Order 1

Order Details: Other
Pdf Text: Adinterim order in Draft NM .. 1 .. Suit No. 1102/19
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ADINTERIM ORDER
IN
DRAFT NOTICE OF MOTION
IN
SUIT NO. 1102 OF 2019
Nilesh Rameshchandra Fruitwala ...Plaintiff.
V/s.
Jayshree Rameshchandra Fruitwala & Ors. ...Defendants.
Appearances:
Learned Adv. Mr. Hemen S. Thakkar for plaintiff.
Learned Adv. Mr. K.D. Jha for defendants Nos.1 to 4.
CORAM : HIS HONOUR JUDGE
SHRI SADRUDDIN A. QUAZI
(C.R.No.04)
DATED : 4th May, 2019.
: ORAL ORDER :
1. Heard the parties on adinterim relief requested for in the Notice
of Motion by the plaintiff. The plaintiff has requested to grant ad
interim relief, restraining the defendants from dispossessing him from
the suit premises and restraining the defendants from transferring the
suit premises or in alternate to appoint Court Receiver, in respect of the
suit premises. Interim relief is also sought for restraining the defendants
No.1 to 4 to produce certain documents. Interim relief is also sought for
restraining the defendant No.7 from transferring the suit premises and
the share affiliated to the suit premises.
2. As far as the adinterim relief is concerned, the Advocate of
plaintiff has submitted that the defendants No.5 and 6 could not be
served and the plaintiff is not seeking adinterim relief against them.
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Adinterim order in Draft NM .. 2 .. Suit No. 1102/19
From the submissions of the parties and in view of the pleadings in the
plaint, it appears that the suit premises is falt No.603 situated at 6th
Floor of the building known as Jewellers Niketan Cooperative Housing
Society, Pedder Road, Mumbai. Admittedly, this premises was owned by
one Rameshchandra Fruitwala. Rameshchandra Fruitwala is now
deceased. He was father of the plaintiff and defendant Nos.2 to 4 and
husband of defendant No.1. According to the plaintiff, thus suit flat is
inherited by the plaintiff and defendant Nos.1 to 4 and they have joint
ownership. However, in paragraph No.1 of the plaint, the plaintiff has
claimed to be in exclusive possession of the suit premises. The further
case of the plaintiff is that the defendant Nos.1 to 4 in collusion, have
executed document transferring the title of the suit premises to
defendant Nos.5 and 6 and defendant No.7 is trying to transfer the
share certificates pertaining to the suit premises accordingly. Therefore,
it is submitted that adinterim relief protecting the possession of the
plaintiff be granted.
3. The learned Advocate of the defendants Nos.1 to 4 has strongly
opposed the request for granting adinterim relief. He has submitted
that the suit is not valued properly, for the purpose of pecuniary
jurisdiction and payment of Court Fees, in view that the plaintiff is
seeking declaration about the sale deed, in respect of the suit premises
between defendant No.1 and defendant Nos.5 and 6. It is submitted
that the agreement is valued more than Rs.1 Crore and, therefore, the
suit should have been valued at the value of the said agreement i.e.
Rs.1.10 Crore, which is beyond the pecuniary jurisdiction of this Court.
Therefore, it is submitted that this Court has no pecuniary jurisdiction
and hence, no interim relief can be granted. It is submitted that after
death of Rameshchandra Fruitwala, the defendant No.1 being his
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Adinterim order in Draft NM .. 3 .. Suit No. 1102/19
widow, is entitled to hold the property to the exclusion of her children.
It is submitted that the plaintiff is not in possession of the property and,
therefore, the adinterim relief be refused.
4. On the other hand, the learned Advocate of the plaintiff has
referred to the following decisions :
Sr.
No.
Name of the parties
1 Decision of Hon'ble Bombay High Court in the case of Ravindra
Narayan Rajarshi & Ors. V/s. Smt. Rohini Ganpatrao Heblikar
dated 31.07.2017.
2 Decision of Hon'ble Supreme Court in the case of Suhrid Singh
@ Sardool Singh V/s. Randhir Singh dated 29.03.2010.
Referring to these decisions, the learned Advocate of the plaintiff
has submitted that as plaintiff is not party to the said agreement or sale
deed, the suit will not be valued at the amount of value mentioned in
that document, though the document is sought to be declared as illegal
and not binding on the plaintiff. However, he has submitted that
valuation of the suit at Rs.1,000/ is not correct and he submits that the
plaintiff is going to take steps for carrying out amendment in the plaint
to value the suit at Rs.53,74,000/ in respect of 1/5 th share of the
plaintiff in the suit property.
5. The learned Advocate of the defendant Nos.1 to 4 has submitted
that these decisions are not applicable to the facts of the instant case,
because those cases are in respect of suit for specific performance of
contract.
6. I have examined the submissions of the parties. As far as
objection of the defendant's Advocate regarding the under valuation of
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Adinterim order in Draft NM .. 4 .. Suit No. 1102/19
the suit and jurisdiction of this Court is concerned, prima facie I find
that the decisions cited by the learned Advocate of the plaintiff are
applicable to the facts of the instant case. In the instant case, the suit is
for declaration in respect of the sale deed executed between the
defendant No.1 and defendant Nos.5 and 6. Plaintiff is not party to that
document. In such facts of the case, the ratio laid down by the Hon'ble
Supreme Court in the case of Suhrid Singh @ Sardool Singh V/s.
Randhir Singh (supra) and ratio laid down by the Hon'ble Bombay
High Court in the case of Ravindra Narayan Rajarshi & Ors. V/s. Smt.
Rohini Ganpatrao Heblikar (supra), are applicable. The ratio laid
down in the said decisions is that if a person is not executant to a deed
or agreement and seeks the declaration that it is not binding on him,
then the Court Fees is not to be paid on the consideration amount
mentioned in that document or agreement. This ratio appears to be
applicable to the instant case, in view of the aforesaid facts. Therefore,
prima facie, it cannot be said that the Court has no jurisdiction, at least
at this initial stage of the proceeding.
6. As far as, the adinterim reliefs asked for are concerned, I think at
this stage only, the request for granting injunction, restraining the
defendants from the dispossessing the plaintiff can be examined,
because at present the pleadings of the defendants are yet to be filed.
Considering the said prayer of the plaintiff, I find that the property
appears to be prima facie joint property of the plaintiff and defendant
Nos.1 to 4 has executed sale deed in favour of the defendant Nos.5 and
6. But the learned Advocate of the plaintiff submits that the palintiff is
in possession of the property. The learned Advocate of the defendant
Nos.1 to 4 submits that the defendant No.1 is in possession and has not
transferred the possession of the property to defendant Nos.5 and 6 so
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Adinterim order in Draft NM .. 5 .. Suit No. 1102/19
far. What appears is that as the plaintiff and defendant Nos.1 to 4 are
joint owners of the suit premises, all of them are entitled to possess and
occupy the suit premises without exclusion of any of them. In such
circumstances, presently it can be directed that the plaintiff and
defendant Nos.1 to 4 shall not dispossess to each other from the joint
occupation and possession of the suit premises. Hence, I proceed to pass
the following order.
: ORDER :
By way of adinterim relief, it is directed that the plaintiff and
defendant Nos.1 to 4 shall not dispossess to each other from the joint
occupation and possession of the suit premises. This direction shall
remain in force till next date, subject to extension thereof on next date.
(SADRUDDIN A. QUAZI)
Judge, (C.R.No.4)
Date : 04.05.2019. City Civil Court, Gr. Mumbai
Dictated on : 04.05.2019.
Transcribed on : 04.05.2019.
Signed on : 06.05.2019.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
09.05.2019, at 3.14 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S. A. Quazi
Court Room No.4
Date of Pronouncement of Judgment/order 04.05.2019.
Judgment/order signed by P.O. on 06.05.2019.
Judgment/order uploaded on 09.05.2019.
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