Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1092/2020 in Comm. Suit No. 395/2020. 1 Order.
MHCC010030902020
Presented on : 12-03-2020
Registered on : 12-03-2020
Decided on : 30-04-2022
Duration : 2 years, 1 months, 18 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1092 OF 2020
IN
COMMERCIAL SUIT NO. 395 OF 2020
Ravindra Singh ...Applicant/Plaintiff
IN THE MATTER BETWEEN:
Ravindra Singh ...Plaintiff
Versus
M/s Srushti Raj Enterprises and Others ...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.31).
DATE : 30th APRIL, 2022.
Shri Aditya Pratap, Advocate for the plaintiff.
Shri Harish Pawar, Advocate for defendants no.1 and 3.
ORDER
1. The plaintiff has taken out this notice of motion for
appointment of Receiver in respect of the suit Flat No.1 and 2,
temporary injunction and direction to deposit Rs.28,00,000/ in the
Court. Perused notice of motion, affidavit in reply and rejoinder. I
have gone through the suit proceeding. Heard learned counsel Shri
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N/m No. 1092/2020 in Comm. Suit No. 395/2020. 2 Order.
Aditya Pratap for the plaintiff and learned counsel Shri Harish Pawar
for defendants no.1 and 3.
2. Learned counsel Aditya Pratap for the plaintiff pointed out
pleadings in the plaint and referred documents placed on record in the
course of his arguments. He submitted that the plaintiff entered into an
agreement to purchase Flat No.801, B Wing, 8th Floor, Building No.93,
13th Road, Tilak Nagar, Chembur, Mumbai – 400 089 (henceforth
referred as 'Flat No.1') from the defendants for consideration of
Rs.62,00,000/. Defendant no.1 is the developer. Defendant no.2 is
real estate and property development company. Defendant no.3 is one
of the directors of defendant no.1. It is contention of the plaintiff that
he had acquired booking rights of Mr. Jitesh Dubey in Flat No.1
alongwith his wife. The plaintiff paid Rs.13,00,000/ through RTGS to
the defendants on 15/07/2011 as per receipt (Exh.D) and
Rs.15,00,000/ as per receipt dated 15/07/2011 (Exh.E). He further
submitted that amount of Rs.15,00,000/ was adjusted from previous
dues of Mr. Jitesh Dubey. The defendants issued reservation letter
dated 05/08/2011 (Exh.F) stating that they have reserved Flat No.1
having area of 552 sq.ft. to the plaintiff and Kavita Singh (plaintiff's
wife) for consideration amount of Rs.62,00,000/ and they have
received sum of Rs.28,00,000/.
3. After pointing out these aspects from documents on record,
learned counsel Shri Aditya Pratap submitted that the defendants did
not inform the plaintiff about development and construction work of
the Flat No.1 during 2011 to 2017. The defendants had not started
construction work and obtained necessary permissions for
commencement of the construction. When the plaintiff raised
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N/m No. 1092/2020 in Comm. Suit No. 395/2020. 3 Order.
objection, the defendants offered a new flat i.e. Flat No.1502 in
Building No. 105, Tilak Nagar, Chembur, Mumbai (henceforth referred
as 'Flat No.2') in place of Flat No.1. The defendants sent scanned copy
of draft M.O.U. regarding Flat No.2, to the plaintiff on 04/03/2017.
The defendants had unilaterally and arbitrarily enhanced consideration
amount upto Rs.81,27,000/ regarding Flat No.2. As the plaintiff was
willing to purchase Flat No.2 at the price of Flat No.1, he issued notice
to the defendants on 03/07/2017 (Exh.H annexed with the plaint) and
filed the present suit. Learned counsel Aditya Pratap submitted that the
plaintiff has paid 45% consideration amount to the defendants and he
was always ready and willing to purchase the suit flats. According to
him, the defendants did not execute the registered agreement in favour
of the plaintiff and violated provisions of Section 4 of the MOFA Act.
He prayed for granting reliefs of appointment of Receiver and
temporary injunction in respect of Flat No.1 and 2. He prayed to direct
the defendants to deposit Rs.28,00,000/ in the Court.
4. On the contrary, learned counsel Harish Pawar for
defendants no.1 and 3 submitted that the plaintiff has described two
suit properties in the plaint. The housing society had appointed
defendant no.1 for development of the building in the year 2006.
Reservation letter dated 05/08/2011 is the agreement in respect of Flat
No.1 between the plaintiff and the defendants. Defendant no.1 has no
knowledge of transaction between the plaintiff and Mr. Jitesh Dubey.
Meanwhile, the society terminated the development agreement in the
year 2014. Defendant no.1 had invoked arbitration clause in the
development agreement, but the Arbitrator passed the Award
confirming termination of the development agreement in the year 2017.
The defendants had filed the petition in the Hon'ble High Court
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N/m No. 1092/2020 in Comm. Suit No. 395/2020. 4 Order.
challenging the Award of the Arbitrator and it is also dismissed on
02/02/2018. He has placed on record copy of the orders of the Hon'ble
High Court in Comm. Arbitration Petition (L) No. 452/2017 dated
02/02/2018.
5. By pointing out these aspects relating to the redevelopment
work of the building in which Flat No.1 was intended to be constructed,
he submitted that the defendants are not in a position to sell Flat No.1
to the plaintiff. Rights of the defendants in Flat No.1 have already come
to an end. He further stated that the defendants had offered the
plaintiff to sell Flat No.2 for consideration of Rs.81,27,000/ as
mentioned in copy of draft M.O.U. placed on record, but it is signed by
defendant no.3 on behalf of defendant no.1 only. The plaintiff and his
wife Kavita did not sign draft M.O.U. Therefore, there is no contract to
sell Flat No.2. According to him, no temporary injunction can be
granted in respect of Flat No.1 and Flat No.2. He submitted that the
defendants received only Rs.13,00,000/ from the plaintiff. He prayed
for dismissal of the notice of motion.
6. After considering rival submissions and material on record,
it is admitted position that the defendants had agreed to sell Flat No.1
to the plaintiff as per reservation letter dated 05/08/2011. Though the
defendants are admitting to have accepted Rs.13,00,000/ from the
plaintiff through RTGS as part consideration amount, receipts (Exh.D
and E) coupled with reservation letter (Exh.F) show that the defendants
have received total Rs.28,00,000/ from the plaintiff. It is pertinent to
note that Flat No.1 was agreed to be sold to Jitesh Dubey who has
transferred his right to purchase Flat No.1 in favour of the plaintiff and
his wife Kavita as stated in para 12 of affidavit in support. Admittedly,
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N/m No. 1092/2020 in Comm. Suit No. 395/2020. 5 Order.
there is no registered agreement executed between the parties for sale
of Flat No.1.
7. The plaintiff himself has pleaded in the plaint that
construction work has not commenced on the site of Flat No.1 and the
defendants have not obtained necessary permissions. Learned counsel
Harish Pawar has stated about termination of the development
agreement between the defendants and the housing society. This aspect
is fortified from order of Hon'ble Bombay High Court in Comm.
Arbitration Petition (L) No. 452/2017 passed on 02/02/2018. It is
clear from the said order that the society members had vacated the
building in the year 2007 and demolition work was carried out in the
year 2010. As the defendants failed to carry out the development work,
the development agreement is terminated as per notice of the housing
society issued on 12/01/2014. When the matter was referred to
arbitration, termination of the development agreement was confirmed.
Hon'ble Bombay High Court refused to interfere in the decision of the
Arbitrator. In short, the rights of the defendants in respect of Flat No.1
have already come to an end before construction of the building. The
defendants are not having any rights and title in Flat No.1 and they are
not in a position to transfer Flat No.1 in favour of the plaintiff.
8. So far as Flat No.2 is concerned, the defendants had
proposed to sell the same to the plaintiff. Both sides are having
differences on the point of consideration amount to be paid in respect of
Flat No.2. The plaintiff wants to purchase Flat No.2 for the same price
which was fixed for Flat No.1. Draft M.O.U. signed by defendant no.3
on behalf of defendant no.1 reveals that the consideration amount in
respect of Flat No.2 is enhanced upto Rs.81,27,000/. The plaintiff and
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N/m No. 1092/2020 in Comm. Suit No. 395/2020. 6 Order.
his wife Kavita have not signed draft M.O.U. regarding Flat No.2. In
short, draft M.O.U. is an unilateral document and it does not constitute
an agreement between the parties to sell Flat No.2 to the plaintiff. In
such circumstances, no rights in favour of the plaintiff are created in
Flat No.2. Therefore, the plaintiff cannot claim relief of temporary
injunction for restraining the defendants from alienating Flat No.2.
9. In the light of discussion in above two paras, it is explicit
that the defendants are not in a position to sell Flat No.1 to the plaintiff
and there is no valid agreement to sell Flat No.2 executed between the
parties. In such circumstances, the plaintiff is facing dwindling
situation. He has parted huge amount of Rs.28,00,000/ in anticipation
of purchasing a flat from the defendants within reasonable period. The
defendants consumed period of almost nine years before filing the suit
without conferring any right and title upon the plaintiff either in Flat
No.1 or Flat No.2. The defendants had knowledge regarding denial of
the plaintiff to purchase Flat No.2 at exorbitantly high price. All these
situations are adding in miseries of the plaintiff. Though the position
on record doesn't permit to the Court to grant relief of injunction and
appoint Receiver in respect of Flat No.1 and 2, the plaintiff is certainly
entitled to seek direction from the court for depositing amount of
Rs.28,00,000/ in the Court by the defendants. Principles of prima facie
case, irreparable loss and balance of convenience are in favour of the
plaintiff. The defendants cannot be allowed to shirk their responsibility
to return earnest money received from the plaintiff just by pointing out
the difficulties in selling Flat No.1 and Flat No.2 to the plaintiff. Hence,
I pass the following order :
ORDER
1. Notice of Motion No. 1092/2020 is made absolute in terms
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N/m No. 1092/2020 in Comm. Suit No. 395/2020. 7 Order.
of prayer clause (e).
2. The defendants are directed to deposit amount of
Rs.28,00,000/ in this Court within period of two months
from the date of this order as per Order XXXIX Rule 10 of
the CPC.
3. The proceeding of N/M No. 1092/2020 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.31)
Date : 30/04/2022. Mumbai.
1. Dictated online on : 30/04/2022.
2. Signed on : 30/04/2022.
3. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
30/04/2022. 4.26 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 30/04/2022.
Judgment/Order signed by P.O. on 30/04/2022.
Judgment/Order uploaded on 30/04/2022.
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