Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1767 OF 2018
(CNR NO.MHCC01-005761-2018)
IN
SUIT NO. 2724 OF 2017
1. Shri Shrikrishna Dattaram ]
Kokate and others ].. Plaintiffs.
V/s.
1. Shri Abhishek Shrikrishna ]
Kokate and others ]..Defendants.
Advocate Mr. J.M. D’silva for the plaintiffs.
Advocate for defendant No.1.
CORAM : HIS HONOUR JUDGE
MR. SITARAM N. PATIL
(C.R.NO.09)
DATE : 21st JANUARY 2023
ORAL ORDER
The Notice of Motion is filed by the plaintiffs for
restraining the defendants from alienating, transferring, assigning,
creating third party rights and/or parting with the possession of the suit
premises that is Flat No.16A/203, Chandivali Swapnapurti C.H.S.
MHADA Colony, Chandivali, Mumbai-400 072 ((hereinafter referred as
the suit premises for the sake of convenience)
2. The plaintiff No.1 has filed affidavit in support of Notice of
Motion wherein he has reiterated the contentions of the plaint. It is
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averred that he is father of defendant No.1. The plaintiff No.2 is his wife
and the plaintiff No.3 is his daughter. The defendant No.2 is the Society
where the suit premises is situated and the defendant No.3 is the Public
Statutory Authority who has allotted the suit premises.
3. It is further averred that as per the advertisement in the
Newspaper in January 2009 of defendant No.3 regarding sale of flats by
lottery system, the plaintiff No.1 applied in the name of his son i.e.
defendant No.1 and flat came to be allotted in the name of defendant
No.1 at a declared total price of Rs.15,99,983/-. The initial payment of
Rs.3,99,995/- plus an amount of Rs.25,000/- was paid by the plaintiff
No.1 as the defendant No.1 has no source of Income being on training.
The plaintiff No.1 paid stamp duty and service charges on the document
of sale of the suit premises.
4. It is further averred that he was a joint borrower with his
son in respect of loan for the balance amount. The plaintiff No.1 has
paid nearly amount of Rs.17,15,115/- for the purchase of the suit
premises. The defendant No.1 let out the suit premises on Leave and
License basis to a third party without the knowledge of plaintiff No.1.
The instance of fiance, the plaintiffs were not allowed to enter their
own flat by the licensee and thereafter disconnected all the relations
with the plaintiff’s parents. The plaintiffs apprehension that the
defendant No.1 under the influence of his fiance, may sell the suit
premises or create third party rights in respect of the suit premises. The
huge amount of the plaintiff is invested in the flat when the defendant
No.1 was studying.
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5. It is further averred that the plaintiff has a grave
apprehension that the defendant No.1 may deal with the suit premises.
If such an injunction is granted then no prejudice will be caused to the
defendant No.1, as the entire money invested in the said is of his father
plaintiff No.1. The balance of convenience is in favour of the plaintiff
and irreparable loss will be caused which cannot be compensated in
terms of money. Hence, prayed for allowing Notice of Motion.
6. The defendant No.1 has filed reply and contended that the
Notice of Motion is misconceived and not maintainable and liable to be
dismissed. It is contended that the disputed between the plaintiffs and
defendant No.1 started since when he has shown desire to marry, as he
was in a relationship with girl by name Ms. Resh Mohan M. and the
plaintiffs strongly objected to marry with the said girl. The defendant
No.1 denied the entire contentions in toto. It is contended that the
defendant No.1 only one real owner of the suit property. The plaintiffs
have not made legal right on the suit premises. The plaintiffs have not
made out
prima-facie case for injunction or any relief as prayed for. If
the said injunction application is granted then the great harm prejudice
will be caused to the defendant No.1 as the entire money invested in
the said flat is by defendant No.1 only and plaintiffs have not invested a
single penny by making false allegation the plaintiffs want to grab the
said suit premises.
7. Heard the learned advocate for the plaintiffs.
8. Considering the pleadings and documents on record,
following points arise for my determination and my findings to them
are as stated below for the following reasons.
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Sr.
No.
POINTS FINDINGS
1 Whether plaintiffs have proved his
prima
facie case?
In the
Affirmative
2 Whether plaintiffs have proved that he will
suffer irreparable loss if the Notice of
Motion is rejected ?
In the
Affirmative
3 Whether the balance of convenience lies in
favour of the plaintiffs ?
In the
Affirmative
4 What order? As per final order
R E A S O N S
AS TO POINT NOS.1 TO 3 :
9. As all the points are related to each other, they are
discussed at once to avoid the repetition.
10. Perused plaint, Notice of Motion, affidavit and reply. The
plaintiffs have submitted that in the year 2009 the plaintiff No.1 has
acquired the suit premises in the name of defendant No.1 out of love
and affection as he being the only his son at that time the defendant
No.1 is of 22 years old. As such the defendant No.1 was started his
carrier only in July 2008 having a meager income. In the lottery system
the suit properly was allotted in the name of defendant No.1 as the
form filled up in his name by the plaintiff No.1. The total price of the
said flat payable to the MHADA Authority at Rs.15,99,983/- out of
which the initial payment of Rs.3,99,995/-including Rs.25,000/- has
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been paid by the plaintiffs from their bank account. The plaintiffs also
paid a stamp duty and service charges through cheques and demand
draft. The total amount paid by the plaintiff No.1 from his own pocket
at Rs.17,15,115/-. The details of the said cheques and demand draft
recorded in the schedule annexed to the plaint.
11. The plaintiffs have further submitted that the plaintiff No.1
arranged the housing loan being joint borrower with the defendant
No.1 through HDFC Ltd. for Rs.12,50,000/- and the said amount paid
over to defendant No.3. The plaintiffs produced photocopy of
Memorandum of Deposit which discloses the name of the borrowers i.e.
plaintiff No.1 and defendant No.1. Therefore, it is proved that the the
plaintiff No.1 has taken loan from the HFDC Limited to purchase the
suit premises.
12. The plaintiffs have produced bank statement of Apna
Sahakari Bank Ltd. which shows that the plaintiff No.1 has paid initial
payment to MHADA Rs.3,74,995/- plus Rs.62,500/- being stamp duty
and Rs.52,632/- being service charges. The suit premises acquired out
of income of plaintiff No.1 in the name of defendant No.1. The
defendant No.1 has not produced any documentary evidence to prove
his case. If the Notice of Motion is allowed, no prejudice will be caused
to any party. Therefore, I have come to the conclusion that plaintiffs
proved their
prima facie case. Hence, I answer point No. 1 in the
affirmative.
AS TO POINT NOS.2 AND 3:-
13. In view of the above discussion, I have come to the
conclusion that the balance of convenience lie in favour of plaintiffs.
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Accordingly, I answer point Nos. 2 and 3 in the affirmative and in
answer to point No. 4, I proceed to pass following order.
O R D E R
1. Notice of Motion No. 1767 of 2018 is made absolute in
terms of prayer clause (a).
2. Notice of Motion No. 1767 of 2018 is disposed off
accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date: 21/01/2023 Gr. Bombay.
Dictated on : 21/01/2023
Transcribed on : 21/01/2023
Signed on : 23/01/2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
23/01/2023 At 14.45 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. SITARAM N. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
21/01/2023
Judgment/Order signed by P.O. on 23/01/2023
Judgment/Order uploaded on 23/01/2023
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