Final Order 1

Order Details: Notice of Motion
Pdf Text: 1/4 NM No.27/09 in Su.455/2009
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.27/2009
CNR No. : MHCC010036192019
IN
SUIT NO.455 OF 2009
Shakuntala, Wd/o Ramesh
Jamnadas Thakkar & Ors ...Plaintiffs
V/s.
Ashokkumar Laxmansingh
Galundia & Anr. ...Defendants
Adv. Sonawane for plaintiff.
Adv. Parikh for defendant no.1.
CORAM : HHJ Shri. G.R. Agrawal
CR No.3
DATED : 29.3.2019.
ORDER
(Dictated in open court)
The plaintiffs have filed this notice of motion for grant of
temporary injunction to restrain the defendants from collecting rent
from any tenant in the suit properties or from creating any new tenancy
or third party interest in respect of the suit properties. The defendants
have filed reply to the motion.
2. Heard Ld. Counsel for the parties. Perused the record.
3. At the outset, it is necessary to note that on 27.2.2009, the
Advocate for defendants had made a statement that defendants will
not create third party interest in the suit buildings. The said
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statement is in force since last 10 years.
4. The Ld. Counsel for plaintiffs has urged that the defendants
claim to be in possession of suit buildings in part performance of four
agreements to sell, which were executed by the original Vendor, Mr.
Sidharth Zaveri. He submitted that the plaintiffs are collecting the rent
from the tenants. He invited my attention to the affidavit of Sidharth
Zaveri filed in present motion supporting the case of plaintiffs. As per
the said affidavit, the said Vendor had cancelled all the agreements
executed in favour of defendants. He prayed that the statement made
on behalf of defendants is in force since last 10 years and same may be
continued during the pendency of the suit.
4. Per contra, the Ld. Counsel for the defendants submitted that the
Vendor who has filed affidavit in support of plaintiffs does not deny the
signatures on the agreements. He submitted that one of the agreements,
which was executed on 5.3.1998 has been registered on 30.6.2009 by
paying the requisite stamp duty. He further submitted that by order
dated 30.10.2017, sole Arbitrator has granted injunction in favour of
defendants by protecting their interest in respect of suit buildings. The
present plaintiffs have been injuncted from collecting rent from tenants
or accepting surrender of tenancy from the tenants. They are also
restrained from interfering with the possession of the defendants
including the right of defendants to collect rent from the occupants. He
therefore prayed that the present motion be rejected.
5. On hearing the Ld. Counsel for the parties, I primafacie find that
the original Vendor of defendants has filed affidavit in this motion
stating that he has not handed over the possession of the properties to
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the defendants. He has stated that possession letters were given to the
defendants only for collecting the rent and no conveyance was
registered. It is alleged that the defendants had obtained signature of
Vendor and his mother only on one page of Deed of conveyance. He
has accepted that he received part payment from the defendants.
However, he has stated that he has cancelled the four agreements.
These statements made by the original Vendor, primafacie support
the case of plaintiffs.
6. The defendants have placed reliance on the order passed by sole
Arbitrator on 30.10.2017 in respect of suit properties. In the said
proceedings, the present defendant no.1 is the Claimant and the
plaintiffs & original Vendor are respondents. In paragraph no.8 of the
order, the Arbitrator has referred to and observed that tit was filed in
the year 2009 and adinterim order was passed on 27.2.2009 recording
the undertaking given by the Advocate for defendants. It will be useful
to reproduce contents of paragraph no.26 of the said order as under :
“For the reasons recorded above, rights of Claimant are
required to be protected till the time the matter is finally
heard. The claimant has already given an undertaking to
the Bombay City Civil Court, not to create third party rights
which would include not to accept surrender of tenancies or
transfer tenancies.” (emphasis added)
7. It is clear from the aforesaid observations that the Arbitrator has
also taken into account the undertaking given on behalf of defendants
in this Suit on 27.2.2009 and interim order is passed to protect the
interest of the defendants. Temporary injunction is granted against the
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present plaintiffs in respect of suit properties. Thus, I primafacie find
that interest of both the parties are protected during the pendency of
the suit. If the injunction is refused, the plaintiffs may suffer
irreparable injury. The interim arrangement is operating since
27.2.2009 and there is no reason to disturb the same. The balance of
convenience also tilts in favour of plaintiffs. Hence following order.
ORDER
1. Notice of motion no. 27 of 2009 is partly allowed.
2. The defendants are temporarily restrained from
creating third party interest in the suit buildings
during the pendency of suit.
(G.R. Agrawal)
Judge
City Civil Court,
Dictated on : 29.3.2019 Gr. Bombay.
Transcribed on : 2.4.2019
Signed on : 2.4.2019
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
2.4.2019 at 4.30 pm (Mrs. S. W. Tuscano)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
room no.)
HHJ Shri G. R. Agrawal, C.R.
No.3
Date of Pronouncement of
JUDGMENT/ORDER
29.3.2019
JUDGMENT/ORDER signed by
P.O. on
2.4.2019
JUDGMENT/ORDER uploaded
on
2.4.2019
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