.1 by forging documents. He
argued that police has filed Charge-sheet and plaintiffs learnt from said
Charge-sheet that defendant No.1 has illegally sold the suit premises to
defendant No.2 in year 2014. He argued that name of defendant No.1
was illegally entered in the Share Certificate on its back leaf, plaintiffs
have inherited the suit premises from their mother & if defendants
succeed in creating third party interests, it will cause an irreparable loss
to plaintiffs hence, plaintiffs are entitled for temporary injunction.
5. As against this, learned advocate for defendants vehemently
opposed the prayer made in the Notice of Motion by submitting that it
is apparent from the averments of the plaint that plaintiffs had learnt
about the entering of the name of defendant No.1 in the record of
defendant No.3-Society since year 2013 hence, suit filed in year 2020 is
barred by limitation due to which, plaintiffs are not entitled for interim
injunction. He argued that suit is filed without serving prior notice
under Section 164 of Maharashtra Co-operative Societies Act on
defendant No.3 hence, suit is not maintainable. He argued that there
are no allegations that defendant No.2 has committed any illegal acts.
He argued that defendant No.2 is a bonafide purchaser without notice
hence, any relief of temporary injunction cannot be granted in favour of
the plaintiffs against the defendant No.2. He argued that plaintiffs have
not come before the court with clean hands hence, Notice of Motion is
liable to be dismissed.
6. In his rejoinder argument, learned advocate for plaintiffs
argued that suit is not for declaration simplicitor as plaintiffs have
claimed relief of recovery of possession also. He submitted that claim
for recovery of possession is based on title hence, suit is within
-- 3 of 9 --
4 Notice of Motion 661-2020 in SCSU 46-2020
limitation under Article 65 of the Indian Limitation Act. In support of
his argument, learned advocate for the plaintiffs has placed reliance on
Judgment dtd.03/07/2019 of
Hon'ble Supreme Court in
Civil Appeal
No.4478 of 2007 (Sopanrao and Anr. Vs. Syed Mehmood and Ors.). I
have gone through said authority.
7. At the outset, it may be stated here that, admittedly, besides
seeking relief of declaration in respect of the agreement of sale
dtd.04/03/2014 between defendant No.1 & defendant No.2 in respect
of the suit premises, plaintiffs have claimed relief of recovery possession
of the suit premises from the defendants. Perusal of plaint
prima-facie
suggests that the claim for recovery of possession is based on title as
plaintiffs have come with a specific case that they have inherited the
suit premises from their mother. Plaintiffs have contended that they
learnt about the transfer of suit premises by defendant No.1 in favour of
defendant No.2 in year 2016. Averments in Para-7 of the plaint suggest
that plaintiffs have learnt in year 2013 that defendant No.1 has got
transferred the Share Certificate of the suit premises in her own name
from the name of the mother of the plaintiffs. Having considered the
plaint averments, it appears that the claim for recovery of possession is
within limitation under Section 65 of Limitation Act.
8. It does not appear to be in dispute that mother of the
plaintiffs was the original owner in respect of the suit premises,
defendant No.3-Society had issued Share Certificate in the name of
mother of the plaintiff, one Yusufbhai Mohammad was occupying the
suit premises as tenant, suit for eviction was filed against said tenant by
mother of the plaintiff in the Small Causes Court, said suit was
dismissed and appeal filed thereafter is also dismissed by the Appellate
Bench of Small Causes Court. It also does not appear to be in dispute
-- 4 of 9 --
5 Notice of Motion 661-2020 in SCSU 46-2020
that the Judgment of dismissal of the suit has reached to finality as
Judgment dtd.11/06/1996 delivered by the Appellate Bench of Small
Causes Court is not challenged further by the predecessor of the
plaintiffs. Defendant No.1 has contended that tenant Yusufbhai has
executed Memorandum of Understanding dtd.10/02/1992 in her favour
by virtue of which, she acquired rights in the suit premises, resolution
dtd.04/04/2008 was passed by defendant No.3-Society for transfer of
Share Certificate & suit premises in the name of defendant No.1 and
accordingly, suit premises is transferred in her name. Defendant No.1
has further contended that she has sold the suit premises to defendant
No.2 under a registered agreement for sale dtd.04/03/2014. Copies of
two MoU placed on record by defendant No.1
prima-facie show that
what is transferred under those documents is the tenancy rights in
respect of the suit premises and not the ownership.
9. Defendant No.1 has come with a contention that after
dismissal of the appeal by Appellate Bench of the Small Causes Court,
there was settlement between original owner of the suit flat and tenant
Yusufbhai, an agreement was entered into between them on payment of
Rs.10 Lakh as consideration and as such, suit premises was sold to
tenant Yusufbhai who had become absolute owner of the suit premises.
Defendant No.1 has not produced any document in support of her said
contention. Even the copy of MoU dtd.16/02/1992 produced on record
by her does not make any reference about transfer of ownership of the
suit premises by original owner in favour of tenant Yusufbhai. There is
reference in the documents produced on record by defendant No.1 that
either original tenant Yusufbhai or defendant No.1 herself acquired
ownership rights in respect of the suit premises at any point of time and
as mentioned earlier, copies of MoU produced on record by the
-- 5 of 9 --
6 Notice of Motion 661-2020 in SCSU 46-2020
defendant No.1 show that only tenancy rights were transferred under
those two documents.
10. Plaintiffs have contended that defendant No.1 has
fraudulently got transferred Share Certificate of the suit premises in her
own name from the name of the mother of the plaintiffs and that too,
by inserting her name on backside of the Share Certificate. Defendant
No.1 has contended that defendant No.3-Society has passed a resolution
on 14/04/2008 for transfer of Share Certificate & suit premises in her
name. Said contention of defendant No.1 is not supported by any
documentary material. On the other hand, copy of Share Certificate
produced on record by plaintiffs
prima-facie supports their contention
that name of defendant No.1 is mentioned on its backside. Again,
plaintiffs have contended that defendant No.1 is using more than one
name and defendant No.1 herself was working as Secretary of
defendant No.3-Society when her name is entered in the Share
Certificate. Defendant No.1 has not specifically denied the contentions
raised to that effect by the plaintiffs.
11. As mentioned earlier, it does not appear to be in dispute
that mother of the plaintiffs was the original owner in respect of the suit
premises. Material available on record is
prima-facie not sufficient, at
least at this stage, for accepting the contention of defendant No.1 that
there was settlement between the mother of plaintiffs and original
tenant Yusufbahi by virtue of which, ownership of the suit premises was
transferred in the name of tenant Yusufbhai from the name of mother of
the plaintiffs. On the other hand, the material available on record is
prima-facie sufficient for accepting that ownership of the suit premises
has been inherited by the plaintiffs on demise of their mother.
12. Name of mother of plaintiffs was Smt.C.Peters. In the
-- 6 of 9 --
7 Notice of Motion 661-2020 in SCSU 46-2020
agreement for sale executed by defendant No.1 in favour of defendant
No.2, it is mentioned that defendant No.1 has purchased the suit
premises from Smt.C.Peters by paying full consideration. Said statement
in the agreement for sale is contrary to the documents produced on
record by defendant No.1 and also, contrary to the contentions raised
by her in her reply as she has contended that suit premises was sold by
original owner to original tenant Yusufbhai and defendant No.1 has
purchased it from said original tenant Yusufbhai.
13. Learned advocate for defendant Nos.1 & 2 argued that suit
is not maintainable being filed without serving prior notice under
Section 164 of Maharashtra Co-operative Societies Act on defendant
No.3-Society. Learned advocate for plaintiffs pointed out that it is
mentioned in the plaint that plaintiffs are not seeking any relief against
defendant No.3-Society. Having regards to it and in view of the
statement made at the bar by learned advocate for the plaintiffs that
any interim relief is not claimed against defendant No.3, the objection
raised on behalf of defendants about maintainability of the suit for want
of prior notice is not acceptable, at least, at this stage.
14. Learned advocate for defendant Nos.1 & 2 argued that
defendant No.2 is not concerned with the so called dispute between the
plaintiffs & defendant No.1. He argued that defendant No.2 is bonafide
purchaser without notice due to which, any interim injunction cannot
be granted against defendant No.2. Defendant No.2 has come with a
case that he has purchased the suit premises after due scrutiny. No
doubt, name of defendant No.1 is available in the Share Certificate in
respect of the suit premises however, as mentioned earlier, recitals of
the document executed between defendant Nos.1 & 2
prima-facie show
that defendant No.1 had posed herself as owner of the suit premises in
-- 7 of 9 --
8 Notice of Motion 661-2020 in SCSU 46-2020
the said document and her said contention is contrary to the statements
available in the two MoU produced on record by defendant No.1 herself
due to which, even though defendant No.2 has acquired rights in the
suit premises by a registered document executed in his favour by
defendant No.1, said aspect cannot be given much of importance, at
least at this stage of the proceedings.
15. Plaintiffs have contended that defendant Nos.1 & 2 are
trying to create third party interests in the suit premises. Defendant
Nos.1 & 2 have not denied said statement. As mentioned earlier,
material available on record is not
prima-facie sufficient for accepting
the contention of defendant No.1 that original owner of the suit
premises had transferred the ownership of the suit premises in her
favour. If defendant Nos.1 & 2 create third party interests in the suit
premises during pendancy of the suit, there will be unnecessary
multiplicity of the proceedings. Having regards to those aspects, this
court is of the opinon that
prima-facie case & balance of convenience
both do lie in favour of the plaintiffs. In the result, if defendant Nos.1
and 2 are not temporarily restrained from creating third party interests
in the suit premises pending final decision of the suit, it will cause an
irreparable loss to the plaintiffs. For these reasons, by recording my
findings on Point Nos.(i) to (iii) accordingly, I pass the following order.
O R D E R
Notice of Motion No.661 of 2020 is allowed.
Pending final disposal of the suit, defendant Nos.1 and 2 are
hereby temporarily restrained from creating third party interests in the
suit premises in any manner.
Date : 18/02/2021. (P.P.RAJVAIDYA)
Dictated on :18/02/2021. Judge, C.R.No.9
Checked on :18/02/2021. City Civil Court,
Signed on :18/02/2021. Mumbai.
-- 8 of 9 --
9 Notice of Motion 661-2020 in SCSU 46-2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
22.02.2021 at 3.10 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.09)
Date of pronouncement of Order 18.02.2021
Order signed by P.O. on 18.02.2021
Order uploaded on 22.02.2021
-- 9 of 9 --