Final Order 1

Order Details: Copy of Judgment
Pdf Text: S.C.Suit No.1140 of 2019 1
Lodged on 01/04/2019
Decided on 01/07/2022
Duration on 03Ys.03Ms.00Ds.
MHCC010036892019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
S.C.SUIT NO.1140 OF 2019
1.Mr.Sajid Ebrahim Qureshi
age about 46 years, Occ.Service
2. Mrs.Reshama Abdul Samad Shaikh
age 45 years, Occ.Housewife
3. Mr.Zubair Ebrahim Kureshi
age 43 years, Occ.Service
4. Mr.Javed Ebrahim Qureshi
age 41 years, Occ.Self Employed
Flat No.1004, 10 Rehmaniya
Castle, 25, Nishanpada Cross Lane,
Opp.Amin Hostel, Dongri,Mumbai …. Plaintiff
V/s
Mrs.Shabnam Anwar Ilahi Shaikh
age about 34 years, Occ.Business
Asma Beauty Parlour
Ground floor, 36 Ismail Curtey
Road, Mumbai 400 003
Residing at 1st floor, 92 Dada
Mansion, Memonwada Road,
Mohammed Ali Road, Mumbai400 003 ...Defendant
Appearance:
Ld.Counsel Jabbar for plaintiff.
Defendant. Exparte.
CORAM : H.H.J.SHRI.A.V.Kharkar
DATE: 01st July, 2022 C.R.NO.15
JUDGMENT
This is suit for recovery of the amount paid by the
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S.C.Suit No.1140 of 2019 2
deceased father of the plaintiff for purchase of flat.
The facts in brief are as follows.
2. The plaintiffs are legal heirs of Ibrahim who passed away
on 24/1/2017. During his lifetime, the father of plaintiff had
entered into an agreement in the nature of memorandum of
understanding and agreed to purchase the suit flat for
consideration of Rs.11,00,000/. The said flat was situated at
Bhiwandi. The plaintiff had paid entire consideration of
Rs.11,00,000/. Defendant did not comply their part of
memorandum of understanding and hence, the father of the
plaintiff realized that he was duped. After demise of their father,
the plaintiffs have issued notice to the defendant and called
upon her to refund the amount taken by her as she could not
complete the transaction. As the defendant failed to refund the
amount. The plaintiff is seeking to recover the amount from the
defendant.
3. Summons were issued to the defendant. Despite service
defendant remained absent. My predecessor by his order
dtd.21/12/2019 ordered the suit to proceed exparte against
defendant.
4. Following points arise for determination
Sr.No. FINDINGS POINTS
1. Whether the plaintiff proves that
their father had advanced an
amount of Rs.11,00,000/to the
defendant as full and final
consideration for purchase of
flat.?
In the affirmative
2. Whether the plaintiff proves that
the defendant did not complete
In the affirmative
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S.C.Suit No.1140 of 2019 3
the transaction on or before
23/5/2016 as agreed.?
3. Whether the plaintiff is entitled to
recover an amount of
Rs.11,00,000/.?
In the affirmative
4 What order.? As per final order
REASONS
5. Considering the evidence on record and for the sake of
brevity issue nos.1 to 3 are clubbed together for the purpose of
reasoning.
6. He proves the case plaintiff no.1 Sajid filed evidence at
Exh5. He has deposed that he is only heirs of deceased
Ibrahim. During his lifetime, the plaintiff entered into an
agreement in the nature of memorandum of understanding for
purchase the flat from the defendant. The entire consideration
of Rs.11,00,000/ was paid to the defendant. As per the
stipulation of memorandum of understanding she was required
to complete the transaction on or before 23/5/2016. As she did
not complete the transaction the plaintiff is seeking to recover
amount of Rs.11,00,000/ from the defendant. He is relying on
following documents.
Death certificate of Ibrahim – Exh7
Death certificate of Mrs.Rashida – Exh8
Original memorandum of understanding dtd.4/4/2016 – Exh9
The said agreement is signed by deceased Ebrahim Rehman
Qureshi with present plaintiff no.1 attesting witness. Agreement
is also signed by defendant. Memorandum of understanding
shows that consideration of Rs.11,00,000/ was paid by father of
the plaintiff to the defendant and that it was obligatory on her
part to complete the transaction on or before 23/5/2016. Office
copy of legal notice dtd.12/9/2016 Exh10 issued to the
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S.C.Suit No.1140 of 2019 4
defendant by father of the plaintiffs for subsequent performance
of the contract. Exh11 office copy of legal notice sent by
present plaintiff to the defendant calling upon her to either
execute or complete the transaction on same alternatively
amount of refund 11,00,000/. As the matter is proceeded
exparte. The evidence adduced by plaintiff has gone
unchallenged and there is no impediment is relying upon the
oral testimony of plaintiff and supported by documents. The
testimony of the plaintiff and documents on record prove that
there was memorandum of understanding between the father of
plaintiff and defendant. According to that memorandum of
understanding the defendant was liable to execute the sale deed
of suit flat infavour of the father of plaintiff. She has received
amount of Rs.11,00,000/ but she has not completed transaction
of sale. As the transaction of sale is not complete the plaintiff
would be entitled to refund of the amount paid to her. The
plaintiff is therefore, entitled to recover amount of
Rs.11,00,000/ from the defendant. Considering the lending
rates of Nationalized Banks it would be appropriate that the
plaintiff is allowed interest at the rate of 9% p.a. on the
principal sum. Hence, point nos. 1 to 3 is answered in the
affirmative. Following order is passed.
ORDER
1. Suit is decreed with costs.
2. Defendant is hereby ordered and directed to pay amount
of Rs.11,00,000/ to the plaintiff.
3. The plaintiff would be entitled to recover amount with
interest at the rate of 9% p.a. from the date of suit till
actual realization of the amount.
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S.C.Suit No.1140 of 2019 5
4. Decree be drawn up accordingly.
Date : 01/07/2022 (A.V.Kharkar)
Judge
City Civil & Sessions Court
Gr.Bombay
Dictated on : 01/07/2022
Transcribed on : 04/07/2022
HHJ signed on :
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
05/07/2022 3.00pm (Mrs.P. P. Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room no.)
SHRI A.V.Kharkar
(C.R. No.15)
Date of Pronouncement of
JUDGMENT/ ORDER
01/07/2022
JUDGMENT/ORDER signed by P.O.
on
05/07/2022
JUDGMENT/ORDER uploaded on 05/07/2022
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