Final Order 3

Order Details: Notice of Motion
Pdf Text: 1 NM No.904/2018 in Suit No.3427/2013
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
ORDER IN NOTICE OF MOTION NO.904/2018
(WRONGLY REGISTERED AS CHAMBER SUMMONS NO.1900/2013)
IN
SHORT CAUSE SUIT NO.3427 OF 2013
Smt. Chhaya Prakash Powar & Ors. ...Plaintiffs
V/s.
Mr. Nitin M. Shetye & Ors. ...Defendants
Advocate Mr. Suryawanshi for plaintiff.
Advocate Mr. Choudhary for defendants no.1 to 3.
CORAM : HHJ Shri. G.R. Agrawal
CR No.3
DATED : 28.02.2018
ORDER
1. By this notice of motion, plaintiffs are praying for directions
to defendants to divide the entire benefits of redevelopment project
equally amongst the plaintiffs and defendant no.1 and, for injunction to
restrain the defendants from creating third party interest in the amount
of compensation of Rs.72 lakhs in respect of the suit property. It is
further prayed that the defendants no.2 and 3 be directed to deposit all
the monetary benefits in respect of the suit property in this court. The
defendant no.1 has filed reply to the notice of motion and the plaintiffs
have filed rejoinder.
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2. Heard the Ld. counsel for the parties. Perused the record.
3. The original suit was filed by the plaintiffs in the year 2013
for declaration that the plaintiffs and defendant no.1 are coowners
pertaining to the benefits of compensation of Rs.72 lakhs. It is the case
of plaintiffs that they are joint owners of the suit property and they have
1/5th share in the suit flat along with defendant no.1. It is pleaded in
paragraph no.5 of the plaint that defendant no.1 has already received
sum of Rs.26 lakhs out of Rs.72 lakhs payable by the builder. However,
it is pertinent to note that there is no prayer in the suit for
declaration of joint ownership of plaintiffs in the suit premises and
for claiming their 1/5th share therein. The prayer is only in respect
of “benefits of compensation of Rs.72 lakhs”. In absence of any
prayer seeking declaration of joint ownership and partition in suit
premises, the prayer for share in compensation payable in respect
of same premises, is prima facie not tenable in law.
4. The plaintiffs have pleaded in paragraph no. 15 of the
plaint that they have filed testamentary petition no.892/2013 in respect
of letters of administration in respect of suit flat and the said suit is
pending before the Hon'ble High Court. It prima facie appears that the
plaintiffs have not obtained any interim orders in the said petition till
today. In the present suit also, the plaintiffs did not press for interim
orders in the present notice of motion until the defendant no.1 was paid
part of the amount of compensation i.e. Rs.26 lakhs out of Rs.72 lakhs.
5. It prima facie appears from the documents filed by
defendant no.1 that by family arrangement made on 19.7.1985, the
plaintiff no.4 has received amount of Rs.45,000/ as final share towards
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settlement out of the property of the deceased and receipt dated
19.7.1985 is also signed by him at Exh.8 filed by defendant no.1. After
receipt of the said amount, the plaintiff no.4 and his family members
vacated the suit flat. As regards the sisters – plaintiffs no.1 to 3, the Ld.
Counsel for defendant no.1 has pointed out the three sisters got married
in the year 1973, 1979 and 1983.
6. It prima facie appears that the plaintiff has developed
interest in the suit premises due to process of redevelopment and the
amount of compensation payable by the builder. All the documents filed
by the defendant no.1, particularly share certificate of the society, prima
facie show that the suit premises has been transferred in his name.
Since the prayers for declaration of joint ownership and partition in suit
premises are not made by plaintiffs, prima facie they are not entitled for
any share in redevelopment compensation.
7. In the facts and circumstances, I find that plaintiffs have
failed to make out any prima facie case for grant of injunction or any
other relief prayed in the notice of motion. Hence the following order
ORDER
Notice of Motion no.904/2018 (Chamber Summons no.1900/2013) is
dismissed.
(G.R. Agrawal)
Judge
City Civil Court,Gr. Bombay.
Order Dictated on : 28/02/2018
Transcribed on : 03/03/2018
Signed on : 03/03/2018
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGN
JUDGMENT/ORDER”
7.3.2018 at 10.40 am (Mrs. S. W. Tuscano)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
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Name of the Judge (with Court
room no.)
HHJ Shri G. R. Agrawal, C.R.
No.3
Date of Pronouncement of
JUDGMENT/ORDER
28.02.2018
JUDGMENT/ORDER signed by
P.O. on
03.03.2018
JUDGMENT/ORDER uploaded
on
07.03.2018
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