Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1010/20(Suit 429/20)
MHCC010028102020
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
INTERIM ORDER
IN
NOTICE OF MOTION NO. 1010/2020
IN
S.C. SUIT NO.429/2020
Sunil Omprakash Agarwal ..Plaintiff
V/s.
1. Rohit S. Thakkar AND
Smt. Kokila M. Joshi
2. Mulund Sejal Co-op. Hsg. Soc.Ltd. ..Defendants
Appearance:-
Adv. Mr. Thorat for plaintiff.
Adv Mr Ram Singh for defendants.
CORAM : HHJ Shri V.V Vidwans.
C. R. No.03.
DATE : 9.3.2020.
ORAL ORDER
1. Heard Ld. Counsel for the parties regarding grant of
interim relief to the plaintiff in terms of prayer clause (c) of the notice
of motion. The notice of motion is supported by an affidavit Mr.Rajesh
Borkar, CA of the plaintiff. I have gone through the same and
accompanying documents.
2. Ld Counsel for the plaintiff submitted that the suit has
been filed against defendants challenging legality and validity of the
unilateral conveyance dated 12.7.2018 vide Exh.D filed on record,
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which is executed by the defendants no.1 and 2 in respect of the
plaintiff's land admeasuring 64.70 sq. mtrs. situated at Devi Dayal Cross
Road, Village, Mulund(W), Tal. Kurla, Dist. Mumbai-80. The defendant
no.1 is the Secretary of the defendant no.2 CHS It is submitted that, the
plaintiff had not entered into any agreement of sale of the suit land
with the defendant or Murghaben or anyone, but behind back of the
plaintiff the defendants no.1 and 2 had filed an application u/s. 11 (2)
r/w. Order 5A of the MOFA Act for obtaining the certificate of deemed
conveyance for the suit land admeasuring 64.70 sq. mtrs. On 23.2.2016,
District Dy. Registrar passed an order for issuing certificate for execution
and registration of the deemed conveyance and issued certificate to the
defendant. Accordingly, defendants no. 1 and 2 have executed and
registered the deemed conveyance (unilateral) dated 12.7.2018 and
thereafter, had applied to the Tehsildar, Kurla for transfer of the suit
land in the name of defendant no.2. By its order dated 13.8.2019 the
Tehsildar, Kurla has rejected the objection raised by the plaintiff and
confirmed mutation entry no. 5377 in respect of the suit land. The
main grievance of the plaintiff is that, as per agreement of sale dated
2.12.1974 the plaintiff had agreed to transfer of land admeasuring
1063.30, described in Sr. no.1 in Exh.A, and not the suit land. The
defendants are not entitled to the suit land on the ground that, it was
part of larger plot of land admeasuring 1668 sq. mtrs of which only
1603.30 sq.mtrs. was conveyed to the defendants.
3. On the above factual background, Ld, Counsel for the
plaintiff submitted the effect and operation of the unilateral conveyance
deed dated 12.7.2018 be stayed so as to protect the interest of the
plaintiff during pendency of the notice of motion and the suit and
therefore, grant interim relief as prayed in para (c) of the notice of
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motion.
4. Per contra, Ld Counsel for the defendants has strongly
opposed the contentions of the plaintiffs and submitted that the
defendants will submit their detailed affidavit in reply to the notice of
motion, but in the meanwhile the interim relief as prayed by the
plaintiff cannot be granted because the concerned authorities have
completed all the procedural formalities and complied with the legal
requirements and only thereafter as per order dated 23.2.2016 deemed
conveyance has been executed as per provisions of MOFA Act dated
12.7.2018.
5. It can be seen from the documents on record that the
dispute between the parties is circled around the area of land of which
the suit property consisted part of immovable property. Total area is said
to be 1668 sq.mtrs. But as per sale deed, the land is shown as 1603.30
sq. mtrs. Therefore, in respect of the remaining 64.70 sq.mtrs land for
defendant had applied for the deemed conveyance. As per property card
of the City Survey Officer, Mulund, Tal. Kurla, the area of City Survey
No.1054 is admeasuring 1603.3 sq.mters, while area of City Survey
no.1054.1 is 64.07 sq.mtrs. As per order dated 23.2.2016 of the
Dy.Registrar for the District Cooperative Societies-2, Mumbai has issued
deemed conveyance and accordingly certificate has been issued.
Therefore, after considering all the documents and facts on record, Ld.
Tehsildar, Kurla vide order dated 13.8.2019 has rejected the objection
raised by the plaintiff and confirmed the mutation entry no.5377.
Considering the rival contentions, the interest of the plaintiff needs to
be protected till the defendants file their reply affidavit to the Motion.
Hence, interim relief, as per prayer clause (c) of the notice of motion, is
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allowed in following terms :-
ORDER
1. Defendants no. 1 and 2 are hereby directed to maintain
legal status of the suit property as on today and not to
create third party interest on the basis of unilateral/
deemed conveyance dated 12.07.2018 vide Ex-D filed
with the plaint, till next date.
2. Notice of motion to proceed for filing of the affidavit in
reply by the defendants on next date.
(V.V. Vidwans)
Date: 9.3.2020 Judge, City Civil Court,
Gr. Bombay (C.R. 03)
Dictated on : 9.3.2020
Transcribed on : 11.3.2020
Draft given on 11.3.2020
Signed by HHJ on : 12.3.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 12.3.2020
(NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 9.3.2020
Judgment/ order signed by P.O on 12.3.2020
Judgment/ order uploaded on 12.3.2020
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