Order 2

Order Details: Notice of Motion
Pdf Text: N/m No. 1108/23, N/m No. 1745/23 and 1 Common Order.
N/m No. 1037/23 in S.C.Suit No. 1343/2020.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
MHCC010033792023
Presented on : 18-03-2023
Registered on : 18-03-2023
Decided on : 16-04-2024
Duration : 1 years, 0 months, 29 days
NOTICE OF MOTION NO. 1108 OF 2023
AND
MHCC010051262023
Presented on : 06-05-2023
Registered on : 06-05-2023
Decided on : 16-04-2024
Duration : 0 years, 11 months, 10 days
NOTICE OF MOTION NO. 1745 OF 2023
AND
MHCC010030702023
Presented on : 14-03-2023
Registered on : 14-03-2023
Decided on : 16-04-2024
Duration : 1 years, 1 months, 2 days
-- 1 of 9 --
N/m No. 1108/23, N/m No. 1745/23 and 2 Common Order.
N/m No. 1037/23 in S.C.Suit No. 1343/2020.
NOTICE OF MOTION NO. 1037 OF 2023
IN
S. C. SUIT NO. 1343 OF 2020
Ashok Appa Manchekar and others )...Plaintiffs
Versus
Mr. Suryakant Shantaram Mohire and others )...Defendants
Smt. Darshana Shedge, Advocate for the plaintiff.
Shri Rajeev Matkar alongwith Smt. Purva Pendurkar, Advocate for the
defendant no.1 to 3.
Smt. Chinmayi Parvate, Advocate for the defendant no.4.
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 16th APRIL, 2024.
COMMON ORDER
1. Notice of Motion No. 1108/2023 is moved by the plaintiffs
to restrain defendants no.1 to 3 from creating third party interest over
suit premises bearing Room No.5, Lad Chawl, Kajupada, Barve Nagar,
Near Sitabai Chawl, Ghatkopar, Mumbai and direct defendants to
disclose their assets. Notice of Motion No. 1745/2023 is moved by
defendant no.4 to condone delay of 204 days to file the written
statement whereas Notice of Motion No. 1037/2023 is moved by
defendant no.1 to 3 to condone the delay of 797 days to file their
written statement. So far as factual aspect is concerned, both parties
have raised similar facts in their respective notice of motions. Hence to
avoid the repetition of facts all these three notice of motions are taken
into consideration together.
-- 2 of 9 --
N/m No. 1108/23, N/m No. 1745/23 and 3 Common Order.
N/m No. 1037/23 in S.C.Suit No. 1343/2020.
2. Vide Notice of Motion No. 1108/2023 the plaintiff contends
that the contents of the plaint be taken into consideration. Vide plaint
the plaintiff pleads that somewhere in November, 2014 defendant no.1
expressed his desire to sell the suit premises. Therefore after negotiation
in between the plaintiff and defendants, the plaintiff agreed to purchase
the suit premises for consideration of Rs.45,00,000/-. Defendant
requested the plaintiff to pay Rs.30,20,000/- through bank and
remaining amount of Rs.14,80,000/- in cash. Thus, the plaintiff paid
Rs.45,00,000/- to the defendant no.1 from 04/09/2014 to 21/11/2014.
Defendants had put condition that they will execute agreement on
paper only after they receive entire amount of consideration. Thus,
plaintiff paid entire amount of consideration to purchase the suit
premises.
3. The plaintiff further specifically contends that somewhere
in last week of November, 2014 the plaintiff realized that defendants
are not intending to perform the contract and sell the suit premises. The
defendants in month of May, 2015 transferred Rs.50,000/- to the
account of the plaintiff. Therefore the plaintiff and his family members
kept following defendants for their money. However, defendant no.1
ignored and lastly on the demand of the plaintiff defendant no.1 issued
a cheque dated 19/01/2018 for amount of Rs.45,00,000/- in favour of
the plaintiff which was dishonoured. Thereafter again the defendant
no.1 issued another cheque dated 22/04/2018 for same amount which
is also dishonoured. Thereafter plaintiff issued notice to defendant no.1
but in vain. Defendant no.2 and 3 being family members of defendant
no.1 had given assurance on behalf of defendant no.1 to repay the
consideration amount. Hence the plaintiff constrained to institute the
-- 3 of 9 --
N/m No. 1108/23, N/m No. 1745/23 and 4 Common Order.
N/m No. 1037/23 in S.C.Suit No. 1343/2020.
suit for recovery of an amount of Rs.45,00,000/-. Hence this suit.
4. In reply, defendant no.1 to 3 contend that the suit of the
plaintiff and notice of motion is vague and drafted in evasive language.
The suit is based upon alleged transaction took place in year 2014. It is
their specific contention that alleged transaction was relating to land
and it was never acted upon. Defendants no.1 to 3 have filed affidavit
dated 22/01/2021 on record to substantiate their contention.
5. It is further contention of defendants no.1 to 3 that the
notice of motion is not maintainable because they have already created
third party interest over the suit premises in favour of defendant no.4.
Notice of Motion No. 1108/2023 is not taken against defendant no.4.
Therefore it is not maintainable and has become infructuous as they
have already transferred their rights in favour of defendant no.4. Hence
prayed to reject the notice of motion.
6. So far as the contention of the defendants no.1 to 3 that
they have transferred their rights over suit premises in favour of
defendant no.4 is not challenged by the plaintiff. The plaintiff has
arrayed defendant no.4 as party to the suit on allegation that he is
transferee of the suit premises. Therefore there is substance in
submission of defendants no.1 to 3 that the Notice of Motion No.
1108/2023 has become infructuous against defendant no.1 to 3.
7. Even for the sake of discussion, if it is presumed that the
plaintiff is praying for relief of injunction against all defendants, then it
has to see whether the plaintiff has case to grant such relief against
defendant no.4. The plaintiff has come with a case that there was
contract, obviously it was not in written form to purchase the suit
-- 4 of 9 --
N/m No. 1108/23, N/m No. 1745/23 and 5 Common Order.
N/m No. 1037/23 in S.C.Suit No. 1343/2020.
premises. The plaintiff pleads that he paid an amount of Rs.45,00,000/-
to defendant no.1. Considering the nature of transaction and amount
involved therein, it is quite unsusceptible fact that one would pay such
huge amount without execution of any agreement in written form.
Certainly plaintiff has filed copies of cheques issued by defendant no.1
in his favour which impliedly support the case of plaintiff that there is
money transaction in between plaintiff and defendant no.1. However,
there is no cogent evidence on record besides averments in the plaint to
say that the transaction in question pertains to suit premises. Moreover,
the plaintiff has come with case that defendants be directed to pay the
suit amount and not for specific performance of the contract. The
plaintiff nowhere contends that if defendants are not restrained from
creating third party interest over suit premises, he will lose his right and
interest over the suit premises. It is also not the case of the plaintiff that
defendants are about to alienate or dispose off their property in
contemplation of the decree that may be passed against them in this
suit to avoid its execution. Thus, there is no prima facie case in favour
of the plaintiff to restrain the defendants from creating third party
interest over the suit premises.
8. Admittedly, defendant no.4 is made party to the suit who
has acquired right and interest over the suit premises. In such case, if
defendant no.4 creates third party interest against the interest of the
plaintiff if it is shown and proved, then such transfer of interest will hit
by Section 52 of the Transfer of Property Act. Thus, balance of
convenience lies in favour of defendants in non-grant of relief of
injunction. Thus Notice of Motion No. 1108/2023 deserves to be
rejected.
-- 5 of 9 --
N/m No. 1108/23, N/m No. 1745/23 and 6 Common Order.
N/m No. 1037/23 in S.C.Suit No. 1343/2020.
9. Vide Notice of Motion No. 1037/2023 defendant no.1 to 3
prayed for condonation of delay of 797 days to file written statement
with contention that an application under Order VII Rule 11 of the Code
of Civil Procedure (in short ‘Code’) was pending for hearing. Thereafter
one Chamber Summons No. 744/2021 was pending which was
ultimately disposed off on 19/07/2022. They also contend that in view
of the directions of the Honourable Supreme Court given amid Covid-19
the period from 15/03/2020 to 28/02/2022 shall be excluded from
computing the period of limitation to file written statement. Hence
prayed to condone the delay.
10. In reply, it is the submission of the learned advocate for the
plaintiff that their written submission be taken into consideration. Vide
written submission the plaintiff has only supported his contention vide
Notice of Motion No. 1108/2023. It means the contents of Notice of
Motion No. 1037/2023 so far as on facts is concerned, remain
unchallenged. Hence it has to see whether delay of 797 days can be
condoned.
11. Defendants no.1 to 3 contend that there was notice of
motion and chamber summons pending for hearing and the directions
promulgated amid Covid-19 extend the period of limitation. So far as
the submission of defendants that the application under Order VII Rule
11 of the Code and one chamber summons was pending for hearing
cannot be accepted to immune them from filing written statement
within the prescribed period of limitation. Obviously as per directions of
the Honourable Apex court, the period of limitation to file an
application or suit or appeal of which period is expired during
-- 6 of 9 --
N/m No. 1108/23, N/m No. 1745/23 and 7 Common Order.
N/m No. 1037/23 in S.C.Suit No. 1343/2020.
15/03/2020 to 28/02/2022 needs to be excluded. Defendants are
served with writ of summons on 16/12/2020. Therefore such directions
would be applicable to the case of the defendants. In view of such
directions defendants ought to have filed written statement on or before
02/11/2021. The notice of motion is filed on 14/03/2023. Therefore
there is delay to file written statement without proper explanation.
However, to decide the matter on merit it would be just and proper to
permit defendants to file written statement. Unexplained delay ensues
the cost. Considering the delay of nearabout four months, it is just and
proper to impose the cost of Rs.2,000/- payable to the plaintiff.
12. Similarly, vide Notice of Motion No. 1745/2023 defendant
no.4 prays to condone the delay of 204 days to file his written
statement. It is his contention that he is a layman and not aware as to
the court procedure. After lot of discussion with his advocate he finally
decided to defend the suit. On such statement he requests to condone
the delay of 204 days.
13. In reply, the plaintiff contends that the defendant no.4 was
duly served with chamber summons. His advocate was present when
chamber summons was heard. Hence there is no proper explanation for
such delay. Hence prayed to impose heavy cost of Rs.15,000/- to
Rs.20,000/-.
14. The contention of defendant no.4 that he is not aware of
court procedure and he is a layman are not acceptable in the eyes of
law. He has moved the notice of motion to condone the delay.
Defendant no.4 has narrated provisions applicable to file written
statement. It means defendant no.4 is aware about the procedure to be
-- 7 of 9 --
N/m No. 1108/23, N/m No. 1745/23 and 8 Common Order.
N/m No. 1037/23 in S.C.Suit No. 1343/2020.
followed before the court. In such case, the contents of the notice of
motion cannot be accepted to allow defendant no.4 to file written
statement without cost. Hence, to decide the matter on merit, it is just
and proper to permit defendant no.4 to file written statement subject to
cost of Rs.2,000/-. In the result, following order is passed :
- ORDER -
1. Notice of Motion No. 1108/2023 is rejected.
2. Notice of Motion No. 1745/2023 and Notice of Motion No.
1037/2023 are allowed on cost of Rs.2,000/- each payable to the
plaintiff within a month of order.
3. On payment of cost, defendants to file written statement
alongwith affidavit without fail within a month of order.
4. N/m No. 1108/2023, N/m No. 1745/2023 and N/m No.
1037/2023 are disposed off accordingly.
(U.C.DESHMUKH)
Judge,
City Civil Court,
(Court Room No.66)
Date : 16/04/2024. Mumbai.
1. Dictated on : 16/04/2024.
2. Transcribed on : 24/04/2024.
3. Checked on : 25/04/2024.
4. Correction carried on : 26/04/2024.
5. Signed on : 26/04/2024.
6. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
-- 8 of 9 --
N/m No. 1108/23, N/m No. 1745/23 and 9 Common Order.
N/m No. 1037/23 in S.C.Suit No. 1343/2020.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
26/04/2024. 3.14 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri U.C.Deshmukh.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 16/04/2024.
Judgment/Order signed by P.O. on 26/04/2024.
Judgment/Order uploaded on 26/04/2024.
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