Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: Presented on 13.03.2018
Registered on 20.03.2018
Decided on 14.11.2018
Duration Yrs. M. Days
07 25
CNR No.
EXH.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
SUIT NO.834 OF 2018
SUNIL UMAKANT PANDEY
Aged 47 years, Indian Inhabitant of
Mumbai, residing at Flat No.305, Building
No.B5, Ekta Lok Milan Complex,
Chandivali, Chandivali Farm Road,
Sakinaka, Mumbai400 072. ...Plaintiff
V/s.
1. AKHILESH SHARDA PRASAD SINGH
An adult Indian Inhabitants of Mumbai,
residing at Flat NO.302, Water Lily,
Chandivali, Behind D Mart, Naghar Road,
Sakinaka, Mumbai400 072.
2. BANK OF INDIA, SAKINAKA Branch
having office at Sagar Tek Plaza, Ground
Floor, Sakinaka Junction, Kurla Andheri
Road, Mumbai400 072. ...Defendants
Appearances:
Ld. Adv Mr.A.N. Jaiswal and Adv.Ms.Saba Khan for plaintiff.
None for defendants. Hence, suit proceeded exparte against
defendants.
CORAM : HIS HONOUR JUDGE
SHRI ABHIJEET A.
NANDGAONKAR
(C.R.No.20)
DATED : 14th November,2018
MHCC01-003567-2018
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J U D G M E N T
(Exparte)
This is a suit for permanent injunction and declaration.
2. In short, plaintiff came with a case that, plaintiff is licensee and is
in possession of the flat bearing No.305, Building NO.B5, Ekta Lok
Milan Complex, Chandivali, Chandivali Farm Road, Sakinaka, Mumbai
400 072, admeasuring 545 square feet build up area (hereinafter
referred to as “suit flat”). Defendant No.1 is the owner of the suit flat
and his address mentioned in the cause title. Defendant No.2 is a bank,
who claims to have advanced loan to defendant No.1 against the
mortgaged of suit flat.
3. Plaintiff submitted that, in the month of September,2016 plaintiff
approached defendant No.1 to permit him to use and occupy the suit
flat for 96 months and on 12.09.2016 they have entered into Leave and
License Agreement interalia defendant No.1 allowing plaintiff to use
and occupy the suit premises for 96 months. In lieu of that, plaintiff
paid Rs.3,00,000/ as interest free returnable security deposit to
defendant No.1. In the month of November,2017 defendant No.1 came
at suit flat and demanded Rs.2,00,000/ to plaintiff as additional
interest free security deposit as his wife was suffering from leukemia.
Plaintiff was not in position to fulfill his demand, but later on paid
Rs.2,00,000/ to defendant No.1 as additional interest free security
deposit by writing dt.18.12.2017.
4. Plaintiff submitted that, defendant No.1 has taken loan from
defendant No.2/bank. Therefore, representatives of defendant No.2
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have been visiting to the suit flat and giving threats to plaintiff to
dispossess him from the suit flat. On 06.03.2018 representatives of
defendant No.2 came to suit flat and forcibly tried to dispossess
plaintiff, but due to interference of neighbour they could not take
possession of the suit flat. Plaintiff submitted that, defendant No.1 is
the debtor of defendant No.2/bank and he has nothing to do with
defendant No.2. Therefore, defendant No.2 cannot dispossess him for
recovery of loan disbursed to defendant No.1.
5. Plaintiff submitted that, the threats given by defendant No.2 to
dispossess plaintiff from suit flat are illegal, malafide, badinlaw,
against the principles of natural justice, inoperative and not binding
upon plaintiff. Therefore, plaintiff filed this suit against defendants for
permanent injunction and other reliefs. Hence, this suit.
6. Writ of summons came to be issued against defendants. It came
to be served against defendants. Defendant No.1 has failed to appear
before the Court. Defendant No.2 appeared and filed their vakalatnama
at Exh.3. However, later on defendant No.2/bank has also failed to
appear to contest the suit. Therefore, suit proceeded exparte against
defendants by order dt.07.06.2018.
7. In order to substantiate his case, plaintiff filed his chiefin
affidavit at Exh.4 with compilation of document at Exh.5 and proved
the documents like Agreement dt.12.09.2016 (Exh.6) and writing
dt.18.12.2017 (Exh.7). Both defendants did not turn up to cross
examine the plaintiff. Therefore, testimony of plaintiff remains
unchallenged and unrebutted. The documents produced and proved by
plaintiff also remain controverted.
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8. Heard learned Advocate for plaintiff. Perused the record and
submissions.
9. On perusal of copy of Notarized Leave and license agreement
dt.12.09.2016, annexed with plaint, entered between plaintiff and
defendant No.1 it appears that, defendant No.1 is the owner of suit flat
and he offered the suit flat to plaintiff to occupy and use for a period 96
months on monthly compensation of Rs.5,000/ payable to defendant
No.1 and on payment of Rs.3,00,000/ as interest free security deposit.
The said deposit had already paid by plaintiff to defendant No.1. After
some time in the year 2017 when plaintiff was in need of money for
treatment of his wife, who was suffering from leukemia, plaintiff gave
Rs.2,00,000/ to defendant No.1 as and by way of additional security
deposit. Accordingly, writing dt.18.12.2017 was executed by defendant
No.1 in favour of plaintiff. From these two documents i.e Notarized
Leave and License Agreement dt.12.09.2017 and writing dt.18.12.2017
between plaintiff and defendant No.2 it is clear that, defendant No.2
offered suit flat to plaintiff for use and occupy on leave and license basis
for the period of 96 months. It means that, the relationship between
plaintiff and defendant are of licensee and licensor respectively.
10. As per averments of plaintiff the defendant No.1 mortgaged the
suit flat with defendant No.2/bank. But we cannot define the
relationship between defendant Nos.1 and defendant No.2, as none of
them appeared before the Court to contest the suit even after service of
writ of summons. Though, defendant No.2 filed their vakaltanama, but
they have failed to appear on subsequent date to file their written
statement or to crossexamine plaintiff's witness and/or to lead the
evidence to rebut the claim of plaintiff. Therefore, I have to accept the
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testimony and claim of plaintiff in absence of any rebuttal from
defendants.
11. On going through the averments of plaintiff it seems that,
defendant No.1 might had taken loan from defendant No.2/bank by
mortgaging the suit flat. However, none of the defendants appeared
before this Court or to produce copy of mortgaged deed entered
between defendant No.1 and defendant No.2. Therefore, it is difficult to
hold that, suit flat has been mortgaged with defendant No.2/bank. But
primafacie it appears that, suit flat might be mortgaged with defendant
No.2/bank. Otherwise there was no reason for the representative of the
defendant No.2 to go at the suit flat for taking possession of suit flat.
Be that as it may be, but this Court cannot decide which document ,
whether Leave and License Agreement between plaintiff and defendant
No.1 or the Mortgage Agreement of suit flat between defendant No.1
and defendant No.2 is first in time, as none of defendants appeared to
rebut the claim of plaintiff and produce the copy of mortgage deed.
12. On the factual matrix also it is the fact that, plaintiff is a licensee
used and occupied the suit flat as a tenant by paying monthly
compensation to defendant No.1. It is the fact that, Leave and License
Agreement dt.12.09.2016 is a Notarized document and not the
registered document and even the writing dt.18.12.2017 is on simple
plane paper. Nonetheless, defendant No.1 and/or defendant No.2 or
anybody on behalf of them cannot dispossess the plaintiff till
completion of 96 months period from suit flat without following due
process of law. Therefore, if defendant No.1 would have taken loan
from defendant No.2/bank by mortgaging the suit flat, defendant
No2/bank have every right to recover the debt/loan amount by
following due process of law.
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13. In such circumstances and in view of above discussion, as none of
the defendants appeared to rebut the claim of plaintiff, it is inevitable to
accept the testimony of plaintiff. Therefore, plaintiff possession for the
agreement period of 96 months needs to be protected as per leave and
license agreement, else plaintiff suffer irreparable loss which cannot be
compensated in monetary terms. Plaintiff has a good primafacie case
and he will cause serious prejudice if his possession for the agreed
period of 96 months is disturbed without following due process of law.
Hence, plaintiff is entitled for the relief of perpetual injunction as
sought for the period of 96 months only. In such circumstances, it is
necessary to direct the parties to bear their costs and hence, suit is
decreed partly with following order :
O R D E R
1. Suit is partly decreed.
2. Defendant No.1 and Defendant No.2, their agents,
servants or anybody on behalf of them are hereby
restrained from disturbing the possession of plaintiff in
respect of suit flat i.e. Flat bearing No.305, Building
No.B5, Ekta Lok Milan Complex, Chandivali,
Chandivali Farm Road, Sakinaka, Mumbai400 072,
admeasuring 545 square feet build up area, till agreed
period of 96 months expires.
3. Parties to bear their costs.
( ABHIJEET A. NANDGAONKAR )
Judge, (C.R.No.20)
Dt.:14/11/2018 City Civil Court, Gr. Mumbai
Dictated on : 14.11.2018
Transcribed on : 15.11.2018
Signed on : 15.11.2018
kps/
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“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
16.11.2018 at 11.00 a.m.
UPLOAD DATE AND TIME
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
Name of the Judge HHJ SHRI A.A.
NANDGAONKAR
(COURT ROOM NO.20)
Date of pronouncement of judgment/order 14.11.2018
Judgment/order signed by P.O. on 16.11.2018
Judgment/order uploaded on 16.11.2018
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