Interim Order 1

Order Details: Other
Pdf Text: 1 Ad-Interim Order on Draft N/M in SU 1417/20
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
AD-INTERIM ORDER ON
DRAFT NOTICE OF MOTION
IN
SUIT NO. 1417 OF 2020
(CNR no. MHCC01-005055-2020)
Narendra Ramnath Shenoy
Age : 67 years, Occ. : Business
residing at Flat No. 101, Silver Chariot,
Near Ashoka Academy School,
Lokhandwala Complex,
Andheri (West), Mumbai
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Plaintiff
Versus
Jitendra Ramanth Shenoy
Age : 56 years, Occ. : Business
residing at 19-248, Paramhans Society,
R. K. Nagar, 9th Road,
Khar (West), Mumbai - 52.
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Defendant
Appearances:-
Ld. Advocate Mr. Shashipal Shankar for the Plaintiff.
Ld. Advocate Mr. Jecob Kadantot for Defendant.
CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 4)
DATED : 7th January, 2021.
O R A L O R D E R
1. Perused plaint, documents annexed thereto, Notice of
Motion, reply filed thereto and heard both sides. In this suit to
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2 Ad-Interim Order on Draft N/M in SU 1417/20
declare the Gift Deed of suit property executed by one brother i.e.
the plaintiff in favour of his real brother i.e. the defendant on
20.11.2015 as void, the plaintiff has prayed for ad-interim relief
restraining the defendant from creating third party rights or parting
with possession in the suit property till final disposal of the suit. In
the plaint, it is alleged that the said Gift Deed was got executed by
undue influence, mispresentation, cheating, fraud and deception by
the defendant. It is further alleged that the defendant advised
plaintiff to gift all his property to defeat the property rights of
plaintiff’s estranged wife and to avoid order of maintenance/
alimony to her in Court proceeding. Ld. Advocate for the plaintiff
has shown order dated 08.11.2019 in S.C. Suit No. 2191 of 2019
whereby the City Civil Court granted ad-interim relief in favour of
the plaintiff in similar circumstances. According to the Ld. Advocate
for the plaintiff, the Gift Deed dated 20.11.2015 was nominal Gift
Deed, it was revoked by the plaintiff by notice dated 23.10.2020
and therefore, the plaintiff is entitled for ad-interim relief.
2. Ld. Advocate for the defendant has taken me through
the Gift Deed and stated that there is no stipulation in the Gift Deed
that it was agreed by the parties to be a revocable Gift Deed. He
further submits that the defendant paid huge sum of Rs.8 lacs as
stamp duty and registration charges of the Gift Deed. Ld. Advocate
for the defendant has also shown statements in paragraph no. 4
made by the plaintiff himself in Notice of Motion No.3325 of 2016
in Suit No.723 of 1996 which read as under :
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(4)
At the further outset, I humbly state and submit that for past about
one year my wife has been continuously harassing and pressurizing
me due to which I have been undergoing tremendous stress and
agony. I say that all along during this stressful period my brother
Jeetendra Shenoy has supported me both mentally and financially. I
state and submit that the purchase price for purchase of my 50%
undivided share in the suit property Exhibit-A to the plaint was
financed by my brother Mr. Jeetendra Shenoy, the respondent
herein. I further state and submit that the consideration amounts
paid to the two tenants one in respect of Flat no.1 on the ground
floor and the other in respect of Flat no.5 on the 2nd floor, for
surrender of their tenancy rights in my favour as 50% co-owner of
the property, was also financed by my brother Mr. Jitendra R.
Shenoy, I further state and submit that though the 50% undivided
share of late Mr. Vishnu Vadhavkar was held in my name, however,
iftwas always understood between myself and my brother that he
was the beneficiary of the said 50% undivided share in the suit
property as well as my rights in the said Flat nos. 1 & 5, mainly due
to the fact that investments for acquiring the same have always
been financed by him. I further humbly submit that it was for the
reasons mentioned herein above due to my ill health and the
mental stress given to me by my wife and the total support given to
me by my brother Jitendra Shenoy, that I executed the said Gift
Deed in favour of my brother Jitrendra R. Shenoy in respect of my
50% undivided share in the suit property as well as my right, title
and interest and possession of the said Flat Nos.1 & 5.
3. The plaintiff claims that the Gift Deed was nominal Gift
Deed being executed under ill-advise of the defendant in order to
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4 Ad-Interim Order on Draft N/M in SU 1417/20
avoid payment of maintenance to plaintiff’s estranged wife. The
intention of the donor will have to be gathered from the Gift Deed,
it is totally silent on this aspect. There is absolutely no stipulation
in the Gift Deed that it is revocable. There is no condition
prescribed by the plaintiff in the Gift Deed. It is also interesting to
note that the stamp duty and registration charges in respect of Gift
Deed are borne by the defendant. From reading of the said Gift
Deed as a whole, it is an absolute gift by the plaintiff in favour of
the defendant due to natural love and affection without any
condition.
4. Now the plaintiff wants the Court to believe that certain
misrepresentation, fraud was committed by the defendant and
thereby Gift Deed was executed by the plaintiff. However, the plaint
allegation shows that by execution of the Gift Deed the plaintiff was
to escape from liability to pay the maintenance to his wife.
Therefore, it is apparent that the plaintiff wanted to take benefit of
the Gift Deed to avoid legitimate right of the wife to get
maintenance on the basis of existence of immovable property in the
name of the plaintiff. After that perceived threat to pay maintenance
got over, the plaintiff now wants that the Gift Deed be declared
void so that he would get the property back and enjoy the same as
an owner. As stated hereinearlier, there are no averments in the Gift
Deed in respect of revocation of the Gift Deed. Secondly, if the
plaintiff created any document to defeat rights of his wife and
succeeded in the same, he can not be allowed to take U turn and
claim that he never intended to execute the Gift Deed absolutely in
favour of the defendant. The intention of the plaintiff appears to be
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dishonest from the above circumstances. The party who does not
come to the Court with clean hands and seeks equitable relief of
injunction can not be allowed to succeed. The dubious intention is
also apparent from the plaintiff’s reply in Notice of Motion in the
suit filed by brother of his predecessor in title of suit property. In
that reply plaintiff claims that the defendant herein paid entire
money for acquisition of the suit property. Apart from implications
of these statements on merits of the suit, the plaintiff is changing
his stands frequently as per prevailing circumstances to remain
beneficiary of the transactions and protect the title of the suit
property and therefore, the recitals of the Gift Deed will prevail over
his chancy allegations in the plaint. Considering totality of the
circumstances, I do not find it a fit case to grant ad-interim relief in
favour of the plaintiff. Hence, following order:
ORDER
1. Ad-Interim Relief is rejected.
2. The plaintiff is directed to register the Notice of Motion for
statistical purpose.
(C. V. Marathe)
Judge,
Date : 07.01.2021. City Civil Court, Gr. Mumbai.
Dictated on : 07.01.2021
Transcribed on : 07.01.2021
Signed by HHJ on : 07.01.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 08.01.2021 at 11.10 a.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
07/01/2021
JUDGMENT/ORDER signed by
P.O. on
07/01/2021
JUDGMENT/ORDER uploaded
on
08/01/2021
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