Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no.1058 of 2020, Suit no.3483 of 2012
(High Ct. suit no. 1419 of 2012)
MHCC010030322020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER IN NOTICE OF MOTION NO.1058 OF 2020
IN
SUIT NO.3483 OF 2012
IN
(HIGH COURT SUIT NO.1419 OF 2012)
Mr. Rajan Subhash Bohra ...Plaintiff
Vs
M/s. Karma Yogi Property Developers
Pvt. Ltd., and Others. ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 3rd DAY OF OCTOBER, 2022
: Appearances:
The learned Adv. Vrushali Kabre for the plaintiff.
The learned Adv. Sharmili Mhatre for defendants no.1 and 2
None for defendants no. 3 to 5.
ORAL ORDER
The plaintiff has taken out the present notice of motion
for claiming reliefs interalia for appointment of Court Receiver, High
Court Bombay and for restraining defendants no.1 and 2 and
respondent from creating third party interest in the suit property and
for other reliefs.
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2 Ord. in NM no.1058 of 2020, Suit no.3483 of 2012
(High Ct. suit no. 1419 of 2012)
2. In short, it is contention of the plaintiff that, he has filed
suit for specific performance against defendants no. 1 and 2 in
respect of suit property. The plaintiff has also challenged the Consent
term executed in between defendants no.1 and 3 in suit no. 2763/09
as illegal and void, thereby they entered into an agreement to sale
suit property. The plaintiff has also challenged the agreement for sale
dated 01/09/2010 executed by defendants no.1 and 2 with defendant
no.4 behind back of him. The plaintiff has also challenged the letter
dated 15/10/2004 issued by defendants no. 1 and 2 thereby they
allegedly cancelled the agreement executed in between the plaintiff
and defendants no.1 and 2.
3. It is further contention of the plaintiff that, vide order
dated 11/07/2011 defendants were restrained temporarily from
creating third party interest in suit property. However, due to
enhancement in pecuniary jurisdiction, the matter was transferred
from the Hon'ble Bombay High Court to this Court. Thereafter due to
his day to day business activities, the plaintiff could not contact to his
advocate and the suit was dismissed in default on 11/04/2014.
4. It is further contention of the plaintiff that, thereafter he
has taken out notice of motion no.3817/15 for restoration of the suit.
Accordingly it came to be allowed on 17/09/2016 and thus the suit
came to be restored.
5. It is further contentions of the plaintiff that, at the time
of preparing evidence, when the plaintiff had been to the suit
premises, he came to know that the suit property is in possession of
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3 Ord. in NM no.1058 of 2020, Suit no.3483 of 2012
(High Ct. suit no. 1419 of 2012)
the respondent. Thereafter the plaintiff also came to know about
change of name of the society as well as the fact that defendants had
executed an agreement of sale in favour of respondent on
07/11/2015 in respect of suit property. Therefore, the plaintiff has
apprehension that defendants may alienate/ create third party
interest in the suit property. Hence the notice of motion.
6. Defendants no.1 and 2 strongly opposed the notice of
motion by filing reply on affidavit. It is contention of defendants that,
they are owners of the suit property. In the year 2004, the plaintiff
had approached to them to purchase suit property. After negotiation
an agreement was executed in between them. However, the plaintiff
failed to perform his part of contract. Hence vide letter dated
15/10/2004, they cancelled the agreement. Thereafter in the year
2006, the work of project of Prathamesh Residency was re
commenced by defendant no.1. Thereafter defendants no. 1 and 2
entered into an agreement for sale dated 01/09/2010 with defendant
no.4. They also agreed to handover suit flat to defendant no.4. Then
due to some reasons said agreement was stands cancelled. Then in
the year 2015, defendants no.1 and 2 sold out suit property to
respondent Mr. Anil Singh. The plaintiff has no right, title or interest
in the suit property. The present notice of motion is misconceived,
false and frivolous. Therefore, it is liable to be rejected.
7. Defendants no.3 and 4 and the respondent failed to file
reply. Heard the learned advocates for the plaintiff and defendants
no.1 and 2. Perused the record.
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4 Ord. in NM no.1058 of 2020, Suit no.3483 of 2012
(High Ct. suit no. 1419 of 2012)
8. Following points arise for my determination to which I
record my findings with reasons as follows:
Sr.
No.
Points Determination.
1. Whether the plaintiff is entitled for the
relief of temporary injunction as
claimed?
Yes
2. Whether the plaintiff is entitled for the
appointment of Court Receiver of Bombay
High Court, as claimed?
No
3. What order ? As per final order.
REASONS
As to point no.1:
9. It is well settled that for claiming the reliefs of temporary
injunction the plaintiff has to prove three ingredients in his favour
i.e., he has prima facie case in his favour; the balance of convenience
lies in his favour and if the temporary injunction refused to him, then
he will suffer irreparable loss?
10. It is to be noted that, vide earlier order dated
11/07/2011 the Hon'ble Bombay High Court was pleased to grant
temporary injunction to the plaintiff, thereby restrained defendants
from creating third party interest in the suit property.
11. It is further to be seen that, on the ground of
enhancement of pecuniary jurisdiction, the present suit is transferred
from the Hon'ble High Court to this Court. It further reveals that on
11/04/2014, the suit came to be dismissed in default. However it
came to be restored in view of order passed in notice of motion
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5 Ord. in NM no.1058 of 2020, Suit no.3483 of 2012
(High Ct. suit no. 1419 of 2012)
no.3817/2015 dated 29/06/2017. It is contention of the plaintiff that
at the time of preparation of the affidavit of examinationinchief, he
came to know that the respondent is residing in the suit property.
Therefore he took search with the SubRegistrar, Assurance. Then he
came to know that defendants no.1 and 2 have sold the suit flat to
respondent Anil Singh.
12. It is to be noted that, defendants themselves admitted
that previously they entered into an agreement of sale with the
plaintiff. But, it is their contention that as the plaintiff failed to
perform his part of contract, hence they vide letter dated 15/10/2004
cancelled the agreement. In my view the question that who was at
fault needs consideration on merits. Admittedly previously temporary
injunction order was passed in favour of the plaintiff, that too on the
statement made by the defendants themselves. It reveals that, when
the suit was dismissed for default, defendants no.1 and 2 entered into
an agreement with respondent. Thus if defendants and respondent
are not restrained from creating third party interest in the suit
property, then it would results into multiplicity of proceedings. Thus
at this juncture, the plaintiff has made out prima facie case and
balance of convenience also lies in his favour. Naturally if the
temporary injunction is refused to the plaintiff then he would suffer
irreparable loss. Hence my answer to point no.1 is in affirmative.
As to point no.2:
13. At the outset I want to say that, there is nothing on
record to show that, the plaintiff at any point of time was in
possession of the suit property. Defendants no.1 and 2 being the
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6 Ord. in NM no.1058 of 2020, Suit no.3483 of 2012
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owner were in possession of the suit property. Thereafter they
executed an agreement to sale in favour of respondent, who claimed
to be in possession of suit property. Therefore the plaintiff failed to
show there is any eminent danger or threat to the suit property.
Hence in my view, no case made out by the plaintiff for appointment
of Court Receiver, Bombay High Court. Thus my answer to point no.2
is in negative.
As to point no.3:
14. In view of my above discussion, I pass the following
order:
ORDER
Notice of Motion No.1058/2020 is partly allowed.
Defendants No.1 and 2 and respondent, by an
order of temporary injunction, is hereby temporarily restrained
from alienating/creating third party interest in the suit
property, till the decision of the suit.
The relief regarding appointment of Court
Receiver, High Court, Bombay is hereby rejected.
Notice of Motion is disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Date:.03.10.2022 Court, Gr.Mumbai (C.R. No.1)
Dictated on : 03.10.2022
Transcribed on : 06.10.2022
Checked & Signed on : 07.10.2020
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7 Ord. in NM no.1058 of 2020, Suit no.3483 of 2012
(High Ct. suit no. 1419 of 2012)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 08.10.2022 NAME OF STENOGRAPHER(GI)
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 03.10.2022
JUDGMENT/ORDER signed by P.O. on 07.10.2022
JUDGEMENT/ORDER uploaded on 08.10.2022
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