Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO. 1010 OF 2018
IN
L.C. SUIT NO. 4486 OF 2007
Smt. Seema Sumant Chogle .. Plaintiffs
Versus
Mrs. Rashmi Mandar Chogle & Ors. .. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI K.P.NANDEDKAR
(C.R.NO.11)
DATE : 28th November, 2018
Mr. Kamat Ld. adv. for the plaintiff.
Mr. Kamble, Ld. adv. for defendant nos 1 to 3.
Mr. Keni, Ld. adv. for defendant nos. 3(b) and 7.
Mrs. Hajare Ld. adv. for defendant no.4/BMC.
O R D E R
1. This N/m is taken out by defendant no. 7 praying for
directions to defendant nos. 1,2 and 3(a) to maintain statusquo in
respect of suit premises i.e. Rasik Bhuvan situated at Babhai Gaonthan,
Borivali (West) Mumbai on the plot of land bearing CTS No. 153, 153/1
and 153/2 of village Eksar, Taluka Borivali Mumbai Suburban District
or any part thereof. Plaintiff has also prayed for directions to defendant
nos. 1,2 and 3(a) to remove illegal construction made on suit premises.
2. Mrs. Kshama Raman Chogle has filed her affidavit in
support of N/m in which it is contended that suit premises was
originally belonging to Bhagwantrao Chogle and after his death it is
succeeded by his L.R.'s Rasika Bhagwantrao Chogle (wife), Mr. Raman
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Bhagwantrao Chogle and Sumant Bhagwantrao Chogle (sons).
Rasikabai died on 17.12.2003 and therefore Raman and Sumant her
sons had succeeded suit premises. Further Raman Chogle died on
27.01.1997 and left behinf him his legal heirs namely Neela Raman
Chogle (wife), Amit Raman Chogle (son) and married daughter Mrs
Khsama Raman Chogle.
3. It is further mentioned in the affidavit that after death of
above referred deceased persons, legal heirs and legal representatives of
late Raman Bhagwantrao Chogle who are defendant nos. 5 to 7 in this
suit are having right, title, interest and undivided 50% share of suit
property. Property card of suit property is standing in the name of
Rasikabai Bhagwantrao Chogle. Defendant no. 2 Mandar Ratnakar
Chogle and Ratnakar Vasantrao Chole had executed agreement for ale
cum development agreement dated 17.05.1997 with Rasikabai
Bhagwantrao Chogle. Plaintiff and her husband were not party to said
agreement. Suman Chogle and Raman Chogle also were not party to
said agreement.
4. It is mentioned in the affidavit that at the time of execution
of said agreement defendant nos. 5 to 7 were having 1/3rd share in
suit properties and therefore said agreement is not binding upon legal
heirs of Raman Bbhagwantrao Chogle i.e. defendant nos. 5 to 7. It is
further contended that defendant no. 2 and Ratnakar Vasantrao Chogle
executed power of attorney dated 26.04.1996 inrespect of suit
properties. Said power of attorney was executed in favour of Rasikabai
Bhagwantrao Chogle. After death of Sumant Bhagwantrao Chogle and
Raman Bhagwantrao Chogle said power of attorney had come to an end
and therefore defendant no. 2 could not have applied for any
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permission on the basis of said power of attorney or on the basis of said
agreement. It is contention of defendant no. 7 that after death of one
of the parties to the power of attorney said power of attorney got
expired. As provided by Sec. 3 of power of attorney Act power of
attorney granted by donor to the donee is operative and effective only
during the life time of donor. Hence power of attorney holder has no
right to act upon it.
5. It is alleged that Mr. Mandar Ratnakar Chogle and Mr.
Ratnakar Chogle had executed conveyance deed dated 31.03.2006 of
immovable property in favour of Mrs. Rashmi Mandar Chogale
defendant no. 1. Said conveyance was executed on the basis of GPA
dated 15.02.1995, as constituted attorney for legal heirs of late Smt.
Rasikabai Bhagwantrao Chogle including plaintiff and defendant no. 7.
Said power of attorney was given for submitting various plans to
Municipal Corporation and for developing properties bearing CTS No.
153, 153/1 and 153/2 of village Eksar Tal. Borivali but defendant no. 2
and Mr. Ratnakar Chogle had illegally misused said power of attorney
for executing conveyance of said properties in favour of defendant no. 1
which is illegal and bad in law. It is alleged that Mr. Ratnakar Chogle
had fraudulently and by misrepresentation executed said conveyance in
favour of defendant no. 1 by using said power of attorney on behalf of
legal heirs of Rasikabai Chogle.
6. It is mentioned in the affidavit that Mr. Ratnakar Chogle
had filed suit no. 2359/1999 against Smt. Sulochana Vasantrao Chogle.
It is alleged that Mr. Ratnakar Chogle by misleading Hon'ble High Court
got decreed said suit by submitting forged consent terms. Defendant
no. 7 was a party defendant in said suit and Mr. Ratnakar Chogle by
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putting his signature on behalf of defendant no. 7 on said consent term
dated 18.05.1999 obtained decree in said suit. It is contention of
defendant no. 7 that she had no knowledge about said consent terms
filed in suit no. 2359/1999. Other legal heirs of Rasikabai Bhagwantrao
Chogle had not given authority to Mr. Ratnakar Chogle for signing
consent terms on their behalf but Mr. Ratnakar Chogle had signed
consent terms on behalf of all those legal heirs. It is alleged that in said
suit Mr. Ratnakar Chogle had filed false affidavit on behalf of Smt.
Jayshree Prakash Date, Arun Vasantrao Chogle Smt. Dhanlata Ashok
Naik etc. who were defendants in said suit and as such Mr. Ratnkar
Chogle had got decreed said suit by fraud and by misrepresentation. It
is contention of defendant no. 7 that above persons had never filed any
affidavit in said suit. Afterwards those persons came to know about
their forged and bogus affidavit. Thereafter those persons had
submitted affidavit dated 06.11.2017 in respect of said illegality.
7. It is alleged that Mr. Mandar Chogle had executed forged
and fabricated Release deed in the name of defendant no. 3(b). After
noticing said forgery, defendant no. 3(b) had made various complaints
to police authorities. After verifying those forged documents EOW unit
III had directed Borivali Police Station to register FIR No. 177/2014
under sec. 420, 465, 467, 468, 471 and 120B of IPC. EOW had taken
actions against Mr. Mandar Chogle in said crime No. 56/2014.
Anticipatory bail application filed by Mr. Mandar Chogle bearing ABA
No. 480/2015 is rejected by Sessions Court. Thereafter Mr. Mandar
Chogle had filed Criminal Appeal No. 650/2015 before Hon'ble High
Court and said appeal is rejected by Hon'ble High Court. Thereafter Mr.
Mandar Chogle moved Special Leave Petition before Hon'ble Supreme
Court but meantime Mr. Mandar Chogle was arrested by police hence
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he had withdrawn said SLP. Thereafter Mandar Chogle was in judicial
custody for about 64 days.
8. It is mentioned in the affidavit that Suit No. 2359/1999 is
pending for hearing but in the pendency of said suit defendant nos. 1
and 2 had started illegal and unauthorised construction on suit property
without any consent or permission from plaintiff or defendant nos. 5 to
7. Said action of defendant nos. 1 and 2 is alleged to be illegal. When
plaintiff had raised objection to said illegal and unauthorised
construction started by defendant nos. 1 and 2 those defendants did not
pay any attention to bonafide request made by plaintiff. It is alleged
that defendant nos. 1 and 2 are having support of political persons and
they had used the political connections for making above illegal
construction on suit property. Hence plaintiff made complaint dated
06.02. 2018 against defendant no. 2 with Municipal authorities. It is
alleged that if defendant nos. 1, 2, 3(a) will be successful in doing said
illegal and unauthorised construction on suit property then the suit will
become infructuous and thereby plaintiff and defendant nos. 5 to 7
would suffer heavy loss which can not be compensated in terms of
money.
9. It is contention of defendant no. 7 that even though
defendant nos. 5 to 7 are formal parties they are having 50% undivided
share in suit property and plaintiff has very good case on merits. With
the help of those contentions defendant no. 7 has prayed to allow the
Notice of Motion.
10. Mr. Mandar Chogle had filed his affidavit in reply to N/m
contending that defendant no. 1 is his wife and deceased defendant no.
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3 was his father. Newly added defendant no. 3A is his mother and
defendant no. 3 (b) is his sister. It is alleged that N/m is misconceived
in law and facts, hence liable to be dismissed. The prayer made by
defendant no. 7 is hit by operation of doctrine of estopple and doctrine
of acquiescence. It is alleged that defendant no. 7 has not approached
the Court with clean hands. It is alleged that defendant no. 7 has taken
out this Notice of Motion as instigated by defendant no. 3(b). It is
contention of Mr. Mandar Chogle that in earlier rounds of litigation on
more or less similar grounds plaintiff of this suit had taken out N/m no.
517/2007 for identical relief but in said N/m ad interim relief came to
be rejected by order dated 07.03.2007. Ultimately said N/m was
ordered to be dismissed for want of prosecution and order to that effect
is passed by Hon'ble High Court on 19.07.2011. Mr. Mandar Chogle
has denied all the allegations as regards his bonafides and genuineness
in respect of decrees dated 18.05.2009 and 21.05.2002 passed by
Hon'ble High Court in Suit No. 2359/1999. It is contention of Mandar
Chogle that it is matter of record that all concerned persons including
defendant nos. 5 to 7 executed the affidavit dated 06.11.2017 and they
had filed rejoinders at the relevant point of time affirming the position
that the consent terms were duly drawn without involving any fraud
etc.
11. Mr. Mandar Chogle has contended that Crime No. 56/2016
was lodged by his sister defendant no. 3(b). Said case is mischievous
and it is substantiate that it was filed at the instance of defendant no.
3(b). Rasikbai Chogle grandmother of defendant no. 7 was sole and
absolute owner of property. It is denied that Rasikabai Chogle
purchased said property for herself and on behalf of her sons. She was
in her own capacity absolute owner of said property and Rasikabai had
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validly executed disputed development agreement cum agreement to
sale dated 07.05.1997 in favour of Mr. Mandar Chogle and Mr.
Ratnakar Chogle. On the request of Rasikabai Chogle conditions of
said agreement were slightly modified in view of agreement dated
28.02.2001 and it was agreed that valuable consideration caused to be
paid to the husband of plaintiff and defendant nos. 5 to 7 of this suit.
There were tenants in suit property and Mandar Chogle has settled
claims of tenants with the help of husband of plaintiff.
12. It is contention of Mandar Chogle that Raman Bhagwant
Chogle father of defendant no. 7 expired on 27.01.1997 and Rasikabai
expired on 01.12.2003. Consideration agreed in terms of above
referred agreement is fully and proportionately paid to the husband of
plaintiff and to defendant nos. 5 to 7 who are L.R.'s of Raman Chogle.
Amount of Rs. 28,25,000/ was paid to defendant no. 5 to 7 as per
document dated 14.03.2006. Thus after getting satisfied with the dues
of consideration, defendant nos. 5 to 7 executed conveyance deed
dated 01.04.2006. The receipt of consideration money is already
executed by defendant's mother Neela Raman Chogle and defendant's
brother Amit Raman Chogle. Amounts of Rs. 2 lack, 3.50 lack and 5.50
lack are paid by cheque no. 165/85 dated 14.03.2006 and cheque no.
165/88 dated 20.03.2006. Said amount is paid to defendant no. 7.
13. It is alleged that Rasikabai during her life time was
exclusive owner of suit property and defendants had no independent
claims about their right in suit property. According to Mandar Chogle
suit property was never joint family property of Bhagwantrao Chogle.
Father or uncle of those defendants had never share in suit property.
The consent decree passed in suit no. 2359/1999 is made absolute and
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it is also executed. Layout of the property was sanctioned on
26.07.2005. IOD and CC are also issued.
14. It is the contention of Mandar Chogle that construction of
ground plus three floors plus old existing building plus one storey
building consisting of 4 flats on 408.20 sq mtrs of suit property is
completed in 2007 and third party interest is already created in respect
of the same. Since last 11 years defendant no. 7 had no objection for
construction which was being carried out on suit property. Hence the
cause of action for filing thisN/m is not traceable. In affidavit filed in
support of N/m defendant no 7 has not given circumstances which
prevented her from claiming the relief sought in this N/m at the
earliest. Mr. Mandar chogle had also given the facts of suit but those
facts are already referred. Hence to avoid repetition I am not giving
those facts. Lastly Mr. Mandar Chogle has prayed to reject N/m.
15. Defendant no. 7 has filed affidavit of rejoinder and same
facts as like the facts mentioned in the affidavit filed in reply to Notice
of Motion are reproduced. Mere addition is made in respect of denial of
the contentions raised by Mandar Chogle in his reply.
16. I have heard adv Mr. Keni who is representing defendant
nos. 3B and 7. It is argued by adv. Mr. Keni that in the pendency of
suit, defendant nos. 1 and 2 have started construction in suit property
therefore statusquo order is necessary to be granted against defendant
nos. 1 and 2. It was fairly submitted that no inerim relief is granted in
favour of plaintiff. It is pertinent to note here that when Mr. Keni was
arguing this Court has raised the query that whether defendant nos.
3(b) and 7 in their written statement have claimed perpetual injunction
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against defendant nos. 1 and 2. While replying said query it was
submitted by adv. Mr. Keni that no such relief of perpetual injunction is
claimed in written statement. However according to adv. Mr. Keni
statusquo order is necessary to be passed. CA of plaintiff submitted
that Court may decide N/m on merits. Adv. Mr. Kamble who is
representing for defendant nos. 1 to 3 submitted that Court may decide
N/m by considering reply filed by those defendants.
17. I have given serious thoughts to the contentions raised by
parties. I have carefully perused the documents annexed to the affidavit
of rejoinder filed by defendant no. 7. It is admitted fact that consent
decree is passed by Hon'ble High Court in Suit No. 2359/1999 and it is
alleged by defendant no. 7 that said consent decree was obtained by
fraud. As such unless plaintiff and defendant no. 7 or defendant no. 3B
prove on merits that decree of suit no. 2359/1999 was obtained by
fraud or it was obtained by misleading the Court, reliefs as prayed in
n/m cannot be granted.
18. It is pertinent to note here that decree of suit no.
2359/1999 was passed by Hon'ble High Court on the basis of consent
terms filed in said suit. Hence merely on the basis of allegations made
by defendant no. 7 it cannot be believed that said decree was obtained
by fraud. It is pertinent to note here that this suit is pending since the
year 2007. Plaintiff of the suit has not taken out n/m for claiming relief
as sought by defendant no. 7. This N/m is filed on 22.02.2018 and it is
alleged that on the basis of power of attorney Mr. Ratnakar Chogle had
executed disputed conveyance deed and the action taken by Mr.
Ratnakar Chogle is illegal. I am unable to understand as to why long
back in the year 2007 when this suit was filed, plaintiff has not taken
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out N/m for claiming the relief of injunction to protect the suit
property. It seems that after EOW and police authorities had taken
action against Mandar Chogle, defendant no. 7 got awakened and she is
trying to get relief as prayed in N/m. One more interesting fact is that
defendant no. 7 and defendant no. 3(b) are claiming injunction against
defendant nos. 1 and 2 but plaintiff is silent. Not only it admittedly
relief of perpetual injunction is not sought by defendant no. 7 or
defendant no. 3(b) in their written statement therefore I am afraid of
the fact that whether this court can grant interim relief of temporary
injunction in absence of prayer for perpetual injunction. Even though
there is no time limit for claiming the relief of temporary injunction it
was expected that defendant no. 7 should have explained as to why
either plaintiff or defendant no. 7 could not take out N/m at the earliest
after filing of this suit.
19. As plaintiff herself has kept silence and as the suit is
pending for about 11 years it seems that defendant no. 7 and 3(b) are
trying to prolong this matter. Not only it the contentions raised in
affidavit filed in support of Notice of Motion are vague in respect of
starting of disputed construction, the area of disputed construction and
condition i.e the size and height of said construction. Even though the
pleadings about all above facts are vague, defendant no. 7 is intending
that at least Court should pass statusquo order. It is settled law that
unless the exact size of construction, its height is given no blanket
statusquo can be granted and if this Court will pass any such order
either of the parties can abuse said order because there is no clear
picture about what much construction is made, what is the size of
construction, who is possessing constructed area etc. As such, I find
that defendant no. 7 is not entitled for the relief claimed in this N/m.
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It is pertinent to note here that issues in this suit are framed by my
learned predecessor long back on 29.10.2014 and it seems that when
the turn of the parties had come for adducing evidence this N/m came
to be filed. If really plaintiff, defendant no. 3(b) or defendant no. 7
would have interest in getting any of the relief after framing of issues
immediately they would have adduced evidence and they would have
obtained the reliefs if really they are entitled to on merits. It seems that
by filing this N/m after about 3 and half years of framing of issues the
effort is made to prolong the matter. On this ground also I find that
the relief prayed in N/m cannot be granted. Hence I proceed to pass
following order
O R D E R
N/m No. 1010/2018 stands dismissed/ disposed of.
(K.P.Nandedkar)
Judge,
City Civil Court,
28/11/2018 Gr.Bombay
Dictated on: 28.11.2018
Transcribed on: 29.11.2018
Signed by HHJ on: 30.11.2018
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
30/11/2018 03.15PM Y.S. Patil (H.G.)
Name of the Judge HHJ Shri K.P.Nandedkar (CR No.11)
Date of Pronouncement of Judgment/Order. 28/11/2018
Judgment/order signed by P.O on 30/11/2018
Judgment/order uploaded on 30/11/2018
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