Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 1116-18, in Suit no.2573 of 2017
MHCC010036292018
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
ORDER IN NOTICE OF MOTION NO.1116 OF 2018
IN
SUIT NO.2573 of 2017
Dr. Shobhana Shripati Shinde ... Plaintiff
V/s
Mr. Rizwan Ahmed Siddiqui …. Defendant.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 6th DAY OF OCTOBER, 2023
-: Appearances: -
The learned Adv. Manishi Gupta for plaintiff.
Defendant in person
ORAL ORDER
The present notice of motion has been taken out by the
plaintiff for seeking reliefs inter alia:
(a) To appoint Court Receiver, High Court, Mumbai under order XL
Rule 1 of the Code of Civil Procedure, 1908 with powers to take
physical possession of the suit premises;
(b) By an order of temporary injunction, the defendant be restrained
from selling, transferring or creating third party right in suit premises;
(c) During pending the hearing and final disposal of the suit, the
defendant be directed to pay a sum of Rs.25,000/- per month, towards
-- 1 of 12 --
2 Ord. in NM no 1116-18, in Suit no.2573 of 2017
the maintenance charges in respect of suit premises.
2. Briefly stated, the case of the plaintiff is as under: -
The defendant is the owner and in possession of Flat no.2,
Ground floor, Teriza House, Co-operative Housing Society Ltd., Father
Peter Pereira Road, Christian village, Kurla (West), Mumbai (hereinafter
referred to as ‘Suit premises’).
3. As the plaintiff is desire to purchase and the defendant is
ready and willing to sale the suit premises, they entered into an
agreement of sale for total consideration of Rs.27 lacs. The plaintiff has
paid Rs.10,000/- on 10/05/2016, by cheque towards earnest money to
the defendant. Thereafter, in presence of witnesses a Memorandum of
Mutual Understanding came to be executed in between the plaintiff and
defendant on same day. It is further contended that, thereafter the
plaintiff has made substantial payment to the defendant and
accordingly an Agreement of sale came to be executed on 08/08/2016,
in between the plaintiff and defendant. It came to be registered with the
office of Registrar of Assurance. On that day, the plaintiff has paid an
amount of Rs.4 lacs to the defendant.
4. It is further contended that, in the agreement for sale dated
08/08/2016, there was typographical mistake in the name and date of
death of the mother of the defendant, therefore Deed of Rectification
came to be executed on 30/08/2016. Thereafter, the plaintiff has
applied for housing loan from Mogaveera bank, Kurla (West).
Accordingly, sum of Rs. 15 lacs were sanctioned towards the housing
loan to the plaintiff. Thereafter, the plaintiff has paid the entire amount
-- 2 of 12 --
3 Ord. in NM no 1116-18, in Suit no.2573 of 2017
of consideration of Rs.27 lacks to the defendant. After getting full and
final payment towards the suit premises, the defendant has issued letter
of possession dated 26/09/2017, in presence of witnesses. The said
letter of possession is also notarized. The defendant has also executed
necessary papers and forms for transfer of the suit premises in the name
of the plaintiff. The plaintiff has submitted all the forms and
undertaking to the housing society and on the basis of the application
and consent of the defendant, share certificate came to be transferred in
the name of the plaintiff in respect of the suit premises. The
maintenance bill also issued in favour of the plaintiff. The plaintiff has
also paid electricity bills.
5. It is contended that, though the defendant has signed the
possession letter in presence of witnesses, however, the defendant has
not handed over actual and physical possession of the suit premises to
the plaintiff. The defendant has requested to the plaintiff that due to his
personal difficulties; he could vacate the suit premises till 30/11/2016.
Thus, considering the request, the plaintiff allowed the defendant to
occupy the suit premises till 30/11/2016. But the plaintiff asked to the
defendant to execute writing to that effect. Accordingly, the defendant
and his wife Mrs. Farzana Siddiqui executed declaration-cum-consent
letter on 29/10/2016 and thereby agreed to vacate the flat on
30/11/2016.
6. It is submitted that on 01/12/2016, the plaintiff
approached to the defendant for taking actual physical possession of
suit premises, but the defendant failed to vacate and handed over it to
the plaintiff. The defendant and his wife requested for extension of
-- 3 of 12 --
4 Ord. in NM no 1116-18, in Suit no.2573 of 2017
time till 10/12/2016. Hence, on humanitarian ground the plaintiff
allowed defendant and his wife to remain in possession of the suit
premises till 10/12/2016. Again the defendant and his wife has
executed writing to that effect and agreed to vacate the suit premises
till 10/12/2016.
7. It is further submitted that on 10/12/2016 when the
plaintiff had been to suit premises for taking possession, the defendant
has failed to vacate and handed over its possession to the plaintiff.
Again, the defendant and his wife requested extension of time till
20/04/2017. The defendant and his wife executed writing / declaration
/ consent letter on 13/01/2017 to that effect in favour of the plaintiff.
8. It is further submitted that, on 20/04/2017 and thereafter
on several occasion, the plaintiff requested the defendant and his wife
to vacate the suit premises, however of no use. Therefore, the plaintiff
has issued notice through her advocate on 28/08/2017 and called upon
the defendant to vacate and handed over possession of suit premises to
the plaintiff. In spite of receiving notice, the defendant failed to comply
the same and sent false reply on 26/09/2017. Now the plaintiff came to
know that the defendant is intended to create third party interest in suit
premises. Hence, the plaintiff has constrained to file the suit for
declaration specific performance of contract, possession, permanent
injunction and mesne profit. The plaintiff has also taken out present
notice of motion for the reliefs claimed as stated supra. Hence it may
kindly be allowed.
9. The defendant filed pursis and submitted to treat his
-- 4 of 12 --
5 Ord. in NM no 1116-18, in Suit no.2573 of 2017
written statement as detailed reply to the notice of motion. Defendant
denied all the allegations in the plaint and notice of motion. It is
contended that the plaintiff has filed suit with an intention to grab the
suit property on the basis of false and fabricated documents. It is
further contended that it was agreed in between the plaintiff and
defendant that the plaintiff will purchase the suit flat for total
consideration of Rs.37 lacs. However, since the plaintiff was not able to
pay the entire consideration amount by cheque and therefore it was
agreed that in the agreement a sum of Rs.27 lacs will be shown and
balance of Rs.10 lacs will be paid in cash by the plaintiff to the
defendant at the time of handing over vacant possession of the suit
premises.
10. It is further contended that in view of such understanding,
the MOU came to be executed in between the plaintiff and defendant.
However, in the MOU instead of mentioning the entire consideration
amount of Rs.37 lacs, an amount of Rs.27 lacs was mentioned.
Thereafter, the plaintiff and her brother approached to the defendant
and requested that for making payment of balance consideration, the
plaintiff required to approach the bank for obtaining loan, hence it is
necessary to execute registered documents pertaining to suit premises in
favour of the plaintiff. Thus, on the assurance of the plaintiff, that they
would pay entire amount of Rs.37 lacs to the defendant, he has
executed agreement for sale on 08/08/2016. On the assurance of the
plaintiff, the defendant entered into an agreement for purchase of
another flat with one Mr. Chadha. However, as the plaintiff failed to pay
the entire amount, hence the earnest amount of the defendant stands
forfeited. Thereafter, the defendant agreed to purchase another
-- 5 of 12 --
6 Ord. in NM no 1116-18, in Suit no.2573 of 2017
premises at Malavani, Malad, but again for the default of the plaintiff,
earnest amount was forfeited.
11. It is contended that as the plaintiff has not paid the entire
amount of consideration, hence it was agreed that, though the
documents was executed in favour of the plaintiff but the vacant and
peaceful possession will be handed over only on receiving balance
consideration of amount. However, till date the plaintiff has not paid
the balance consideration. Now on the basis of false and fabricated
documents want to get possession of suit premises. The plaintiff has not
approached to the Court with clean hands; hence the plaintiff is not
entitled for the relief of temporary injunction. Thus, the notice of
motion may kindly be rejected.
12. The plaintiff has filed rejoinder to the reply filed by the
defendant and denied its contention. It denied that it was agreed in
between the plaintiff and defendant that the plaintiff will purchase the
suit premises for total consideration of Rs.37 lacs. It is contended that
the total sale consideration was agreed for Rs.27 lacs and accordingly it
was paid by the plaintiff to the defendant. Now, the defendant has
brought up false and concocted story so as to deprive the plaintiff from
taking possession of the suit premises. Now, the defendant is intending
to create third party interest in the suit premises hence, it is necessary
to restrain the defendant by an order of temporary injunction.
Therefore, the notice of motion may kindly be allowed.
13. Heard the learned advocate for the plaintiff. Defendant
failed to argue in the matter. Perused the record.
-- 6 of 12 --
7 Ord. in NM no 1116-18, in Suit no.2573 of 2017
The learned advocate for the plaintiff relied on the
authorities reported in the case of Maria Margarida Sequeria Fernandes
and Ors V. Erasmo Jack De Sequeria (Dead) through LR’s AIR 2012
Supreme Court 1727; and Vimal Chand Ghevarchand Jain and Others
Vs. Ramakant Eknath Jadoo (2009) 5 Supreme Court Cases 713.
14. In the case of Maria Margarida Sequeria Fernandes (supra),
the Hon’ble Supreme Court at para no. 91 & 92 observes that,
“The
Court while granting injunction should broadly take into consideration
the prevailing market rentals in the locality for similar premises. Based
on that, the Court should fix ad hoc amount which the person
continuing in possession must pay and, on such payment, the plaintiff
may withdraw after furnishing an undertaking and also making it clear
that should the Court pass any order for reimbursement, it will be a
charge upon the property. The Court can also direct payment of a
particular amount and for a differential, direct furnishing of a security
by the person who wishes to continue in possession. If such amount, as
may be fixed by the Court, is not paid as security, the Court may remove
the person and appoint a receiver of the property or strike out the claim
or defence. This is a very important exercise for balancing equities.
Courts must carry out this exercise with extreme care and caution while
keeping pragmatic realities in mind and make a proper order of
granting mesne profit. This is the requirement of equity and justice.”
15. Following points arise for my determination to which I have
recorded my findings with reasons as follows: -
Sr. No. Points Determination
-- 7 of 12 --
8 Ord. in NM no 1116-18, in Suit no.2573 of 2017
1. Whether the plaintiff is entitled for
the relief claimed in notice of
motion?
Partly affirmative
2. What order? As per final order.
REASONS
As to Points no.1: -
16. It is to be seen that, the plaintiff has come with the case
that, she has entered into an agreement for sale to purchase the suit
premises for total consideration of Rs.27 lacs with the defendant.
Initially Memorandum of Understanding came to be executed in
between the plaintiff and defendant on 10/05/2016. At that time, the
plaintiff has paid Rs.10,000/- towards earnest money. Thereafter, the
plaintiff has paid substantial amount and thus on 08/08/2016
registered Agreement of sale came to be executed in between the
plaintiff and defendant. At that time the plaintiff has paid Rs.4 lacs.
Thereafter, the plaintiff had availed loan of Rs.15 lacs from Mogaveera
Bank, Kurla (W), and had paid entire amount of consideration of Rs.27
lacs to the defendant from time to time. Thereafter, share certificate
has been transferred in the name of the plaintiff on the basis of
documents executed by the defendant and the consent provided by the
defendant. The defendant has also executed letter of possession on
26/09/2016 in favour of the plaintiff. However, at that time, the
defendant requested to continue his possession till 30/011/2016. But
thereafter from time to time the defendant got extended the time to
vacate the suit premises. The defendant has also executed writing in
that respect, wherein agreed to vacate and handed over possession of
suit premises to the plaintiff. But did not comply with the same. Now,
the defendant is intending to create third party interest in the suit
-- 8 of 12 --
9 Ord. in NM no 1116-18, in Suit no.2573 of 2017
premises. Hence, the notice of motion may kindly be allowed.
17. The plaintiff has filed copy of Agreement of sale dated
25/05/2006, thereby the defendant and his mother had purchased suit
property. It further reveals that, as the said documents was not
registered hence it was got registered later on. The plaintiff has also
filed the copy of MOU dated 10/05/2016 and the receipt of Rs.10,000/-
paid to the defendant on same day. The plaintiff has also filed a copy of
Agreement for sale dated 08/08/2016, thereby the plaintiff has agreed
to purchase the suit premises from the defendant for total consideration
of Rs.27 lacs. The agreement is supported by receipt of Rs.4 lacs paid
by the plaintiff to the defendant. The plaintiff has also filed the
registered Deed of Rectification, wherein the name and date of death of
the mother of the defendant has been rectified. The plaintiff has also
filed no objection certificate issued by the society in favour of the
defendant thereby permitted him to sale the suit premises to the
plaintiff. The plaintiff has also filed affidavit / indemnity bond executed
by the defendant. She also filed the death certificate of the mother of
the defendant.
18. The plaintiff has also filed letter of possession dated
26/09/2016 issued by the defendant in favour of the plaintiff supported
by the receipt of Rs.15 lacs paid by the plaintiff to the defendant. The
plaintiff has also filed declaration/consent letter issued by the
defendant in favour of the plaintiff thereby he agreed to vacate suit
premises on or before 30/11/2016. Thereafter, also the defendant has
executed declaration / consent letter in favour of the plaintiff thereby
agreed to vacate the suit premises on or before 20/04/2016. Thus,
-- 9 of 12 --
10 Ord. in NM no 1116-18, in Suit no.2573 of 2017
prima facie all these documents shows that, the defendant has executed
registered Agreement to sale in favour of the plaintiff in lieu of
consideration of Rs.27 lacs. The defendant has also agreed to hand over
vacant and peaceful possession of the suit premises to the plaintiff.
However, till date the defendant has not handed over the same.
19. Herein it is to be seen that, the defendant has not disputed
about the execution of Agreement to sale and receiving consideration
amount from the plaintiff. However, it is the defence of the defendant
that the agreement was for Rs.37 lacs and not for Rs.27 lacs as alleged.
However, prima facie, there is nothing on record to substantiate the
same. This needs consideration on merits. But if during pendency of the
suit, the defendant has succeeded to create third party right in the suit
premises then naturally it will cause multiplicity of litigation which
causes irreparable loss to the plaintiff. Upon considering the pleadings
and documents filed on record, the plaintiff has made out prima facie
case and balance of convenience in her favour.
20. So far as the relief of appointment of High Court, Receiver
is concerned, the Hon’ble Bombay High Court in the case of Nazir
Ahmed Mohd. Islam Shah & Ors Vs. Iqbal Mohd. Akil Shah and Ors
decided on 05.01.2023 in Appeal from Order No.10/2023 while
referring to catena of case laws at para no.8 held that,
“the City Civil
Court, Bombay would not have jurisdiction to appoint Court receiver
High Court Bombay as a receiver. Thus, this court has no jurisdiction to
appoint Court Receiver, High Court Bombay as prayed. Therefore, the
plaintiff is not entitled for the said relief. So far as the relief of mesne
profit is concerned, I am of the view that looking to the nature of
-- 10 of 12 --
11 Ord. in NM no 1116-18, in Suit no.2573 of 2017
dispute, this question needs to be considered on merits, instead of
deciding at the preliminary stage. Therefore, I answer to point no. 1 in
partly affirmative.
As to point no.2:
21. In view of my above discussion, I pass the following order:
ORDER
Notice of Motion No.1116 of 2018 is partly allowed.
Prayer clause (a) and (c) stands rejected.
Prayer clause (b) stands allowed thereby the
defendant is restrained by an order of temporary injunction from
selling, transferring or creating third party right in the suit
premises till disposal of suit.
Notice of motion stands disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court, Gr. Mumbai
Date:.06.10.2023 (C.R. No.1)
Dictated on : 06.10.2023
Transcribed on : 12.10.2023
Checked & Signed on : 13.10.2023
-- 11 of 12 --
12 Ord. in NM no 1116-18, in Suit no.2573 of 2017
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 13.10.2023 NAME OF STENOGRAPHER(G-I)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court
room no.)
HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of
JUDGEMENT/ORDER
06.10.2023
JUDGMENT/ORDER signed by
P.O. on
13.10.2023
JUDGEMENT/ORDER uploaded
on
13.10.2023
-- 12 of 12 --