Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1434 OF 2020
IN
STAMP NO. 4856 of 2020
M/s. Alamdar Infrastructure Pvt. Ltd.
A Company incorporated under the
Companies Act,1956 and having its
registered office at C-601, 6th Floor Plaintiff
Marathon Next Gen Innova, Opp. Of
Peninsula Corporate Bank, Ganpatrao
Kadam Marg, Lower Parel, Mumbai 400013
V/s
1. Mrs. Parvin Y. Bahadurji
Adult, Occu.- Not Known
Citizan of United States of America
R/o. G-7 Spenta, Gibbs Road, Malabar Hill,
Mumbai, 400006
Defendants
2. The Maharashtra Housing and Area
Development Authority.
Having its office at Grih Nirman Building
Bandra-Kurla Complex, Bandra (E)
Mumbai 400051.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 10th November, 2020
Appearance:
Mr.Pradeep Gandhy i/b Mr. Bimal Bhabhda, advocate for the plaintiff.
Mr.Sunil Mogare a/w Ganesh Murthy, advocate for the defendant No.1
Mr.Chandrashekhar for the defendant No.2 .
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ORAL ORDER
The plaintiff has taken out this Notice of Motion firstly,
asking for an order directing the defendant No.1 to deposit a sum of Rs.
26,02,941 in this Court or to direct her to furnish security of alike
amount; secondly, for an order of temporary injunction restraining the
defendant No.1 from selling, transfering, assigning, encumbering or in
any manner dealing with Unit No. 2101 on 21st Floor in ‘A’ Wing
admeasuring 1221.39 sq.ft. in a building namely ‘Marine Palace’
(hereinafter called as ‘the suit premises’) and thirdly, for an order of
temporary injunction restraining her from claiming herself to be the
sole owner/tenant of the suit premises.
2. The first relief involves the question of liability and such
question is the subject matter of the suit. Therefore, such question
cannot be dealt with at the interim stage and no such relief could be
granted assuming such liability of the defendant No.1. The suit premises
itself can be the sufficient security for such amount and therefore,
separate security is uncalled for. The relief asked for in Clause (c) that
the the defendant No.1 shall not claim herself to be the sole
owner/tenant of the suit premises also cannot be granted as it would
prevent the defendant No.1 from establishing such right in accordance
with law. No injunction can be granted to prevent a party from taking
the recourse to law. Thus, the scope for prima facie determination in
this Notice of Motion is as to whether the plaintiff is entitled for the
relief as prayed in clause (b) only i.e. temporary injunction to restrain
the defendant No.1 from transferring the suit premises or creating any
third party interest therein. No relief has been asked against the
defendant no.2.
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3. The facts relevant for deciding this Notice of Motion
are that the plaintiff is the owner/developer of the land and a building
situated thereon namely ‘Old Wadia Building’ as described in plaint para
No.1, by virtue of conveyance deed dated 22.03.2012. One Framroze
Keakobad Elavia was one of the tenants in Room No.30/A and 30/A
extension on the second floor, admeasuring 962 sq. ft. He expired on
30.08.2015. The defendant No.1 represented herself as the sole
surviving heir of said Framroze Elavia and therefore, the plaintiff
entered into an agreement for permanent alternate accommodation
dated 15.03.2017 thereby, agreeing to allot a new Flat No.2101 on the
21st Floor in ‘A’ Wing admeasuring 1221.39 sq.ft. in new building
namely ‘Marine Palace’ which is proposed to be constructed under a
Scheme as per Development Control Regulations, 1991. The plaintiff
has issued three cheques of Rs.7,56,000/- each and one cheque of
Rs.3,78,000/- to the defendant No.1 towards compensation for
temporary alternate accommodation. Out of those cheques, two cheques
of Rs.7,56,000/-, each have been encashed by the the defendant No.1.
4. According to the plaintiff, one Ms. Aban M. Bhot filed suit
for claiming herself to be one of the legal heirs of deceased Framroze
Elavia and claimed equal share in the suit premises. The plaintiff was
impleaded as one of the defendants in that suit bearing Suit (Lodging)
No.340 of 2019, filed before the Hon’ble High Court, Bombay. Ms. Aban
M. Bhot, the plaintiff in that suit claimed that her late father has died
leaving behind his three daughters namely, Persis P. Rustomji, Pervin Y.
Bahadurji (the defendant No.1 in the present suit) and Aban M. Bhot
(the plaintiff in suit before the Hon’ble High Court). She further
contended that her father has executed a Will and has bequeathed his
estate equally among his three daughters and the defendant No.1 herein
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is appointed as an executor of that Will. The plaintiff herein came to
know that fact after receiving the suit summons.
5. Thus, according to the plaintiff, the defendant No.1 falsely
represented herself as the sole surviving heir of her father and thereby,
induced the plaintiff to enter into agreement for permanent alternate
accommodation dated 15.03.2020, knowing fully well that she has
other two sisters equally entitled to get their rights in the new
permanent alternate accommodation and the compensation for
temporary alternate accommodation. The plaintiff therefore, stopped
payment of remaining cheques issued to the defendant No.1. Those
cheques were dishonored and the defendant No.1 has filed criminal
complaint against the plaintiff under N.I. Act. She also filed complaint
before the Maharashtra Real Estate Regulatary Authority asking for
execution of supplementary agreement in her favour instead of Flat
mentioned in the agreement dated 15.03.2020. She subsequently,
submitted before the said Authority that the Flat No.2101 in new
building be reserved in the name of her father till the civil dispute is
resolved. The plaintiff also filed an affidavit to that effect and the said
Authority has passed the pursuant order.
6. According to the plaintiff, he has recently came to know
that the defendant No.1 is looking for the prospective buyer to sell the
new Flat 2101 on the strength of the agreement for permanent alternate
accommodation dated 15.03.2020 by falsely representing herself to be
the absolute owner thereof. This has given rise to the cause of action for
the plaintiff to file this suit and ask for interim reliefs as asked in this
Notice of Motion.
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7. The defendant No.1 has contested this Notice of Motion by
filing reply contending therein that the plaintiff has executed an
agreement for permanent alternate accommodation dated 15.03.2020
as the tenancy has lawfully transmitted to her as per Sec. 7 (15) (d) of
the Maharashtra Rent Control Act,1999. The question as to who is a
tenant in the new premises is out of jurisdiction of this Court and the
said question is already
sub-judice before the Hon’ble High Court as
well. The plaintiff is least concerned with that issue. His duty is to give
the alternate permanent accommodation in lieu of old tenanted
premises and he has no right to stand for third party claiming tenancy
right/ownership therein. Therefore, the plaintiff has no cause of action
for filing this suit and for asking such temporary reliefs against the
defendant No.1.
8. According to the defendant No.1, the correspondence
between the plaintiff and her, which is on record, would make it
abundantly clear that all the relevant facts pertaining to the old
premises of her father were disclosed by her prior to the disputed
agreement dated 15.03.2020 and nothing was concealed by her. The
plaintiff was fully made aware that the deceased father of the defendant
No.1 has executed a Will and has bequeathed his estate to his three
daughters. He was also fully aware that the defendant No.1 was
residing with her father in his tenanted premises at the time and since
his death. Her other two sisters were residing in USA and they never
resided with their father since more than 20 years. Therefore, they
cannot claim tenancy rights either in the old premises or in the new
premises. Knowing all these facts clear, the plaintiff has entered into an
agreement dated 15.03.2020 only with the defendant No.1 by accepting
Rs.20,00,000/- from her. The plaintiff has duly accepted the defendant
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No.1 as his tenant and it is now futile exercise of the plaintiff to dispute
the said agreement probably on instigation of her sister Aban Bhot. The
defendant No.1 has never misrepresented nor concealed any material
fact from the plaintiff.
9. As regards apprehension of the plaintiff that the defendant
No.1 might transfer or create third party interest in the suit premises,
according to the defendant No.1, she has made statement before this
Court on 12.10.2020 that she does not intend to create any third party
rights in the suit premises and she is even prepared to record her
undertaking to that effect, which shows her bonafides. Thus, the
plaintiff is not entitled to any relief asked in the suit and this Notice of
Motion.
10. In view of rival contentions of the parties and the
submissions made on their behalf, the following points arise for my
determination with my findings thereon for the reasons recorded
thereunder;
S.No. POINTS FINDINGS
1 Do the plaintiff prove the
prima-facie case ?
No
2
Whether balance of convenience lies in their
favour ? No
3
Whether irreparable loss would be caused to
the plaintiff, if this Notice of Motion is
rejected ?
No
4 What Order? As per Final Order.
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R E A S O N S
Point Nos.1 to 3:
11. Heard the learned advocates for the parties at length. Their
respective submissions are in consonance with their respective cases as
reproduced in narrow compass as above. At the outset, it shall be noted
that the issues whether the agreement dated 15.03.2020 is legal and
valid, whether the the defendant No.1 alone is entitled to the suit
premises or she has equal rights therein, whether this Court has
jurisdiction to decide that issue, whether the defendant No.1 is liable to
pay the amount claimed, whether there is any misrepresentation as
alleged are the issues which are out of the scope of this Notice of
Motion.
12. As already stated, the scope for determination is whether
the plaintiff has a
prima facie case, the balance of convenience and
irreparable loss are in his favour to get the relief restraining the
defendant No.1 from transferring, selling or creating any third party
rights in the suit premises as prayed in Clause (b) of this Notice of
Motion. The prayer in Clause (a) cannot be granted at this stage as it is
a subject matter of the suit. Granting such relief would amount to
predetermination of the liability of the defendant No.1. The relief in
Clause (c) cannot be granted as no person can be restrained from
claiming his/her right under the law. The defendant No.1 can establish
that she is required to be treated as the sole owner/ tenant under the
law and the plaintiff cannot restrain her from doing so by asking
injunction.
13. Understood the scope of this Notice of Motion in this way, it
propels me to consider the relief as asked in prayer Clause (b). It is the
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statement of the defendant No.1 in her reply and the submission was
made on her behalf by her learned advocate that the defendant No.1
has no intention to transfer or create any third party interest in the suit
premises on the basis of an agreement dated 15.03.2020, which is
under challenge. This statement is taken on record.
14. It shall be noted that the plaintiff is the owner/developer
and he has reserved the suit Flat in the name of original tenant as per
affidavit before RERA Authority. Under such circumstance, he would be
least concerned with the internal dispute between the defendant No.1
and her sisters. They are competent enough to get resolved their dispute
by adopting recourse to law. It would be immaterial for the
plaintiff/owner/developer whether the reserved premises goes to the
plaintiff alone or to all three sisters. The defendant No.1 and her sisters
are competent enough to protect the suit premises till their rights are
decided. Under such circumstance, it is not made clear as to why the
plaintiff is eager to protect the so called rights of the persons who are
strangers to the agreement of alternate permanent accommodation
entered into between him and the defendant No.1? It is not made clear
what loss that would be caused to the plaintiff in case the defendant
No.1 transfers the suit premises to the third party
pendent lit. The
transacting parties will transact at their own risk and any such transfer
would always be subject to outcome of the suit between these three
sisters.
15. Resultant to the above situation, I am unable to find a
prima facie case in favour of the plaintiff. The question of having
balance of convenience and irreparable loss to him therefore, does not
arise.
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16. Secondly, the defendant No.1 shows her bonafides by
undertaking before the Court that she will not transfer the suit premises
nor will create any third party interest therein pending this suit. On the
face of such undertaking, nothing survives in this Notice of Motion. The
plaintiff, having failed to prove his prima facie case, would get intended
result because of honest conduct of the defendant No.1 before the
Court. In the result, I hold that this Notice of Motion is devoid of merit
and is therefore, liable to be dismissed.
17. In view of these reasons, point Nos.1 to 3 are answered
accordingly and as a result of this, the following order.
O R D E R
1. The Notice of Motion No.1434 of 2020 is dismissed.
2. The written and oral submission of the defendant No.1 that she
will not transfer the suit premises nor will she create any third
party interest therein, pending the hearing and disposal of the
suit, is treated as her undertaking and the same is taken on
record.
3. The Notice of Motion No. 1434 of 2020 stands disposed of
accordingly.
(SHIVAJI. R. SALUNKHE)
Judge
City Civil Court,
Date: 10/11/2020. Gr. Bombay.
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Dictated on : 10/11/2020
Transcribed on : 10/11/2020
Signed on : 10/11/2020.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
10/11/2020 At 12.20 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
10/11/2020
Judgment/Order signed by P.O. on 10/11/2020
Judgment/Order uploaded on 10/11/2020
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