Interim Order 1

Order Details: Notice of Motion
Pdf Text: 1 Order on Draft NM in SU.1178-2020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON
DRAFT NOTICE OF MOTION
IN
SUIT NO. 1178 OF 2020
(CNR no. MHCC01-004563-2020)
1. David Royd Fernandes ]
Age : 47 years, Occupation : Professional Architect ]
residing at Flat No.9, 10 and 11, ]
Jo-liza Building, Plot No.287, Sasmira Marg, ]
Worli, Mumbai 400 030. ]
2. Larisa Fonseca ]
Age : 52 years, Occupation : Self Employed, ]
residing at Through its Power Attorney, ]
David Royd Fernandes Mr. Flat No.9, 10 and 11, ]
Jo-liza Building, Plot No.287, Sasmira Marg, ]
Worli, Mumbai 400 030. ]... Plaintiffs
Versus
Daphne Sardinha ]
Age : about 68 years, Occupation : Business, ]
residing at Rockdale II, 1st floor, ]
Off. Peter Dias Road, Bandra (West), ]
Mumbai 400 050. ]....Defendant
Appearances:-
Ld. Advocate Mr. Nimesh R. Mehta for the Plaintiff.
Ld. Advocate Mr. Raj Patel a/w Adv. Ms. Priya Upadhayay i/b Adv. Mr.
Mohan Patel for the Defendant.
CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 4)
DATED : 07th November, 2020
O R A L O R D E R
1. By instant Notice of Motion, the plaintiffs, claiming
possession over the suit flat, have prayed for temporary injunction
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restraining the defendant from dispossessing them from the suit flat
from creating third party rights over the suit flat till final disposal of the
suit. Ld. Advocate for the plaintiffs has vehemently argued that the
predecessor of the defendant was mere licensee of the suit flat vide
agreement dated 28.02.1964, he never became owner of the suit flat
due to non-payment of total consideration. He has narrated that the
predecessor of defendant handed over the suit flat to Sylvia Joseph
Dominic illegally but the said lady has entered into consent terms with
the plaintiff in L.E & C Suit No.62 of 2017 and handed over peaceful
possession of the suit flat to them. Ld. Advocate for the defendant has
invited my attention to the fact that the predecessor of the defendant
remained licensee initially after 1964 due to the stipulation in the
agreement. Where by the restriction was put on the plaintiff by the
terms of agreement of lease dated 18.08.1961 not to assign, sublet,
transfer or part with his interest in the plot no. 287 for a period of 15
years from 18.08.1961. He has also highlighted the fact that in RAD
Suit No.421 of 2012 in the Small Causes Court at Mumbai, Sylvia
Joseph Domnic was declared tenant of the present defendant and in
that suit, she never alleged that she was tenant of the present plaintiff
and not present defendant. He has further argued that the present
defendant was not party to the consent terms dated 07.11.2017 in L.E.
& C. Suit No.62 of 2017 and in fact the suit came to be dismissed for
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want of prosecution vide order dated 21.04.2018 and therefore, the
said consent terms are not binding on the defendant.
2. With assistance of the Ld. Advocates, I have gone through
all the above documents. From the plaint allegations and arguments
advanced by the Ld. Advocate for the plaintiffs, they are denying any
right of the defendant as an owner of the suit flat. It is their further case
that Sylvia Joseph Dominic D’Souza was their tenant, she handed over
possession of the suit flat on 07.11.2017 vide consent terms in L.E. & C.
Suit No.62 of 2017 and subsequently she was allowed to reside in the
suit flat due to her old age till her death. As rightly submitted by the Ld.
Advocate for the defendant, this consent terms is not binding on the
present defendant because he was not party to the said consent terms,
no decree in terms of the said consent terms was passed by the Court
and in fact the said suit L.E & C Suit No.62 of 2017 came to be
dismissed for want of prosecution on 21.04.2018. Moreover, same
Sylvia Joseph Dominic D’Souza filed RAD Suit No.421 of 2012 against
the present defendant in the Small Causes Court at Mumbai claiming
her tenancy right over the suit flat. If the judgment therein dated
30.11.2015 is seen, the said Sylvia made statement in the plaint that the
predecessor of present defendant accepted rent from her. In other
words, she admitted that her relationship with the present defendant’s
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predecessor. If her act of signing the consent terms is considered in
conjunction with her contentions in RAD Suit No.421 of 2012, the
picture emerges is that she was tenant of present defendant. In the said
backdrop, relinquishment of tenancy right by Sylvia Joseph in favour of
the present plaintiffs is inconsequential. Therefore, the plaintiffs have
failed to make out a
prima facie case of possession of the suit flat. In
absence of
prima facie case, the question of balance of convenience and
irrepairable loss does not arise. Hence, following order :
ORDER
1. The Draft Notice of Motion is dismissed.
2. The plaintiff is directed to register the Notice of Motion for
statistical purpose.
(C. V. Marathe)
Judge,
Date : 07.11.2020 City Civil Court, Gr. Mumbai.
Dictated on : 05.11.2020
Transcribed on : 06.11.2020
Signed by HHJ on : 07.11.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 09.11.2020 at 1.10 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
07/11/2020
JUDGMENT/ORDER signed by
P.O. on
07/11/2020
JUDGMENT/ORDER uploaded
on
09/11/2020
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