Interim Order 2

Order Details: Notice of Motion
Pdf Text: Order below Exh.1 and N/m No. 3032/23 and [ 1 ] Common Order.
N/m No. 458/24 in S.C.Suit No. 1103/2020.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
ORDER BELOW EXHIBIT 1
AND
MHCC010086332023
Presented on : 18-08-2023
Registered on : 18-08-2023
Decided on : 10-02-2025
Duration : 1 years, 5 months, 23 days
NOTICE OF MOTION NO. 3032 OF 2023
Drishti Hospitality Company Private Limited )...Plaintiff
Versus
1(a) Dr. Sharad Mehta and others )...Defendants
AND
MHCC010014802024
Presented on : 01-02-2024
Registered on : 01-02-2024
Decided on : 10-02-2025
Duration : 1 years, 0 months, 9 days
NOTICE OF MOTION NO. 458 OF 2024
IN
S. C. SUIT NO. 1103 OF 2020
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Order below Exh.1 and N/m No. 3032/23 and [ 2 ] Common Order.
N/m No. 458/24 in S.C.Suit No. 1103/2020.
Drishti Hospitality Company Private Limited )...Plaintiff
Versus
1(a) Dr. Sharad Mehta and others )...Defendants
Shri Niranjan Bhadang alongwith Archi Gala, Advocate for the plaintiff.
Shri R.D.Soni i/b Shri Bipin Joshi, Advocate for the defendant no.1(a)
to 1(d).
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 10th FEBRUARY, 2025.
COMMON ORDER
Vide Notice of Motion No. 3032/2023 the plaintiff seeks
temporary injunction against defendant no.1(a) to 1(d) to restrain them
from creating third party interest over office premises situated on 9th
Floor admeasuring 2229.19 sq.ft. in building known as ‘Drishti House’
(Mehta Mahal) standing on land bearing New Survey No. 3/8019,
7/8019, 5/8019 and part of 2/8007 and corresponding Cadastral
Survey No. 1501 situated at Village Girgaon. Whereas Notice of Motion
No. 458/2024 is moved by defendant no.1(a) to 1(d) to reject the plaint
vide Order 7 Rule 11 of the Code of Civil Procedure [In short, ‘the
Code’] or under Section 10 of the Code.
2. The case of the both parties vide their respective notice of
motion and reply is similar. Hence to avoid repetition of facts, both
notice of motions are taken together for consideration.
3. The plaintiff specifically contends that Deed of Transfer
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Order below Exh.1 and N/m No. 3032/23 and [ 3 ] Common Order.
N/m No. 458/24 in S.C.Suit No. 1103/2020.
dated 02/08/2019 (Exh.C to the plaint) executed between Shringar
House of Mangalsutra and defendant no.1(a) to 1(d) is illegal. Vide said
Deed of Transfer defendant no.2 sold office premises to defendant no.1.
The plaintiff has registered lis pendens notice in the suit on
17/05/2022. The plaintiff through its predecessor in title i.e. Mehta
Charity Trust, the owner of the property had acquired rights and
interest over entire premises located on 9th Floor admeasuring 4209.19
sq.ft. in building known as ‘Drishti House’. The predecessor in title of
the plaintiff has not granted any right or interest in favour of one
Devmiti Finvestrade Ltd. vide Deed of Conveyance dated 15/02/2002
(Exh.F to the plaint). Said Devmiti Finvestrade Ltd. vide Deed of
Transfer dated 31/10/2014 (Exh.D to the plaint) is said to have been
transferred premises located on 9th Floor of building known as Drishti
House to defendant no.2. Once it is fact that predecessor in title of the
plaintiff namely Mehta Charity Trust has not transferred any right or
interest in favour of predecessor of title of defendant no.2 in respect of
premises except right to use two open car parking spaces, defendant
no.2 and consequently defendant no.1(a) to 1(d) have no right and
interest over suit premises. Thus alleged Deed of Transfer dated
02/08/2019 does not create right and interest in favour of defendant
no.1(a) to 1(d).
4. The plaintiff further contends that now defendant no.1(a)
to 1(d) are trying to create third party interest over the office premises.
If they are succeeded in their act, the plaintiff will suffer heavy and
irreparable loss. Hence this notice of motion.
5. In reply, defendant no.1(a) to 1(d) filed affidavit in reply
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Order below Exh.1 and N/m No. 3032/23 and [ 4 ] Common Order.
N/m No. 458/24 in S.C.Suit No. 1103/2020.
on 20/11/2023 and also they have filed Notice of Motion No.
458/2024. It is their contention that the suit of the plaintiff is not
maintainable in view of the provisions of Specific Relief Act [In short,
‘the Act’]. The plaintiff has suppressed material facts. There are various
proceedings pending before the Honourable High Court relating to
subject matter of the suit. This fact is suppressed by the plaintiff. The
plaintiff has no locus standi to challenge Transfer Deed dated
31/10/2014 as it is not executed by the plaintiff. The plaintiff cannot
seek relief of cancellation of said Deed of Transfer in part or in full.
Therefore relief sought by the plaintiff vide the plaint cannot be
granted.
6. It is further specific contention of defendant no.1(a) to 1(d)
that plaintiff being promoter is under obligation to convey the entire
property in favour of co-operative society or any incorporate body in
accordance with the provisions of Maharashtra Ownership of Flats Act
[In short, ‘the MOFA Act’]. The plaintiff failed to comply the mandatory
requirement of MOFA Act. There are various Misc. Applications, for
example, Writ Petition No. 943/2021, Contempt Petition No.
7481/2022 and Suit (L) No. 7162/2020 at the instance of the society
and some of the purchasers of the Drishti building. Hence prayed to
reject the plaint and notice of motion moved by the plaintiff.
7. It is specific submission of learned advocate for defendant
no.1(a) to 1(d) that unless entire Deed of Transfer dated 02/08/2019 is
challenged which is executed in favour of defendant no.1(a) to 1(d), it
cannot be stayed or cancelled in part. The plaintiff has no locus standi
to challenge the Deed of Transfer. To buttress his submission he placed
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Order below Exh.1 and N/m No. 3032/23 and [ 5 ] Common Order.
N/m No. 458/24 in S.C.Suit No. 1103/2020.
reliance upon decision of Honourable High Court of Gauhati in
Dwijamoni Singh V/s. Amal Paul Choudhury [ (2020) 1 Gauhati Law
Reports 523 ] wherein the Honourable High Court has observed that
when illegal part is not separable from the legal part, Section 32 of the
Act cannot be invoked. The instrument either has to be cancelled as a
whole or allowed as a whole. He also relied upon decision of
Honourable High Court in Dahiben V/s. Arvindbhai Kalyanji Bhanusali
(Gajra) Dead Through Legal Representatives And Others [ (2020) 7
Supreme Court Cases 366 ] wherein the Honourable Apex Court has
laid down the principles to be borne in mind while invoking provisions
of Order 7 Rule 11 of the Code.
8. On the other hand, it is submission of learned advocate for
the plaintiff that matters referred by defendants in their reply and
notice of motion happened subsequent to the institution of the suit,
therefore, the plaintiff has not pleaded about the same. Therefore there
is no suppression of material facts. He specifically argued that
documents executed in favour of predecessor in title of the defendant
no.2 and in favour of defendant no.2 do not speak about granting of
common area and same is challenged by the plaintiff. The plaintiff has
every right to challenge the deed in part if he is affected by said part of
the deed. Therefore prayed to allow the notice of motion moved by the
plaintiff and reject the notice of motion moved by the defendants.
9. It is admitted fact that the plaintiff has registered lis
pendens notice in the suit before the Joint Sub-Registrar. It is also
matter of record that the proceedings referred by defendants in their
reply and notice of motion seem to be filed in year 2020 or thereafter.
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Order below Exh.1 and N/m No. 3032/23 and [ 6 ] Common Order.
N/m No. 458/24 in S.C.Suit No. 1103/2020.
The present suit is filed in the year 2020. The defendants have not filed
copies of those proceedings on record to say that those proceedings are
filed prior to the suit. Therefore it cannot be said that those proceedings
are suppressed by the plaintiff.
10. Section 32 of the Act deals with the provisions of
cancellation of contract. Section 27 of the Act provides that only part of
contract if sought to be resisted and said part is not available, said
recession may be refused. Whether part Deed of Transfer challenged is
separable from the rest of it is matter of enquiry and trial. Therefore at
this stage it cannot be said unless both parties are heard on the part of
Deed of Transfer challenged by the plaintiff to see whether it is or is not
separable and therefore the suit is not maintainable.
11. The plaintiff has come with specific case that his
predecessor in title i.e. Mehta Charity Trust has not granted ownership
rights in respect of office premises to one Devmiti Finvestrade Ltd. vide
Deed of Conveyance dated 15/02/2002. Therefore Devmiti Finvestrade
Ltd. was not in position to transfer rights and interest over office
premises vide Deed of Transfer dated 31/10/2014 in favour of
defendant no.2 and consequently Deed of Transfer dated 02/08/2019
executed by defendant no.2 in favour of defendant no.1(a) to 1(d) is
not binding upon the plaintiff’s right over the office premises. All these
questions needs to be decided on merit. Therefore the suit is not liable
to be rejected at this stage.
12. The plaintiff does not challenge entire Deed of Transfer
dated 02/08/2019 executed in favour of defendant no.1(a) to 1(d). It
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Order below Exh.1 and N/m No. 3032/23 and [ 7 ] Common Order.
N/m No. 458/24 in S.C.Suit No. 1103/2020.
simply challenges to the extent of rights and interest of those
defendants upon office premises and common area. Plaintiff has also
come with case that it has registered lis pendens notice. The suit is
pending today. In such circumstances, there is no need to restrain
defendants from creating third party interest in any manner till decision
of the suit. Thus, both notice of motions deserve to be rejected. In the
result, following order is passed :
- ORDER -
1. Both notice of motions stand rejected.
2. Accordingly both notice of motions are disposed off.
(U.C.DESHMUKH)
Judge,
City Civil Court,
(Court Room No.66)
Date : 10/02/2025. Mumbai.
1. Dictated on : 10/02/2025.
2. Transcribed on : 17/02/2025.
3. Placed for correction on : 18/02/2025.
4. Checked on : 18/02/2025.
5. Correction carried on : 24/02/2025.
6. Signed on : 24/02/2025.
7. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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Order below Exh.1 and N/m No. 3032/23 and [ 8 ] Common Order.
N/m No. 458/24 in S.C.Suit No. 1103/2020.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
28/02/2025. 2.59 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri U.C.Deshmukh.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 10/02/2025.
Judgment/Order signed by P.O. on 24/02/2025.
Judgment/Order uploaded on 28/02/2025.
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