Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1.. NM NO. 2267/2021
MHCC010062292019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2267 OF 2019
IN
S.C. SUIT NO. 3336 OF 2018
Mrs. Ashwini Ghate
R/o – Plot No.71, Padole Nagar,
Near Buddha Vihar, Nagpur – 440008. …Plaintiff
Versus
1. M/s Radius and Deserve Builders LLP
Having Address at 14th Floor, ONE BKC,
Opp. Bank of Baroda, Bandra Kurla Complex,
Bandra (East), Mumbai – 400 051.
2. Mr. Kishor Tarachand Zingre
Postgraduate Research (PhD) Department of
Architecture and Built Environment,
Northumbria University, Newcastle upon Tyne,
NE1 8ST, England
Permanent R/o – Sant Tukdoji Society,
Ward No.2, Tukum Chandrapur,
Tahsil & District Chandrapur. … Defendants
Advocatesh
Charles Dmello for the plaintiff.
D.R. Motghare for defendant no.2.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor
( COURT NO.2 )
DATED : 03rd August, 2021.
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ORDER ..2.. NM NO. 2267/2021
ORAL ORDER
Heard advocate for both the parties on notice of motion moved
on behalf of the plaintiff for grant of temporary injunction to restrain
defendants from - (a) creating third party interest in the suit Flat i.e.,
Flat No.T8-0507, Unit No.7, 5th Floor, Tower T8, one BHK having Carpet
Area 403 sq.ft. in the project namely “Anantya” at Chembur East
developed by defendant no.1 and (b) surrendering suit flat to defendant
no.1, parting part consideration with defendant no.1 and deleting name
of the plaintiff from the column of co-applicant. By prayer clause (c)
and (d) of the notice of motion, plaintiff also prayed for appointment of
Court Receiver by appointing the plaintiff as agent of the Court Receiver
without royalty and directions to complete remaining work of the suit
flat.
2. Perused the plaint, Notice of Motion alongwith affidavit and
reply of defendant no.2.
3. Plaintiff's case in short is that defendant no.2 is husband of the
plaintiff. Defendant no.1 is the builder and undertaken a project namely
“Anantya”. Vide application/ allotment letters dated 06.10.2016,
plaintiff and defendant no.2 jointly booked two flats bearing no.T8-
0507 i.e., Suit flat and flat no. T8-0508 in the project of defendant no.1
for consideration of Rs.98,27,040/- and Rs.1,15,40,671/- respectively.
For purchasing said flats, plaintiff transferred 52,000/- Singapore
Dollars in the account of defendant no.2. Plaintiff also transferred some
amount in account of defendant no.1 as part consideration towards
purchase of said flats. Plaintiff and defendant no.2 jointly executed
power of attorney in favour of father of defendant no.2. Relations
between plaintiff and defendant no.2 become strained. Hence plaintiff
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ORDER ..3.. NM NO. 2267/2021
canceled power of attorney executed in favour of father of defendant
no.2.
4. In October 2017, the plaintiff learn that defendant no.2 is trying
to delete name of the plaintiff from column of the co-applicant from
allotment letter and for that purpose started correspondence with
defendant no.1 through email dated 06.10.2017. Vide email dated
26.10.2017 defendant no.2 offered the plaintiff to take a flat of her
choice. Plaintiff decided to take the suit flat i.e., flat no.T8-0507.
Plaintiff paid more than 20% of the consideration to defendant no.1 but
defendant no.1 failed and neglected to execute registered agreements in
favor of the plaintiff and defendant no.2 because of which the plaintiff
cannot approach any bank for housing loan.
5. Hence plaintiff sent notice dated 09.10.2018 to defendants
calling defendant no.1 to execute registered agreement of the suit flat,
not to surrender suit flat to defendant no.1 and not to refund
consideration amount to defendant no.2 without paying plaintiff's legal
dues and without obtaining permission and consent from the plaintiff.
Defendant no.2 vide his advocate's letter dated 24.11.2018 denied
contents of notice of the plaintiff. Defendant no.1 did not reply to notice
of the plaintiff.
6. Plaintiff being co-owner entitled to 50% shares in the said flats.
Plaintiff is ready to pay balance consideration of the suit flat. Till
05.01.2018, plaintiff and defendant no.2 paid around INR 53,12,311/-
in total to defendant no.1. Plaintiff apprehends that defendant no.1 will
crate third party rights in the suit flat. Hence plaintiff filed the present
suit for directions to execute the registered agreement in respect of the
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ORDER ..4.. NM NO. 2267/2021
suit flat, permanent injunction to restrain defendants from creating
third party interest in the suit flat and declaration that allotment letter/
applications form dated 06.10.2016 are binding on defendants. In view
of above facts and circumstances, plaintiff filed present notice of motion
and prayed for allowing the same.
7. Defendant no.2 opposed the notice of motion by filing his reply.
Defendant no.1 filed its written statement but did not file reply to the
notice of motion and remained absent at the time of hearing.
8. Contention of defendant no.2 as appears from his reply is that
he is sole owner of both flats including the suit flat. Out of love and
affections, defendant no.2 joined name of the plaintiff as wife in every
transaction of land or property as co-owner. However defendant no.2
paid all amount towards both flats. Total consideration of both flats is
above Rs.2 Crores, hence this Court has no jurisdiction to try the suit.
9. Contention of defendant no.1 as appears from its written
statement is that after booking of flats, area of the suit flat increased to
429 Sq. fts. and its value is above Rs.1 Crore. Hence this Court has no
jurisdiction to try the suit. Defendant no.1 shared details of stamp duty
and registration charges with plaintiff and defendant no.2. Defendant
no.1 repeatedly called upon the plaintiff and defendant no.2 to register
the agreement but the plaintiff never responded to the communications.
Dispute is primarily between husband and wife. Defendant no.1 is made
a scape goat. Hence defendants prayed for dismissal of notice of
motion.
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ORDER ..5.. NM NO. 2267/2021
10. Grant of temporary injunction is a discretionary and equitable
relief. It is regulated by Order 39, Rule 1 of the Civil Procedure Code
(CPC) which provides that where in any suit, it is proved by affidavit or
otherwise that the defendant threatens to dispossess the plaintiff or
otherwise cause injury to the plaintiff in relation to any property in
dispute in the suit, the Court may by order grant a temporary injunction
to restrain such act, or make such order for the purpose of staying and
preventing the dispossession of the plaintiff or otherwise causing injury
to the plaintiff in relation to any property in dispute in the suit until
disposal of the suit or until further order. Needless to say that for grant
of temporary injunction, plaintiff has to make out a prima-facie case
and show that balance of convenience lies in his favour and he will
suffer irreparable loss in case temporary injunction is refused.
11. It is not in dispute that plaintiff and defendant no.2 booked
above two flats in the project of defendant no.1. It is also not in dispute
that plaintiff and defendant no.2 paid part consideration to defendant
no.1. Dispute arose between the plaintiff and defendant no.2.
12. Plaintiff filed on record her bank statements showing that he
transferred Singapore Dollars in the account of defendant no.2 and
defendant no.1 for purchasing flats. This fact is also not in dispute.
Admittedly defendant no.1 received 20% of consideration amount of
the suit flat. Thus plaintiff is having right and interest in the both flats.
Defendant no.1 has not executed registered agreements of the flats in
favor of the plaintiff and defendant no.2.
13. Defendant have not filed on record any documents showing that
the area and valuation of the suit flat is increased upon onset of the
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ORDER ..6.. NM NO. 2267/2021
RERA. Even this fact is matter of evidence and cannot be considered at
this stage. Similarly the fact whether plaintiff or defendant paid part
consideration to defendant no.1 is also not material at this stage as
defendant no.1 not disputed receipt of amount.
14. Entitlement of the plaintiff to the suit flat is denied by defendant
no.1 hence this question can not decided at this stage. Plaintiff filed on
record, correspondence of defendant no.2 with defendant no.1 through
email dated 06.10.2017 for deleting name of the plaintiff from column
of co-applicant in the allotment form of the flats. Thus prima facie case
is made out to restrain defendants from creating third party interest in
the suit flat. Thus balance of convenience lies in favour of the plaintiff.
Irreparable loss would be caused to the plaintiff if defendants are not
restrained from creating third party interest in the suit flat. Other reliefs
claimed by way of present notice of motion cannot be granted at this
stage as registered agreement for sale is not executed between the
parties. Under the facts, circumstances and documentary evidence on
record, notice of motion is liable to be partly allowed subject to some
directions and conditions. Accordingly this Court proceeds to pass
following order -
ORDER
(1) Notice of Motion No.2267 /2019 is partly allowed.
(2) Defendant no.1 is restrained from creating third party interest in
the suit flat and surrendering the suit flat to defendant no.2.
(3) If plaintiff and defendant no.2 failed to arrive at settlement
about how to pay the balance consideration to defendant no.1, they
shall jointly pay balance consideration of both flats to defendant no.1 as
per would be registered agreements for sale.
(4) Defendant no.1 is directed to execute registered agreement for
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ORDER ..7.. NM NO. 2267/2021
sale of both flats in favor of plaintiff and defendant no.2 jointly or as
per settlement between plaintiff and defendant no.2 within one month
of the communications received from plaintiff and defendant no.2.
(5) Prayer clause ( c) and (d) of the notice of motion is rejected at
this stage.
(6) Costs shall follow the event.
(7) Notice of motion no.2267 of 2019 is disposed of.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 03.08.2021
Typed on : 03.08.2021
HHJ signed on : 03.08.2021
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ORDER ..8.. NM NO. 2267/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 03.08.2021 , 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
03.08.2021
JUDGMENT/ORDER signed by P.O.
on
03.08.2021
JUDGMENT/ORDER uploaded on 03.08.2021
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