Final Order 1

Order Details: Notice of Motion
Pdf Text: N.M.No.1117 of 2020 Order
MHCC010031642020 Presented on : 13.03.2020
Registered on : 13.03.2020
Decided on : 02.08.2024
Duration : 04 04 20
Years Months Days
IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY AT
BOMBAY
NOTICE OF MOTION NO.1117 OF 2020
IN
SUIT NO.6265 OF 2005
(HIGH COURT SUIT NO.1197/2005)
(CNR NO. MHCC010031642020)
1 Surendra Arvind Bongale
Indian Inhabitant, aged 50 years
Occ: Business, residing at 8, Tulsi Villa Co-
op. Hsg. Soc., Ltd. 93, Old Prabhadevi
Road, Mumbai - 400025.
2 Mrs. Sangita Surendra Bongale
aged 47 years, Occ: Housewife
Permanently residing at 8, Tulsi Villa Co-
op. Hsg. Soc., Ltd. 93, Old Prabhadevi
Road, Mumbai - 400025. … Applicants/
Org. Plaintiffs
In the matter between
1 Surendra Arvind Bongale
Indian Inhabitant, aged 50 years
Occ: Business, residing at 8, Tulsi Villa Co-
op. Hsg. Soc. Ltd. 93, Old Prabhadevi
Road, Mumbai - 400025.
2 Mrs. Sangita Surendra Bongale
aged 47 years, Occ: Housewife
Permanently residing at 8, Tulsi Villa Co-
op. Hsg. Soc. Ltd. 93, Old Prabhadevi
Road, Mumbai - 400025. … Plaintiffs
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Versus
1 Ms. Kunda Kesarinath Mhatre
Adult, Indian Inhabitant, Occ. Housewife,
permanently residing at Mantri Building,
Room Nos.11-12, 1st Floor, Near Telephone
Exchange, S. V. Road, Malad (W), Mumbai
- 400064.
2 Madhura Munj
Adult, Indian Inhabitant, Occ: Housewife,
Residing at 12, Tulsi Villa Co-op. Hsg. Soc.
Ltd. 93, Old Prabhadevi Road, Mumbai –
400025. … Defendants
CORAM : HIS HONOUR JUDGE, R. D. DESHPANDE
: COURT ROOM NO. 61
DATE : 02.08.2024
Appearances: -
Adv. Mr. Parag Tilak for plaintiffs.
Adv. Deven Jogdeo for defendants No.1(a) to 1(g).
None for defendant No.2.
ORDER
(Dictated and pronounced in open Court)
This Notice of Motion is taken out by the plaintiffs.
2. Heard their Adv. Mr. Parag Tilak. He submitted that flat
No.9, Tulsi Villa Co-operative Housing Society Ltd., Old Prabhadevi
Road, Mumbai is the subject matter of suit. By way of oral
agreement dated 24.11.2004 defendant No.1 agreed to sell this
suit flat to plaintiffs for the total consideration of Rs.6,00,000/-.
Plaintiffs paid Rs.50,000/- to defendant No.1 as an earnest amount
on the same date by way of cheque No.897811 drawn on Canara
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Bank, Dadar. Said cheque was encashed by the defendant No.1.
The entire formalities were to be completed by 31.12.2004 by
making payment of balance amount of Rs.5,50,000/- by the
plaintiffs. Despite giving sufficient time, the defendant No.1 did
not forward to plaintiffs the demand draft agreement therefore,
plaintiff No.1 himself prepared the draft agreement and it was sent
to the defendant No.1. But there was no response from her.
3. He further argued that smelling some rat in the silence
maintained by defendant No.1, plaintiff No.1 through his advocate
addressed notice to defendant No.1 on 28.01.2005. It was replied
by her through her advocate on 11.02.2005. Therefore, they are
constrained to file suit for specific performance of the contract.
After filing the suit, they also registered the Notice of Lis Pendence
on 01.10.2005 with the Office of Sub-Registrar. The defendant
No.1 appeared in the matter and except denying their case, she did
not put forth her case or defence.
4. He further argued that in the month of April, 2016 it
came to the knowledge of the plaintiffs that the defendant No.1
has sold out the suit flat to defendant No.2 on 30.03.2016. The
defendant No.2 is actually in possession of the suit flat therefore,
she is added as a party.
5. He lastly argued that plaintiffs are having
apprehension that the defendant No.2 may further create third
party interest in the suit flat. If she succeeds then the purpose
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behind filing this suit would be frustrated. Plaintiffs would suffer
an irreparable loss which cannot be counted in terms of money.
Therefore, he prayed that during pendency of the suit, the
defendant No.2 may be temporarily restrained from alienating the
suit flat in any manner or from creating any third party interest
therein. So far as relief of appointment of Court Receiver is
concerned, he submitted that plaintiffs are not pressing that relief.
6. The defendant No.2 did not contest the Notice of
Motion though she was served with it.
7. The defendants No.1(a) to 1(g) i.e. legal heirs of
original defendant No.1 contested the Notice of Motion by filing
their say through their Adv. Mr. Deven Jogdeo. He has also
submitted his written notes of arguments. According to him
plaintiffs have not come before the Court with clean hands. They
have suppressed some material facts and therefore, they are not
entitled for the discretionary relief of temporary injunction.
8. He further submitted that plaintiffs were not ready and
willing to perform their part of contract. As per order passed by
Hon’ble High Court in Chamber Summons No.1772/2018
defendant No.1 has sold out suit flat to defendant No.2. There is
huge delay in filing such Notice of Motion therefore, if the reliefs
as prayed are not granted in favour of plaintiffs then no loss would
be caused to them. Time was the essence of contract and there is
no renovation of new agreed timeline for payment of
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N. M. No.1117 of 2020 ... 5 … Order
consideration. As such there is no prima-facie case in favour of
plaintiffs and therefore he prayed for dismissal of Notice of
Motion.
9. Following Points arise for my determination and I
record my findings against each of them for the reasons given
below:-
Sr.
No. Points Findings
1 Whether plaintiffs have made out the
prima-facie case? :: Yes.
2 In whose favour the balance of
convenience lies? :: In favour of
plaintiffs.
3 To whom an irreparable loss would be
caused in case the temporary
injunction is granted or refused? ::
To the plaintiffs,
if temporary
injunction is not
granted.
4 Whether plaintiffs are entitled for
temporary injunction as prayed? :: Yes.
5 What order? :: Notice of Motion
is allowed as per
final order.
REASONS
Points No.1 to 3: -
10. It is not disputed that by way of oral agreement, the
original defendant No.1 agreed to sell the suit flat to plaintiffs on
24.11.2004 and on the very day she accepted an earnest amount
of Rs.50,000/- from them by way of cheque. Whether plaintiffs are
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entitled for the specific performance of that agreement or not
would be decided on merits and by recording evidence by both the
sides. But it is also not disputed that defendant No.1 sold out the
suit flat to defendant No.2 on 30.03.2016. She is in possession of
the suit flat.
11. To preserve the subject matter of dispute i.e. the suit
flat, it is necessary to restrain the defendant No.2 from further
creating any third party interest therein or from alienating it in any
manner. If such an order is not passed then again it would pose to
create the multiplicity of proceedings and it would further create
some complications.
12. It is important to note that the defendant No.2 did not
come forward to contest the Notice of Motion. But it is contested
by legal heirs of defendant No.1. However, their predecessor in
title has already sold out the suit flat to the defendant No.2.
Therefore, plaintiffs have made out the prima-facie case. Obviously
the balance of convenience also tilts in their favour only. If the
temporary injunction as prayed is granted against the defendant
No.2 then no loss or prejudice of any sort would be caused to her
and vice-a-versa. In the result I answer Point No.1 in the
affirmative and Points No.2 and 3 accordingly.
Point No.4: -
13. In view of my affirmative finding to Point No.1 and
findings accordingly to Points No.2 and 3, plaintiffs are entitled for
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relief of temporary injunction as prayed in the Notice of Motion.
In the result I answer this Point also in the affirmative.
Point No.5: -
14. In view of my affirmative findings to Points No.1 and 4
and findings accordingly to Points No.2 and 3, Notice of Motion
deserves to be partly allowed as the prayer of appointment of
Court Receiver is not pressed by the plaintiffs. Hence the following
order: -
ORDER
1. The Notice of Motion No.1117 of 2020 is partly allowed.
2. The defendant No.2 is temporary restrained from alienating
the suit flat in any manner and from creating any third party
interest therein in any manner, till the decision of the suit.
3. Costs in the cause.
4. Accordingly, Notice of Motion No.1117/2020 stands
disposed off.
DATE:- 02.08.2024 (R. D. DESHPANDE)
JUDGE, CITY CIVIL COURT
& ADDL. SESSIONS JUDGE,
GR. MUMBAI.
Dictated on : 02.08.2024
Transcribed on : 02.08.2024
Checked on : 02.08.2024
Signed on : 02.08.2024
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"CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER"
DATE: 03.08.2024, AT 11.30 A. M. Mr. Siddhesh Shankar Shirke
STENOGRAPHER (GRADE-I)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
no.)
: SHRI R. D. DESHPANDE
C.R.NO.61.
Date of pronouncement of
Judgment/order
: 02.08.2024
Judgment/order signed by the P. O.
on
: 02.08.2024
Judgment/order uploaded on : 03.08.2024
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