Order 1

Order Details: Notice of Motion
Pdf Text: NM 1141/19 in SU 669/19 .. 1 .. Order
CNR No. MHCC010029532019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1141 OF 2019
IN
SUIT NO. 669 OF 2019
M/s. Gulbanu and Sons & Ors. ...Plaintiffs.
V/s.
Mrs. S. Heena & Ors. ...Defendants.
Appearances:
Learned Adv. Mr. Dalal I/b AAK Legal for plaintiffs.
Learned Adv. Mr. Arvind Giriraj H/f learned Adv. Mr. Ashraf Patel for
defendants Nos.5 to 7.
CORAM : HIS HONOUR JUDGE
SHRI SADRUDDIN A. QUAZI
(C.R.No.04)
DATED : 4th May, 2019.
: ORAL ORDER :
1. The plaintiffs have taken out this Notice of Motion for interim
reliefs. They have requested to grant interim reliefs, which may be
summarized as under :
(a) To declare that the purported sale agreement dated
04.09.2018 executed between defendants Nos.1 to 4 on
one part and defendants Nos.6 and 7 on the other part
alongwith NOC of defendant No.5, are invalid, void and
nonest, illegal and stands cancelled and not binding
under law.
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(b) To declare that defendants Nos.1 to 4 and 6 & 7 do not
have or ever had any ownership right over the suit flat.
(c) Pending the hearing and final disposal of the suit, the
defendants be restrained by way of temporary injunction
from dealing with, disposing of, alienating, encumbering,
parting with and/or creating any third party right, title
or interest in respect of the suit flat and/or any part
and/or portion thereof pursuant to the said purported
sale agreement dated 04.09.218 alongwith the said
purported NOC.
(d) To grant temporary injunction, restraining the
defendants from taking any steps pursuant to the said
agreement and the NOC.
(e) To appoint Court Receiver in respect of the suit flat.
2. The plaintiffs' case may be stated as under :
The suit property is described in the plaint as flat bearing unit
No.106, situated on the first floor in building of Shalimar Cooperative
Housing Society, situated on plot No.501 at Mumbai, as described in
paragraph No.2 of the plaint. The plaintiff No.1 is a association of
persons, the plaintiff No.2 to 4 are its members. Defendant No.5 is
treasurer of the aforesaid housing society. He is also father of
defendants Nos.6 & 7.
Father of plaintiff No.4 was deceased Ahmedally. The said
Ahmedally alongwith his deceased brother Gulamali acquired the plot
bearing C.S. No.501, admeasuring 1040.97 sq. mtrs. as described in
paragraph No.5 of the plaint. The said plot was acquired on lease dated
30.10.1954 for 90 years. After demise of Ahmedally, his heirs have
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become entitled to said land. The building consisting of ground plus
four upper floors was constructed on the said land by the forefathers of
plaintiffs No.2 to 4. Occupation certificate to that effect was granted by
the Municipal Corporation on 23.06.1977. The building has 52
commercial units/shops on the ground floor and 19 units/flats on each
of the 4 floors. Few units and/or flats out of the said flats on the first
floor were given on tenancy basis by the plaintiffs as landlords and
some units and/or flats were converted from tenancy into ownership
premises. Currently out of the 19 units and/or flats on the first floor of
the said building, the plaintiffs through plaintiff No.1, are the owners
and have right, title and interest in unit and/or flat bearing Nos.104,
106, 107, 108, 109, 111 and 119. On 08.02.1989, the said society was
registered by the owners/tenants/occupants of the said building under
the Maharashtra Cooperative Societies Act, 1960. Pursuant to the
formation of the said Society, share certificates in respect of the said
flats on the first floor were issued by the said Society in favour of the
plaintiffs in the name of the plaintiff No.1 i.e. M/s. Gulbanu and Sons.
The plaintiffs have been paying all maintenance charges, other statutory
dues etc., in respect of the said flats. The instant suit is pertaining to flat
No.106, admeasuring 225 sq. ft. (hereinafter it shall be referred to as
“suit flat”).
On 07.02.1978, the suit flat was let out on tenancy basis by the
forefathers of the plaintiffs No.2 to 4 vide tenancy agreement dated
07.02.1978. Late Mr. Basappa Bhimappa was residing in the said flat
and continued to be tenant, in respect of the same till he expired on
17.09.1996. The plaintiffs have produced the copy of the said
agreement dated 07.02.1978, which is in respect of the suit flat No.106.
After demise of Mr. Basappa, his daughters continued to reside in the
suit flat. The tenancy in respect of the suit flat continued to exist in the
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name of deceased Mr. Basappa and the same is not transferred to any
person/s or to his daughters. The tenancy still belongs to Mr. Basappa.
The plaintiffs are in lawful possession of the suit flat through tenant
deceased Mr. Basappa. The plaintiffs never transferred ownership rights
in respect of the suit flat to the deceased Mr. Basappa or his daughters
or to defendants No.1 to 4. Tenancy agreement provides that the tenant
shall use and occupy the flat let to him/her for himself/herself and
his/her/wife/husband and children and shall use the flat strictly for
residential purpose only and is not authorized to relet, or give on leave
and license basis, or allow any paying guest, care taker, boarder,
lodgers or any relative in the flat.
Despite the aforesaid circumstances, the defendants in collusion
and connivance with each other, have unlawfully, illegally and
fraudulently entered and executed the said purported Sale Agreement
dated 04.09.2018 in order to usurp and grab the said suit flat from the
plaintiffs. The defendant No.5 was an occupant in respect of one unit
No.103, in the said building. Unit No.103 was let out on tenancy basis
to one Smt. Rahmetbe Fatehkhan, vide tenancy agreement dated
05.02.1978. She expired on 09.10.2003. After death of Smt. Rahmetbe
Fatehkhan, the plaintiffs gave the aforesaid flat No.103 to the defendant
No.5 and transferred the title thereof to defendant No.5, as per
agreement dated 17.01.2012 registered on 18.01.2012.
On 22.10.2018, the plaintiffs learnt that the four daughters of
deceased Mr. Basappa i.e. defendants No.1 to 4 in connivance and
collusion with the defendants No.5 to 7 have illegally, unlawfully and
fraudulently disposed off the suit flat 106 in favour of defendants No.6
and 7. The said agreement was registered. The defendant No.5 has
illegally given no objection certificate on behalf of the housing society
for the said transaction, without consent of the plaintiffs, who are
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owners of the suit flat. In such circumstances, the plaintiffs have filed
the instant suit for the aforesaid reliefs and by way of Notice of Motion,
the plaintiffs have requested to grant interim reliefs.
3. The defendant No.2 is said to have expired. The defendant
Nos.1,3 and 4 are deemed to have been served with the Notice of
Motion. However, they have failed to appear to oppose the Notice of
Motion. The defendant Nos.5 to 7 have appeared and filed their
respective replies cum written statement to oppose the Notice of
Motion. According to them, the suit without seeking declaration of
plaintiff's ownership is not maintainable. The plaintiffs ought to have
claimed other reliefs as necessary under section 34 of the Specific Relief
Act. The suit filed by association is also not tenable, because the
association is not juristic person to file suit. In the instant case, the
plaintiff No.1 is said to be association and, therefore, the suit filed by
plaintiff No.1 is not maintainable. The suit is also not tenable for
nonjoinder of proper necessary party, namely the Shalimar Cooperative
Housing Society and SubRegistrar of Assurances. The plaintiffs are
claiming legal rights over the suit flat, being legal heirs of deceased
Ahmedally, but plaintiffs have not produced any succession certificate in
support. As the plaintiffs are claiming that they are landlord and the
defendant Nos.1 to 4 are tenants, the suit before the City Civil Court is
not tenable under section 28 of Presidency Small Causes Court Act.
Defendant Nos.5 to 7 have denied that Mr. Basappa was the tenant in
respect of the suit flat. According to the defendants, Mr. Basappa was in
fact owner of the suit flat and defendants Nos.1 to 4 being his heirs
have become owners of the suit flat, after death of Mr. Basappa.
Defendants Nos.1 to 4 are therefore, authorised to transfer the suit flat
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and, accordingly, they have transferred it in favour of defendants Nos.6
& 7 by the agreement of sale dated 04.09.2018. Agreement of sale
dated 04.09.2018 is valid and, thereby, the defendants Nos. 6 & 7 have
purchased the suit flat for valuable consideration. The said agreement is
registered one. In such circumstances, the declaration sought for in
respect of the said agreement, cannot be granted. The plaintiffs ought to
have sued for all reliefs simultaneously including relief of possession
and declaration of ownership of the plaintiff etc. As these reliefs are not
sought, the suit and the Notice of Motion, are not tenable at all. The
defendants are not aware and hence, they have denied the averments in
the plaint to the effect that the plaintiffs have right, title and interest in
respect of flat No.106. The defendants have admitted that the housing
society has been registered as alleged by the plaintiff. They have denied
that there was any tenancy agreement dated 07.11.1978 with
Mr. Basappa in respect of the suit flat. The alleged tenancy agreement is
not supported by any proof of payment of rent or rent receipts. It is also
not registered under the Registration Act. There is no explanation as to
why there was no change of tenancy, after the expiry of deceased Mr.
Basappa on 17.09.1996. No landlord would sit idle for a period of more
than 20 years without transferring the name of tenant. It is denied that
the tenancy continues to exist in the name of Mr. Basappa, after his
death also. According to the defendants, the document of tenancy
agreement produced by the plaintiffs is false and fabricated document.
According to them, it is pertinent to note that the plaintiffs have not
sought eviction of defendants Nos.1 to 4, after expiry of their father Mr.
Basappa. According to the defendants, it is true that when defendant
No.5 was Treasurer of the society and defendants Nos.1 to 4 had
explained the fact that there was no share certificate and reasons for it
and, therefore, NOC was issued in consultation that the then office
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bearer of the society, in respect of the disputed agreement.
For all these reasons, the defendants have submitted that the
plaintiffs have no prima facie case and balance of convenience and no
irreparable loss would be caused to the plaintiffs, if interim reliefs are
not granted. Therefore, according to the defendants, the Notice of
Motion is liable to be dismissed.
4. I have heard the arguments advanced by the parties. They have
relied on the pleadings of their respective clients, which I have noted
herein earlier in detail. The learned Advocate of the plaintiffs has
submitted that it is not disputed that the plaintiff's father was owner of
the land and on that land the building has been constructed and,
therefore, the plaintiff's father was owner of the flats in the said
building. It is submitted that the plaintiff's documents prima facie show
that Mr. Basappa was inducted by the plaintiff's father as tenant and,
thereafter, he died. After death of the plaintiff's father, the plaintiffs
have inherited him and thus, the suit premises are owned by the
plaintiffs and defendants Nos.1 to 4 have no right to transfer the said
flat in favour of defendants Nos.6 & 7. Therefore, he submits that
plaintiffs have prima facie case.
5. On the other hand, learned Advocate of the defendant Nos.6 & 7
has submitted that as the plaintiffs are not in possession of the property,
the suit for cancellation of document cannot be maintainable. It is
submitted that the plaintiffs have been out of possession, since more
than 20 years and plaintiffs have not produced documents of their title.
The plaintiffs have also not sought relief of declaration of their title.
With all these defects in the plaint, the plaintiffs cannot be said to have
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prima facie case and balance of convenience in their favour. It is
submitted that defendant Nos.6 & 7 are bonafide purchasers. The
learned Advocate of the defendants No.6 & 7 has referred to the
decisions in (1) Kanraj Khatri V/s. Nathuram Jain [AIR 1997 MP 92,
1997(2) MPLJ 41]. (2) North Delhi Municipal Corporation V/s.
Prashant Narula & Ors. Dated 05.10.2016, RSA No.297/2015 (Delhi
High Court). On the other hand, learned Advocate of the plaintiffs has
relied on the decision of Hon'ble Allahabad High Court in the case of
(1) Shankar Lal & Anr. V/s. Sarup Lal & Anr. [1992] ILR 34 All
140]. (2) Parmanand Patel (Dead) by Lr. & Anr. V/s. Sudha A.
Chowgule & Ors. [2009 AIR (SC) 1593]. (3) Ignatius Lobo V/s.
Antoinette Rodrigues [1992 (94) BOMLR 574]. (4) T. Krishnaswamy
Chetty V/s. C. Thangavelu Chetty [1955 AIR (MAD) 430].
6. Considering the submissions and pleadings of the parties,
following points arise for determination on which I record my findings
as under for the reasons to follow :
POINTS FINDINGS
1. Whether the plaintiff has made out
prima facie case for granting the
interim relief as requested in the
instant Notice of Motion ?
In Affirmative
2. Whether the plaintiffs have balance
of convenience in their favour ?
In Affirmative
3. Whether the plaintiffs would suffer
irreparable loss, if the interim reliefs
asked for are not granted in respect
of temporary inunction and in
respect of appoint of Court Receiver
etc. ?
In affirmative only in respect
of temporary injunction,
restraining the defendants
from dealing with, disposing
of, alienating, encumbering
and creating third party
interest in the suit flat,
pursuant to the said
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POINTS FINDINGS
agreement dated 04.09.2018
and in negative in respect of
rest of the reliefs.
4. What order? The Notice of Motion is
allowed in terms of the
operative order being
passed herein below.
: R E A S O N S :
AS TO POINT NO.1 TO 4 :
7. I have noted the pleadings of the parties. The plaintiffs have very
specifically pleaded that the suit flat is bearing No.106 and it is situated
in the building situated at plot No.7 bearing C.S. No.501 as described in
the plaint. The plaintiffs have pleaded in paragraph No.5(a) to the
effect that the deceased Ahmedally, who is father of the plaintiffs Nos.2
to 4 alongwith his brother owned the said plot No.7 and then, the
building consisting of ground plus four floors was constructed as per
the plan sanctioned by the Municipal Corporation in the year 1977.
Occupation Certificate was granted by the Municipal Corporation. In
this building, the suit flat bearing No.106 is situated. The plaintiffs have
pleaded that some of the flats have been sold and some have been
retained by their father. The suit flat No.106 is included in the flats
retained by the father of the plaintiffs. Admittedly, plaintiff's father
Ahmedally has died and the plaintiffs being sons, have inherited the
interest in the suit flat from their father. On these aspects, I have not
found any specific denial from the side of the defendants. The
defendants have only denied that Mr. Basappa was tenant of the suit
flat. According to the defendants, Mr. Basappa was owner of the suit
flat No.106. Admittedly, Mr. Basappa has died and defendants Nos.1 to
4 are his daughters. The plaintiff's contention is that the defendants
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Nos.1 to 4 did not have any ownership or title to transfer the same to
the defendants Nos.6 & 7. The plaintiffs have produced share certificate
of Shalimar Cooperative Housing Society, in which the suit flat No.106
is situated. Plaintiffs have produced share certificates pertaining to the
father's flat i.e. flat No. 104, 106, 107, 108, 109, 111 and 119 to show
that these flats were owned by the plaintiff's family. On perusal of the
share certificate, it appears that the name of plaintiff Smt. Gulbanu and
sons has been mentioned as owners of these flats including the suit flat
No.106. Some receipts have also been produced by the plaintiffs to
show that the payments pertaining to the suit flats have been made by
the plaintiffs. Then, the plaintiffs have produced agreement of tenancy
executed between the constituted attorney of Porbandarwala and
brothers (landlord) and Mr. Basappa Bhimappa (tenant). This
agreement is dated 07.02.1978 and it is pertaining to flat no.106 of the
aforesaid building. As per this document, the landlord Porbandarwala
and brothers have given the suit flat to Mr. Basappa on monthly
tenancy. The aforesaid document produced by the plaintiffs, prima
facie, show that the suit flat was and is owned by the plaintiffs. The
defendants have not produced any such document, which can rebut the
aforesaid inferences, which can be drawn from the documents of the
plaintiffs. In such circumstances, I do not find that the defendants Nos.1
to 4 have legal right to transfer the ownership and title of the suit flat in
favour of the defendant No.6 & 7. However, prima facie, it appears that
the defendant No.5 being treasurer of the housing society, has given
NOC for registration of the sale agreement in respect of the suit flat,
between the defendant Nos.1 to 4 on one part as seller and defendant
Nos.6 & 7 as purchaser. Defendants have not produced any document
to show that the defendant Nos.1 to 4 have ownership over the suit flat.
Therefore, NOC by itself would not be sufficient to hold that they have
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right of ownership. Therefore, I hold that the plaintiffs have prima facie
case and balance of convenience in their favour. Accordingly, I have
answered points No.1 & 2 in affirmative.
8. The learned Advocate of the defendants has submitted that the
suit itself is not tenable, because the plaintiffs have not sought any
relief of possession and any relief of declaration of his ownership.
However, his said submission cannot be accepted firstly because it is an
interim stage of the proceeding and secondly for the reason that the
plaintiffs are not party to the document sought to be declared as illegal.
The said agreement in question is between defendant Nos.1 to 4 on one
part and defendant Nos.6 & 7 on the other part. In such circumstances,
it cannot be said that without seeking declaration of ownership of the
plaintiffs and without seeking recovery of possession of the suit flat, the
suit cannot be maintainable. The learned Advocate of the plaintiffs has
rightly relied on the decision of Hon'ble Allahabad High Court in the
case of Shankar Lal & Anr. V/s. Sarup Lal & Anr. (supra). In that
case, it was held that ordinarily where a plaintiff is out of possession
and he is in a position to claim a decree for possession, he should not be
permitted to obtain merely a decree for the cancellation of an
instrument according to which, if genuine, he had no title to the land.
Ordinarily a Court exercises its discretion wisely if it declined to
adjudge such an instrument void and would do well to leave the
plaintiff to a suit for possession. The relief of allowing the suit be
maintained under section 39 (new 31) of Specific Relief Act and any
suit for possession to be brought immediately afterwards is that the
defendant is put to unnecessary expense. In the Appeal, the Hon'ble
Allahabad High Court has held that the Court has already exercised the
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discretion and decided the document to be void about the Will and,
therefore, Hon'ble Allahabad High Court has held that the decree
passed by the trial Court, do not call for any interference. Thus, it
cannot be said that the suit is not at all tenable, for cancellation or
declaration of any instrument without asking for possession or without
asking for declaration of title. In the facts of the instant case including
that the plaintiffs are not party to the document sought to be declared
as illegal and void, prima facie it does not appear that it is not
necessary for the plaintiffs to ask for relief of possession or declaration
of their title. The issue can be however tried and presently only prima
facie findings are recorded in this regard.
In the case of North Delhi Municipal Corporation V/s.
Prashant Narula & Ors. (supra), cited by the learned Advocate of the
defendant Nos.6 & 7, it was suit for declaration and injunction in
respect of the suit property and the suit was decreed declaring that the
defendant was not having any right, title and interest in the suit land
and for injunction, restraining the defendant from raising any
construction on the suit land. In that case, the Hon'ble Delhi High Court
has observed that even if, the plaintiffs technically were owners, they
were only owners in trust and the plaintiffs could not seek any right or
benefit in the suit land for selling or transferring the same or making
any construction on the same as owners. The plaintiffs had not proved
that they were the owners of the suit land. Even if, they were owners
only in trust, they could not sell the land or make construction on it and
the right of the management was with the Municipal
Corporation(defendant), in terms of the approved lay out plan.
Possession would follow title in view of judgment of Hon'ble Supreme
Court in the case of Anathula Sudhakar V/s. P. Buchi Reddy (Dead)
by Lrs. & Ors. [2008 (4) SCC 594]. However, the Hon'ble Delhi High
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Court has observed that the ratio of judgment in the case of Anathula
Sudhakar V/s. P. Buchi Reddy (Dead) by Lrs. & Ors., will have to be
read with two other judgments of Hon'ble Supreme Court in the case of
M.K. Rappai & Ors. V/s. John & Ors. [1969 (2) SCC 590] and Vijay
Krishna V/s. Keshav Chandra & Anr. [1993 Supp (3) SCC 129], in
which it was held that once a person is not in possession of a land, a
simple suit for declaration would be barred under section 34 of the
Specific Relief Act, 1963 because declaration cannot be granted in the
absence of claiming further relief of possession. The learned Advocate
of the defendants has referred to para 20 of this judgment in the case of
North Delhi Municipal Corporation V/s. Prashant Narula & Ors.
(supra), in which, the decision of Hon'ble Supreme Court in the case of
Anathula Sudhakar V/s. P. Buchi Reddy (Dead) by Lrs. & Ors.
(supra) is as referred to and quoted. The same and substance of the
said quotation is to the effect that where a plaintiff is in lawful and
peaceful possession of a property and such possession is interfered or
threatened by the defendant, a suit for an injunction simpliciter will lie.
A person has a right to protect his possession against any person who
does not prove a better title by seeking a prohibitory injunction. But a
person in wrongful possession is not entitled to an injunction against
the rightful owner. Where the title of the plaintiff is not disputed, but
he is not in possession, his remedy is to file a suit for possession and
seek in addition, if necessary, an injunction. After quoting para 20 of
decision in Anathula Sudhakar's case, in the case of North Delhi
Municipal Corporation V/s. Prashant Narula & Ors. (supra), the
Hon'ble Delhi High Court has further held that where a cloud is raised
over plaintiff's title and he does not have possession, a suit for
declaration and possession, with or without a consequential injunction,
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is the remedy. Where the plaintiff's title is not in dispute, but he is out
of possession, he has to sue for possession with a consequential
injunction. Where there is merely an interference with plaintiff's lawful
possession or threat of dispossession, it is sufficient to sue for an
injunction simpliciter.
On considering the aforesaid decision and facts of the instant
case, I find that presently we are concerned with the interim relief
application and whether the suit is tenable or not, can be decided after
trying all issues in the case. Prima facie, it does not appear to be
untenable. Hence, the aforesaid decision in the case of North Delhi
Municipal Corporation V/s. Prashant Narula & Ors. (supra), is to
helpful to defendants.
The learned Advocate of the defendants has relied on the
decision in the case of Kanraj Khatri V/s. Nathuram Jain (supra), in
that case, the suit was for declaration that the plaintiff was entitled to
right of easement and injunction was also sought restraining the
defendants from constructing any structure within 3 meters of his
house. Application for temporary injunction was also filed. In that
background, the Hon'ble High Court has considered and interpreted the
meaning of the phrases prima facie case, balance of convenience and
irreparable loss. It was held in that case that prima facie case is not to
be confused with prima facie title which has to be established on
evidence at the trial. Only prima facie case is a substantial question
raised, bona fide, which needs investigation and a decision on merits.
So the Court will have to look in to whether any substantial question
has been raised in the case before it, if such question is found to have
been raised then, it can be said that the plaintiff has prima facie case.
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9. The learned Advocate of the plaintiffs has relied on the decision
in the case of Parmanand Patel (Dead) by Lr. & Anr. V/s. Sudha A.
Chowgule & Ors. (supra). In that case, the Hon'ble Supreme Court has
held that a receiver is appointed only when it is found to be just and
proper and convenient to do so. Appointment of Court Receiver
pending suit is a matter which is within the discretionary jurisdiction of
the Court. Ordinarily the Court would not appoint a receiver save and
except on a prima facie finding that the plaintiff has an excellent chance
of success in the suit.
In the case of Ignatius Lobo V/s. Antoinette Rodrigues (supra),
as relied upon by the learned Advocate of the plaintiffs, the Hon'ble
Bombay High Court has held that when third person appears to have
conducted mala fide merely in order to thwart the litigation, such a
case is fit for appointment of Court Receiver for obtaining actual
physical possession the suit property from the defendant or from third
party and induct the plaintiff in possession as his agent.
In the case of T. Krishnaswamy Chetty V/s. C. Thangavelu
Chetty (surpa), as relied upon by the learned Advocate of the plaintiffs,
the point in question was about desirability of Court Receiver. In the
facts of that case, the Hon'ble Madras High Court has held in para
No.11 as under :
(11) The principles which, guide English Courts in regard to cases in
which the appointment is made to preserve property can be
culled out from the standard English text books and the case
law on the subject as follows :
“the appointment is made to preserve property pending
litigation to decide the rights of the parties, or to prevent a
scramble among these entitled, as where a receiver is appointed
pending a grant of probate or administration, or to preserve
property of persons under disability, or where there is danger of
the property being damaged or dissipated by these with the legal
title, such as executors or trustees, or tenants for life, or by
persons with a partial interest, such as partners, or by the
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persons in control, as where directors of a company with equal
powers are at variance”.
10. Considering the aforesaid facts of the instant case, I hold that the
plaintiffs are entitled for temporary injunction, restraining the
defendants from creating third party interest in the suit flat and if such
interim relief is not granted, plaintiffs would suffer irreparable loss as
otherwise, there will be multiplication of litigation and property would
change the hands and there would be no preservation of the suit
property, pending the disposal of the suit. Therefore, I have recorded
affirmative findings on point No.3 to this extent. As the relief of
temporary injunction in the above terms can be granted, at this stage, it
is not necessary to appoint Court Receiver as requested by the plaintiffs.
In view of this, with respect, I hold that the decisions in (1)Parmanand
Patel (Dead) by Lr. & Anr. V/s. Sudha A. Chowgule & Ors. (supra)
and (2) Ignatius Lobo V/s. Antoinette Rodrigues (supra) and (3) T.
Krishnaswamy Chetty V/s. C. Thangavelu Chetty (supra), are not
helpful to the plaintiffs to ask for relief of appointment of Court
Receiver. The plaintiffs have also not pointed out as to why injunction
should be granted preventing the defendants from taking steps
pursuant to the disputed agreement and NOC. No specific acts or steps
which are to be prevented, have been mentioned here. Therefore, these
reliefs and the reliefs prayed in prayer clauses (a) & (b) need not be
granted. Hence, to this extent, I have recorded negative findings on
point No.3.
In view of the affirmative findings on points No.1,2 and 3, I hold
that the plaintiffs are entitled for injunction, restraining the defendants
from alienating or creating third party rights and interest in the suit
premises, pending the hearing and disposal of the suit. In these terms,
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the Notice of Motion will have to be partly allowed. Accordingly, I have
answered point No.4. Hence, I proceed to pass the following order.
: O R D E R :
1. The Notice of Motion No.1141 of 2019 is partly allowed in
following terms :
(i) The temporary injunction is granted restraining the
defendants from alienating or creating third party rights and interest in
the suit premises, pending the hearing and disposal of the suit.
(ii) Rest of the reliefs asked for in the Notice of Motion are
refused.
2. In these terms, the Notice of Motion stands disposed of
accordingly.
(SADRUDDIN A. QUAZI)
Judge, (C.R.No.4)
Date : 04.05.2019. City Civil Court, Gr. Mumbai
Dictated on : 04.05.2019.
Transcribed on : 06.05.2019 & 07.05.2019.
Signed on : 10.05.2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10.05.2019, at 12.30 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S. A. Quazi
Court Room No.4
Date of Pronouncement of Judgment/order 04.05.2019.
Judgment/order signed by P.O. on 10.05.2019.
Judgment/order uploaded on 10.05.2019.
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