Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2130 of 2019
NOTICE OF MOTION NO. 2130 OF 2019
IN
S.C. SUIT NO. 1634 OF 2019
(CNR NO. MHCC01-005921-2019)
M. J. Exports Pvt. Ltd. … Plaintiff
Vs.
Smt. Sulbha Vilas Karnik … Defendant No.1
Appearances:
Adv. Mr. Jain for the plaintiff.
Adv. Ms. Gayatri Sharma i/b S. K. Shrivastav & Co. for defendant No.1.
CORAM : HIS HONOUR JUDGE
SHRI. R. S. PAVASKAR
(C.R.NO.12)
DATE : 1st FEBRUARY 2021
ORDER
The plaintiff has taken out this notice of motion under
Order XXXIX Rule 1 and 2 of the Code of Civil Procedure, 1908 (CPC).
2. The learned Advocate for the plaintiff has vehemently
submitted that the plaintiff is in possession of the premises admeasuring
about 4280 square feet on the first floor of Trimurti building, 505
Senapati Bapat Marg, Dadar (W), Mumbai- 400028. (hereinafter
referred to as the “
suit property”) from the year 1980. However,
defendant No.1 is obstructing the plaintiff’s possession over the suit
property. He has, therefore, prayed that defendant No.1 be restrained
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from obstructing plaintiff’s possession over the suit property until the
final decision of the suit.
3.
Per contra, the learned Advocate for the defendant No.1
has strenuously submitted that the plaintiff is not in possession of the
entire first floor of Trimurti building. Some portion of the first floor is
in possession of defendant No. 1 and Shiv Enterprise as indicated in the
map at Exh.C annexed to the additional affidavit in reply. The plaintiff’s
possession over the suit property is illegal. She further contended that
this Court has no jurisdiction to entertain and try the present suit. The
suit is bad for non-joinder of necessary parties. The plaintiff is,
therefore, not entitled to the relief of temporary injunction.
4. The plaintiff has filed the present suit for injunction
simpliciter to protect its alleged possession over the suit property. This
Court has, therefore, jurisdiction to entertain and try the present suit
under Section 9 of the Code of Civil Procedure, 1908.
5. The plaintiff has sought relief of temporary injunction
against defendant No. 1 who allegedly obstructed its possession over
the suit property. It is, therefore, not necessary for the plaintiff to
implead any other person against whom it doesn’t have any cause of
action.
6. From the copies of the Leave and Licence agreement at
Exh.D and E, it
prima facie appears that Shri. Prabhakar Madan
Shildankar had given 397.612 square metres of area on the first floor of
Trimurti building to the plaintiff on leave and licence basis.
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7. The plaintiff has produced a copy of Indenture dated
27/04/2015 at Exh.F to show that Shri. Subhash Madan Shildankar had
agreed to give the suit property to the plaintiff for a period of thirty-
three years on the same terms and conditions mentioned in the Leave
and Licence agreement dated 01/02/1980. However, the said
agreement is neither stamped nor registered. As such, no reliance can
be placed on it.
8. It seems that except for the Leave and Licence agreement at
Exh.D and E, no valid agreement was executed between the plaintiff
and the owner of the suit property for extension of the period of Leave
and Licence agreement in respect of the suit property.
9. From the rent receipts produced by the plaintiff, it
prima
facie appears that it had paid rent to the owner of suit property till
February 2016.
10. The plaintiff has placed on record the copies of postal
envelopes and cheques, but it seems that same were not received by the
owner of the suit property. The plaintiff has not placed on record a
statement of its bank account to show that those cheques were realised
and the amounts thereof were credited to the account of the owner of
the suit property.
11. The copy of the Leave and Licence agreement at Exh.B to
the additional affidavit in reply shows that on 23/04/2019, the
defendant No. 1 had given Shop No. 2 admeasuring 600 square feet on
the first floor of Trimurti building to Shiv Enterprises for a period of
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eleven months on leave and licence basis. The said agreement is
registered. There is a presumption under the Registration Act, 1908
that a registered document is validly executed. So, the Leave and
Licence agreement at Exh.B has to be presumed validly executed.
12. In the copy of the complaint dated 23/09/2016 filed by the
plaintiff to the Police Inspector, Shaitan Chowky Police Station, Dadar
(West), Mumbai, it is mentioned that the plaintiff is in possession of the
area admeasuring around 4280 square feet on the first and second
floors of Prakash Power Laundry building, Senapati Bapat Marg, Dadar
(West), Mumbai. The same fact is mentioned in the report filed by the
Police Sub-Inspector, Dadar Police Station, Mumbai. However, in the
plaint, it is mentioned that the plaintiff is in possession of the area
admeasuring 4250 square feet on the first floor of Trimurti Building.
The plaintiff’s claim as to the possession over the suit property is, thus,
falsified by its own documents.
13. In the Inspection Report of Assistant Assessor and Collector,
Dadar (West), Mumbai at Exh.E to the additional affidavit in reply, it is
mentioned that the entire first floor of Prakash Power Laundry building
was in possession of the owner and the entire second floor was in
possession of Shri. S. M. Shah.
14. The photographs produced by the plaintiff appear to be
taken on 18/03/2017. As stated
supra, defendant No. 1 by the
registered Leave and Licence agreement dated 23/04/2019 has given
Shop No. 2 admeasuring 600 square feet on the first floor of Trimurti
building to Shiv Enterprise on leave and licence basis. Admittedly, the
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plaintiff has filed the present suit on 03/06/2019. As such, these
photographs will not help the plaintiff to prove its alleged possession
over the suit property as on the date of filing of the suit.
15. In the complaint dated 19/08/2019 filed by one Mr
Bechora Ranchhod Patel, Partner of Shiv Enterprises to the Senior
Inspector of Police, Shaitan Chowky Police Station, Dadar (West),
Mumbai, it has been alleged that on 14/08/2019, Mr Amol J. Shah and
Mr Sadanand Sawant took forcible possession of the premises occupied
by Shiv Enterprises by breaking open the lock of the door.
16. From the record, it
prima facie appears that of the plaintiff
is not in possession of the entire first floor of Trimurti building, and
there is a dispute between the plaintiff and defendant No. 1 over the
possession of the first floor of Trimurti building. The plaintiff has, thus,
failed to establish its exclusive possession over the suit property. So, its
entitlement to the relief of temporary injunction is out of the question.
17. It cannot be gainsaid that the relief of injunction being
equitable and discretionary, a party who seeks such relief must
approach the court without any delay.
18. In the case in hand, from the pleadings, it appears that
there is a long-standing dispute between the plaintiff and defendant
No.1 over the possession of the suit property. In para 20 of the plaint, it
is alleged that on 26/04/2016, the plaintiff had lodged a complaint
against defendant No.1 as she had kept threatening to obstruct its
possession over the suit property. The cause of action is shown to have
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been arisen on March-April 2017. However, the plaintiff has filed the
suit belatedly on 03/06/2019. This delay on the part of the plaintiff in
approaching the Court for discretionary and equitable relief of
temporary injunction is sufficient to deny it the said relief on the
maxim “
delay defeats equity”.
19. The plaintiff has, thus, failed to make out
prima facie case.
The balance of convenience is also not in its favour. So, I hold that the
plaintiff is not entitled to the relief of temporary injunction.
Consequently, the notice of motion is liable to be dismissed. Hence, the
order:-
ORDER
1. Notice of Motion No.2130 of 2019 is dismissed.
2. Costs shall be costs in the cause.
3. Notice of Motion No.2130 of 2019 is disposed of.
Sd/-
R. S. PAVASKAR
Judge,
Date: 01/02/2021 City Civil Court, Gr. Bombay
Dictated on : 01/02/2021
Transcribed on : 01/02/2021
HHJ signed on : 01/02/2021
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