Interim Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 3841/22 in Suit No. 2210/19. 1 Order.
MHCC010112422022
Presented on : 14-10-2022
Registered on : 14-10-2022
Decided on : 27-03-2023
Duration : 0 years, 5 months, 13 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3841 OF 2022
IN
SUIT NO. 2210 OF 2019
Sharmila Kamlesh Jain and one )...Applicants
IN THE MATTER BETWEEN
Sharmila Kamlesh Jain and one )...Plaintiffs
Versus
Janmesh Arvind Nanavati and others )...Defendants
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 27th MARCH, 2023.
Shri Yash Jain I/b Smt. Anjali Trivedi, Advocate for the plaintiffs.
Shri Heramb Kadam, Advocate for defendant no.1.
Shri Shashank Borade, Advocate for defendants no.4 and 5.
None for defendants no.2 and 3.
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N/m No. 3841/22 in Suit No. 2210/19. 2 Order.
ORDER
1. The plaintiffs have taken out the notice of motion for order
of mandatory injunction restraining defendants no.1 to 3 or their
representatives from entering into, opening, using, occupying and
claiming to be in possession of the suit premises. They also prayed for
restraining the defendants from selling, parting with possession and/or
alienating, encumbering and creating any third party rights and/or
inducting any third person in respect of the suit premises. They further
prayed for appointment of the Court Receiver in respect of the suit
premises with direction to defendant no.1 to deposit Rs.1,60,000/
towards rent of the suit premises from 2014 till date and continue to
deposit quarterly rent of Rs.5,700/ till final disposal of the present suit.
Perused notice of motion, affidavit in reply and the suit proceeding.
Heard learned counsel Shri Yash Jain for the plaintiffs and learned
counsel Shri Heramb Kadam for defendant no.1.
2. On perusal of the record, it appears that the plaintiffs
approached to defendant no.2 (original tenant in respect of the suit
premises) and defendants no.4 and 5 (landlords) for obtaining suitable
abode for themselves. It is case of the plaintiffs that defendant no.2
surrendered tenancy rights to defendants no.4 and 5 and he agreed to
assign his tenancy rights in favour of the plaintiffs. Transaction was
finalized for consideration of Rs.64,11,000/. The plaintiffs were
informed by defendants no.2 and 3 that out of total consideration
Rs.20,11,000/ were paid to defendant no.4 and remaining amount of
Rs.44,00,000/ have to be paid to defendant no.2.
3. It is further case of the plaintiffs that defendant no.3 is
brotherinlaw of defendant no.1 and soninlaw of defendant no.2 and
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N/m No. 3841/22 in Suit No. 2210/19. 3 Order.
he was part of negotiations and dealings between the plaintiffs and
other defendants. According to the plaintiffs, defendants no.2 and 3
have routed/siphoned off the money and have defrauded the plaintiffs.
The plaintiffs entered into Tenancy Agreement dated 22/05/2014 with
defendant no.4 for letting the suit premises on monthly rental basis to
them. Grievance of the plaintiffs is that defendant no.1 refused to
vacate the suit premises even after execution of Tenancy Agreement
dated 22/05/2014. Contents in affidavit in support reveals that
defendants no.1 and 2 filed suits against each other having Suit
No.1735/2014 and 1290/2014. It is contention of the plaintiffs that
defendants no.1 and 2 never wanted to give possession of the suit
premises to the plaintiffs. Therefore, the plaintiffs have sought above
referred reliefs. Learned counsel Shri Yash Jain advanced arguments on
the line of contents in the plaint and affidavit in support in the notice of
motion.
4. Defendant no.1 has contended that no payment was made
as pleaded by the plaintiffs and tenancy was not surrendered. Learned
counsel Shri Heramb Kadam for defendant no.1 submitted that there is
nothing to show that amount of Rs.44,00,000/ was paid to defendants
no.1 and 2. He opposed the notice of motion by stating that if prayer
clause (a) is allowed, it would amount to decreeing the suit at interim
stage. Author of the Tenancy Agreement expired. He prayed for
dismissal of the notice of motion.
5. Considering rival submissions and material on record, it
appears that the plaintiffs have relied upon Tenancy Agreement dated
22/05/2014 to assert rights in the suit premises. Admittedly, defendant
no.2 was original / earlier tenant of the suit premises. There is no
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N/m No. 3841/22 in Suit No. 2210/19. 4 Order.
reference of payment of Rs.64,11,000/ in the Tenancy Agreement
dated 22/05/2014. Similarly, surrender affidavit of tenancy dated
28/04/2014 executed by defendant no.2 is also silent on the point of
payment of any money as consideration for relinquishing or
surrendering tenancy rights in the suit premises. Considering prima
facie material on record, there is nothing to support to the case of the
plaintiffs on the point of payment of huge amount to the defendants.
The plaintiffs could not make out prima facie case regarding payment
of amount of Rs.64,11,000/ to defendants no.2 and 3. For want of
basic evidence regarding material facts pleaded in the plaint,
defendants no.1 and 2 have reason to dispute the case of the plaintiffs
about Execution of Tenancy Agreement dated 22/05/2014. Therefore,
interim relief in terms of prayer clause (a) cannot be granted. So far as
remaining reliefs are concerned, the plaintiffs are having opportunity to
claim mesne profit or compensation in the suit. No directions to deposit
rent amount in the court are required to be issued. Similarly,
appointment of the Court Receiver is not justified. Prayer clause (a) in
the notice of motion is in the form of seeking mandatory injunction at
interim stage by preventing defendants no.1 to 3 from using the suit
premises. Admittedly, defendant no.1 is in possession of the suit
premises. Relief of recovery of possession cannot be granted at interim
stage merely because it is worded in the form of mandatory injunction.
Hence, I pass the following order :
ORDER
1. Notice of Motion No. 3841/2022 is made absolute in terms
of prayer clause (b).
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N/m No. 3841/22 in Suit No. 2210/19. 5 Order.
2. Proceeding of N/m No. 3841/2022 is closed.
(R.R.BHAGWAT)
Judge,
City Civil Court,
(Court Room No.66)
Date : 27/03/2023. Mumbai.
1. Dictated on : 27/03/2023.
2. Transcribed on : 28/03/2023.
3. Checked and Signed on : 28/03/2023.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
28/03/2023. 5.32 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 27/03/2023.
Judgment/Order signed by P.O. on 28/03/2023.
Judgment/Order uploaded on 28/03/2023.
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