Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 1618-20 in SU no.429-14
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON NOTICE OF MOTION NO. 1618 of 2020
(CNR no. MHCC01-004830-2020)
IN
SUIT NO. 429 OF 2014
(CNR no. MHCC01-001415-2014)
Sushma Builders,
A Partnership Firm Registered Under the Provisions
of the Indian Partnership Act, 1932
having its registered office at Jawhar Talkies
Compound, Rajendra Prasad Road,
Mulund (West), Mumbai-400080.
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Plaintiff
Versus
1. Manmohan Harsai Obhan
Age about 55 years,
Flat no.106, Liberty Complex, Arvind Nagar
Karwar Road, Hubli-580024.
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2. Ramesh Harisai Obhan
Age about 50 years,
Amar Prem Co. Hsg Society,
Flat no.24, Sector 16/A, Near Modern College,
Vashi, Mumbai-400703.
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3. Jayshree Sawaran Obhan
Widow of Swaran Harsai Obhan
Yash Residency, 2nd Floor, Flat No.04,
Umaji Colony, Opp. Shree Maya Hotel,
Basilal Nagar, Aurangabad-431133.
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4. Mohini Devi Praladchand Oberoi
Bldg. No. 3 Room No. 34, Sardar Nagar No.4,
Rawali Camp, Mumbai-400 037.
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5. Rani Ramprakash Wasan
Bldg. No. 13, Room No. 607-608,
G.T.B. Nagar, Sion Koliwada, Mumbai-37.
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6. Shobha Anil Mehra
Pratham Heritage ‘A’ Wing,
7th Floor, Sector No.19, Kamothe
(Khandeshwar), New Mumbai-410209.
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7. Veena Hariom Vasan
3rd Floor, 4/167 Jatin Villa,
Sion (East), Mumbai-400022.
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8. Gita Vinod Vijan
Ground Floor, Om Lamba Co-op Hsg. Society
Ltd., Opp. Bakti Dham Mandir, S.T. Road,
Chunabhatti, Mumbai-400 022.
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9. Lata Gulshan Bhatla
Mahesh Kutir, Plot No.148, Flat No.102,
14th Floor, Chembur, Mumbai-400071.
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10. Narendra Doduram Obhan
Age about 67 years
Gurudevi Mansion, 1st floor,
Flat no.4 & 5,3/AKA, Subramanium Road,
King Circle, Mumbai-400019.
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11. Deepak Narendra Obhan
Age about 41 years Gurudevi Mansion,
1st Floor, Flat No.4 & 5, 3/AKA, Subramanium
Road, King Circle, Mumbai-400019.
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12. Nandakumar Duduram Obhan
Gurudevi Mansion, 1st Floor, Flat No.4 & 5,
3/AKA, Subramanium Road, King Circle,
Mumbai-400019.
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13. Shashi Baldev Obhan
Widow of Devklumar Mohanchand Obhan
Indira Puri Building, 43A, 4th Floor,
Flat No.22, Sion Circle, Sion (West),
Mumbai-400022.
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14.A Smt Geeta Vijay Obhan ]
14.B Master Vishal Vijay Obhan
Minor Age about 15 years,
Both residing at Indrapuri Building,
43, 4th Floor, Flat no.22, Sion Circle,
Sion(West), Mumbai-400022.
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15. Sheela Ashok Obhan
Widow of Ashok Mohanchand Obhan,
6/14, Borla Society, Dr. C.S. Road,
Chembur, Mumbai-400074.
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16. Shri Mayur Pankh Co. Op. Hsg. Soc. Ltd.
Having Residency Office at N.S. Road,
Mulund (West), Mumbai-400080.
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Defendants
Appearances:-
Ld. Advocate Mr. P. D. Gandhi for the Plaintiff.
Ld. Advocate Mr. Ashish Mishra i/b Mr. Sanjeet Shukla for
Defendants no.2, 3, 9 to 11, 13, 14A and 14B.
Ld. Advocate Mr. Singh for defendant no.16.
CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 4)
DATED : 13th January, 2021.
O R A L O R D E R
1. During pendancy of this old suit of 2014, the plaintiff
allegedly noticed illegal acts of the defendant no.11 in collusion and
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connivance to one of the tenants of the suit property and thereafter
the instant Notice of Motion has been filed with following prayers :
(a) That pending the hearing and final disposal of the suit, this
Hon’ble Court be pleased to appoint the Court Receiver,
High Court Bombay or some other fit and proper person to
be the Receiver in respect of the said Room No.11, Obhan
Niwas, N. S. Road, Mulund(W), Mumbai-400 080 with all the
powers under Order 40 Rule 1 of the Code of Civil
Procedure, including the power to take possession thereof.
(b) Pending the hearing and final disposal of the suit the
Defendants No. 2, 3, 9, 10, 11, 13 and 14-A & B their
agents and servants and any one claiming through them be
restrained by an order of injunction of this Hon’ble Court
from demanding any sum on account of rent, municipal
taxes, repair charges, maintenance, water etc., from the
tenants of the Plaintiffs in respect of the property bearing
C.T.S. No.930 Obhan Niwas, N. S. Road, Mulund (West),
Mumbai-400 080.
(c) Pending the hearing and final disposal of the suit, the
Defendants No.2, 3, 9, 10, 11, 13 and 14-A & B be
restrained by an order of injunction of this Hon’ble Court
from entering into and remaining over the suit property as
more particularly described in Exhibit “A” to the Plaint, i.e.
C.T.S. No.930 Obhan Niwas, N. S. Road, Mulund (West),
Mumbai-400 080.
(d) Pending the hearing and final disposal of the suit the
Defendants No.2, 3, 9, 10, 11, 13 and 14-A & B be order
and directed to deposit, in this Hon’ble Court all the sums of
money recovered from the tenants of the Plaintiffs from said
property i.e. C.T.S. No. 930, Obhan Niwas, N.S. Road,
Mulund(West), Mumbai-400 080, till date.
It will not be out of place to mention that on the date
of the placing of the suit before this Court i.e. 12.02.2014, the Court
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directed the defendants not to create third party interest in the suit
property and the same order continued till date. It is also worth
noticing that defendants no. 1, 4, 5, 6, 7, 8, 12 & 15 have accepted
the claim of the plaintiff and filed consent terms on 19.06.2019.
2. The subject matter of the suit is two properties viz. all
that piece and parcel of land and the structure standing thereon
bearing C.T.S. Nos. 928 and 930 of Mulund (West), Mumbai. The
plaintiff claims to have obtained possession of the suit property by
virtue of an Agreement to Sale dated 03.05.1979 and in furtherance
of the said Agreement, the present defendants and their Predecessor
addressed letter of Attornment dated 17.09.1979 to the tenants of
the property known as Obhan Niwas i.e. building structure standing
on land bearing C.T.S. 930. The plaintiff has also filed rent receipts
issued to the tenants by the plaintiff for recovering rent from them
from time to time. The plaintiff has also filed Tax receipts of the
suit property. The contesting defendants have denied all these
statements but they have not come up with a clear case. From their
reply to the Notice of Motion, it can be seen that they have
objected the Notice of Motion on the grounds of limitation,
res-
judicata and non registration of Agreement dated 03.05.1979. In
respect of Room No.11, the defendants have claimed that they are
in possession of the said room since decades and mandatory
injunction to remove the lock can not be granted. In this context, it
will have to be noticed that in the plaint, it is clearly mentioned
that said Room No.11 was also given in possession of the plaintiff at
the time of the agreement and the plaintiff stored scrap material in
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the said room. After perusal of the Agreement dated 03.05.1979, it
is visible that the defendants/ their Predecessor handed over
possession of both C.T.S. Nos.928 and 930 to the plaintiff including
Room No.11. Therefore, there is no merit in the submission of the
defendants that they are in possession of Room No.11.
3. With regard to the issue of limitation wherein the
defendants are claiming that the suit filed in 2014 based on the
Agreement for Sale executed in 1979 is hopelessly barred by
limitation, paragraph no.6(2.) of the Agreement stipulates as under:
2. The Sale shall be completed within six months from the date
hereof or within one month from the date of the Vendors
obtaining the permission and certificates referred to in the
Clause 11 whichever is later.
Clause 11 deals with 3 clauses which read as under :
Hence, following order :
11. The Vendors shall obtain :
(a) Permission of the Competent Authority under Section 27 of
the said Ceiling Act for transferring the Property in favour
of the Purchasers and/or their Nominee/s;
(b) Certificate Under Section 230-A of the Income Tax Act and
for transferring in favour of the Purchasers;
(c) Order of the High Court sanctioning the Sale of the said
minor Gitadevi.
4. In the letter dated 17.09.1979 to plaintiff, it is clarified
by the defendants that the said permissions and sanctions were not
obtained by them. The defendants have not produced any document
to show that they obtained these permissions/sanctions on a
particular date and the said date was communicated to the plaintiff.
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In view thereof they can not contend that the suit is barred by
limitation because the limitation would have started only after these
permissions and sanctions were obtained by the defendants. In that
backdrop, the citations relied upon by the defendants are not
applicable to the facts of this case.
5. With regard to the issue of
res-
judicata, the instant
Notice of Motion came to be filed after the plaintiff noticed that the
defendants started demanding rent from the tenants in September,
2020. Therefore, the principle of
res-
judicata are not applicable to
this proceeding.
6. The defendants have also raised a point that the plaintiff
can not succeed in the suit for non registration of Agreement dated
03.05.1979. This point will have to be decided after recording
evidence of the parties. Registration of documents for the purpose of
Section 53-A of Transfer of Property Act, 1882 was made
compulsory by Amendment Act, 2001. The instant Agreement dated
03.05.1979 is clearly prior in point of time and therefore, the
rigours of the said amendment are not applicable to this Agreement.
From the above discussion, the plaintiff has
prima facie established
his possession over the suit property and the defendants have failed
to show that they have right to collect the rent etc. or claim right
over Room No.11 in the suit property. Therefore, this is fit case to
grant the reliefs sought by the plaintiff. Hence, following order :
ORDER
1. The Notice of Motion no.1618 of 2020 is partly allowed.
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2. Mr. S. N. Redij, Deputy Registrar, City Civil & Sessions Court,
Mumbai is appointed as Court Receiver in respect of the Room
No.11, Obhan Niwas, N. S. Road, Mulund (W), Mumbai-400
080 with all the powers under Order 40 Rule 1 of the Code of
Civil Procedure, including the power to take possession
thereof.
3. The Defendants no.2, 3, 9, 10, 11, 13 and 14-A & B are
temporarily restrained from demanding any sum on account of
rent, municipal taxes, repair charges, maintenance, water, etc.,
from the tenants of the plaintiff in respect of the property
bearing C.T.S. No.930 Obhan Niwas, N. S. Road, Mulund
(West), Mumbai-400 080 till final disposal of the suit.
4. The Defendants no. 2, 3, 9, 10, 11, 13 and 14-A & B are
temporarily restrained from entering into the suit property as
described in Exhibit “A” to the plaint, i.e. C.T.S. No.930
Obhan Niwas, N. S. Road, Mulund (W), Mumbai-400 080 till
final disposal of the suit.
5. In absence of details of amounts prayer clause (d) is rejected.
6. Costs in cause.
(C. V. Marathe)
Judge,
Date : 13.01.2021. City Civil Court, Gr. Mumbai.
Dictated on : 13.01.2021
Transcribed on : 13.01.2021
Signed by HHJ on : 13.01.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 13.01.2021 at 3.20 p.m.
NAME OF STENOGRAPHER : Mrs. G. 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
13/01/2021
JUDGMENT/ORDER signed by
P.O. on
13/01/2021
JUDGMENT/ORDER uploaded
on
13/01/2021
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