Order 1

Order Details: Notice of Motion
Pdf Text: 453-2018 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.1035 OF 2018
IN
S.C. SUIT NO.453 OF 2018
CNR NO.MHCCO10033712018
1. Mr.Rajesh M.Parekh ]
Age67 years, Adult of Mumbai, ]
Indian Inhabitant, residing at ]
15th floor, Karmashetra, ]
Flank Road Sion(East), Mumbai ]
400 037. ]
2. Mrs.Darshana M.Mehta ]
Age57 years, Adult of Mumbai, ]
Indian Inhabitant, residing at ]
Kanchan 8th floor, N.S.Road ]
No.5, lot No.7, Vallabh Nagar ]
Society, J.V.P.D. Scheme, ]
Vile Parle(W), Mumbai400 056. ] ..Plaintiffs
Versus
1. Mr.Jayesh M.Parekh, ]
Age not known, ]
Adult of Mumbai, Indian Inhabitant, ]
Occupationunknown, having ]
address at 3rd floor, Krishna Kunj, ]
Plot No.74, R.A.Kidwai Road, ]
Matunga, Mumbai400 022. ]
2. MS.Siddhgiri Realty Pvt. Ltd ]
having registered office at Shop No.24]
1st Floor, 110, Kaka Kuwa Building, ]
3rd Bhoiwada, Mumbai400 002. ] ..Defendants
Ld. advocate Udayan Jain for the plaintiffs.
Ld. advocate Majra for defendant no.2
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CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 09/09/2019
ORAL ORDER
1. This notice of motion is tendered by the plaintiffs
interalia for directing the defendants to produce
original Deed of Assignment dated 16/09/2014 and
further restraining the defendants from representing
or acting upon the alleged Deed of Assignment dated
16/09/2014 and from creating third party interest or
transfer of tenancy or creating any encumbrance in
the suit property.
2. The subject matter of the suit and the present notice
of motion is immoveable property i.e. Krishna Kunj,
bearing plot of land together with building consisting
of ground and three upper floors standing thereon
bearing CTS No.632 of Matunga Division and
Municipal Ward “F” bearing plot No.74 (N), Sewree
Wadala Estate Scheme No.57, admeasuring 761.71
sq. meters(hereinafter referred to as the suit
property). The suit property was given on lease to
the parents of the plaintiffs by virtue of lease from
Municipal Corporation Greater Mumbai by Deed of
Assignment dated 15/05/1970 and Deed of
Rectification dated 22/06/1970. Both these
documents were registered documents. The father of
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the plaintiffs expired on 12/09/1987 and mother
expired on 16/09/2005 leaving behind the registered
will dated 28/04/1997. It is the contention of the
plaintiffs that the registered deed of assignment
dated 16/09/2014 was executed between defendant
nos.1 and 2 thereby purportedly assigning the
development rights in the suit property to defendant
No.2 by defendant no.1. On going through the
registered Deed of Assignment dated 16/09/2014, it
was noticed by the plaintiffs that the same contained
declarations dated 02/02/2013 purportedly executed
by plaintiff nos.1 and 2 relinquishing and
surrendering all their rights and interest in the suit
property in favour of defendant no.1. The said
documents do not bear their signatures and are
forged and fabricated documents. It is the contention
of the plaintiffs that the Deed of Assignment dated
16/09/2014 containing the purported declarations
dated 02/02/2013 forming part and parcel of the
said Deed is illegal, null and void and not binding on
the plaintiffs. Defendant no.2 to save his skin has
filed complaint against defendant no.1 alleging
cheating and forgery. Defendant no.2 on the
strength of said Deed of Assignment approached to
the Superintendent of Land Record and thereby
incorporated his name in the property card of the suit
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property. Without no objection of the plaintiffs, the
document of Deed of Assignment is expressly illegal.
Defendant no.2 on the strength of the said document
wish to create third party interest and to create
further complications. Hence, prayed for grant of
notice of motion.
3. Defendant No.1 did not appear in the matter.
4. Defendant No.2 filed reply and submitted that
defendant no.1 approached to defendant no.2
through one broker Sameer and represented that suit
property was originally leased out to defendant no.1's
fatherMansukhlal Parekh and after his demise, the
leasehold interest of the suit property was vested in
defendant no.1's mother Smt.Nirupama Parekh. She
has executed will dated 28/04/1997 and bequeathed
all her rights exclusively to defendant no.1.
Subsequently, upon the demise of his mother, the
leasehold interest with respect to the suit property
came to be vested upon defendant no.1 by way of
grant of probate. The defendant no.1 also
represented and assured defendant no.2 that he had
received NOC from plaintiff nos.1 and 2. The
Memorandum of Understanding dated 17/12/2012
was executed between defendant no.1 and 2 for a
lump sum refundable consideration of Rs.50 lacs and
an area of 1600 sq. feet in the redeveloped building
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in lieu of the flat occupied by defendant no.1 situated
in the suit property prior to the redevelopment
alongwith an additional area of 800 sq. feet in the
redeveloped building. Out of consideration of Rs.50
lacs, defendant no.2 paid Rs.11 lacs to defendant
no.1. The development agreement was executed
between defendant no.1 and defendant no.2 dated
23/07/2013. Defendant no.1 also executed an
irrevocable power of attorney in favour of defendant
no.2 on 23/07/2013. In the month of December
2014, the representatives of defendant no.2 came to
know that defendant no.1 had been declared
insolvent vide order dated 04/12/2007 passed by the
Hon'ble High Court in Insolvency Petition No.159 of
2004, as a result of which the entire estate and
effects of defendant no.2 including the suit property
was vested in the Official Assignee. Defendant no.2
called upon defendant no.1 to refund the monies
alongwith interest and penalty, but, defendant no.1
requested not to terminate the agreement and to help
him come out of the insolvency. He proposed some
changes in the agreement. Defendant no.2 had
invested extensive amounts of money in the suit
property and therefore had no option but to accept
the aforesaid proposal set forth by defendant no.1.
The insolvency of the defendant no.2 was annulled
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vide Annulment order dated 02/09/2014 passed by
the Hon'ble Bombay High Court. Defendant no.2
entered into an agreement with defendant no.1 and
executed a Deed of Assignment dated 16/09/2014
and defendant no.1 executed irrevocable power of
attorney in favour of defendant no.2 on 16/09/2014.
Inspite of agreement with defendant no.2, defendant
no.1 malafidely entered into development agreement
with several other entities and therefore defendant
no.2 filed F.I.R. against defendant no.1 for his said
conduct. Defendant no.2 prayed for dismissal of the
notice of motion.
5. On the rival submissions of the parties, following
points arise for my determination and findings to it
are recorded for the reasons stated hereinafter:
POINTS
(i) Whether the plaintiffs have made out a prima
facie case in their favour?
(ii) Whether the needle of balance of convenience
tilt in favour of plaintiffs ?
(iii) To whom the irreparable loss would be
caused?
(iv) What order?
FINDINGS
(i) In the negative.
(ii) In the negative.
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(iii) To the defendant no.2.
(iv) As per final order
REASONS
Point Nos. 1 to 3
6. On perusal of documents it reveals that there was
agreement between one Smt.Gangabai Lawji and the
parents of the plaintiffs. The agreement shows that
parents of the plaintiffs were the original assignees.
The father of the plaintiffs viz. Mansukhlal has
bequeathed his right in favour of the mother of
plaintiffs and defendant no.1 vide will dated
15/08/1986. Therefore, the mother of the plaintiffs
and defendant no.1 had absolute right over the suit
property. The documents to that effect are placed on
record by the plaintiffs. The other fact which is
undisputed that the mother of the plaintiffs and
defendant no.1Smt.Nirupama Parekh executed will
dated 28/04/1997. She expired on 16/09/2005.
The Testamentary petition was filed wherein,
plaintiff no.2 was executrix and plaintiff no.1 was
caveator. The testamentary petition no.1044 of 2009
was converted into testamentary suit no.96/2009.
The consent terms was filed by the present plaintiffs
in the said testamentary suit. The consent terms was
accepted by the Hon'ble High Court and the
testamentary petition and suit was accordingly
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disposed of by grant of probate. Subsequently on
17/04/2015, plaintiff no.2 executed registered deed
of transfer in favour of defendant no.1.
7. On perusal of the will of which the probate has been
granted on 29/11/2014, it is apparent that the
deceased Smt.Nirupama Parekh had bequeathed the
entire suit property with all rights and ownership in
favour of defendant no.1. At this juncture, the issue
is that whether the plaintiffs have got locus to
challenge the alleged transaction between the
defendants inter se. The contention of the plaintiffs is
that the document i.e. Deed of Assignment was
executed some what on 16/09/2014, but, on that
date, defendant no.1 was not having absolute right as
the testamentary suit and the petition were pending.
The probate was granted by the Hon'ble High Court
on 29/11/2014 and therefore the said Deed of
Assignment and power of attorney have no legal
force which are executed prior to the grant of
probate.
8. The other issue which is raised by the plaintiffs is
that two declarations are attached with the said
document of Deed of Assignment. The said
declarations dated 02/02/2013 were not executed by
them and do not bear their signatures. Hence, the
plaintiffs have not relinquished their right. It is
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further the stand of the plaintiffs that those
declarations are forged documents. But, the plaint is
silent as to who had committed the said forgery. If it
is taken to be true that the plaintiffs have not
relinquished their right in that eventuality also
whether the plaintiffs have had any right in the suit
property when all the rights in suit property were
bequeathed by deceased Smt. Nirupama in favour of
defendant no.1 by virtue of will dated 28/04/1997.
No doubt probate was issued subsequent to the Deed
of Assignment executed by defendant no.1 in favour
of defendant no.2. It is open for defendant no.1 to
raise objection or call in question the deed of
assignment dated 16/09/2014 on the count that it
was executed prior to the issuance of probate. The
plaintiffs are not party to the transaction and after
issuance of probate they have got no right, interest
and title in the suit property. Therefore, at this
juncture, the plaintiffs cannot call in the question the
document executed between defendant nos.1 and 2.
If at all, the declarations are forged documents, the
plaintiffs are at liberty to take the legal recourse for
it. It appears that till date, they have not filed any
criminal complaint. Even assuming that the
declarations are forged documents, the moot
question remained unanswered by the plaintiffs
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whether on the date of filing of the suit they were
having right, interest or title in the suit property after
grant of probate and subsequent of transfer executed
in favour of defendant no.1. There is no avernment
that the defendant no.2 has prepared forged
declarations. Apart from that the plaintiff no.2 was
aware about the said Deed of Assignment executed
between defendant nos.1 and 2 as she was party
before the Superintendent of Land record in which
order was passed on 05/10/2017. On perusal of the
said order, it reveals that defendant no.1 had
executed Deed of Assignment in favour of defendant
no.2 and inspite of that plaintiffs took considerable
time to file the suit. The delay has not been
explained. On this count also the plaintiffs are not
entitled for grant of any interim relief.
9. Much emphasis is given on the FIR filed against
defendant no.1 by defendant no.2 alleging that he
has committed cheating with defendant no.2. The
defendant no.2 might have filed FIR with allegation
of cheating against defendant no.1 but does not give
right to the plaintiffs to challenge the transaction
between defendant no.1 and defendant no.2 when
they have no right or interest in the suit property at
the time of filing of the suit. At this stage, the
material produced is not sufficient to grant the
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interim relief claimed by the plaintiff. Prima facie on
the date of filing of the suit, the plaintiffs failed to
demonstrate any right in suit property and therefore
the needle of balance of convenience does not tilt in
favour of plaintiffs. No irreparable loss would be
caused to the plaintiffs as they have no interest in the
suit property. On the contrary, defendant no.2 who
had some colour of right by virtue of agreement with
defendant no.1 and paid substantial amount to
defendant no.1 would suffer irreparable loss if
restrained from dealing with the suit property.
Hence, in view of the above discussion, I am
inclined to answer point nos.1 to 3 in the
negative.
Point No.4
10. In view of the forgoing discussion and findings
to point nos.1 to 3, notice of motion needs no
consideration. Hence, in view of the above
discussion, it is expedient to pass following order:
ORDER
1. Notice of Motion No. 1035/2018 is dismissed.
2. Costs in the cause.
3. Notice of Motion is disposed of accordingly.
09/09/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 09/09/2019
Transcribed on : 17/09/2019
Signed on : 20/09/2019
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'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
20/09/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
09/09/2019
Judgment and order signed by P.O. 20/09/2019
Judgment/order uploaded on 20/09/2019
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