Final Order 1

Order Details: Notice of Motion
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MHCC010025312019 Presented on : 06032019
Registered on : 06032019
Decided on : 15112021
Duration : Y M D
02 08 09
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by S. U. Hake)
NOTICE OF MOTION/10957/2019
IN
S.C. SUIT NO.165 OF 2019
IN
COMMERCIAL SUIT NO.555 OF 2021
Bhavesh Ashok Shah
Aged 47 years, OccBusiness
of Mumbai Indian Inhabitant
Having office address at 9, Gautam
Udyog Bhavan, Behind Dena Bank,
LBS Marg, Bhandup West,
Mumbai400 078. ..Plaintiff
Versus
1. Manali Mithbawkar,
middle name not known
Adult of Mumbai Indian
Inhabitant, Having her address
at Office No.C1001B, Station
Plaza, Station Road, Bhandup
West, Mumbai400 078.
2. Rupali Ray,
middle name not known
Adult of Mumbai Indian
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Inhabitant, Having her address
at Office No.C1001C, Station
Plaza, Station Road, Bhandup
West, Mumbai400 078.
3. Vaishali Sharad Parulekar,
Adult of Mumbai Indian
Inhabitant, Having her address
at Office No.C1001C, Station
Plaza, Station Road, Bhandup
West, Mumbai400 078.
4. Trupti Sharad Parulekar,
Adult of Mumbai Indian
Inhabitant, Having her address
at Office No.C1001B, Station
Plaza, Station Road, Bhandup
West, Mumbai400 078.
5. Station Plaza Premises Coop.
Society Ltd,A registered Society
having address at Mezanine
floor, 2nd floor, 'C' Wing,
Station Plaza, Bhandup(W)
Mumbai78. ..Defendants
__________________________________________________________
Ld. Advocate Sameer Bhandari for plaintiff.
Ld. Advocate Pravin Patel for defendant Nos.1 to 4.
Ld. Advocate G.S. Bhatt for defendant no.5.
__________________________________________________________
ORAL ORDER
(Dated this 15th day of November, 2021)
1. This Notice of Motion is taken out by plaintiff
praying to restrain defendant No.1 from alienating office No.C
1001B, First floor, Station Plaza, Bhandup West, Mumbai 400
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078 (hereinafter referred to as ‘suit property’), for appointment
of Court Receiver and for other reliefs.
Briefly stated, plaintiff's case, is as under:
2. Plaintiff was the owner of the suit property.
Defendant Nos.2 to 4 are sisters of defendant No.1. In the year
2005, defendant No.1 approached plaintiff for a office space for
the business purpose on leave and license basis. Plaintiff has
shown the property belonging to Bhavesh Darshana Benefit Trust.
Said property was given on leave and license basis to defendant
No.1. Thereafter, in the year 2008, defendant No.1 approached
plaintiff for more office space for her business. Plaintiff has given
suit property on leave and license basis to defendant No.1. Again
in the same year, property belonging to plaintiff's fatherAshok
Shah was given on leave and license basis to defendant No.1.
Thus, defendant Nos.1 to 4 came into possession of three office
properties including suit property on leave and license basis.
Lastly, leave and license was executed in favour of defendant Nos.
1 to 4 for the period 01/04/2015 to 31/03/2018.
3. It is further submitted that after November 2013,
defendant No.1 started befriending with plaintiff. Plaintiff and
defendant No.1 started going for lunch and dinner dates. Their
friendship went to such an extent that plaintiff started believing
the words of defendant No.1 blindly. Defendant No.1 made
plaintiff to open the Savings bank account in Axis bank, Bhandup
branch. For opening of said bank account, mobile number of
defendant No.1 was given. Defendant No.1 was alone aware
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about the password to operate the said bank account.
4. In November2014, defendant No.1 expressed her
interest to buy these three shops including suit property.
However, plaintiff's fatherAshok Shah refused for selling out the
premises. Plaintiff and defendant No.1 used to often meet in
private, by hiding their friendship from their respective spouses.
Plaintiff and defendant No.1 made various trips out of Mumbai
including one to Vaishno Devi.
5. In second week of February 2017, defendant No.1
took plaintiff to her house and exposed their relations before her
mother and defendant Nos.2 to 4. Defendant Nos. 1 to 4 started
threatening plaintiff for transferring the suit property in the name
of defendant No.1 else they would expose plaintiff before his wife,
children and parents. Plaintiff under fear and undue influence of
defendant No.1 executed the sale deed of the suit property on
22/03/2017. Plaintiff has not received the consideration amount
mentioned in the sale deed dated 22/03/2017.
6. On the next date of executing sale deed, defendant
No.1 forcibly took plaintiff to Lonawala and started making
demand of other two office premises. These premises were not
belonging to plaintiff. Plaintiff, thereafter pleaded about the
incident dated 01/04/2017 and filing of report to police station.
7. It is further contended that plaintiff did not receive
consideration amount mentioned in the sale deed dated
22/03/2017. Defendant No.1, after every deposit of the amount
in the account of plaintiff, transferred the amount in the account
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of defendant No.2. By making these submissions, plaintiff
contends that he has prima facie case, balance of convenience lies
in his favour and he would suffer irreparable loss, if he is not
protected by passing interim orders.
8. Defendant Nos.1 to 4 by filing their reply affidavit
strongly resisted the notice of motion. It is submitted that suit is
filed by suppressing material facts. Defendant Nos.1 to 4 are in
possession of the suit property and other two office premises since
the year 2004. Plaintiff has executed registered sale deed of the
suit property in the name of defendant No.1. Suit property is
already transferred in the name of defendant No.1. Defendant
No.5 society has also made defendant No.1 as a member of the
society. Defendant No.1 has paid consideration amount of Rs.72
lacs for purchasing suit property. Defendant Nos.2 to 4 have paid
total amount of Rs.2,09,04,000/ towards purchase of three shop
premises. Plaintiff and his family members are avoiding to
execute sale deed of other two premises. The allegations made
against defendant No.1 amounts to outraging modesty of a
woman. Just to harass defendant No.1, plaintiff has played the
mischief of opening a bank account and had given the mobile
number of defendant No.1. Defendant Nos.1 to 4 pleaded in
detail about the incident dated 07/04/2017 and contended that
family members of plaintiff molested defendant No.1. Defendant
No.1 became owner of the suit property by way of registered sale
deed dated 22/03/2017. Plaintiff has no prima facie case.
Defendant No.1, being owner of the suit property, has right to
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deal with suit property. By making all these submissions,
defendant Nos. 1 to 4 prayed to dismiss the notice of motion.
9. Following points arise for determination, findings
thereon for the reasons to follow are as under:
Sr.No. Points Findings
1. Does the plaintiff establish
prima facie case?
Yes
2. Whether the balance of
convenience lies in favour of
plaintiff?
Yes
3. Whether the plaintiff would
suffer irreparable loss if
injunction as prayed is not
granted?
Yes
4. What order? Notice of Motion is partly
allowed.
R E A S O N S
Point Nos.1 to 3
10. It is not in dispute that plaintiff was the owner of the
suit property. It is also not in dispute that the suit property
alongwith other two premises were given on leave and license
basis to defendant No.1 and her family members. Defendant No.1
is in possession of suit property. Plaintiff also did not deny
execution of registered sale deed dated 22/03/2017. The point in
dispute is that plaintiff claims that the sale deed dated
22/03/2017 is got executed by defendants under fear of being
exposed in front of his family and he did not receive the
consideration amount mentioned in the sale deed. Per quantra,
defendant Nos.1 to 4 assert that defendant No.1 is in possession
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of suit property on the basis of registered sale deed. Defendant
No.1 paid entire consideration amount mentioned in the sale
deed.
11. Ld. Counsel for plaintiff submits that plaintiff has
given report against defendants for forgery of documents on
01/04/2017. Therefore, it is not believable that by sending reply
email dated 04/04/2017, plaintiff accepted receipt of
consideration amount. The emails filed by defendants are false.
12. Plaintiff's advocate further relied upon statement of
account of Axis Bank and submitted that after every transfer of
amount by defendant No.1 in the plaintiff's account, substantial
amount is transferred to the account of defendant No.2. Thus,
the statement of account shows that plaintiff did not receive the
consideration amount mentioned in the sale deed.
13. Ld. Counsel appearing for defendant Nos.1 to 4
contravened above submissions with following arguments:
(i) Plaintiff has not disputed execution of registered sale deed
dated 22/03/2017. As per avernments in the plaint, plaintiff is an
estate broker. He knows the consequences of executing a
registered document, therefore the allegations of undue
influence are not believable.
(ii) The statement of account of Axis Bank filed by plaintiff is
not supported with certificate as required by Bankers’ Books
Evidence Act and therefore same cannot be relied upon.
(iii) The statement of account shows that mother of plaintiff
was nominee for said account. If defendant No.1 opened account
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in the name of plaintiff, mother of plaintiff would not have been
made as a nominee.
(iv) Plaintiff's father also agreed to sell other shop premises by
executing the Memorandum of Understanding. This fact shows
that plaintiff’s family members were also intending to sale their
property to defendants.
(v) After purchase of suit property, defendant No.5 society,
also transferred the share certificate in the name of defendant
No.1. Defendant No.1 is in possession of the suit property. She is
paying maintenance charges of the society. Plaintiff does not
have primafacie case, therefore he is not entitled to any relief.
14. Considered the submissions advanced on behalf of
both sides. Defendant No.5 did not remain present for contesting
this notice of motion. It is well settled that while deciding the
present notice of motion, Court is not supposed to go into
appreciation of facts. As discussed supra, plaintiff claims that he
did not receive the consideration amount mentioned in the sale
deed dated 22/03/2017. Edifice of his claim is based upon
statement of account of Axis bank, bearing account
No.914010030518097. This statement is filed alongwith plaint. It
is contended on behalf of defendant Nos.1 to 4 that the statement
of account filed on record is not supported by certificate as
required by Bankers’ Books Evidence Act and therefore, same
cannot be relied upon. However, I do not find merit in this
argument. While deciding notice of motion, it is not necessary
that the statement of account should be supported by certificate
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as required by Bankers’ Books Evidence Act. Same would be
required at the time of admitting documents in evidence.
15. The statement of account bears mobile number of the
account holder. Defendant Nos.2 to 4 in their written statement
did not dispute the fact that the mobile number mentioned in the
statement of account belongs to defendant No.1. Thus, it can be
primafacie inferred that defendant No.1 was getting messages of
all transactions done in the aforesaid account.
16. Plaintiff contends that defendant No.1 used to
operate said bank account. Defendant No.1 was alone knowing
the password of internet banking. Said aspect can be decided
after giving opportunity of adducing evidence to both the parties.
The statement of account filed on record shows that certain
transactions were done for defendant No.1 since the year 2014.
These transactions relate to shares and mobile phones. The
statement of account shows that certain amount is invested in
shares in the name of defendant No.1 in the year 20142015. The
statement of account further shows that in February2017,
amount of Rs.5 lacs was deposited twice in the said account on
18/02/2017 and 20/02/2017. The amounts were transferred
from account of defendant No.1 to this Axis Bank account, but,
account entries further show that after transfer of amount from
the account of defendant No.1 to the account of plaintiff,
substantial amount is transferred in the bank account of
defendant No.2. During the course of arguments, Court has
specifically asked Ld. Counsel for defendant Nos.1 to 4 as to
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whether defendants have any explanation regarding the transfer
of amounts in the name of defendant No.2. He submits that he
does not have specific instructions regarding transfer of amounts
in the name of defendant No.2.
17. In a valid contract, consideration is the most
important aspect. The statement of account filed on record shows
that after transfer of certain amount in the Axis Bank account of
plaintiff from the account of defendant No.1, substantial amount
was transferred in the name of defendant No.2, who is sister of
defendant No.1. Defendant No.1 is claiming that the amount so
transferred in the account of plaintiff is the consideration amount
of the sale deed dated 22/03/2017. Defendant Nos. 1 to 4 have
not offered any explanation for transfer of this amount to the
account of defendant No.2. Plaintiff, by filing present suit,
submitted that he did not receive the consideration amount and
sale deed dated 22/03/2017 is executed under the fear of being
exposed to family. Plaintiff has raised a fair question which
requires trial. Thus, plaintiff establishes primafacie case. Plaintiff
sought cancellation of sale deed dated 22/03/2017. If defendant
No.1 alienates suit property on the basis of sale deed dated
22/03/2017, plaintiff would suffer inconvenience and irreparable
loss. Comparative hardship or inconvenience caused to the
plaintiff by refusing the injunction order would be greater than
which is likely to be caused to the defendant No.1 by granting it.
Thus, balance of convenience lies in favour of plaintiff and
plaintiff would suffer irreparable loss if injunction restraining
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defendant No.1. from alienating suit property is not granted.
Point Nos. 1 to 3 are answered accordingly.
18. Plaintiff has prayed for appointment of Court
Receiver. The object of appointment of Court Receiver is
preservation of property in dispute, pending the judicial
determination of the rights of the parties. Considering the facts
on record, the Court would not be justified in making
appointment of Court receiver. As per prayer clause (b), plaintiff
sought injunction restraining defendant No.1 from alienating suit
property. Taking into consideration, over all facts and
circumstances on record, plaintiff’s claim can be protected by
granting relief in terms of prayer clause (b). In the result,
following order :
ORDER
1. N/M No.957/2019 is partly allowed.
2. N/M No.957/2019 is made absolute in terms of
prayer clause (b).
3. All other prayers in N/M No.957/2019 are rejected.
4. Costs in cause.
5. N/M No.957/2019 is disposed of accordingly.
S.U.HAKE
15/11/2021 JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 15/11/2021
Transcribed on : 16/11/2021
Signed on : 20/11/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
20/11/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
15/11/21
Judgment and order signed by
P.O.
20/11/21
Judgment/order uploaded on 20/11/21
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