Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1.. NM NO. 1651/2020
MHCC010049722020
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 1651 OF 2020
IN
S.C. SUIT NO. 702 OF 2021
Mr. Nilesh Shashikant Kudtarkar …Plaintiff
Versus
Shri. Rupesh Janardan Shinde and One. … Defendants.
Appearance
Adv. Shweta Singh for the plaintiff.
Defendants proceeded Ex-parte..
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2) I
DATED : 17th September, 2021
ORAL ORDER
Heard advocate for the plaintiff 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 i.e. Flat No. 204, 2nd Floor, B-Wing, Shree Usha
Complex C.H.S Ltd. (the Society), Khandelwal Compound, Village Road,
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ORDER ..2.. NM NO. 1651/2020
Bhandup (West), Mumbai – 400 078 and creating third party interest in
the suit premises.
2. Defendants remained absent inspite of service of writ of
summons and notice of motion through email dated 25.10.2020.
Perused the plaint and Notice of Motion alongwith affidavit.
3. Plaintiff's case is that by obtaining housing loan, he purchased
the suit premises from defendants vide registered agreement of sale
dated 13.03.2020 for consideration of Rs.61,00,000/- but it is mutual
understanding between the plaintiff and defendants that the agreement
value will be Rs.49,50,000/-. After agreement of sale defendants
submitted documents such as possession letter along with the
resignation in the Society for transfer of share certificate in the name of
plaintiff and accordingly he informed the plaintiff through what's app.
After acquiring the suit premises, plaintiff paid Rs. 25,000/- through
NEFT dated 08.09.2020 as a transfer fees to the Society. Plaintiff also
paid maintenance bill of Rs.5,695/-for the month of August and
September 2020. Plaintiff also paid electricity bill of Rs.2,590/- for the
month of August and September -2020 though it was payable by
defendants. Plaintiff also applied for transfer of electric meter of the suit
premises.
4. Plaintiff is residing in the suit premises. Defendants started
demanding more amount apart from the terms and conditions of
agreement of sale dated 13.03.2020 which was paid by the plaintiff in
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ORDER ..3.. NM NO. 1651/2020
the office of the society as per instructions of defendant no.2. Plaintiff
also filled Form No.-3 in the society on 23.09.2020. Plaintiff also
applied to the society for permission to carry out renovation work of the
suit premises vide letter dated 13.10.2020.
5. Defendants sent email dated 17.10.2020 threatening the
plaintiff to sell the suit premises to the third party which was replied by
the plaintiff on 20.10.2020 through email. On 21.10.2020, defendant
sent email to the plaintiff and one Mr. Deshpande, Manager of the
Society wherein the defendants admitted the possession of the plaintiff
and threatened to put lock on the suit premises. On the same day, 3 to 4
goons forcibly tried to dispossess the plaintiff from the suit premises on
the instruction of defendants which was resisted by the plaintiff and his
brother. Hence plaintiff apprehends that defendants may create third
party interest and dispossess the plaintiff from the suit premises.
Under the above circumstances, plaintiff filed the present suit for
permanent injunction on 23.10.2020 and claiming temporary injunction
by way of present notice of motion.
6. After perusing the plaint, notice of motion and hearing advocate
for the plaintiff, this Court had granted interim reliefs in terms of prayer
clause (a) of the notice of motion in favour of the plaintiff and against
defendants.
7. Grant of temporary injunction is a discretionary and equitable
relief and governed by Order 39, Rule 1 of the Civil Procedure Code
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(CPC). It provides that where in any suit, it is proved by affidavit or
otherwise - (c) that the defendant threatens to dispossess the plaintiff or
otherwise cause injury to the plaintiff in relation to any property in
dispute in the suit, the Court may by order grant a temporary injunction
to restrain such act, or make such order for the purpose of staying and
preventing the dispossession of the plaintiff or otherwise causing injury
to the plaintiff in relation to any property in dispute in the suit until
disposal of the suit or until further order. Needless to say that for grant
of temporary injunction, plaintiff has to make out a prima-facie case
and show that balance of convenience lies in his favour and he will
suffer irreparable loss in case temporary injunction is refused.
8. Plaintiff filed on record copy of registered agreement of sale
dated 13.03.2020, documents of housing loan taken from LIC HFL,
what's app conversation between plaintiff and defendants, Letter issued
by defendant no.2 to the society for transfer of suit premises in the
name of plaintiff, resignation letter issued by defendant no.2 in favour
of the society, letter dated 15.09.2020 issued by the society to LIC HFL,
plaintiff's application dated 21.10.2020 for transfer of electricity meter
of the suit premises, photos of the plaintiff showing his possession in
the suit premises, letter of settlement dated 23.09.2020 showing that
plaintiff paid amount of Rs.56,000/- to Manoj Sawant as per instruction
of defendants, Form No.3 dated 23.09.2020 submitted by plaintiff to the
society in respect of the suit premises, letter dated 13.10.2020
submitted by the plaintiff to the society for permission to carry out
renovation work of the suit premises, threatening mails from
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ORDER ..5.. NM NO. 1651/2020
19.10.2020 to 21.10.2020 to the plaintiff and the society.
9. From the documents filed on record on behalf of the plaintiff, it
is evident that plaintiff is in possession of the suit premises. From the
perusal of emails from defendants, it appears that they are trying to
create third party interest in the suit premises. Suit is for permanent
injunction. Plaintiff proved his possession in the suit premises. Thus
plaintiff made out prima facie case for grant of temporary injunction. As
the plaintiff purchased the suit premises from defendants by way of
registered agreement of sale, irreparable loss will be caused to the
plaintiff if injunction is not granted. Thus balance of convenience also
lies in favour of the plaintiff and against defendants. Under the facts
and circumstances, possession of the plaintiff in the suit premises needs
to be protected till the decision of suit. In the result following order :
ORDER
(1) Notice of motion no. 1651/2020 is allowed and made absolute
in terms of prayer clause (a).
(2) Defendants are restrained from dispossessing the plaintiff from
the suit premises and creating third party interest in the suit premises
till decision of the suit.
(3) Notice of motion no. 1651/2020 is disposed of.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 17.09.2021.
Typed on : 17.09.2021
HHJ signed on : 17.09.2021
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ORDER ..6.. NM NO. 1651/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 18.09.2021, 2.00 p.m.
UPLOAD DATE AND TIME Mrs. P. R. Wagh.
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
17.09.2021
JUDGMENT/ORDER signed by P.O.
on
18.09.2021
JUDGMENT/ORDER uploaded on 18.09.2021
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