Final Order 1

Order Details: Notice of Motion
Pdf Text: :1: NM-1795-18 Suit.1816-17
CNR NO. MHCC010058522018
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.1795 OF 2018
IN
S.C. SUIT NO.1816 OF 2017
Mr. Sanjeev Arjun Satam ] .. Plaintiff
Versus
1. Arun Arjun Satam ]
2. Mrs. Jayshree J. Parab, ] ... Defendant.
CORAM: HER HONOUR JUDGE
BHARTI KALE
(C.R. No. 15).
DATE: 24th September, 2018.
Adv. Deepak Salunkhe for plaintiff.
Adv. Abhijit Desai for defendant No.1.
Adv. Anil Bagwe for defendant No.2.
ORDER
The plaintiff has taken out this notice of motion restraining
the defendant No.2 from creating third party rights in the suit premises.
2. The plaintiffs case in brief is that the suit premises and one
other premises at Andheri belonged to the father of plaintiff and
defendant No.1. In the family settlement, the suit premises came to the
share of the plaintiff and premises at Andheri came to the share of
defendant No.1. The plaintiff was alone residing in the suit premises
and defendant No.1 at Andheri. The plaintiff due to mental illness was
admitted by defendant No.1 to the Thane Mental Hospital on
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28/10/2009 and was discharged on 24/06/2011. After discharge, he
went to the house of defendant No.1, but was not allowed to reside
with the defendant No.1. He thereafter, went to Palghar and stayed
there. Thereafter, he came across with one Gada and on enquiry he
told about the suit premises. Thereafter, it was noticed that the suit
premises were sold to the defendant No.2 vide agreement dated
03/03/2010. The plaintiff has contended that he has not received any
consideration and agreement is fraudulently executed. Therefore, he
has filed the present suit and seeking interim relief.
3. The defendant No.1 has denied the entire contention of the
plaintiff. He has stated that the suit premises were owned by their
father. The plaintiff has no right in the suit premises. The plaintiff due
to his bad habits was admitted to mental hospital at Thane by the
defendant No.1. It is stated that the agreement for sale with defendant
No.1 is absolutely legal and valid and that the amount of Rs.5,00,000/
was paid by cheque and Rs.10,00,000/ by cash, was paid to the
plaintiff.
4. The defendant No.2 has contended that the agreement was
duly executed in the name of defendant No.2. The plaintiff was having
good relations with family of defendant No.2. After having discussion,
the present defendant agreed to purchase the suit premises for
Rs.25,00,000/. The amount of Rs.5,00,000/ was paid to the plaintiff
by cheque and the remaining amount has been acknowledged by the
defendant No.1. The plaintiff and defendant No.1 executed the
agreement, therefore the defendant No.2 approached the MHADA and
deposited the transfer amount of Rs.15,000/. The defendant No.2 has
also paid the stamp duty. It is stated that the suit is falsely filed and is
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barred by limitation. The plaintiff is not entitled for any relief and
prayed for dismissal of the notice of motion.
5. Heard Advocate for the plaintiff and defendants.
6. Following points arise for my determination and I have
recorded my finding thereon for the reasons to follow.
POINTS FINDINGS
1) Whether the plaintiff is entitled for
the reliefs claimed ? : Yes
2) What order ? : As per final order.
REASONS
Point No.1 :
7. At the outset the Advocate for the plaintiff vehemently
submitted that the agreement for sale of the suit premises was entered
into when the plaintiff was admitted to the mental hospital at Thane.
None of the documents bear signature of the plaintiff and signatures are
forged. The plaintiff after coming out of the mental hospital came to
know about the fraudulent transaction and then he filed report in the
police station and also filed criminal complaint. The plaintiff at no
point of time received consideration and the transaction is made in
collusion between defendant No.1 and 2, to deprive the plaintiff of his
lawful right. It is further argued that if the defendant No.1 is not
restrained from selling the suit premises, then rights of the plaintiff will
be affected.
8. The Advocate for the defendant submitted that the
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documents are properly executed in favour of defendant No.2 and the
same were executed when the plaintiff has come out the Thane Mental
Hospital for visiting the defendant No.1. The suit premises are
transferred by the authorities in the name of the defendant No.2.
Further, defendant No.2 has also performed his obligations. Hence, the
relief sought by the plaintiff cannot be granted.
9. It is undisputed fact that the agreement for sale was
executed on 03/03/2010 between the plaintiff and defendant No.1. As
per the documents annexed, the plaintiff was admitted to the Mental
Hospital at Thane, as per the order passed by the Metropolitan
Magistrate on 28/10/2009. The certificate issued by the Regional
Mental Hospital mentions that the plaintiff was in mental hospital from
28/10/2009 till 08/06/2011. So, admittedly, when the agreement was
executed, the plaintiff was in mental hospital. There are no documents
produced on record to primafacie show that at the time of executing
agreement the plaintiff was in a fit state of mind and that he was
visiting the house of the defendant No.1. In these circumstances, the
agreement for sale goes under the cloud of suspicion. Moreover, there
is no registered document produced on record. There is absolutely no
documentary evidence to show that the plaintiff has received amount
of consideration. In these circumstances, the plaintiff has been able to
make out primafacie case that the agreement is falsely and fraudulently
executed. Now, it will be for the defendants to establish that the said
act is not fraudulent. But, at this stage, interest of the plaintiff needs to
be protected. Lest great prejudice and inconvenience would be caused
to the plaintiff. Balance of convenience is in favour of the plaintiff, as
the suit premises admittedly belonged to him. In these circumstances, I
find that the defendant No.2 needs to be restrained from creating third
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party rights in the suit premises till the pendency of the suit. Therefore,
I answer Point No.1 in affirmative and proceed to pass the following
order.
ORDER
i) The Notice of Motion No.1795 of 2018 is allowed as to prayer
clause (a) and (b).
ii) Accordingly, notice of motion is disposed of.
(BHARTI KALE )
Judge
City Civil Court, Gr. Bombay.
Date : 24/09/2018
Dictated on: 24/09/2018
Transcribed on: 25/09/2018
Signed on: 26/09/2018
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
26/09/2018 at 3.52 p.m
UPLOADED DATE AND TIME (DASTAGIR B. MULLA)
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.
H.H.J. BHARTI KALE (Court
Room No.15)
Date of Pronouncement of
Judgment/Order
24/09/2018
Judgment/Order signed by P.O.on 26/09/2018
Judgment/Order uploaded on 26/09/2018
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