Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 1005/18 SUIT 575/2017 1
CNR NO.MHCC01 0032832018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1005 of 2018
IN
SUIT NO.575 of 2017
The Greater Bombay Cooperative Bank Ltd. .. .. Plaintiff
Versus
Mr.Rahul Uttamrao Avhad & Ors. ...Defendants
Shri.S.C.Gupta advocate for Plaintiff.
Shri.Pawan Tiwari advocate for Defendant No.3.
Coram : Her Honour Judge
Smt. Pushpa N. Rao
Ad hoc Dist.Judge
CR No. : 32
Dated : 29th June,2018
ORDER
1. Defendant No.3 took out this motion:
a) for restraining the plaintiff from dispossessing him,
b) restraining plaintiff for attachment,
c) restraining the plaintiff from auction or creating any third party
right, title or interest in flat No.101 on 1st floor in ‘Naivedya Sthuthi’
Building, Plot No.61, Sector 18(P.T.), Ulwe, TalukaPanvel, Distict
Raigad.
2. Defendant No.3 is carrying on business in the name and style of
M/s.Aditi Enterprises through its proprietor Santosh Vasant Patil.
Agreement of lease was executed in between Pandurang Koli, Mahadeo
Koli and Sakhubai Koli, the original licensee and CIDCO of Maharashtra
on 16/12/2011. The corporation had granted a licence to the original
licensee to enter on plot No.61 at about 300 sq.meter, Sector 18(P.T.)
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Ulwe, Taluka Panvel, District Raigad. Original licensee were not in a
position to develop the said plot, therefore, they approached to
defendant no.3 to sale , transfer and assigned all their rights, title and
interest in favour of defendant No.3.
3. On 02/01/2012 Tri Partite Agreement was executed between
CIDCO of Maharashtra Ltd., Original licensee and M/s.Aditi Enterprises
through its proprietor Shri.Satosh Patil. The said Tri Partite Agreement
was registered on 02/01/2012. The defendant No.3 further states that
Town Planning Department of CIDCO had sanctioned the building plan
and granted development permission and commencement certificate to
him. By virtue of commencement certificate, defendant No.3
constructed a residential building upon the said plot in the name and
style of ‘Naivedya Sthuthi’. Corporation also issued occupancy certificate
in respect of the said building to the defendant No.3 on 31/07/2014.
Defendant No.1 and 2 shown their keen interest to purchase flat No.101
on the 1st floor against the agreed consideration of Rs.32,68,800/.
Defendant No.1 and 2 had made the token payment of Rs. 1Lakh to the
defendant No.3 and agreement for sale was executed between
defendant No.1 and 2 and Aditi Enterprises through Proprietor
defendant No.3 on 31/03/2016. Defendant No.3 also filed suit for
declaration and cancellation of Agreement for Sale before the C.J.S.D.
Panvel.
4. In above circumstances, defendant No.3 prays that motion be
made absolute.
5. Plaintiff filed the reply. Present suit is only for injunction against
defendants. Plaintiff had taken the motion No.1004/2017, that was
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allowed by order dated 02/12/2017. Plaintiff had sanctioned a loan of
Rs. 24Lakhs and pay order No.135043 was issued to defendant No.1
and 2 by deducting legal process charges in the name of defendant No.3
who is the proprietor of M/s.Aditi Enterprises. Plaintiffs had a right to
recover the dues from defendant No.1 and 2 and defendant No.3 has no
right to raise the objections. The flat No.101 is already attached by the
recovery officer. In such circumstances, defendant No.3 cannot ask for
any order of injunction against the plaintiff for restraining plaintiff bank
as well as Dy Registrar of Cooperative Society Mumbai for taking steps
to recover the dues of the plaintiff. Therefore, defendant No.3 is not
entitled for any reliefs against the plaintiff, hence, motion be dismissed
with costs.
6. Heard learned advocate Shri.Pawan Tiwari for defendant No.3
and Shri.S.C.Gupta for plaintiff.
7. Defendant No.3 is the builder and developer doing the business in
the name of M/s.Aditi Enterprises. Defendant No.1 and 2 obtained a
loan of Rs.24lakhs for purchase of flat No.101 in the building known as
‘Naivedya Sthuthi’ which was constructed by defendant No.3 on plot
No.61. Defendant No.3 also given NOC on his letter head and that NOC
was produced by defendant No.1 & 2 in the plaintiff bank and pay order
of sanction of housing loan of Rs. 24 lakhs after deducting necessary
legal charges was given to the defendant No.3 and pay order was
encashed by the defendant No.3. Defendant No.3 is the beneficiary of
the loan amount.
8. I am not in agreement with the submission of defendant No.3
that after payment of Rs. 1 lakh as a part payment by execution of
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agreement for sale dated 31/03/2016 defendants 1 and 2 failed to
perform their part of contract and therefore, defendant No.3 filed the
suit for declaration and cancellation for agreement for sale before CJSD
Panvel, as it appears that, defendant No.3 is in collusion with defendant
No.1 and 2.
9. Present suit is simplicitor injunction. The recovery officer has
already attached the flat No.101, therefore, in such circumstances,
defendant No.3 has no right to ask for the reliefs as prayed in the
motion. Moreover, plaintiff had taken out motion No.1004/2017
against defendant No.1 and 2 from selling or creating any third party
right,title or interest in flat No.101 and also for order of restraining
against defendant No.3 from cancelling the said agreement dated
31/03/2016 that motion was made absolute as per order dated
02/12/2017 and thereafter this present motion has been taken out by
defendant No.3 to overcome the earlier order dated 02/12/2017.
10. In view of the above discussion, present motion is devoid of
merit, hence, liable to be dismissed and proceed to pass following order.
ORDER
Notice of Motion No.1005 of 2018 is dismissed with cost.
Date : 29/06/2018 ( Pushpa N. Rao)
Ad hoc Dist.Judge
Bombay City Civil Court
Greater Mumbai
Dictation Direct typed on computer: 29/06/2018
Signed by HHJ on : 29/06/2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
30/06/2018 at (5.35 p.m.) Mrs. J.V.Pawar
Name of the Judge (With Court room
No.)
HHJ Smt.Pushpa N Rao
C.R.No.32
Date of Pronouncement of
JUDGMENT/ORDER
29/06/2018
JUDGMENT/ORDER signed by P.O.on 29/06/2018
JUDGMENT/ ORDER uploaded on 30/06/2018
.
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