Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. NM No.2087.19 in Suit 1391-2023
IN THE BOMBAY CITY CIVIL COURT FOR GREATER
MUMBAI
NOTICE OF MOTION NO. 2087 OF 2019
(CNR NO.MHCC01-005797-2019)
IN
S. C. SUIT NO.1391 OF 2019
1. Mrs. Neelima W/o. Tushar Ruparell ]
Aged about 51 years, ]
2. Ms. Foram D/o. T. Ruparell ]
Aged about 30 years, ]
adult, Indian Inhabitant, through ]
Constituted Attorney, the plaintiff No.1, ]
Both residing at 1-G, Palm View CHS Ltd]
4th Floor, 7th Road, Rajawadi, ]
Vidhyavihar (East), Mumba-400 077. ] .. Plaintiffs
Versus
1. M/s. Magnum Cylinders Pvt. Ltd. ]
A company having its office situated at ]
7/10, Botawala Building, Horniman ]
Circle, Bank Street, Mumbai-400 023. ]
2. Mr. Vishnu Prasad V. Bhatt ]
3. Ms. Rakesh B. Bhatt. ]
Adults, Indian Inhabitants, residing at ]
Room No.A/4, Hitesh Apartment, ]
Sanghani Estate, Ghatkopar(W), ]
Mumbai-400 086. ].. Defendants.
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..2.. NM No.2087.19 in Suit 1391-2023
Appearances :-
Ld. Adv. Ravindra Singh for Plaintiffs present.
Adv. for defendants absent.
CORAM : Her Honour Judge,
Nazera Sadique Shaikh
COURT ROOM NO.03
DATE : 27/09/2023.
ORDER
The plaintiffs have taken out this notice of motion seeking
temporary injunction restraining the defendants from creating third
party interest in the suit flat.
2. The suit is for mandatory injunction. As per the plaintiffs
the defendant No.1 is constructing a building named as ‘Hitesh
Apartment” in the Flat No.301 i.e. suit flat is allotted as permanent
alternate accommodation by defendant No.1. An agreement to that
extent was executed on 19/04/2012 as defendant No.1 and 2 were
tenants in the premises developed by the defendant No.1. The
defendant Nos. 2 and 3 by way of an agreement of sale, agreed to sell
the suit flat in favour of the plaintiffs. The agreement to sale was
executed on 07/10/2016. As per the plaintiffs, they have paid an
amount of Rs. 52 lakhs to the defendant Nos. 2 and 3 and defendant
No.1 has also signed the agreement as a confirming party.
3. As per the plaintiffs, the defendant Nos. 2 and 3 has
transferred all the rights in favour of the plaintiffs. The construction of
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..3.. NM No.2087.19 in Suit 1391-2023
the said building is nearing completion, however the defendant No.2
and 3 are not available and has left the City of Mumbai. According to
the defendant No.1, since the defendant No.2 and 3 has signed the
agreement with it, they are entitled for the possession and plaintiffs can
take possession from defendant No.2 and 3. Therefore, plaintiffs are
claiming that the defendants be restrained from creating third party
interest in the suit flat.
4. The defendant No.1 was duly served, however it failed to
appear. The defendant Nos. 2 and 3 are shown to have left the address
and could not be served. Later on, they were served through the paper
publication, however they failed to appear and resist the motion.
5. Heard learned Counsel for the plaintiff. Perused the
documents filed by the plaintiffs alongwith the suit, which is in the form
of agreement of alternate accommodation executed by defendant No.1
in favour of defendant No.2 and 3 and agreement executed by
defendant No.1 in favour of defendant No.2 and 3 in favour of
plaintiffs. The plaintiff has filed a copy of agreement to sale alleged to
be executed by defendant Nos. 2 and 3 in favour of the plaintiffs.
However, the said copy does not bear the date of its execution neither it
is executed on stamp paper or registered or notorized.
6. In the copy of agreement, under the schedule of payment.
endorsement about the receipt of payment is made which is not signed
by the defendants neither the plaintiffs. Therefore, it is seen that the
said agreement to sale is incomplete document. Therefore, plaintiffs
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..4.. NM No.2087.19 in Suit 1391-2023
failed to prove prima-facie case that the defendant Nos. 2 and 3 have
executed the agreement to sale to suit flat in their favour and accepted
the amount of Rs.52.00 lakhs from the plaintiffs. Balance of
convenience does not lie in favour of the plaintiffs and therefore I do
not find that plaintiffs are entitled for the relief sought. Hence, I
proceed to pass the following order;
ORDER
Notice of Motion No.1391 of 2019 stands dismissed,
accordingly disposed of.
(Order dictated & pronounced in open Court)
( Nazera S. Shaikh )
Judge, City Civil Court,
Dated : 27/09/2023 Gr. Mumbai C.R. No.03,
Dictated on : 27/09/2023
Typed on : 29/09/2023
Signed on : 30/09/2023
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..5.. NM No.2087.19 in Suit 1391-2023
“Certified to be true and correct copy of the original signed order”.
03/10/2023
at about p.m.
(Dastagir Babalal Mulla)
Stenographer Grade-I (Gazetted)
Court Room No.03, Gr. Mumbai
Name of the Hon'ble Judge : Nazera S. Shaikh
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of
Order
: 27/09/2023
Order signed by Hon'ble Judge
on
: 30/09/2023
Order uploaded on : 03/10/2023
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