Final Order 1

Order Details: Miscellaneous appeal
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.750 OF 2020
(CNR NO.MHCC010020652020)
IN
S. C. SUIT NO.191 OF 2020
Dr.(Mrs. Soni Narwani ] .. Plaintiff
V/s.
M/s. Jaydeep Developers ] .. Defendant
Appearances :
Ld. Adv. Saraogi a/w. Adv. Neha Pandey for plaintiff.
Ld. Adv. Shruti Tulpule a/w. Adv. Jyoti Ghag I/b. Dua Associates for
defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 28/03/2023.
ORDER
1. Plaintiff has filed this notice of motion for injunction
restraining the defendant from creating third party interest and
alienating the flat being Flat No.401 admeasuring about 1000 sq.ft.
carpet, situated in the building known as Mansarover Lok Everest
Complex, situated at J.S.D.Road, Mulund (W), Mumbai400 080 to be
constructed upon the plot of land bearing CTS No.661, 661(1) to (309)
and 662 Survey No.295(pt), 274(pt) and 275(pt) situated at Village
Mulund, Taluka Kurla District of Bombay City. (hereinafter referred as
“suit flat” for brevity)
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2. It is the contention of the plaintiff that the predecessor of
the defendant has entered into a Memorandum of Understanding with
the plaintiff in respect of sale of suit flat and she has paid amount
towards the purchase of flat, however, the predecessor of defendant has
now transferred the right of development to the present defendant, who
is intending to alienate the suit flat to which plaintiff has right through
the agreement in question. Therefore, plaintiff filed instant suit for
declaration and injunction as well as this notice of motion for interim
temporary relief restraining the defendant from creating third party
interest and alienating the suit flat.
3. The defendant appeared and filed written statement vide
Exh.3 and also passed the pursis adopting the written statement as their
reply to the notice of motion vide roznama dated 14/02/2020. The
defendant has resisted the contention of plaintiff on various grounds,
especially it is contended that there is no brevity of contract between
the plaintiff and defendants, that the plaintiff has claimed her alleged
right through a Memorandum of Understanding, which is a
unregistered and unstamped document. Hence, prayed for dismissal of
suit as well as rejection of notice of motion.
4. Heard rival parties at length.
5. The record discloses that the plaintiff is claiming agreement of sale
of suit flat through Memorandum of Understanding dated 18/03/2016, however
the said document appears to be unstamped document. It is neither registered
nor signed by present defendant. Surprisingly, the plaintiff is avoiding to seek
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any relief in respect of the agreement of sale and Memorandum of
Understanding. The plaintiff is just seeking declaration and injunction that the
defendant is not entitled to sale, alienate or create third party interest in respect
of the suit flat. To establish entitlement to the relief sought, it is incumbent on
the plaintiff to prove her legal right towards the suit flat by proving the existence
of agreement of sale between the plaintiff and predecessor of defendant, which
requires that parties should adduce the evidence, which is not possible at this
preliminary stage. Thus, I am of the view that the plaintiff has no primacase and
balance of convenience is in her favour.
6. Moreover, the relief sought in the notice of motion and the main
suit are same and granting of relief in the notice of motion would amount to final
relief sought in the plaint. I am fortified by the judgment passed by the
Hon'ble High Court of Bombay in the case of Maharashtra Jeevan
Pradhikaran and others Vs Lark Construction Pvt. Ltd., reported in
MANU/MH/1036/2004, wherein it is held that, “The interim injunction is
not to be granted by way of final relief at the interlocutory stage”.
7. So also the judgment passed by the Hon’ble Supreme Court
in the case of State of U.P. Vs Ram Sukhi Devi, reported in (2005) 9
SCC 733, in paragraph 8 has clearly held that final relief cannot be
granted by way of interim relief. Paragraph 8 of the aforesaid decision is
extracted below:
“ 8. To say the least, approach of the learned Single Judge
and the Division Bench is judicially unsustainable and
indefensible. The final relief sought for in the writ
petition has been granted as an interim measure. There
was no reason indicated by learned Single Judge as to
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why the Government Order dated 26101998 was to
be ignored. Whether the writ petitioner was entitled to
any relief in the writ petition has to be adjudicated at
the time of final disposal of the writ petition. This
Court has on numerous occasions observed that the
final relief sought for should not be granted at an
interim stage. The position is worsened if the interim
direction has been passed with stipulation that the
applicable Government Order has to be ignored. Time
and again this Court has deprecated the practice of
granting interim orders which practically give the
principal relief sought in the petition for no better
reason than that of a prima facie case having been
made out, without being concerned about the balance
of convenience, the public interest and a host of other
considerations.…..”
8. Considering the above discussion and legal position, I am of the
view that the notice of motion is devoid by merits, consequently requires to be
dismissed. In the result, I pass the following order :
ORDER
1. Notice of Motion No.750/2020 in Suit No.191/2020, is
hereby dismissed.
2. Notice of Motion is disposed off accordingly.
(Order dictated & pronounced in open Court)
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court,
Dated : 28/03/2023 C.R. No.03, Gr. Mumbai
Dictated on : 28/03/2023
Typed on : 28/03/2023
Signed on : 28/03/2023
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“Certified to be true and correct copy of the original signed order”.
29/03/2023
at about p.m.
(Dastagir Babalal Mulla)
Stenographer GradeI (Gazetted)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 28/03/2023
Order signed by Hon'ble Judge on : 28/03/2023
Order uploaded on : 29/03/2023
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