Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 933-2020, in Suit no. 1437 of 18
MHCC010025262020
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
ORDER IN NOTICE OF MOTION NO.933 OF 2020
IN
SUIT NO.1437 of 2018
1. Miss. Preeti Parthviraj Mehta and Anr. ...Plaintiffs
V/s
1. M/s. Point Developers Pvt Ltd and Ors. …. Defendants.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 22nd DAY OF AUGUST, 2023
-: Appearances: -
The learned Adv. R. C. Mishra for plaintiffs.
The learned Adv. Nikhil Rajeshirke & Adv. Karansingh Shekhawat for
defendants
ORAL ORDER
Plaintiffs have taken out the present notice of motion for
claiming relief of temporary injunction thereby want to restrain
defendants from creating third party interest in the suit property and
further to restrain defendants not to alter/ reconstruct or modify the
structure of the suit property.
2. In short, it is contention of the plaintiffs that, they have
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2 Ord. in NM no 933-2020, in Suit no. 1437 of 18
purchased commercial shop bearing Unit no.5, in office premises on 2nd
floor in the new building business point, Chembur (East), Mumbai
admeasuring 57.04 sq. mtrs., (Approximately 614 square feet)
(hereinafter referred to as ‘Suit property’) from the defendant no.1 for
total consideration of Rs.1,65,00,000/- and two parking space on the
ground floor/ basement of the said premises. Accordingly, agreement
for sale dated 09/09/2016 came to be registered in between the
plaintiffs and defendants before the Sub-Registrar, Kurla, Suburban,
District Bandra, Mumbai.
3. It is further contended that, it was agreed in between the
parties that the defendants shall delivered possession of suit premises
on or before 31/03/2017. At that time, plaintiffs have paid Rs.10 lacs
as an earnest money and remaining balance consideration of
Rs.1,55,00,000/- was agreed to be paid in installments as mentioned in
the agreement. Defendants have allotted two parking space in the said
office premises to the plaintiffs. Defendants have issued allotment letter
on 09/09/2016 and 15/09/2016 regarding two parking space of the
suit property/ building business point. Thereafter, plaintiffs from time-
to-time paid entire consideration to defendants. Defendants have also
provided acknowledgment of the payment receipt of Rs.1,65,00,000/-.
4. It is further contended that, Municipal Corporation of
Greater Mumbai has also issued part occupancy certificate under the
supervision of Shri Hitesh Ramchandra Chawla and others. Plaintiffs
have paid Rs.19,57,500/- towards stamp duty, service tax, registration
charges, VAT charges and legal expenses of suit premises. However,
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3 Ord. in NM no 933-2020, in Suit no. 1437 of 18
defendants have not delivered possession of parking space to the
plaintiffs. They are creating hurdle in parking of vehicles of plaintiffs.
Now, plaintiffs came to know that defendants are going to create third
party interest pertaining to possession of two car parking space on the
basement of suit premises by altering / reconstructing the structure of
parking space. Hence, the notice of motion.
5. The defendant no.1 strongly opposed the notice of motion
by filing reply on affidavit. It is contended that, plaintiffs have earlier
approached to Maharashtra Real Estate Regulatory Authority, Mumbai
by filing complaint bearing complaint no. 1726/2017 wherein plaintiffs
had asked for prayers in relation to possession of two parking spaces.
However, after hearing both the parties, the Chairperson of Maha-RERA
passed an order dated 08/01/2018 thereby disposed of the complaint of
the plaintiffs. The plaintiffs by suppressing said facts, approached before
this Court. Hence, the suit is liable to be dismissed.
6. It is further contended that, the suit is hit by the principle
of Res-Judicata. Hence, on that count also the suit is liable to be
dismissed. Therefore, the notice of motion may kindly be rejected.
7. Heard the learned advocate for the plaintiffs. None, present
for defendants when called. Perused the record.
8. It is to be seen that, the plaintiffs came with the case that,
they have entered into an agreement for sale to purchase suit property
including one shop and two car parking spaces. It is their contention
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4 Ord. in NM no 933-2020, in Suit no. 1437 of 18
that, they have paid entire amount of consideration to the tune of
Rs.1,65,00,000/- to defendants. Accordingly, defendants have put them
in possession of commercial shop. However, defendants failed to deliver
possession of two parking spaces. Defendants are interfering /
restraining plaintiffs from parking their vehicles in the car parking
spaces. Defendants are intending to create third party interest in
respect of two car parking spaces allotted to the plaintiffs, by
altering/reconstructing the structure.
9. Plaintiffs have filed copy of registered agreement for sale
wherein it reveals that plaintiffs have entered into an agreement to
purchase Unit bearing no.5, on 2nd floor of carpet area admeasuring
57.04 sq. mtrs., for total consideration of Rs.1,65,00,000/-. At that time,
plaintiffs have paid earnest amount of Rs.10 lacs and remaining amount
to be paid as per schedule mentioned in clause (3) of the said
agreement from time to time.
10. I have also perused the letter dated 09/09/2016 thereby
defendants informed the plaintiffs that, along with their office premises
two car parking in the basement of the same building have been
allotted to plaintiffs. This fact is substantiated by further letter dated
15/09/2016.
11. It is further contention of plaintiffs that, they have paid
entire consideration amount to the defendants from time to time.
However, plaintiffs have filed copy of letter dated 27/03/2017 wherein
defendants have asked the plaintiffs to clear total outstanding of
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5 Ord. in NM no 933-2020, in Suit no. 1437 of 18
Rs.1,13,07,375/-. Plaintiffs have filed documents Exh.’D’-colly to show
that they have paid Rs.51,92,625/- plus Rs.10 lacs towards earnest
money i.e., total Rs.61,92,625/- to defendants. In Exh. D i.e., Income
Tax receipt, in figure the amount of Rs.1,65,000/- has been mentioned,
to which plaintiffs tried to show as Rs. 1,65,00,000/-. At this juncture,
there is nothing on record to show that plaintiffs have paid entire
amount of consideration to the defendants.
12. It further to be seen that, in the agreement for sale, there is
no mention of selling of two car parking spaces to the plaintiffs. Though
defendants have issued letter dated 09/09/2016 and 15/09/2016
stated about allotting of two car parking space to plaintiffs, however it
is not clear whether it is in pursuance to agreement dated 09/09/2016,
as it is not mentioned therein. Be that as it may, plaintiffs themselves
have admitted that till date they have not received possession of car
parking spaces. It further reveals that, defendants have disputing about
receiving entire amount of consideration. Therefore, this has been
disputed question of facts, needs to be decided on merits. Prima-faice
nothing on record to show that plaintiffs are in possession of two car
parking spaces. Hence, question of interfering with plaintiff’s
possession over car parking spaces does not arises. Even otherwise by
way of interim relief final relief cannot be granted. Hence, plaintiffs
failed to made out prima faice case in their favour. Plaintiffs also failed
to show balance of convenience lies in their favour. Thus, question of
causing irreparable loss to them does not arise if the injunction is
refused. Hence, I pass the following order:
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6 Ord. in NM no 933-2020, in Suit no. 1437 of 18
ORDER
Notice of motion No.933/2020 stands rejected.
Notice of motion stands disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court, Gr. Mumbai
Date:.22.08.2023 (C.R. No.1)
Dictated on : 22.08.2023
Transcribed on : 23.08.2023
Checked & signed on : 24.08.2023
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7 Ord. in NM no 933-2020, in Suit no. 1437 of 18
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 25.08.2023 NAME OF STENOGRAPHER(G-I)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court
room no.)
HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of
JUDGEMENT/ORDER
22.08.2023
JUDGMENT/ORDER signed by
P.O. on
24.08.2023
JUDGEMENT/ORDER uploaded
on
25.08.2023
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