Final Order 1

Order Details: Notice of Motion
Pdf Text: Order on Notice of Motion No. 1708 of 20 in SU No.2039-2021 1
MHCC010051202020
Presented on : 11-11-2020
Registered on : 11-11-2020
Decided on : 09-08-2023
Duration : 2 years, 8 months, 28 days
IN THE BOMBAY CITY CIVIL COURT FOR
GREATER MUMBAI
NOTICE OF MOTION NO.1708 of 2017
IN
SUIT NO.2039 of 2021.
Tushar Shashikant Kharat .....Plaintiff.
V/s.
Maruti Anna Dorugade & Ors. …...Defendant.
Appearances :-
Adv. Bhimrao A. Powar for plaintiff.
Adv. Kavita Kulkarni for defendant Nos.1 and 2.
Adv. Sawant for defendant Nos.3 and 4.
Adv. Noman Jafri for defendant No.5.
Adv.Mannadiar and Company for defendant No.6.
Coram : His Honour Judge
Shri.U. C. Deshmukh.
C.R. No.: 59.
Date : 09/08/2023
-- 1 of 10 --
Order on Notice of Motion No. 1708 of 20 in SU No.2039-2021 2
ORAL ORDER
1. This Notice of Motion is moved by the plaintiff seeking relief
of injunction, to appoint Court Receiver, to direct the defendant to pay
mense profit.
2. It is the case fo the plaintiff that he is owner of flat bearing
No.403/A, Nehru Nagar Nijdham Co-OP. Housing Society Limited, Nehru
Nagar, Kurla (East), Mumbai – 400 024 admeasuring 38 Sq. Mtrs. (In short
'Suit Property' or 'Suit premises). The plaintiff has reiterated the facts
pleaded in the plaint by this Notice of Motion. The plaintiff contends that
he purchased suit property vide agreement for sale deed dated 26.09.2008
for total consideration of Rs.22,61,840/- from M/s. Punit builders and
Realtors. Accordingly, said agreement is executed and registered in favour
of plaintiff. On the date of registration of agreement, the plaintiff paid
Rs.12,51,000/- and an amount of Rs.10,10,840/- remains to be paid. After
payment of consideration, the plaintiff was to be in possession of the suit
premises.
3. The plaintiff further contended that the society is established
to look after the affairs of the suit premises and other properties
constructed by M/s. Punit builders. The plaintiff is member of the society
vide share certificate No.36.
4. The plaintiff specifically contended that in the year 2016, he
felt dire need of money. Hence, he approached to defendant No.1 and 2
-- 2 of 10 --
Order on Notice of Motion No. 1708 of 20 in SU No.2039-2021 3
who are directors of society of which defendant No. 5 is Chairman.
Defendant Nos.1 and 2 assured the plaintiff that they will arrange the loan
and asked the plaintiff to execute the mortgage deed of the suit premises.
Therefore, the plaintiff submitted original deeds of suit property to
defendant Nos. 1 and 2. Accordingly, as per the directions of defendant
Nos. 1 and 2, the plaintiff executed the mortgage deed in favour of
Bhadvan Sahakari Patpedhi Maryadit, Mumbai (in short 'Patpedhi') and
handed over the original documents of the suit premises. Thereafter, again
on the request of defendant Nos. 1and 2, the plaintiff was asked to execute
registered mortgage deed and also asked the plaintiff to execute registered
Leave and License agreement in favour of defendant Nos. 1 and 2.
Accordingly, the plaintiff executed the Leave and License agreement and
handed over possession of the suit premises in favour of defendant Nos.1
and 2.
5. The plaintiff further contended that defendant Nos. 1 and 2 by
taking undue advantage of his economical condition, played mischief and
fraud upon the plaintiff with intent to grab the suit premises and got
executed bogus agreement in the named and styled sale deed on
08.12.2016 which is null and void. The plaintiff waited for the mortgage
money. Thereafter again the defendant Nos. 1 and 2 given false assurance
to get register agreement in favour of defendant Nos.3 and 4 by keeping
the plaintiff in dark. Alleged agreement for sale is executed by the plaintiff
under the impression that he is going to execute the mortgage deed.
Therefore, agreement for sale, sale deed in favor of defendant Nos.1 and 2
and agreement for sale in favour of defendant Nos. 3 and 4 are not binding
-- 3 of 10 --
Order on Notice of Motion No. 1708 of 20 in SU No.2039-2021 4
upon the plaintiff. The plaintiff has filed complaint against the defendant
Nos.1 and 2 and also with the police. Defendant Nos. 3 and 4 have
executed mortgage deed in favour of defendant No.6 and there is every
possibility that they may create third party interest by taking undue
advantage of alleged agreement for sale. Hence, the plaintiff constrained
to institute the suit and file this Notice of Motion.
6. In reply, it is the case of the defendant Nos.3 and 4 that they are
bonafide purchaser of the suit property. The plaintiff is in collusion with
defendant Nos.1 and 2. They have paid consideration amount against the
purchase of the suit property by obtaining loan from defendant No.6. The
plaintiff is signatory of the agreement for sale in favour of defendant Nos.
3 and 4. Therefore, the plaintiff is not entitled for relief as he sought. It is
further contention of defendant Nos.3 and 4 that agreements in favour of
defendant Nos.1 and 2 executed by the plaintiff is registered agreement.
Similarly, the plaintiff has executed sale deed before the notary public. The
plaintiff admits that defendant Nos. 1 and 2 were in possession of the suit
premises. Hence, the plaintiff has no prima facie case to grant the
injunction. Hence, prayed to reject the Notice of Motion.
7. It is specific submission of Ld. Advocate for the plaintiff that
the share certificate speaks about the ownership of the plaintiff over the
suit premises. The agreement in favour of defendant Nos.1 and 2 is silent
as to the consideration amount paid by defendant Nos.1 and 2 to the
plaintiff. Therefore, the document is null and void. The title of the suit
premises lies with the plaintiff. The alleged deed of sale executed before
-- 4 of 10 --
Order on Notice of Motion No. 1708 of 20 in SU No.2039-2021 5
notary has no legal value and it is not admissible in the eyes of law. The
plaintiff after getting knowledge of the fraud played by defendant Nos. 1
and 2 has made complaint with the police as well as to the EOW. Hence,
prayed to allow the Notice of Motion.
8. On the other hand, it is contention of Ld. Advocate for
defendant Nos.3 and 4 that they are not necessary party to the suit.
Plaintiff has made allegations against defendant Nos.1 and 2 only. It seems
that the plaintiff is in collusion with defendant Nos. 1 and 2. The plaintiff
has got executed the agreement for sale in his favour which was registered
and it was written in English language. Therefore, the plaintiff is well-
versed with the procedure to be followed in the Sub-Registrar office. It is
not the case of the plaintiff that he is illiterate person. The plaintiff admits
that agreement in favour of defendant Nos.1 and 2 was registered.
Though, it is his case that he executed said agreement under the pretext of
mortgage, he failed to initiate the action as early as possible. Once the
plaintiff admits that he has handed over the possession of the suit premises
in favour of defendant Nos.1 and 2 who in turn handing over the
possession of the suit property to defendant Nos.3 and 4. Hence, they are
defendant Nos.3 and 4 who will suffer heavy loss, if Notice of Motion is
allowed.
9. It is also specific submission of Ld. Advocate for defendant
Nos.3 and 4 that the Notice of Motion is not tenable in the eyes of law as
the relief of Court Receiver is not available to the plaintiff. The plaintiff
himself handed over the possession of the suit property to defendant Nos.1
-- 5 of 10 --
Order on Notice of Motion No. 1708 of 20 in SU No.2039-2021 6
and 2. He is also signatory and a witness of agreement for sale in favour of
defendant Nos. 3 and 4. Therefore, the plaintiff has estopped from
challenging the rights and interest of defendant Nos.3 and 4 over the suit
premises. Hence, prayed to reject the Notice of Motion.
10. In reply, it is submission of Ld. Advocate for the plaintiff that
the documents purpoting to be deed of sale is shown to be executed after
agreement for sale executed in favour of defendant Nos.3 and 4. If, it is so,
then how defendant Nos.1 and 2 and in turn defendant Nos.3 and 4 can
claim ownership over the suit premises. Hence, prayed to allow the Notice
of Motion.
11. At the outset, it is necessary to note that there is no dispute in
between both the parties as to the discription of suit premises and the fact
that defendant Nos. 2 an 4 are in possession thereof. It is the case of the
plaintiff that defendant Nos.1 and 2 played fraud and got executed
agreement for sale in their favour. Hence, such agreement and subsequent
agreement in favour of defendant Nos.3 and 4 are null and void. Hence, it
is necessary to see whether the plaintiff has prima facie case to grant the
relief of injunction and other consequential relief.
12. The plaintiff contends that he executed agreement for sale in
favour of defendant Nos.1 and 2 under the pretext of mortgage deed to
obtain loan from Patpedhi. The plaintiff contends that he was in need of
money in the year 2016 and as per the directions of defendant Nos.1 and
2, he executed agreement for sale in favour of defendant Nos.1 and 2 in
-- 6 of 10 --
Order on Notice of Motion No. 1708 of 20 in SU No.2039-2021 7
the month of November, 2016. He came to know about the fraud played by
defendant Nos.1 and 2 in the month of March, 2019. Thereafter, he
inquired with directors of Patpedhi and filed complaint with inquiry officer,
Shri. S. R. Shirke and with the police against defendant Nos.1 and 2. It is
the specific case of the plaintiff that he approached defendant Nos.1 and 2
in the year 2016 and he came to know that the fraud played by them in the
month of March, 2019. During this period, the plaintiff has handed over
documents of title of the suit premises to defendant Nos.1 and 2. He also
stated that, he executed agreement for sale in favour of defendant Nos.1
and 2 under the impression that he is going to execute mortgage deed. In
such circumstances, it is necessary to see whether the plaintiff was
unaware of the fraud played by the defendants and there is prima facie
case in his favour.
13. There is no dispute that defendant Nos. 1 and 2 have executed
agreement for sale in favour of defendant Nos.3 and 4 in respect of the suit
premises. The plaintiff also contents that on the request of defendant Nos.1
and 2, he handed over the possession of the suit premises in their favour.
If, this fact is taken into consideration, it can be infer that the plaintiff has
handed over the possession of the suit premises in the year 2016 itself.
14. The plaintiff does not dispute that he is the signatory of the
agreement for sale deed executed in favour of defendant Nos. 3 and 4
which is registered document. It is the case of the plaintiff that he was
present in the office of Sub-Registrar under the pretext that he is going to
execute the mortgage deed. The plaintiff also contents that defendant
-- 7 of 10 --
Order on Notice of Motion No. 1708 of 20 in SU No.2039-2021 8
Nos.1 and 2 get deed of sale notarized on 08.12.2016 by cheating him. In
this situation, it was for the plaintiff to file on record any supporting
affidavit of any witness who will say that, the deed of sale dated
08.12.2016 was not executed by the plaintiff. Obviously, the admissibility
of sale deed dated 08.12.2016 can be decided at the time of final decision.
15. On the other hand, it is necessary to note that agreement in
favour of defendant Nos.1 and 2 executed by plaintiff Nos.3 and 4 are
registered document. More particularly, it is worth to note that the plaintiff
is witness to the agreement executed in favour of defendant Nos.3 and 4.
There is strength in the submission of Ld. Advocate for defendant Nos.3
and 4 that it is not the case of the plaintiff that he is illiterate person. This
document prima facie shows that plaintiff is well aware of the execution of
agreement in favour of defendant Nos. 3 and 4 when they were executed.
Once there is admitted fact that defendant Nos.3 and 4 are in possession of
suit premises, in such case, if the injunction is granted against them, they
will suffer heavy loss.
16. The plaintiff has instituted the suit for declaration of
ownership and injunction. It is needless to say that the principle embodied
under Section 53 of the Transfer of Properties Act, will help the plaintiff, if
the defendants during the pendency of suit create third party rights and
interest. On the other hand, if defendants are directed to pay mense profit
to the plaintiff of the suit property, it will amount to passing of final
decree, which is not expected in the eyes of law. Consequently, the plaintiff
has no prima facie case. Balance of convenience lies in favour of the
-- 8 of 10 --
Order on Notice of Motion No. 1708 of 20 in SU No.2039-2021 9
defendants and if Notice of Motion is allowed, they are defendants who
will suffer heavy loss. Hence, Notice of Motion deserves to be rejected.
Resultantly, following order is passed :
ORDER
1. Notice of Motion No.1708 of 2020 in SU No.2039/2021 is
hereby rejected.
2. Accordingly, Notice of Motion No.1708 of 2020 in
SU No.2039/2021 is disposed of accordingly.
(U.C.Deshmukh)
Judge,
City Civil and Sessions Court
Date.:09.08.2023 Greater Bombay (CR 59)
Declared on : 09.08.2023
Dictated on : 09.08.2023
Transcribed on : 09.08.2023
Checked on : 10.08.2023
Signed on : 11.08.2023
-- 9 of 10 --
Order on Notice of Motion No. 1708 of 20 in SU No.2039-2021 10
“Certified to be true and correct copy of the original signed order”.
11/08/2023 (Ms. Manisha Hirole)
Stenographer (H.G.)
Reliever.
Name of the Hon'ble Judge : Shri U. C. Deshmukh
(Court Room No.59)
Date of pronouncement of Judgment/Order : 09/08/2023
Judgment/Order signed by Hon'ble Judge on : 11/08/2023
Judgment/Order uploaded on : 11/08/2023
-- 10 of 10 --