Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 754 of 2020 in Suit no.607 of 2019
MHCC010020632020
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
NOTICE OF MOTION NO.754 OF 2020
IN
SUIT NO.607 OF 2019
M/s. Skicon Infrastructure Co.,
a Partnership Firm ... Plaintiff
(Defendant in Counter Claim)
V/s
Mr. Pradeep Khetaram Prajapati …. Defendants.
(Plaintiff in Counter Claim)
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE: 18th DAY OF July, 2023
-: Appearances: -
The learned Adv. Babu h/f Adv. G. S. Bhat for the plaintiff (defendant in
counter claim).
The learned Adv. Vrushali Kabare for defendant (plaintiff in counter
claim).
ORAL ORDER
The present notice of motion has been taken out by the
defendant (plaintiff in counter claim) for seeking relief of temporary
injunction thereby the plaintiff (defendant in counter claim) be
restrained from creating third party interest in suit flat.
The parties hereinafter referred to as per their original
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nomenclature in the suit.
2. In short, it is contention of the defendant that, the plaintiff
has filed suit for declaration, cancellation and for permanent injunction
against the defendant. It is contended that, the plaintiff is a partnership
firm registered under the provisions of Partnership Act. The plaintiff
carries on the business as builder and developers.
3. It is contended that, on the representation made by the
plaintiff, the defendant agreed to book a flat bearing No. 1104 situated
on 11th floor admeasuring 307 sq.fts., carpet area. At that time, the
plaintiff informed the cost of said premises to the tune of Rs.
28,88,000/- and assured to deliver within three years. Therefore, the
defendant had paid token amount of Rs. 1 Lack on 02.12.2009
vide
cheque to the plaintiff.
4. It is contended that, as per request of the plaintiff, the
defendant from time to time, paid total amount of Rs. 12,88,000/- in
cash to the plaintiff. It is contended that, after payment of part of
consideration in cash, the partners of plaintiff demanded Rs. 2,20,000/-
towards further part of consideration. Accordingly, the defendant gave
cheque of Rs. 1,60,000/- dated 23.06.2011 and of Rs. 60,000/- dated
01.02.2012 to the plaintiff. Accordingly, the plaintiff issued allotment
letter dated 27.01.2012 by mentioning incorrect amount therein. It is
contended that, the plaintiff
vide letter dated 01.07.2012, demanded
service tax to the tune of Rs. 45,838/-. Therefore, the defendant
requested the plaintiff to register the agreement for sale. Accordingly,
on 31.12.2013, the plaintiff executed registered agreement in favour of
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the defendant. It is contended that, in the registered agreement of sale,
the total amount of consideration is shown as Rs. 30 lacks. The
defendant has paid Rs. 16,08,000/- to the plaintiff. The plaintiff agreed
to handover possession of suit flat on or before July 2016. However, the
plaintiff has issued false notice on 09.04.2014. Therefore, the defendant
immediately approached to the plaintiff and sought explanation about
the same.
5. It is contended that, inspite of making payment to the
plaintiff from time to time, there was no development of construction in
the project. Therefore, the defendant approached to the plaintiff. In
October/November 2014, the plaintiff informed that competent
authorities have changed the floor plan resulting in an extra 100 sq.fts.,
in the built-up area. On this pretext, the plaintiff further demanded Rs.
6 Lacks in cash to the defendant. The plaintiff also informed that, if said
amount was not paid then agreement for sale would stand cancelled.
Therefore, the defendant has paid in cash said amount of Rs. 6 lakhs in
the year 2014. However, inspite of making payment from time to time,
the plaintiff failed to handover possession of suit flat till July 2016.
Hence, the defendant issued letter to the plaintiff and sought possession
of the suit flat. However, there was no response from the plaintiff. The
defendant on 01.09.2018, issued notice to the plaintiff seeking
information of the progress in construction. Again, on 18.01.2019, the
defendant sent a letter to the plaintiff and called upon it to pay
compensation for causing harassment by not delivering possession of
suit flat. However, the plaintiff illegally terminated the contract.
Therefore, the defendant is constrained to file counter claim for specific
performance of contract and for Permanent injunction. Now the
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defendant came to know that, the plaintiff is going to create third party
interest in the suit flat, hence the notice of motion.
6. The plaintiff strongly opposed the notice of motion by
contending that, the defendant has booked Flat No. 204, on 20th
Residential Floor admeasuring 34 Sq. mtrs., of built-up area in the
building known as ‘Sky city’ to be constructed on property bearing CTS
No. 210, 210/1 to 37, 210/38-A, 210/38-B and 210/39 to 89 of Village
Bhandup, Taluka Kurla, Mumbai (herein after referred to as ‘Suit Flat’).
7. It is contended that, the defendant has agreed to purchase
suit flat for total consideration of Rs. 30 Lacs. Accordingly, on receipt of
cheque of Rs. 3,20,000, the plaintiff has issued allotment letter on
27.01.2012 in favour of the defendant. At that time, the defendant was
agreed to pay Rs. 14 Lacs in cash as early as possible. However, inspite
of repeated request, the defendant did not pay sum of Rs. 14 lacs in
cash as promised. On the request of the defendant, the plaintiff
executed agreement for sale on 31.12.2013. It is contended that, the
construction work was reached upto 13th Storey of Residential Building.
The defendant has hardly paid Rs. 4,42,700/- till 17.04.2014. Inspite of
repeated request and letter issued by the plaintiff, the defendant failed
to pay the remaining balance consideration. The defendant was in
arrears of Rs. 17,86,000/- as on 09.04.2014. The defendant inspite of
being in default sent a false notice dated 18.01.2019 to the plaintiff and
its partner making baseless allegations. As the defendant failed to pay
balance consideration, the plaintiff has cancelled agreement for sale
dated 31.12.2013. Therefore, the defendant is not entitled for the relief
claimed. Hence notice of motion may kindly be rejected.
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8. Heard the learned advocate for the plaintiff and
defendant at length. Perused the record.
9. Following points arise for my determination to which I have
recorded my findings with reasons as follows:
Sr.
No.
Points Determination
1. Whether the defendant is entitled
for the reliefs claimed in notice
of motion?
No.
2. What order? As per final order.
REASONS
As to point no.1:-
10. Here, it is to be noted that, the plaintiff has suit against the
defendant and therein filed a notice of Motion No. 1294 of 2019 in
which the plaintiff also sought relief of temporary injunction to restrain
the defendant from creating third party interest in the suit flat. During
course of arguments, Ld. Adv for the plaintiff and the defendant fairly
submits that till date the construction of suit flat has not been
commenced and completed. Till date, the suit flat is not come in
existence. Therefore, in view of categorical submission of both the sides,
and considering the fact that the suit property is not in existence, hence
question of its alienation does not arise. It is further to be seen that, the
plaintiff claims to terminate agreement of sale in favour of the
defendant and the defendant has filed the suit for specific performance
of contract. Yet the construction of suit flat is not commenced. Thus,
parties are liberty to take appropriate application as and when required.
Therefore, at this juncture, the defendant has failed to made out prima-
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facie case in his favour. The defendant has also failed to show balance
of convenience in his favour. Thus, question of causing irreparable loss
to the defendant does not arise. Hence, my answer to point No.1 is in
the negative.
As to point no.2:
11. In view of above discussion, I pass the following order:
ORDER
Notice of Motion No. 754 of 2020 stands rejected.
Notice of motion stands disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court, Gr. Mumbai
Date:.18.07.2023 (C.R. No.1)
Dictated on : 18.07.2023
Transcribed on : 18.07.2023
Checked & signed on : 18.07.2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 24.07.2023 NAME OF STENOGRAPHER(G-I)
Mr. M.M. Patange
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 18.07.2023
JUDGMENT/ORDER signed by P.O. on 21.07.2023
JUDGEMENT/ORDER uploaded on 24.07.2023
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