Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1.. NM NO. 1773/2019
MHCC010049052019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1773 OF 2019
IN
S.C. SUIT NO. 3168 OF 2018
Shriram Chabilal Gupta. …Plaintiff
Versus
Special Recovery and Sales Officer and others. … Defendants.
Appearance
Bipin Pathak, advocate for the plaintiff.
Surve, advocate for defendant no.2.
Omprakash Kangwal for defendant no.3.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 4th April, 2022.
O R A L O R D E R
Heard advocate for both parties on notice of motion moved on
behalf of the plaintiff for grant of temporary injunction to restrain
defendants or anybody on their behalf from dispossessing the plaintiff
from the suit premises ie., Shop No.C-4, Pawan Sweet & Farsan Mart,
Ratandeep Colony, opposite Bhaichand Textile, L.B.S. Marg, Bhandup
West, Mumbai 400 078 without following due process of law.
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2. Plaintiff's case, in short, is that the plaintiff is the owner and
occupant of shop no.C-3 and C-4, opposite Bhaichand Textile, L.B.S.
Marg, Bhandup West, Mumbai 400 078. Shop no.C-4 is the suit
premises. Defendant no.1 is Special Recovery Officer of Sadanand Co-
operative Credit Society Limited, defendant no.2. Smt. Rinki Ratnesh
Singh, defendant no.3 is daughter of Dharamraj Singh and defendant
no.4 is supposed to be landlord of Ratnadeep Colony.
3. Plaintiff acquired shop no.C-3 and C-4 from Dharamraj Singh
who subsequently expired on 05.09.2012. By way of Affidavit dated
22.12.1995, said Dharamraj Singh had given no objection to transfer all
the licences in the name of the plaintiff due to love and affection. After
getting the possession, plaintiff is carrying on business in the suit
premises since 1995 till today.
4. In the year 2010, Puzhangaraellat Madathiearmbil Aboobaker,
defendant no.4 had filed R.A.E. suit no. 110/115 of 2010 against said
Dharamraj Singh in respect of the suit premises but said suit was
dismissed for want of prosecution. Smt. Rinki Ratnesh Singh, defendant
no.3 prepared forged documents including Mortgage Deed in collusion
with the landlord Shafi Aboobaker in the name of Dharamraj Singh
representing that Dharamraj Singh had borrowed loan of Rs.3 Lakhs
from defendant no.2 Society and Dharamraj Singh did not pay said loan
therefore, defendant no.3 with collusion of officials of defendant no.2
Society started loan recovery proceeding in the year 2012.
5. Contention of the plaintiff is that Dharamraj Singh was admitted
in the hospital in the year 2010 for treatment of backbone and he was
not in good state of mind due to illness. Defendant no.3 forged
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Will which was in English language and took signature of the plaintiff
with intention to grab the suit premises. Plaintiff is ill-literate person.
Said Will was not prepared with consent of Dharamraj Singh.
6. On 10.05.2011, defendant no.3 and 4 tried to evict the plaintiff
from the suit premises with the help of local gundas. Plaintiff lodged the
report in Bhandup Police Station by letter dated 06.07.2011.
7. Further contention of the plaintiff is that with the help of forged
tenancy agreement and affidavit, said Dharamraj Singh mortgaged suit
premises and applied for loan to defendant no.2 Society only to illegally
dispossess the plaintiff from the suit premises. Actually there was no
money transaction between defendant no.2 Society and said Dharamraj
Singh. Defendant no.2 Society issued fake notice to Dharamraj Singh
and started recovery process before Deputy Registrar on 11.05.2012.
8. Said Dharamraj Singh already transferred the suit premises to
the plaintiff on 22.12.1995. Before sanctioning the loan, defendant no.2
Society has not made inquiry to find out actual possession in the suit
premises and verification of the address.
9. On 07.08.2012, Officer of defendant no.2 Society came to the
suit premises and asked whereabouts of Dharamraj Singh. At that time,
plaintiff came to know that said Dharamraj Singh had taken loan from
defendant no.2 Society. On 13.08.2012, plaintiff lodged report in
Bhandup Police Station about the forgery. Thereafter, plaintiff came to
know that Shafi Aboobaker, CA of defendant no.4 entered into an
Agreement of Tenancy as Dharamraj Singh is a party to said agreement
as a tenant and also Affidavit was made and executed in respect of shop
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no.4 i.e., suit premises in favour of Dharamraj Singh and same was
notarized on 07.05.2011.
10. On 26.02.2013, defendant no.1, Recovery Officer of defendant
no.2 Society prepared false recovery/seizure panchnama. Recovery
Officer never visited the spot of panchnama. If Dharamraj Singh was in
possession of shop no.C-4 i.e., the suit premises, then panchnama
should have been made on shop no.C-4. Nothing was seized from the
suit premises and nothing was given to defendant no.3. Hence the order
of attachment of suit shop is false and bogus. Plaintiff made complaint
against defendant no.1. Plaintiff challenged order dated 26.02.2013 of
attachment of the suit premises passed by defendant no.1 before the
Hon'ble High Court in Writ Petition No.4456 of 2013 and matter was
remanded back. Thereafter again on 31.08.2013, defendant no.1 passed
order. Said order was challenged by the plaintiff before the Divisional
Joint Registrar, Co-operative Society in Revision application no.560 of
2013. Said revision application is dismissed by order dated 06.11.2018.
Under the circumstances, plaintiff filed the present suit and is claiming
temporary injunction by way of present notice of motion on the ground
that plaintiff apprehends illegal dispossession at the hands of defendant
no.1 to 4 from the suit premises without following due process of law.
11. Contention of advocate for plaintiff is that plaintiff is in settled
possession of the suit premises and defendants cannot dispossess the
plaintiff from the suit premises without following due process of law.
Hence he prayed for allowing the notice of motion.
12. Defendant no.2 and 3 filed their reply to notice of motion and
submitted that Dharamraj Singh was monthly tenant of defendant no.4
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in respect of the suit premises. He was running Pawan Sweet & Farsan
Mart in the suit premises. Plaintiff was employee of said Dharamraj
Singh. Dharamraj Singh had taken loan from Nageshwar Co-operative
Credit Society in the year 2011. In the said loan proceeding, plaintiff
was guarantor no.1. Dharamraj Singh could not repay said loan. Hence
to repay said loan, he had taken loan of Rs.3 Lakhs from defendant no.2
Society by mortgaging the suit premises with consent of the landlord,
defendant no.4. Dharamraj Singh could not repay loan of defendant
no.2 Society. Hence defendant no.2 Society started recovery proceeding
against which plaintiff filed revision application no.560/2013. Said
revision is also dismissed. Defendant no.3 is daughter of Dharamraj
Singh. Dharamraj Singh was ill in the year 2010. Hence plaintiff as a
employee looking after business of Dharamraj Singh in the suit
premises. Plaintiff prepared forged affidavit dated 22.12.1995 by taking
disadvantage of illness of Dharamraj Singh. He also prepared other
documents in the name of suit premises. This fact came to the
knowledge of defendant no.3 during recovery proceeding initiated by
defendant no.2 Society. Hence defendant no.3 lodged report against the
plaintiff in Bhandup Police Station. Accordingly FIR bearing no.MECR
No.10/2013 is registered against the plaintiff for the offence of forgery
and cheating. Plaintiff was arrested and after remanding to PCR, his bail
application was rejected by the trial Court and subsequently he was
released on bail by the Sessions Court. Defendant no.1 followed due
process of law. Advocate for defendant no.3 supported argument of
defendant no.1. Under the circumstances, they prayed for dismissal of
notice of motion.
13. Plaintiff is claiming temporary injunction to restrain defendants
or anybody on their behalf from dispossessing the plaintiff from the suit
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premises ie., Shop No.C-4, Pawan Sweet & Farsan Mart, Ratandeep
Colony, opposite Bhaichand Textile, L.B.S. Marg, Bhandup West,
Mumbai 400 078 without following due process of law. It is well
settled that as per Order 39, Rule 1 of the C.P.C., plaintiff has to make
out prima facie case, balance of convenience and irreparable loss in his
favour for grant of temporary injunction. Grant of temporary injunction
is a discretionary and equitable relief. Person who seeks equity must do
equity and he should come before the Court with clean hands. In view
of legal principle, it is to be seen whether plaintiff has made out prima
facie case for grant of temporary injunction.
14. It is the specific case of the plaintiff that he acquired the suit
premises from Dharamraj Singh by way of affidavit dated 22.12.1995
and since then he is in possession of the suit premises and carrying on
business in the name of Pawan Sweet & Farsan Mart. All the documents
filed by the plaintiff are prepared after the year 2011. It is not disputed
by both parties that said Dharamraj Singh was ill in the year 2010.
15. It is specific case of defendant no.2 and 3 that Dharamraj Singh
was monthly tenant of defendant no.4 in respect of the suit premises.
He was running Pawan Sweet & Farsan Mart in the suit premises.
Plaintiff was employee of said Dharamraj Singh. It is not in dispute that
defendant no.3 is daughter of said Dharamraj Singh.
16. Document filed on record shows that in the year 2011,
Dharamraj Singh had taken loan from Nageshwar Co-operative Credit
Society in the year 2011. In the said loan proceeding, plaintiff was
guarantor no.1. Dharamraj Singh is shown as owner of Pawan Sweet &
Farsan Mart (suit premises), Ratandeep Colony, opposite Bhaichand
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Textile, L.B.S. Marg, Bhandup West, Mumbai 400 078 and plaintiff is
shown as guarantor. This fact is not denied by the plaintiff by way of
rejoinder. If Dharamraj Singh was owner of the suit premises in the
year 2011 then question arises how the plaintiff became the owner of
the suit premises in the year 1992. Moreover plaintiff did not file a
single document on record showing that since 1995 he is carrying on
business in the name of Pawan Sweet & Farsan Mart in the suit
premises. Date of death of Dharamraj Singh is not in dispute.
17. It further appears from documents filed by both parties on the
record that said Dharamraj Singh had taken loan from defendant no.2
Society to repay outstanding loan amount of Nageshwar Co-operative
Credit Society and for that purpose he had mortgaged the suit premises
with consent of the landlord. It is not in dispute that defendant no.4 is
the landlord of the suit premises. Dispute arose between the parties
when defendant no.2 started recovery proceeding in the year 2012
against Dharamraj Singh. Defendant no.2 Society obtained recovery
certificate from Deputy Registrar, Co-operative Society on 11.05.2012
and defendant no.1 is appointed as Recovery Officer of defendant no.2
Society. Plaintiff challenged Order dated 26.02.2013 and 31.08.2013
passed by defendant no.1 before the Divisional Joint Registrar, Co-
operative Society in Revision Application No.560 of 2013 which is
dismissed on merits on 06.11.2018 after hearing advocate for the
plaintiff.
18. Further Dharamraj Singh had executed Will dated 04.12.2010 in
which the plaintiff signed as witness. This fact is also not in dispute.
However contention of plaintiff is that he is illiterate and defendant
no.3 obtained his signature on the said Will which is in English
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language.
19. Admittedly dispute arose between the parties after death of
Dharamraj Singh. Defendant no.3 came to know about affidavit dated
22.12.1995 during the recovery proceeding initiated by defendant no.2.
According to defendant no.3 said affidavit is forged by the plaintiff and
plaintiff prepared forged documents. Hence defendant no.3 lodged
report against the plaintiff in Bhandup Police Station. Accordingly FIR
bearing no.MECR No.10/2013 is registered against the plaintiff for the
offence of forgery and cheating. Plaintiff was arrested and after
remanding to PCR, his bail application was rejected by the trial Court
and subsequently he was released on bail by the Sessions Court. It
appears that during Police Custody Remand, wife of the plaintiff
produced original affidavit dated 22.12.1995 before the police and the
Magistrate observed that signature part on said affidavit was erased.
This fact of the registration of the FIR is suppressed by the plaintiff from
the Court. Under the facts, circumstances and documentary evidence on
the record, it can be concluded that the plaintiff was employee of
Dharamraj Singh in the suit premises. No prima facie case is made out
in favour of plaintiff for grant of temporary injunction. Hence question
of balance of convenience and irreparable loss in favour of the plaintiff
does not arise.
20. As per section 41 (h) and (i) of the Specific Relief Act, injunction
cannot be granted when equally efficacious relief can certainly be
obtained by any other usual mode of proceeding and when the conduct
of plaintiff or his agents has been such as to disentitle him to the
assistance of the Court. As per section 41 (b) of the Specific Relief Act,
injunction cannot be granted to restrain any person from instituting or
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prosecuting any proceeding. Admittedly plaintiff has not challenged
order dated 06.11.2018 passed by the Divisional Joint Registrar, Co-
operative Society in Revision Application No.560 of 2013. It is evident
that defendant no.1 and 2 followed due process of law for recovery of
amount. Under the garb of temporary injunction, plaintiff is indirectly
seeking stay to recovery proceedings initiated by defendant no.1 and 2
without challenging order dated 06.11.2018 passed by the Divisional
Joint Registrar, Co-operative Society in Revision Application No.560 of
2013.
21. The alleged document i.e., affidavit dated 22.12.1995 on which
plaintiff is claiming right, title and interest in the suit premises is itself
in dispute. Plaintiff has filed the present suit simplicitor for injunction.
He is not claiming any declaration that he became owner of the suit
premises on the basis of said document alleged to be executed by
deceased Dharamraj Singh. On the report of defendant no.3, plaintiff is
arrested for committing the offence of forgery and cheating in respect of
alleged document i.e., affidavit dated 22.12.1995. Plaintiff knowingly
suppressed this material fact from the Court. It prima facie appears that
plaintiff has not come before the Court with clean hands. Hence he is
not entitled for discretionary relief of temporary injunction as prayed. In
the result, following order.
ORDER
1. Notice of motion no.1773 of 2019 is dismissed.
2. No order as to costs.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 04.04.2022
Typed on : 04.04.2022
HHJ signed on : 04.04.2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 04.04.2022, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
04.04.2022
JUDGMENT/ORDER signed by P.O.
on
04.04.2022
JUDGMENT/ORDER uploaded on 06.04.2022
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