Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 1184-2020, in Suit no.504 of 2014
MHCC010032792020
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
ORDER IN NOTICE OF MOTION NO.1184 OF 2020
IN
SUIT NO.504 OF 2014
Umesh R. Dubey ... Plaintiff
V/s
M/s. Darshan Construction & Ors. …. Defendants.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE: 30th DAY OF SEPTEMBER, 2023
-: Appearances: -
The learned Adv. Manisha Jadhav h/f Adv. Mistry for plaintiff
The learned Adv. Shivaji Jadhav for the defendant no.1.
ORAL ORDER
The defendant no.1 has taken out present notice of motion
for claiming the reliefs inter alia:
(a) to pass an order of temporary injunction directing the plaintiff to
pay to the defendant no.1 a lump sum amount of Rs.28 lacs being
compensation/license fees for the period from 01/09/2007 till
31/12/2019;
(b) to pass an order of temporary injunction thereby directing the
plaintiff to handover the physical possession of suit premises to
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2 Ord. in NM no 1184-2020, in Suit no.504 of 2014
defendant no.1;
(c) by an order of temporary injunction, the plaintiff be directed to
pay to defendant no.1 a sum of Rs.30,000/- per month from
01/01/2020 being monthly compensation / license fee for such illegal
and unlawful use, occupation and possession of suit premises.
2. In short, it is contention of the defendant no.1 that the
plaintiff has filed suit for specific performance of contract, declaration
and permanent injunction. The plaintiff is in use, occupation and
possession of suit premises from 01/09/2007 without there being any
contractual understanding or obligation upon defendant no.1 in respect
of suit premises. There was no contractual understanding with the
plaintiff for sale of the suit premises nor the plaintiff has made any
payment in respect of the suit premises. The plaintiff has filed false suit
on the basis of false and concocted story against the defendants. The
defendant no.1 suffered losses due to illegal acts of the plaintiff and as
such the defendant no.1 is entitled for the reliefs claimed in the notice
of motion. Hence, the notice of motion may kindly be allowed.
3. The plaintiff strongly opposed the notice of motion by filing
reply on affidavit. It is contended that the notice of motion as taken out
by the defendant is not maintainable and liable to be rejected. The
plaintiff has filed the suit in the year 2013 for specific performance and
for other reliefs. However, the defendant no.1 has taken out present
notice of motion in the year 2020 with an intention to prolong the
matter. Thus, the notice of motion being devoid of substance and merit
is liable to be rejected.
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3 Ord. in NM no 1184-2020, in Suit no.504 of 2014
4. Heard the learned advocate for respective parties at length.
Perused the record.
5. Following points arise for my determination to which I have
recorded my findings with reasons as follows:
Sr. No. Points Determination
1. Whether the defendant no.1 is
entitled for reliefs as claimed in
notice of motion?
No.
2. What order? As per final order.
REASONS
As to Points no.1: -
6. It is well settled that for claiming the relief of temporary
injunction the party has to established three basic principles i.e., prima
facie case and balance of convenience lies in his favour and if temporary
injunction is refused then he is going to suffer irreparable loss which
cannot be compensated in terms of money.
7. Herein, it is to be seen that the plaintiff has filed suit for
specific performance of contract and for permanent injunction.
Admittedly, the plaintiff is in possession of suit premises. The defendant
no.1 has filed his written statement and counter claim and thereby
claiming the reliefs as claimed in notice of motion. The defendant
himself admitted that the plaintiff is in possession of suit premises since
2007, however the notice of motion is taken out in the year 2020. No
plausible explanation provided for delay and latches on the part of
defendant no.1. Even otherwise, by way of interim reliefs final reliefs
cannot be granted. Therefore, defendant no.1 has failed to made out
prima facie case and balance of convenience in his favour. Thus,
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4 Ord. in NM no 1184-2020, in Suit no.504 of 2014
question of causing irreparable loss to defendant no.1 does not arises.
Hence, my answer to point no. 1 is in the negative.
As to point no.2: -
8. In view of my above discussion, I pass the following order: -
ORDER
Notice of motion no. 1184/2020 stands rejected.
Notice of motion is disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court, Gr. Mumbai
Date:.30.09.2023 (C.R. No.1)
Dictated on : 30.09.2023
Transcribed on : 05.10.2023
Checked & signed on : 06.10.2023
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5 Ord. in NM no 1184-2020, in Suit no.504 of 2014
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 06.10.2023 NAME OF STENOGRAPHER(G-I)
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 30.09.2023
JUDGMENT/ORDER signed by P.O. on 06.10.2023
JUDGEMENT/ORDER uploaded on 06.10.2023
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