Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 1294-2019 in Suit no.607 of 2019
MHCC010033602019
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
NOTICE OF MOTION NO.1294 OF 2019
IN
SUIT NO.607 OF 2019
M/s. Skicon Infrastructure Co.,
a Partnership Firm ... Plaintiff
V/s
Mr. Pradeep Khetaram Prajapati …. Defendants.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE: 18th DAY OF July, 2023
-: Appearances: -
The learned Adv. Babu h/f Adv. G. S. Bhat for the plaintiff.
The learned Adv. Vrushali Kabare for defendant.
ORAL ORDER
The present notice of motion has been taken out by the
plaintiff for seeking relief of temporary injunction thereby the defendant
be restrained from creating third party interest in suit flat.
2. In short, it is contention of the plaintiff that, he has filed
suit for declaration, cancellation and for permanent injunction against
the defendant. It is contended that, the plaintiff is a partnership firm
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registered under the provisions of Partnership Act. The plaintiff carries
on the business as builder and developers.
3. The defendant has booked Flat No. 204, on 20th Residential
Floor admeasuring 34 Sq. mtrs., of built-up area in the building known
as ‘Sky city’ to be constructed on property bearing CTS No. 210, 210/1
to 37, 210/38-A, 210/38-B and 210/39 to 89 of Village Bhandup,
Taluka Kurla, Mumbai (herein after referred to as ‘Suit Flat’).
4. It is contended that, the defendant has agreed to purchase
suit flat for total consideration of Rs. 30 Lacs. Accordingly, on receipt of
cheque of Rs. 3,20,000, the plaintiff has issued allotment letter on
27.01.2012 in favour of the defendant. At that time, the defendant was
agreed to pay Rs. 14 Lacs in cash as early as possible. However, inspite
of repeated request, the defendant did not pay sum of Rs. 14 lacs in
cash as promised. On the request of the defendant, the plaintiff
executed agreement for sale on 31.12.2013. It is contended that, the
construction work was reached upto 13th Storey of Residential Building.
The defendant has hardly paid Rs. 4,42,700/- till 17.04.2014. Inspite of
repeated request and letter issued by the plaintiff, the defendant failed
to pay the remaining balance consideration. The defendant was in
arrears of Rs. 17,86,000/- as on 09.04.2014. The defendant inspite of
being in default sent a false notice dated 18.01.2019 to the plaintiff and
its partner making baseless allegations. As the defendant failed to pay
balance consideration, the plaintiff has cancelled agreement for sale
dated 31.12.2013. Now, the plaintiff apprehends that the defendant in
order to defeat the rights of the plaintiff in suit flat, may transfer or
assign the benefits of the said agreement for sale dated 31.12.2013 in
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favour of third party. Hence, the Notice of Motion.
5. The defendant strongly opposed the notice of motion by
filing reply on affidavit. It is contended that the Notice of Motion taken
out by the plaintiff being false and frivolous is liable to be rejected.
6. It is contended that, on the representation made by the
plaintiff, the defendant agreed to book a flat bearing No. 1104 situated
on 11th floor admeasuring 307 sq.fts., carpet area. At that time, the
plaintiff informed the cost of said premises to the tune of
Rs.28,88,000/- and assured to deliver within three years. Therefore, the
defendant had paid token amount of Rs. 1 Lack on 02.12.2009
vide
cheque to the plaintiff.
7. It is contended that, as per request of the plaintiff, the
defendant from time to time, paid total amount of Rs.12,88,000/- in
cash to the plaintiff. It is contended that, after payment of part of
consideration in cash, the partners of plaintiff demanded Rs.2,20,000/-
towards further part of consideration. Accordingly, the defendant gave
cheque of Rs.1,60,000/- dated 23.06.2011 and of Rs.60,000/- dated
01.02.2012 to the plaintiff. Accordingly, the plaintiff issued allotment
letter dated 27.01.2012 by mentioning incorrect amount therein. It is
contended that, the plaintiff
vide letter dated 01.07.2012, demanded
service tax to the tune of Rs.45,838/-. Therefore, the defendant
requested the plaintiff to register the agreement for sale. Accordingly,
on 31.12.2013, the plaintiff executed registered agreement in favour of
the defendant. It is contended that, in the registered agreement of sale,
the total amount of consideration is shown as Rs.30 lacks. The
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defendant has paid Rs.16,08,000/- to the plaintiff. The plaintiff agreed
to handover possession of suit flat on or before July 2016. However, the
plaintiff has issued false notice on 09.04.2014. Therefore, the defendant
immediately approached to the plaintiff and sought explanation about
the same.
8. It is contended that, inspite of making payment to the
plaintiff from time to time, there was no development of construction in
the project. Therefore, the defendant approached to the plaintiff. In
October/November 2014, the plaintiff informed that competent
authorities have changed the floor plan resulting in an extra 100 sq.fts.,
in the built-up area. On this pretext, the plaintiff further demanded Rs.
6 Lacks in cash to the defendant. The plaintiff also informed that, if said
amount was not paid then agreement for sale would stand cancelled.
Therefore, the defendant has paid in cash said amount of Rs. 6 lakhs in
the year 2014. However, inspite of making payment from time to time,
the plaintiff failed to handover possession of suit flat till July 2016.
Hence, the defendant issued letter to the plaintiff and sought possession
of the suit flat. However, there was no response from the plaintiff. The
defendant on 01.09.2018, issued notice to the plaintiff seeking
information of the progress in construction. Again, on 18.01.2019, the
defendant sent a letter to the plaintiff and called upon it to pay
compensation for causing harassment by not delivering possession of
suit flat. However, the plaintiff illegally terminated the contract.
Therefore, the defendant is constrained to file counter claim for specific
performance of contract and for Permanent injunction. Hence, the
plaintiffs are not entitled for relief of temporary injunction as sought.
Thus, it is liable to be rejected.
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9. Heard the learned advocate for the plaintiff and defendant
at length. Perused the record.
10. Following points arise for my determination to which I have
recorded my findings with reasons as follows:
Sr. No. Points Determination
1. Whether the plaintiff is entitled for
the reliefs claimed in notice of
motion?
No.
2. What order? As per final order.
REASONS
As to point no.1:-
11. Here, it is to be noted that, the defendant has also filed
counter claim against the plaintiff and therein filed a notice of Motion
No. 754 of 2020 in which the defendant also sought relief of temporary
injunction to restrain the plaintiff from creating third party interest in
the suit flat. During course of arguments, Ld. Adv for the plaintiff and
the defendant fairly submits that till date the construction of suit flat
has not been commenced and completed. Till date, the suit flat is not
come in existence. Therefore, in view of categorical submission of both
the sides, and considering the fact that the suit property is not in
existence, hence question of its alienation does not arise. It is further to
be seen that, the plaintiff claims to terminate agreement of sale in
favour of the defendant and the defendant has filed the suit for specific
performance of contract. Yet the construction of suit flat is not
commenced. Thus, parties are liberty to take appropriate application as
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and when required. Therefore, at this juncture, the plaintiff has failed to
made out prima-facie case in its favour. The plaintiff also failed to show
balance of convenience in its favour. Thus, question of causing
irreparable loss to the plaintiff does not arise. Hence, my answer to
point No.1 is in the negative.
As to point no.2:
12. In view of above discussion, I pass the following order:
ORDER
Notice of Motion No. 1294 of 2019 stands rejected.
Notice of Motion stands disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court, Gr. Mumbai
Date:.18.07.2023 (C.R. No.1)
Dictated on : 18.07.2023
Transcribed on : 18.07.2023
Checked & signed on : 18.07.2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 24.07.2023 NAME OF STENOGRAPHER(G-I)
Mr. M. M. Patange
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 18.07.2023
JUDGMENT/ORDER signed by P.O. on 21.07.2023
JUDGEMENT/ORDER uploaded on 24.07.2023
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