Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no.1859 of 2020, in Suit no. 4385 of 2020
MHCC010053962020
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1859 OF 2020
IN
SUIT NO.1521 of 2022
(SUIT STAMP NO. 4385 OF 2020)
Mrs. Zaibunnisa Asgar Ali Shaikh ….. Plaintiff
Versus
Mr. Aman Baban Shaikh & Anr. ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO. 01)
DATE : 22nd DAY OF SEPTEMBER, 2022
: Appearances:
The learned Advocate Shri J.R. Dube for the plaintiff
The learned Advocate Salunkhe for the defendant no.2.
ORAL ORDER
By way of present notice of motion, the plaintiff
claiming for reliefs interalia to give direction to defendant to
surrender and to produce the documents of whatever nature
purported to be signed by her husband in respect of suit property; to
restrain, by an order of temporary injunction, to defendants from
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2 Ord. in NM no.1859 of 2020, in Suit no. 4385 of 2020
interfering, obstructing, disturbing the peaceful possession of the
plaintiff over the suit premises and for other reliefs.
2. In short, it is contention of the plaintiff that, she along
with her family is residing in a shop no.5, Rahim Boutique, Kamla
Raman Nagar, plot no. 33, near rickshaw stand, Govandi, Mumbai
admeasuring 22 x 12= 264 sq.ft., (hereinafter referred to as ‘Suit
premises’).
3. It is further contention of the plaintiff that, she is living
on first floor just above suit premises. The plaintiff is doing business
in the suit premises under the name and style as “M/s Rahim
Boutique. The plaintiff has obtained shops and establishment license
as well as electricity connection in her name.
4. It is further contention of the plaintiff that, in the Month
of July, 2018 her husband was in urgent need of fund for business
purposes. Therefore her husband approached to defendant no.1 for a
loan of Rs.20 lakhs. The defendant no.1 introduced to the plaintiff
with defendant no.2, who is a private financier. The defendants no.1
and 2 arranged part amount for said business loan amounting to Rs.6
lakhs to the plaintiff in the form of cash amount in the year 2018. It
was agreed between the plaintiff and defendants that she will pay
regular interest of Rs.10,000/ p.m., to defendant no.2. Accordingly
the plaintiff was regularly paying Rs.10,000/ as interest amount to
defendant no.2. It is her further contention that, she had already paid
Rs.8 lakhs including interest amount in cash to defendant no.2.
Accordingly defendant no.2 has issued acknowledgment receipt in her
favour towards peaceful settlement.
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3 Ord. in NM no.1859 of 2020, in Suit no. 4385 of 2020
5. It is further contention of the plaintiff that, on
11/10/2019 the defendant no.2 came with an agreement, without
her knowledge, in respect of loan amount which is already paid by
the husband of the plaintiff and threatened her husband to sign the
said agreement or else he will kill to them and their family. On
30/12/2019 at about 1.00 p.m., defendants no.1 and 2 with pre plan
arranged 150 man and woman and tresspassed in suit premises.
Therefore the plaintiff called police. Accordingly police had been to
the spot and put lock to the shop and took the plaintiff and
defendants to the police station. On 31/12/2019 on repeated request
of the plaintiff, the police has registered NCR no. 3848/2019 against
defendants.
6. It is further contention of the plaintiff that, on
07/07/2020 defendants came to the suit premises and started
abusing and threatening to the plaintiff of dispossessing from the suit
premises. Therefore she has lodged complaint on 09/07/2020
through her advocate with the office of Commissioner of police,
Mumbai. On 29/08/2020, defendants along with their 7/8 associates
came to the suit premises and threatened to plaintiff to vacate the suit
premises otherwise ready to face the dire consequences. The plaintiff
further submits that, defendants has continuously giving threat to her
to accept Rs.7 lakhs and to vacate the suit premises. Therefore, she
has lodged report with the police, however of no use. Now the
plaintiff having apprehension that defendants by using force may
dispossess her from the suit premises on the basis of forge and
fabricated documents. Hence the present notice of motion.
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4 Ord. in NM no.1859 of 2020, in Suit no. 4385 of 2020
7. The defendant no.2 filed reply on affidavit and strongly
opposed the notice of motion. The defendant no.2 denied all the
adverse allegation. It is contention of the defendant no.2 that, he has
purchased the suit premises from the husband of the plaintiff vide
agreement for sale dated 29/01/2019 for total consideration of Rs.28
lakhs, which has been received by the husband of the plaintiff
namely Mr. Mohd. Asgar Ali Shaikh. The husband of the plaintiff also
executed Power of attorney and affidavit dated 29/01/2019 in
respect of the suit premises in his favour, whereby he has bequeathed
all the rights, title interest and handover the vacant possession.
8. It is further contention of the defendant no.2 that, the
plaintiff and her husband have also entered into similar type of
agreements with other person and cheated them on the basis of false
and fabricated documents. The plaintiff has also filed the suit bearing
no. 692/2019 for similar relief against one Zulqarnain Aslam Ansari.
The plaintiff and her husband grab amount of other persons by
entering into such type of agreements. The plaintiff has not
approached the Court with clean hands. Therefore she is not entitled
for the declaration and relief. The notice of motion being devoid of
substance and merit is liable to be dismissed.
9. Defendant no.1 failed to file his reply.
10. Heard the learned advocate for the plaintiff. None
appeared for the defendants. Perused the record.
11. Following points arise for my determination, to which I
gave my findings with reasons as follows:
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5 Ord. in NM no.1859 of 2020, in Suit no. 4385 of 2020
Sr.No Points Determination.
1. Whether the plaintiff is entitled for
the reliefs claimed in notice of
motion ? Partly Yes
2. What order ? As per final order.
REASONS
As to point no.1:
12. It is to be noted that, the plaintiff’s claim her peaceful
possession over the suit premises. It is her contention that as her
husband was in need of some money, hence he approached to the
defendant no.2 through defendant no.1. The defendant no.2 had
given hand loan of Rs.6 lakhs to them, which was returned by the
plaintiff with interest and obtained acknowledgment receipt from
defendant no.2. It is further contention of the plaintiff that, the
defendant no.1 and 2 had got executed false and fabricated
documents from her husband. Now, on the basis of said documents
defendants are threatening to dispossess the plaintiff from the suit
premises.
13. Against this, it is contention of defendant no.2 that by
virtue of agreement dated 29/01/2019 executed by the husband of
the plaintiff he had been put in possession of the suit premises and
since then is in possession of the suit premises. It is further contended
by the defendant no.2 that, he had paid the entire amount of
consideration of Rs.28 lakhs to the husband of the plaintiff.
14. It is to be seen that, the plaintiff has filed shop license
issued in her favour under shop and establishment Act. She has also
filed electricity bills. Upon perusal of the same it reveals that the
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6 Ord. in NM no.1859 of 2020, in Suit no. 4385 of 2020
electric meter installed in the suit premises is in the name of husband
of the plaintiff. Shop License also shown the address of the suit
premises and it was issued in the name of the plaintiff for running the
business under the name and style as ‘Rahim Boutique’. The plaintiff
has filed photocopy of one receipt wherein it reveals that the
defendant no.2 had acknowledge of receiving Rs.8 lakhs from the
plaintiff. The plaintiff has filed documents purported to be the
agreement executed in between the plaintiff and defendant no.2.
Upon perusal of the agreement it reveals that the possession is not
handed over to the defendant and still is in possession of the plaintiff.
It is agreed that, if the plaintiff has not in a position to handover the
possession of the suit premises then she will return the consideration
amount of Rs.28 lakhs along with Rs.4 lakhs i.e. total amount of
Rs.32 lakhs to the defendant no.2. It is further agreed that the
plaintiff will enjoy the amount as well as possession, if she failed to
pay the amount and handed over the possession, then defendant no.2
having every right to file criminal as well as Civil case against her.
15. The plaintiff has also filed NC receipt regarding the
complaint lodged against the defendants and the copy of the
complaint given to the senior Inspector of police, Shivaji Nagar, police
station and Assistant Commissioner of police and Dy. Commissioner
of police wherein she specifically stated about threatening given to
her by defendants about her dispossession from the suit premises.
16. It is to be seen that, though defendant no.2 is claiming
his possession on the basis of agreement executed by the husband of
the plaintiff, but he failed to file single document on record to
substantiate his contentions. Thus considering the documents and
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7 Ord. in NM no.1859 of 2020, in Suit no. 4385 of 2020
submission on record the plaintiff prima facie establishes her
possession over the suit premises. Therefore at this juncture the
plaintiff made out all the three essential ingredients for seeking
temporary injunction in her favour i.e., prima facie case, balance of
convenience and irreparable loss.
17. However so far as relief of direction regarding surrender
of documents is concerned neither husband of the plaintiff is party to
the suit nor he has filed the suit alleging about executing of
purported documents. Therefore at this stage relief to that regard
cannot be granted to the plaintiff. Hence my answer to point no.1 is
in partly affirmative.
As to point no.2:
18. In view of above discussion, I pass the following order.
ORDER
Notice of motion no.1859/20 is partly allowed.
Prayer Clause (b) made absolute thereby defendants,
their agents and servants are hereby restrained from interfering with
possession of plaintiff over the suit premises, by way of order of
temporary injunction, till decision of the suit.
Prayer clause (a) is hereby rejected.
Notice of motion is disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Date:.22.09.2022 Court, Gr.Mumbai (C.R.No.01)
Dictated on : 22.09.2022
Transcribed on : 28.09.2022
Signed on : 30.09.2022
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8 Ord. in NM no.1859 of 2020, in Suit no. 4385 of 2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 01.10.2022 NAME OF STENOGRAPHER(GI)
Mrs. V. V. Mhatre
TIME: 3.10 p.m.
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 22.09.2022
JUDGMENT/ORDER signed by P.O. on 30.09.2022
JUDGEMENT/ORDER uploaded on 01.10.2022
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