Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M 1394/18 in Su 847/18 1/4 Date : 3.5.2018
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
CNR No.MHCC010038202018
NOTICE OF MOTION NO.1394/2018
IN
SUIT NO.847/2018
M/s. Sanjay Builders and Developers & Ors. ]...Plaintiffs
V/s.
Mr. Mohd. Kalim Shaikh & Ors. ]…Defendants
CORAM : HHJ Shri G. R. Agrawal
C. R. No.03
DATE : 3.5.2018
ORDER
(Dictated in open court)
1. By this motion, the plaintiffs are praying for temporary injunction
to restrain the defendants from obstructing or interfering in their
possession and the development work being carried on by them in suit
premises. The defendants no.1, 2 & 5 have filed reply to the motion.
2. Heard learned counsel for the parties. Perused the record.
3. The learned counsel for plaintiffs has invited my attention to
earlier litigation between the same parties, particularly the consent terms
filed in suit no.2194/2015 (pg nos. 401 to 410 of the record). The
present defendants no.1, 2 & 5 are parties to the said consent terms. It is
urged that the defendants are creating obstruction in compliance of the
consent terms and they are acting contrary to the consent terms. He
therefore, prayed that they may be temporarily restrained from
obstructing the construction work carried out by the plaintiffs.
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4. As against this, the learned counsel for defendants no.1, 2 & 5
submitted that the present suit is barred by the principles of resjudicata.
She invited my attention to the suit no.579/2017 filed by the present
plaintiffs and submitted that said suit was withdrawn unconditionally
by the present plaintiffs and leave under Order 2 Rule 2 was not
granted. Therefore, she submitted that there was no cause of action to
file the present suit. She further urged that the present plaintiffs are
filing successive suits on the basis of same cause of action and therefore,
no relief can be granted in the present motion.
5. The consent terms filed in suit no.2194/2015 primafacie show
that the present defendants no.1, 2 & 5 had undertaken not to create
any obstruction in the work of development of suit property being
carried out in pursuance of development agreement dated 8.8.2013 and
Power of Attorney dated 8.8.2013 r/w Deed of rectification dated
29.10.2014. The record shows that the said consent terms are signed by
all the parties including the present defendants no.1, 2 & 5. There is no
dispute that the defendants no.1, 2 & 5 have challenged the consent
terms before the Hon'ble High Court in suit no.585/2017 (page no.435
of record). However, no interim relief has been granted by the Hon'ble
High Court to the defendants in said suit. On the contrary, a
preliminary objection has been raised by other side regarding tenability
of said suit. Subsequently, on 21.12.2017, the defendants have
withdrawn their notice of motion filed in the said suit and matter is
pending for hearing on the application filed by the present plaintiffs
under Order 7 Rule 11 for rejection of the plaint.
6. The record primafacie shows that the suit no. 2194/2015 was
disposed of on 22.3.2017 in terms of the consent terms and suit
no.579/2017 was withdrawn by the present plaintiff on 26.3.2017. It is
obvious that after the disposal of earlier suit as per consent terms, the
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cause of action to prosecute suit no.579/2017 did not survive.
Therefore, the submission of learned counsel for defendants no.1, 2 & 5
that the present suit is barred by resjudicata primafacie does not
appear to be correct.
7. A perusal of the plaint in suit no.579/2017 shows that the cause of
action to file the said suit arose on 25.2.2017 and 27.2.2017. As
regards the present suit, it is pleaded by the plaintiffs that the cause of
action arose on 18.3.2018 when the defendants made attempt to take
over the possession of suit premises and interfere with the development
work of plaintiffs. Thus, the cause of action to file both the suits is
primafacie different.
8. As regards suit no. 1908/2017 filed by the present plaintiffs prior
to filing of the present suit, there is no dispute that a preliminary issue
was framed in the said suit and it was held that the suit is barred u/sec.
69(2) of the Indian Partnership Act. Consequently, the plaintiffs have
withdrawn the said suit and thereafter, the plaintifffirm was registered
and registration certificate of the firm is filed at Exh.A to the present
plaint. Thus, suit no.1908/2017 was not decided on merits. Hence, I
primafacie find that the present suit is maintainable and the objection
raised by learned counsel for defendants no.1, 2 & 5 on the principle of
resjudicata is primafacie misconceived.
9. It is pertinent to note that in suit no.579/2017, which was filed by
the present plaintiffs, this Court had granted adinterim relief in draft
notice of motion, whereby the defendants were restrained temporarily
from interfering with the possession of present plaintiffs and with the
development of the property.
10. The development agreement dated 8.8.2013 primafacie shows
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that the plaintifffirm was given possession of the suit property for re
development. The annexure V to the consent terms shows that the
plaintiffs have paid amount of about 4 Crores & 33 lakhs to the
defendants no.1, 2 & 5 and has also incurred expenses of more than 1
Crore towards redevelopment in the suit premises. A perusal of the
plaint filed by the defendants before Hon'ble High Court shows that in
paragraph no.27, it is admitted by them that there is a rift between the
partners of the defendants no.5firm. It is also apparent from the
pleadings in the said plaint that the plaintifffirm was given possession of
the suit premises for the purpose of the redevelopment.
11. It primafacie appears that due to interse dispute between the
partners of the defendants no.5firm, they are creating obstruction in the
development of the suit premises. The entire development work will be
stalled and the cost of construction shall increase. The consent terms
between the parties in terms of which the suit no.2194/2015 was
disposed off, are still in force. If the plaintiffs are not granted
injunction, the plaintiffs will suffer irreparable loss. The balance of
convenience therefore, also tilts in favour of the plaintiffs. Hence, the
plaintiffs are entitled for the relief of temporary injunction against the
defendants. Hence, following order.
ORDER
The notice of motion no.1394/2018 is made absolute
in terms of prayer clauses (a) and (b) only.
(G. R. Agrawal)
Judge
City Civil Court,
Date : 3.5.2018 Gr. Bombay.
Dictated on : 3.5.2018
Typed on : 5.5.2018
Signed on : 7.5.2018
“CERTIFIED TOBE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
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JUDGMENT/ORDER”
7.5.2018 at 1.25 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
3.5.2018
JUDGMENT/ORDER signed by
P.O. on
7.5.2018
JUDGMENT/ORDER uploaded
on
7.5.2018
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