Order 2

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 152018; in Suit no.679 of 2018
MHCC010047452018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER IN NOTICE OF MOTION NO.1520 OF 2018
IN
SUIT NO.679 OF 2018
Mr. Janakiram Bhoomaiah Pitla ...Plaintiff
V/s
Mr. Vilas Anna Jadhav ....Defendant.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 11th DAY OF AUGUST, 2022
: Appearance:
Adv.J.D.Singh for plaintiff.
None present for the defendant.
ORAL ORDER
The present notice of motion has been taken out by the
plaintiff for claiming reliefs interalia to restrain the defendant from
disturbing, dispossessing, alienating and /or creating third party right
in respect of suit premises i.e. suit stall bearing shop no.6, Senapati
Bapat Marg, Babaji Jamsandekar Marg, Opp. Sulabh Sauchalaya Near
Shivalay, Lower Parel, Mumbai 400013, admeasuring about 30 sq.
fts. carpet area (hereinafter referred to as ‘Suit Premises’) and for
other reliefs.
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2 Ord. in NM no 152018; in Suit no.679 of 2018
2. In short, it is contention of the plaintiff that the
defendant is the owner of the suit premises. He has purchased suit
premises from one Mr. Taufique Babubhai Kawthekar for a valuable
consideration of Rs.5,50,000/. The defendant is the friend of the
plaintiff. The plaintiff used to help the defendant financially. On
05.05.2010 the plaintiff has given a sum of Rs.5,00,000/ in cash to
the defendant as a handloan against which the defendant has
deposited in custody of the plaintiff, the original documents in respect
of the suit premises.
3. It is further contention of the plaintiff that, the defendant
has also executed the memorandum of understanding dated
05.05.2010 in favour of the plaintiff, thereby assuring the plaintiff
that if the defendant failed to return the above said loan amount of
Rs.5,00,000/ then the plaintiff will take the possession of the suit
premises.
4. It is further contention of the plaintiff that, during
pendency of the above said loan amount of Rs.5,00,000/, the
defendant has taken a further loan of Rs.6,50,000/from the plaintiff
amounting to total Rs.11,50,000/. The above said sum of
Rs.6,50,000/ was given by the plaintiff to the defendant against the
suit premises as and by way of heavy deposit i.e. leave and licence. It
is contended by the plaintiff that the defendant put the plaintiff in
possession of the suit premises. Thus, the plaintiff was in use,
occupation and possession of the suit premises from 10.05.2013 to
09.05.2016. It is contended that the defendant on expiry of the above
period refunded the heavy deposits of Rs.6,50,000/ to the plaintiff
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3 Ord. in NM no 152018; in Suit no.679 of 2018
and the plaintiff has given back the possession of suit premises to the
defendant. It is further contention of the plaintiff that the defendant
in the year April / May 2016 paid the part payment of Rs. 6,50,000/
(Rupees Six lacs fifty thousand only) leaving behind a balance of
Rs.5,00,000/(Rupees Five lacs only) to be paid to the plaintiff.
Thereafter the defendant avoided to make payment of balance
amount of Rs.5,00,000/(Rupees Five lacs only). Thereafter the
defendant shown his inability to pay the same and as per the
memorandum of understanding dated 05.05.2010 put the plaintiff
again in the vacant and peaceful possession of the suit premises on
September, 2017. Since then the plaintiff is in peaceful possession of
the suit premises.
5. It is further contention of the plaintiff that, thereafter
the plaintiff from time to time requested the defendant to give his
amount with interest and took the possession of the suit premises.
However, the defendant failed to do so. Now On 26.12.2017 the
defendant out of blue came to the suit premises and threatened to the
plaintiff to give vacant possession of the suit premises else to suffer
consequences. Therefore the plaintiff has lodged report with the
police station N.M. Joshi Marg on 27.12.2017. However, the police
did not took its cognizance and issued NC receipt. Thereafter the
police has informed the plaintiff that the defendant has given written
complaint against the plaintiff on 01.01.2018 alleging therein that the
plaintiff has taken forcible possession of the suit premises. Thereafter
the defendant by making phone call threatened the plaintiff to vacate
the suit premises. Now the plaintiff having apprehension that the
defendant may took forcible possession of the suit premises hence the
present notice of motion.
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4 Ord. in NM no 152018; in Suit no.679 of 2018
6. Inspite of service the defendant failed to appear hence
the suit proceeded exparte against the defendant.
7. Heard the learned advocate for the plaintiff, following
points arise for my determination to which I record my findings with
reasons as follows:
Sr.
No.
Points Determination.
1. Whether the plaintiff made out case for
grant of relief as claimed in notice of
motion ?
No
2. What order ? As per final order.
REASONS
As to point no.1:
8. It is well settled principal of law that to claim the relief of
temporary injunction, the plaintiff has to prove that, he has prima
facie case in his favour, the balance of convenience lies in his favour
and if the injunction is refused to him, then the plaintiff will suffer
irreparable loss which cannot be compensated in terms of money.
9. It is main contention of the plaintiff that, inlieu of
advancement of loan of Rs.5,00,000/(Rupees Five lacs only) to the
defendant, the defendant has put the plaintiff in possession of suit
premises. It is further contention of the plaintiff that now the
defendant any how want to take forcible possession of the suit
premises without making the repayment of loan amount. In support
of his contention, the plaintiff has filed photographs and
memorandum of understanding. Upon perusal of memorandum of
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5 Ord. in NM no 152018; in Suit no.679 of 2018
understanding dated 05.05.2010, it reveals that the defendant has
obtained loan of Rs.5,00,000/(Rupees Five lacs only) from the
plaintiff. As per the memorandum of understanding it is agreed in
between the parties that the defendant will mortgage the suit
property with the plaintiff and deposit all the documents with him.
The defendant will pay an amount of Rs.5,00,000/((Rupees Five lacs
only) within two years to the plaintiff. It is further agreed that if, the
defendant failed to pay loan amount within period of two years then
he will be handed over the possession of suit premises to the plaintiff.
10. It is contention of the plaintiff that as the defendant
failed to pay the amount of loan of Rs.5,00,000/((Rupees Five lacs
only), hence, the defendant put the plaintiff in possession of suit
premises in the month of September, 2017 in lieu of memorandum of
understanding dated 05.05.2010. However, no documents is filed on
record to show that the plaintiff was put in possession of the suit
premises in the month of September, 2017 by the plaintiff. Even
nothing on record to substantiate the claim of the plaintiff that he
was put in possession and is in possession of the suit premises. Even
upon perusal of NC, the plaintiff came with the case that the
defendant had demanded Rs.5,00,000/(Rupees Five lacs only) to the
plaintiff and against the same allow him to run business in the suit
premises, which is totally inconsistent with the pleadings of the
plaintiff. Nothing on record to show that the plaintiff has issued
notice at any time and has demanded the due amount. As per the
plaintiff original documents of title was kept with him in lieu of
advancement of loan, but no document filed on record. Even there is
no document regarding transaction of Rs.6,50,000/ as pleaded.
Therefore, the plaintiff prima facie failed to prove his possession over
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6 Ord. in NM no 152018; in Suit no.679 of 2018
the suit property. Therefore the question of balance of convenience
lies in favour of the plaintiff does not arise. Naturally, if the
injunction is refuse to the plaintiff then question of causing any
irreparable loss to the plaintiff does not arise. Hence my answer to
point no. is in negative.
As to point no.2:
11. In view of my above discussion, I pass the following
order:
ORDER
Notice of motion no.1520 of 2018 is rejected.
Notice of motion stands disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date:.11.08.2022 (C.R. No.1)
Dictated on : 11.08.2022
Transcribed on : 12.08.2022
Signed on :
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7 Ord. in NM no 152018; in Suit no.679 of 2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 17.08.2022 NAME OF STENOGRAPHER(GI)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 11.08.2022
JUDGMENT/ORDER signed by P.O. on 17.08.2022
JUDGEMENT/ORDER uploaded on 17.08.2022
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