Order 1

Order Details: Notice of Motion
Pdf Text: ..1..
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1485 OF 2018
IN
SUIT NO.776 OF 2018
(CNR NO.MHCC01-004652-2018)
Pratibha Subhash Ghumare ).. Plaintiff
V/s.
Pyarelal Mataru Vishwakarma and Ors. ).. Defendants.
Appearances :-
Ld. Adv. Mr. Arvind Taral for plaintiff.
Ld. Adv. Mr. Ashutosh Shukla for defendant No.1.
Ld. Adv. Tridevi for defendant No.3/SRA.
CORAM : HIS HONOUR JUDGE V. V. PATIL
COURT ROOM NO.09
DATE : 28th February, 2024.
ORDER
1. Plaintiff has taken out present notice of motion seeking
relief of temporary injunction against defendant Nos.1 and 2 from
creating third party rights in the suit property and to appoint Court
Commissioner under Order XXXX, Rule II of Code of Civil Procedure,
1908.
-- 1 of 11 --
..2..
2. It is contention of the plaintiff that she has purchased suit
premises which was situated in the Savitribai Phule Nagar, which was
known as ‘Flat No.512, Sai Chhaya Co-Operative Society Ltd. at Pant
Nagar, Ghatkopar (E), Mumbai from one Mr. Mataru Vishwakarma who
is the Late father of defendant No.1 who has executed Agreement for
Sale, Affidavit, Indemnity Bond and Power of Attorney in favour of
plaintiff on 27.03.2009. The defendant No.2 is also witness to the
agreement executed by his Late father. Defendant No.1 and his mother
i.e. wife of Late Mataru Vishwakarma have executed NOC in favour of
plaintiff on 02.04.2009. Said Mataru Vishwakarma has been expired on
03.04.2009.
3. Defendant Nos. 2 to 4 have allotted room No.512, Sai
Chhaya CHS Ltd. in lieu of earlier hut premises being Annexure No.174
to defendant No.1, being the legal heir of deceased Mataru
Vishwakarma. Defendant Nos. 2 to 4 are unable to give specific date for
handing over possession to him till date. Defendant NO.4 is the
developer of the society who has developed the society and allotted the
flat to respective members including these defendants. Defendant No.4
has completed the construction of the building in the year 2014 and
handed over the possession to defendant No.2 Society and accordingly,
defendant No.2 has allotted the flat to the existing occupiers
accordingly. Though, plaintiff is legally entitled for the allotment of the
flat in view of the agreement executed by Late Mr. Mataru
Vishwakarma, the original occupier of the said room premises,
defendant No.1 is illegal occupying the room and instead of handing
over the possession to the plaintiff, the defendant No.2 to 4, in collusion
-- 2 of 11 --
..3..
with defendant No.1, allotted the said premises in the year 2015 to
defendant No.1, being son of Late Mataru Vishwakarma. Inspite of
having knowledge of executing the documents i.e. Agreement for Sale,
Affidavit, Indemnity Bond and Power of Attorney, the defendant No.1
did not disclose the same to the concerned authority and suppressed the
material fact and has taken over possession of the said flat from
defendant No.2. Defendant No.2, without verifying the documents,
handed over the possession to the defendant No.1. Plaintiff made
correspondence to defendant No.3 and made complaint to Competent
Authority. Defendant Nos. 1 and 2 failed and neglected to allot the flat
to her. Hence, plaintiff has also give notice to defendant No.1 to hand
over possession of the suit premises to her. Inspite of receipt of notice,
defendant No.1 failed and neglected to hand over vacant possession of
the suit premises to her.
4. It is further contended that plaintiff made application to
Deputy Collector, Ghatkopar, Mumbai for incorporating her name in
place of Late Mataru Vishwakarma in Annexure-II vide her application
dated 13.12.2023. Plaintiff also made complaint to Assistant Registrar
Co-operative Society of SRA and issued notice to defendant
No.2/Society and defendant No.4/Developer to remain present on
14.03.2014. Thereafter, the Assistant Registrar Co-Operative Society of
SRA vide its order dated 18.03.2014, directed defendant Nos.1 to 4 to
hand over possession of the flat to the plaintiff. Thereafter, again the
Registrar of Co-Operative Society of SRA vide order dated 16.05.2014
directed defendant Nos. 2 to 4 to hand over possession of the flat to the
plaintiff as per order dated 18.03.2014. Further, vide order dated
-- 3 of 11 --
..4..
27.05.2014, directed the plaintiff to take possession of the flat on her
own or to seek police aid. Accordingly, plaintiff applied for police aid to
Pant Nagar Police Station for vacating the room premises from
defendant No.1. However, police did not help her and asked her to
approach Civil Court for recovery of possession. Thereafter, plaintiff had
made several correspondence with defendant Nos.2 to 4 but they failed
and neglected to hand over possession of the suit premises to defendant
No.1.
5. Further, it is contended that plaintiff has reliably learnt that
defendants intents to sell and/or let out the suit premises to third
person and defendants may likely to create third party interest in favour
of any person in respect of the suit premises. Hence, plaintiff has taken
out present Notice of Motion praying for granting injunction against
defendant No.2 restraining him from creating third party right in the
suit premises and for appointment of Court Commissioner.
6. Defendant No.1 filed an Affidavit-in-Reply to the Notice of
Motion and strongly opposed the same. It is contended that, plaintiff is
seeking declaration in respect of agreement allegedly executed by father
of defendant No.1, which is itself unregistered instrument and same is
not enforceable under the provisions of law. Further, his father was in
use and occupation of the hut. After death of father, the order was
passed in favour of deceased mother Smt. Rajdevi Mataru Vishwakarma
by the SRA on 22.10.2011 and thereafter order was passed by SRA on
19.06.2014 in favour of defendant No.1. SRA allotted suit premises in
favour of deceased father and mother and accordingly issued the
-- 4 of 11 --
..5..
identity card dated 21.12.2018. It is contended that alleged Agreement
was never executed by the deceased father of defendant No.1 and at the
time of the alleged Agreement dated 27.03.2009, the old room premises
was demolished by the developer under the Slum Scheme and the said
room premises was not in existence and therefore, no question of
alleged agreement arises. The Annexure-II was prepared by the Deputy
Collector at Mulund in which name of deceased father Mataru
Vishwakarma was mentioned at the Sr. No.174. Further, the father nor
defendant No.1 received amount/consideration from the plaintiff.
Under the policy of slum room premises can not be sold upto 10 years
and defendant No.1 denies the existence of the agreement. Further,
present suit is barred under the provisions of Section 42 of the Slum
Act. It is contended that since the allotment of suit flat to this defendant
No.1, the plaintiff who was neighbour occupant of the old structure is
trying to harass the defendant No.1 on one pretext to other. Defendant
No.1’s father was not feeling well and was suffering from various
ailments including mental problem and the father was ultimately died
on 03.04.2009. His father never signed any alleged document as
referred by the plaintiff in the present suit and present suit is nothing
but a attempt to harass defendant No.1 to grab the suit premises by
using forged and fabricated documents. Hence, defendant prayed for
dismissing Notice of Motion with cost.
7. Perused the Notice of Motion & Affidavit in support of
Notice of Motion. Also perused an Affidavit-in-Reply filed by defendant
No.1. The following points arise for my determination and I have
recorded my findings to them for the reasons stated below :-
-- 5 of 11 --
..6..
Sr. No. POINTS FINDINGS
1. Whether the plaintiff has made out
prima facie case in his favour ? Partly in the
affirmative.
2. Whether balance of convenience lies in
favour of plaintiff ?
In the affirmative
3. Whether irreparable loss will be caused
to the plaintiff, if present Notice of
Motion is not allowed ?
In the affirmative
4. What order? As per the final order
R E A S O N S
AS TO POINT NO.1 TO 3 :
8. As point No.1 to 3 are interrelated with each other, in order
to avoid repetition of discussion, I am discussing them together.
9. Heard Ld. Advocate for both sides at length. It is not
disputed that defendant’s father Mataru Vishwakarma was in use and
occupation of the hut premises situated in Savitribai Phule Nagar which
was known as Sai Chhaya CHS Ltd. Plaintiff claims that she purchased
the hut premises from said Mataru Vishwakarma who executed
Agreement for Sale, Affidavit, Indemnity Bond and Power of Attorney in
favour of plaintiff on 27.03.2009. Plaintiff has produced on record said
documents. Defendant has denied the execution of said documents.
According to him, SRA allotted the suit premises in favour of his
deceased father Mataru Vishwakarma and after his death to his mother
-- 6 of 11 --
..7..
Smt. Raidevi Mataru Vishwakarma. Defendant, being legal heir of his
deceased father and mother, was entitled to the said premises and
hence, SRA on 22.10.2011 passed order on 19.06.2014 in favour of
defendant No.1. Defendant has claimed that the alleged documents
were never executed by his father and plaintiff is relying on the forged
documents.
10. Here, it is pertinent to note that, plaintiff has produced on
record documents such as Agreement for sale, Affidavit executed by
Mataru Vishwakarma, the father of defendant No.1 in favour of plaintiff
dated 27.06.2009. She has also produced on record, Affidavit-cum
declaration executed by defendant No.1 and his mother Smt. Rajdevi
Mataru Vishwakarma thereby giving no objection for selling the hut to
the plaintiff. Now, here it is also pertinent to note that, defendant No.1
himself has executed Affidavit-cum-declaration thereby giving no
objection for selling the hut to the plaintiff. Further, he is also witness
and has signed the Agreement for Sale executed by his father.
Defendant No.1 could not offer any explanation about the same. He
merely denied these documents by saying that his father had never
executed any documents. However, he has not denied specifically his
signature on the said documents and that he has never executed or
signed said documents. So far as the contention of the defendant No.1
that documents i.e. Agreement for Sale is unregistered is concerned,
advocate for plaintiff has relied upon authority in the case of Ramesh
Govind Chowkekar vs. The State of Maharashtra in Writ Petition (L)
No.36584/2022 of Hon’ble Bombay High Court wherein Hon’ble
Bombay High Court has observed that, ‘These slum rehabilitation
-- 7 of 11 --
..8..
projects often take a long time, sometimes even decades. The eligibility
is often held in the name of the original transferor or the original
occupant and the rights of the transferee are somehow not recognised.
Further, whether this is because of a failure on the part of the transferee
to make an appropriate application to the SRA or otherwise, is perhaps
immaterial at this stage. We do not know any mechanism by which such
persons are put to notice that they must apply to the SRA to have their
transfer recognised. The transfer typically desires to cash in on the value
of the structures by taking money from the transferee. This is because
there is no imminent prospect of the rehabilitation tenement coming up.
It is further observed that, “the transferor of the hut thus, ends up with
double benefit : he/she has the transferee’s money and has held it and
enjoyed it for a long period of time. Now the transferor also lays claim
to the high value rehab tenement. The transferee has left in what is
virtually a hopeless situation. The transferee stands to lose everything.”
Further, Hon’ble High Court has observed that, “the matter will need to
be examined. Respondent No.6 will undoubtedly need to be heard. It
may be true that the Sale Deed between the Petitioner and Parvatibai is
not registered. There are many such in existence and SRA is not
unaware of this.” Consequently, Hon’ble Bombay High Court pleased to
grant relief to the petitioner.
11. The facts of the above authority are identical to the facts of
the present case. In the present case also, the plaintiff has entered into
agreement of sale with the transferor/owner by paying amount of Rs.5
Lacs and now, the defendant NO.1, the son of the transferor, is claiming
the said premises. In the present matter also, the document is
-- 8 of 11 --
..9..
unregistered, however, it can be seen prima facie from the documents
produced on record that plaintiff purchased the said premise from the
father of defendant No.1. Further, from the order of Assistant Registrar
Co-operative Society of SRA dated 18.03.2014 and 16.05.2014, it can
be seen that defendant Nos.2 and 4 were directed to hand over
possession of the premises to the plaintiff which they failed to do and
instead handed over possession to defendant NO.1. Thus, prima facie it
can be seen that plaintiff has right, title and interest in the suit
premises.
12. Plaintiff has contended that, she has reliably learnt that
defendants are going to create third party interest in the suit property.
Therefore, in order to avoid multiplicity of proceedings and in order to
protect the rights of the plaintiff till finally deciding the matter on merit,
it would be just and proper to pass order in terms of prayer clause (a) of
Notice of Motion. No case is made out for appointment of Court
Commissioner as prayed. Therefore, said relief can not be granted.
13. Thus, plaintiff has made out prima facie case for grant of
interim relief in terms of prayer clause (a) of Notice of Motion. Balance
of conveyance also lies in favour of plaintiff. If no relief as claimed is
granted and if defendants create third party rights in respect of the suit
premises, definitely, irreparable loss will be caused to the plaintiff.
Whereas, no irreparable loss will be caused to the defendant, if prayer
clause (a) in the Notice of Motion is allowed. Hence, I answer point
Nos. 1 to 3 in affirmative and hold that the present Notice of Motion is
deserves to be partly allowed. In the result, I proceed to pass the
-- 9 of 11 --
..10..
following order :-
ORDER
1. Notice Motion No.1485/2018 in Suit No.776/2018, is
hereby made absolute in terms of prayer clause (a).
2. Notice of Motion is disposed off accordingly.
(Order dictated & pronounced in open Court)
(V. V. PATIL)
Judge, City Civil Court,
Dated : 28.02.2024 C.R. No.09, Gr. Mumbai
Dictated on : 28.02.2024
Transcribed on : 29.02.2024
Signed on : 29.02.2024
-- 10 of 11 --
..11..
“Certified to be true and correct copy of the original signed order”.
28.02.2024
at about 16.30 p.m.
(Manisha D. Hirole)
Stenographer (Grade-I.)
Court Room No.09, Gr. Mumbai.
Name of the Hon'ble Judge : HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Order : 28.02.2024
Order signed by Hon'ble Judge on : 29.02.2024
Order uploaded on : 29.02.2024
-- 11 of 11 --