Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1531/2020 in S.C. Suit 1135/2020
NOTICE OF MOTION NO. 1531 OF 2020
IN
S.C. SUIT NO. 1135 OF 2020
CNR NO. : MHCC010046502020
Mr. Bhakaram Khojaram Bishnoi …Plaintiff
Versus
Mr. Kiran Shivaji Sunka ...Defendant
Appearance:
Adv. Shri. A.J. Jadhav for Plaintiff.
Adv. Shri. A.S. Kharatmol for Defendant.
CORAM : SMT. S.S. NAGUR
JUDGE, (C.R.NO.66)
DATE : 21.04.2022
ORDER
The Notice of Motion is filed by the plaintiff to restrain the
defendant from parting with possession or inducting any third party,
giving on leave and license basis, selling or assigning his right, title and
interest in respect of the suit property i.e. shop no. 2 in the building
known as 76 Cooper Building, 6th Kumbharwada, Mumbai 400 004. The
Notice of Motion is supported by Affidavit of Mr. Bhakaram Khojaram
Bishnoi, the plaintiff. The contents of the plaint are adopted by the
plaintiff in the Notice Motion.
2. The plaintiff stated that the plaintiff is the proprietor of
“Hariom Steel” dealing in stockists & suppliers of ferrous and non
ferrous Metals, stainless steel, Sheets and Sheet cut pieces since April
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2005. The defendant is a tenant in respect of the suit property, who has
allowed the plaintiff to do his business in the suit premises in monthly
rent of Rs. 546/. The plaintiff since then is doing the business in the
suit premises.
3. The plaintiff stated that since the year 2018, the defendant
changed his mind and attitude and by illegal means with the help of
antisocial elements started threatening the plaintiff to vacate the suit
premises. The Lockdown was declared by the Government of India
because of viral of Corona diseases (Covid19). The plaintiff with his
family went to his native place on 21.03.2020 at Rajasthan. The goods
and the articles of the plaintiff were lying in the suit premises. The
plaintiff along with his family returned to Mumbai on 23.06.2020 and
was quarantine for a period of 14 days. He came to know on
23.06.2020 that the defendant has broke open the lock of suit shop and
put his lock. After the home quarantine period was over on 05.07.2020,
the plaintiff went to the suit premises and he found that the defendant
has put his lock in the suit premises. The plaintiff tried to contact the
defendant on telephone, but he didn't receive his call. Therefore, on
06.07.2020 he came near the suit premises and refused the plaintiff to
enter into the suit premises. The plaintiff filed complaint to the police
station on 07.07.2020. The plaintiff has apprehension that the
defendant will transfer the suit shop. Hence, the Notice of Motion to
restrain the defendant from creating third party interest on the suit
premises.
4. The defendant filed reply through affidavit of Mr. Kiran
Shivaji Sunka and has denied the contents of Notice of Motion in toto.
The defendant has admitted that the plaintiff was in possession of the
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suit property, but it is the contention of the defendant that the plaintiff
has vacated the suit premises in the year 2012 and handed over the
peaceful possession of the suit premises, after he followed due
procedure of law. Therefore, the present suit under Section 6 (2)(a) of
the Specific Relief Act is not maintainable. He is the original tenant of
the suit premises since many years and in possession of the suit
premises. He is paying rent regularly to the landlord.
5. The defendant stated that the plaintiff was in possession of
the suit premises in the year 2005 for a period of 11 months on the
basis of Leave and License Agreement. The defendant permitted the
plaintiff to use and occupy the suit premises area admeasuring about
330 sq.ft. for 11 months with renewal clause at revised compensation
every year for another period of 22 months. As per Clause 4, the
possession physical as well as judicial along with original set of keys
was always with the defendant.
6. The defendant stated that he is doing business of
fabrication work in the name and style of S. Keeran Enterprises. The
plaintiff is doing the business and has stated that he has the documents
in his possession to show that he is doing the business in the suit
premises. Hence, prayed to reject the Notice of Motion.
7. The plaintiff filed rejoinder affidavit and has denied the
contents of reply in toto. The plaintiff stated that in reply and Written
Statement the defendant stated that the plaintiff vacated the suit
premises in the year 2012. The defendant is saying so because he issued
notice dated 02.01.2012 through his Advocate stating that the
defendant is in lawful use, occupation and possession of the suit
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premises.
8. In view of above pleadings of the parties, the following
points arise for my determination and the reasons with finding thereon
are as under :
POINTS FINDING
1) Whether the plaintiff has
made out a prima facie case?
No.
2) In whose favour balance of
convenience lies?
Defendant
3) Who will suffer irreparable
loss?
Defendant
4) What order? The Notice of Motion is rejected.
R E A S O N S
9. Heard Advocate Shri. A.J. Jadhav for the Plaintiff and
Advocate Shri. Anil Kharatmol for the Defendant. I have gone through
the contents of the Notice of Motion, reply and rejoinder to reply
supported by the Affidavit. I have also gone through the record.
As to point no. 1
10. It is an admitted fact between the parties that the plaintiff
was to be in possession of the suit premises in the year 2005. The
plaintiff's case is that he was in possession of the suit premises however,
he has been forcibly dispossessed from the suit premises on 19.06.2020.
The defendant's case is that the plaintiff has vacated the suit premises
and handed over the possession in the year 2012. The defendant is
doing the business of fabrication in the suit premises. The plaintiff as
well as the defendant have relied on the documents to show that they
are in possession of the suit premises.
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11. The plaintiff has relied on the Certificate of Registration
with the Sales Tax Department of 12.07.2005 and 01.04.2006. The Tax
Invoices of “Hariom Steel” showing the address of the suit property
dated 28.05.2010 and 29.07.2011. The Tax Invoices issued by “Jay
Metal” to the plaintiff dated 02.03.2020, 04.03.2020, 06.03.2020,
11.03.2020, 16.03.2020 and 19.03.2020. The demand notice issued by
the Department of Tax dated 29.11.2016 to the plaintiff in the address
of the suit premises. Notice under Section 271(1)(c) by the Income Tax
Department dated 29.11.2016 was issued in the address of the suit
property. The defendant has relied on the license renewed by him dated
25.05.2017 to do the business in the suit premises and 06.05.2016. It
shows the old license no. D56224. These are two licenses for
process/operation of trademetal cutting of ferrous and non ferrous,
Decorative Weather Frame, Rolling Shutter Box respectively. The
renewal factory premises issued by the Municipal Corporation on
01.04.2016. The old permit is of the year 2006.
12. The plaintiff has relied on the letters dated 04.10.2018,
21.09.2020 issued by Indian Infoline Finance Limited to the plaintiff to
show that he was in possession of the suit property as these letters are
issued in the address of the suit premises. The Income Tax Department
has issued notice under Section 221 (1) under Income Tax Department
Act on 30.01.2021 at the address of the suit premises.
13. The defendant in the affidavitinreply stated that the
document of Jay Metal filed by the plaintiff is owned by son of the
plaintiff, which is an admitted fact by the plaintiff in his statement
before V.P. Road Police Station, Girgaon, Mumbai dated 06.10.2020.
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The plaintiff has filed rejoinder affidavit to the affidavitinreply of the
plaintiff. The contents of para no. 5 is denied by the plaintiff stating
that, “the documents exhibited to the plaint does not clearly show that I
was in possession of the suit premises prior to six months”. He did not
say anything about the defence that “Jay Metal” is of his son.
14. The plaintiff has to prima facie prove that he was in
possession of the suit property prior to forcible dispossession on
19.06.2020. The documents of possession shown by the plaintiff are
Income Tax notice issued to him and India Infoline Finance Limited
issued at the address of the suit premises to the plaintiff.
15. In the Written Statement, the defendant has relied on the
complaint dated 22.06.2020 to the V.P. Road Police Station stating
about not allowing the plaintiff to enter the suit premises in the year
2012 and suddenly in the month of February 2020, the plaintiff
contacted him and threatened him to allow him to carry on business
from the suit premises failing which to face dire consequences. He has
also threatened that he will create forge documents and lodge false
complaint against him. The Leave and License Agreement is also relied
by the defendant dated 07.07.2005 between the plaintiff and the
defendant.
16. There is no document relied by the plaintiff to show that
since July 2011 till date he has done any business from the suit
premises. The Tax Invoice issued by “Jay Metal” is from 02.03.2020.
The defendant has disputed those documents on the ground that they
are created documents by the plaintiff. The plaintiff has relied on
Income Tax notice issued in the year 20162017 dated 29.11.2016 and
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20182019 dated 30.01.2021 and letters. Considering the document on
record of both the parties, it will require evidence. The plaintiff is
dispossessed from the suit property. He is seeking injunction against the
defendant, who is tenant in the suit premises not to create third party
interest. However, the plaintiff has not pleaded to show that the
defendant is trying to create third party interest in the suit premises.
Only because he has filed the suit, will not be a ground to grant
injunction of not to create third party. There should be real
apprehension in respect of creation of third party interest in the suit
property. Hence, I hold that the plaintiff has not made out prima facie
case and answer point no. 1 in negative.
As to point nos. 2 & 3
17. The plaintiff has not made out prima facie case. Only because
the plaintiff has filed the suit for specific performance, the injunction
not to create third party interest cannot be granted without pleading of
such apprehension. Balance of convenience is not in favour of the
plaintiff. No irreparable loss will cause to the plaintiff, in case injunction
is not granted. Accordingly answer point nos. 2 and 3 and pass
following order:
ORDER
1. The Notice of Motion is rejected.
2. No order as to costs.
3. Accordingly, the Notice of Motion is disposed of.
(SMT. S.S.NAGUR)
Judge
Dt.: 21/04/2022 City Civil Court,
Pronounced on : 21.04.2022 Gr. Mumbai
Dictated on : 21.04.2022
Typed on : 21.04.2022
Checked & Signed on : 25.04.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
26/04/2022 3.15 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.66)
Date of Pronouncement of
Judgment/Order.
21/04/2022
Judgment/order signed by P.O on 25/04/2022
Judgment/order uploaded on 26/04/2022
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