Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1.. NM NO. 2149/2018
MHCC010069582018
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2149 OF 2018
IN
S.C. SUIT NO. 2768 OF 2017
Mr. Krishna Perumal Narayanan …Plaintiff
Versus
Mrs. Rani Raja Nagrajan & Others. … Defendants
Advocates
V. N. Mishra for the plaintiff.
None for defendants.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 20th APRIL 2022.
ORAL ORDER
Heard advocate for the plaintiff on notice of motion moved on
behalf of the plaintiff for grant of temporary injunction to restrain
defendants or anybody on their behalf from dispossessing the plaintiff
from the suit premises i.e., flat No. 708, Prathamesh Apartment, Opp.
TATA Power, Matunga Labour Camp, Mumbai – 400 019 till disposal of
the suit. Advocate for defendants remained absent at the time of
hearing. Notice of Motion is pending since 2018 hence it is taken up for
consideration.
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2. Perused the plaint, Notice of Motion alongwith affidavit, reply of
defendant no.1 and 2, additional reply of the plaintiff and documents
filed on the record.
3. Plaintiff's case in short is that plaintiff is owner of the suit
premises by virtue of registered Agreement for Sale dated 01/02/2006
and he is member of Prathamesh Apartment CHS (Society). Defendant
no. 1 is prospective purchaser of the suit premises. Defendant no. 2 is
husband and Constituted Attorney of defendant no. 1. Defendant no. 3
to 5 are the vice-chairman and office bearers of the society. Plaintiff is
businessman. Due to heavy loss in the business, plaintiff let out the suit
premises to one Mr. Majeed for residential purpose on heavy deposit of
Rs.15,00,000/-. In the year 2014, plaintiff obtained mortgage loan from
Union Bank of India on the suit premises. Defendant no.3
Murugannadam, one of plaintiff's friend and also chairman of the
society on behalf of defendant no. 2, Raja Nagarajan inquired with the
plaintiff whether plaintiff is selling the suit premises. Plaintiff went to
his native place hence could not considered said proposal. Hence
defendant no. 1 purchased another flat in the society.
4. In the meantime, plaintiff's tenant wanted to vacate the suit
premises and claimed deposit of Rs.15,00,000/-. Plaintiff could not
arrange the same. At that time, defendant no. 3 introduced the
plaintiff with defendant no. 2. After several deliberations, defendant no.
2 lent amount of Rs.15,00,000/- to the plaintiff on monthly interest/
compensation of Rs.20,000/- and Deed of Mortgage dated 27/04/2016
was executed between defendant no. 2 and the plaintiff for three years
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in respect of the suit premises. It was agreed that plaintiff shall remain
in possession of suit premises. In the meantime, defendant no. 2 again
lent amount of Rs.2,50,000/- on interest to the plaintiff for business
purpose. Plaintiff was regularly paying interest to defendant no. 1 till
July 2017 but since August 2017, plaintiff could not pay the interest /
compensation due to his financial crises. Plaintiff issued cheque in
favour of defendant no. 2 as security for repayment of mortgage
amount and further issued cheques to defendant no. 2 to handover to
chairman of the society in respect of pending maintenance and property
taxes in respect of the suit premises.
5. In the year 2017, due to mounting debts, plaintiff was in the
process of disposing of the suit premises and even found a prospective
purchaser but defendant no. 2 approached the plaintiff and intended to
purchase the suit premises for Rs.70,00,000/-. Defendant no. 2 was
seeking time for arrangement of loan. Hence the plaintiff dropped idea
of disposing of the suit premises to another purchaser. In the second
week of April 2017, defendant no. 2 informed the plaintiff that he was
in process of preparing relevant documents in respect of the home loan
from the bank and plaintiff was seeking defendant no. 2's signature on
draft of Memorandum of Understanding but defendant no. 2 refused to
sign on the ground that he will immediately release balance
consideration of Rs.70,00,000/- after deduction of Rs.17,50,000/- i.e.
mortgage amount of Rs.15,00,000/- and loan amount of Rs.2,50,000/-
as mutually agreed by defendant no. 2 and the plaintiff previously to
sum balance amount of Rs.52,50,000/-. Defendant no. 2 also agreed to
repay the outstanding dues of earlier mortgage loan availed by the
plaintiff on the suit premises for Rs.31,00,000/-.
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6. Contention of plaintiff is that on 26/04/2017, at the time of
registration of Agreement for Sale, defendant no. 2 prepared said
Agreement for Sale as per his own terms and conditions without
knowledge of the plaintiff for the purpose of home loan from the bank.
In said Agreement for Sale, defendant no. 1 mentioned loan from
defendant no. 1's bank for Rs.35,00,000/- and not total consideration of
Rs.70,00,000/-. When plaintiff asked clarification, defendant no. 2 was
convincing the plaintiff and made him act in favour of defendant no. 2.
7. Defendant no. 2 have entered into Agreement for Sale as a
Constituted Attorney of his wife, Rani Raja Nagarajan i.e. defendant no.
1 by notarized Power of Attorney which is not valid and admissible in
law. Hence defendant no.1 is not legally bound to enter into Agreement
for Sale as she never party to the agreement. Defendant no. 2
fraudulently obtained signature of the plaintiff in collusion with
defendant no. 3 only to dispossess the plaintiff from the suit premises.
8. Defendant no. 1 fraudulently obtained the loan and signature of
the plaintiff on some papers by promising to foreclose outstanding dues
of Rs.31,00,000/- payable by the plaintiff to Union Bank of India.
Thereafter defendant no. 1 paid pending dues of mortgage loan only to
Union Bank of India and obtained all original documents of the suit
premises without knowledge and consent of the plaintiff. Defendant no.
2 given lame excuses to the plaintiff for two months in respect of
balance payment of Rs.21,50,000/- after registration of Agreement for
Sale after clearing mortgage loan of the plaintiff. Plaintiff repeatedly
requested defendant no. 2 to settle the balance payment but he ignored
and neglected to pay. Defendant no. 2 illegally transferred the suit
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premises in the name of his wife, defendant no.1. Without due process
of law in collusion with defendant no. 3 to 5.
9. In the month of August 2017, dispute arose between defendant
no. 2 and the plaintiff when defendant no. 1 and 2 alongwith defendant
no. 3 to 5 and some gundas forcibly entered in the suit premises in the
absence of the plaintiff. Defendant no. 2 threatened wife of plaintiff to
vacate the suit premises. Defendant no. 2 disconnected electricity and
water supply with intention to grab the suit premises at cheaper rate as
compared to present market rate. Defendant no. 2 started threatening
the plaintiff to vacate the suit premises or to return the amount with
interest. Plaintiff along with his family are residing in the suit premises.
Defendants have no right, title and interest in the suit premises. Hence
plaintiff through his advocate issued notice dated 04/10/2017 to all
defendants. Defendant no. 3 society given reply dated 13/10/2017
stating that plaintiff is a trespasser, they have admitted defendant no. 1
as eligible bonafide member in respect of the suit premises and they are
in process of evicting the plaintiff from the suit premises. Under
circumstances, plaintiff filed the present suit for directing defendant no.
3 to 5 to restore electric and water supply and share certificate,
permanent injunction restraining defendants from dispossessing the
plaintiff from the suit premises without following due process of law
and claimed temporary injunction by way of present notice of motion.
10. Defendant no. 1 and 2 strongly opposed the notice of motion by
filing their reply. Contention of defendant no. 1 and 2 is that plaintiff
sold, transferred and handed over vacant possession of the suit premises
to defendant no. 1 by registered sale deed dated 26/04/2017 and
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thereafter defendant no. 1 put lock on the suit premises for renovation.
In the meanwhile, plaintiff and his family members hurriedly reached
Mumbai, sprinkled ink over the CCTV installed near the suit premises,
broke open the suit premises and are unlawfully staying in the suit
premises. Hence suit under section 6 of the Specific Relief Act (SR Act)
is not tenable.
11. Plaintiff firstly executed Deed of Mortgage dated 27/04/2016
and received Rs.15,00,000/- from the defendant no. 1 and 2 by
pretending to be the owner of the suit premises by concealing the fact
that the suit premises is already attached by Union Bank of India. Suit
premises is under the custody of Diwan Housing Finance Limited
(DHFL), Mumbai through whom defendant no. 1 secured home loan in
respect of the suit premises. DHFL is not impleaded as necessary party.
12. After execution of the registered Sale Deed of the suit premises,
plaintiff requested defendant no.1 and 2 to allow them to stay at the
suit premises for few moths as he arranged the marriage of his son,
Naresh with Indhumathi. Hence defendant no. 1 and 2 allowed the
plaintiff and his family member to stay at the suit premises for few
months. Thereafter the plaintiff and his family members handed over
and vacated the suit premises. They went to their native place for
engagement ceremony. In the meanwhile, defendant no. 1 and 2 put
lock over the suit premises for renovation but soon after the
engagement ceremony, plaintiff, his family member and their paid
hooligans broke open the door of the suit premises and now illegally
occupying the suit premises. Defendant lodged several complaints with
concerned police station which are under process.
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13. On 07/05/2018, plaintiff and his family member invited
defendant no.1 and 2 at the suit premises under the pretext of repaying
the remaining amount and to handover the suit premises. At that time,
there was assault between the plaintiff, his family member and few
unknown persons. When defendant no. 1 and 2 intervened and tried to
pacify, said unknown person informed that they are recovery persons/
money lenders and stated that since last several years, plaintiff keeps
on cheating and evading their dues and outstanding amount.
14. Thereafter, when defendant no. 1 and 2 demanded their
outstanding amount and to vacate the suit premises, the plaintiff and
his family members pleaded to stay at the suit premises for few more
weeks as their daughter-in-law, Indhumathi is reaching at Mumbai and
will be staying in the suit premises but when defendant no.1 and 2
refused, plaintiff and his family members demanded more money as if
they leave the suit premises then they have to acquire new flat premises
on heavy deposit. Plaintiff and his family members abused and
assaulted defendant no. 1 and 2 and their children. Defendant no. 2
lodged report in police station on 07/05/2018 but the police issued NC
No. 1137/2018.
15. Defendant no.2 is also having flat no. 607 in the same society.
So there is no restrictions to defendant no. 1 and 2 to ingress and egress
the society. Hence plaintiff is deliberately adducing the CCTV footage as
evidence to misguide the Court.
16. Sum and substance of contention of defendant no. 1 and 2 is
that plaintiff secured money by way of Deed of Mortgage from
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defendant no. 1 and 2 by pretending to be the owner of the suit
premises by concealing the fact that the suit premises is already
attached by Union Bank of India. Thereafter plaintiff executed Sale
Deed of the suit premises in favour of defendant no. 1 and 2. Defendant
no. 1 and 2 released the suit premises from Union Bank of India
through a home loan from DHFL. Plaintiff handed over the possession
of the suit premises to defendant no. 1 and 2. Defendant no.1 and 2 put
lock on the suit premises for renovation purpose. Thereafter plaintiff
and his family members broke open the lock of the suit premises and
illegally staying in the suit premises. Hence they prayed for dismissal of
notice of motion.
17. It is well settled that for grant of temporary injunction under
Order 39, Rule 1 of the CPC, plaintiff has to make out prima facie case,
balance of convenience and irreparable loss in his favour. Grant of
temporary injunction is a discretionary and equitable relief. Hence a
person who seeks equity must do equity. Plaintiff has to come before the
Court with clean hands. Plaintiff has to make out prima facie case for
grant of temporary injunction on admitted facts. As per section 41 (i)
of the S.R. Act, 1963, injunction cannot be granted when the conduct of
the plaintiff or his agent has been such as to dis-entitle him to assistance
to the Court. In view of above principle and law, it is to be seen whether
plaintiff has made out a prima facie case for grant of temporary
injunction and whether his conduct has been such as to dis-entitle him
to assistance to the Court.
18. From perusal of pleadings and documents filed on record, it
appears that the plaintiff has obtained loan from Union Bank of India.
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He was in financial crises due to heavy loss in the business. Therefore
he given the suit premises on leave and license basis to one Mr. Majeed
by accepting heavy deposit of Rs.15,00,000/-. Said licensee claimed
refund of deposit from the plaintiff as he wanted to vacate the suit
premises. To pay said deposit, plaintiff mortgaged suit premises on
27/04/2016 to defendant no.2 for Rs.15,00,000/- on monthly interest /
compensation of Rs.20,000/- per month. Plaintiff paid the interest till
July 2017 but since August 2018 he failed to pay the interest to
defendant no.1 and2. For business purpose, plaintiff again taken loan of
Rs.2,50,000/- from defendant no. 1 and 2. Plaintiff had mortgaged the
suit premises with the Union Bank of India and outstanding dues was
Rs.31,00,000/-. Plaintiff sold the suit premises to defendant no. 1 and
2. Defendant no. 1 and 2 purchased the suit premises from the plaintiff
by registered Agreement for Sale dated 26/04/2017 and released the
suit premises from Union Bank of India by obtaining loan from DHFL.
DHFL sent recovery notice on the address of the suit premises. These
facts are not in dispute.
19. One of the contention of the plaintiff is that defendant no. 1 and
2 wants to grab the suit premises at cheaper rate as compared to
present market value. From perusal of photocopy of registered
Agreement for Sale dated 26/04/2017, it is evident that market value of
the suit premises is mentioned as Rs.24,02,379/- and consideration is
mentioned as Rs.35,00,000/-. Thus consideration in Agreement for Sale
is more than the market value of the suit premises. Hence it is not
digestible that the plaintiff sold the suit premises to defendant no. 1 at
cheaper rate as compared to market value. Admittedly plaintiff has
accepted amount of Rs.5,00,000/- as earnest money before entering
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ORDER ..10.. NM NO. 2149/2018
into registered Agreement for Sale of the suit premises. Plaintiff is not a
illiterate person.
20. In affidavit in support of notice of motion, plaintiff mentioned
that on 07/05/2018, defendant forcibly took possession of the suit
premises. In the plaint, plaintiff pleaded that defendant no. 3 to 5
admitted defendant no. 1 as eligible bonafide member in respect of suit
premises. The plaintiff also pleaded that he along with his family went
to his native place. Contention of defendant no. 1 and 2 that after
execution of registered Agreement for Sale, plaintiff handed over vacant
possession of the suit premises to them and thereafter plaintiff and his
family members went to their native place. Therefore, defendant no. 1
and 2 put lock on the suit premises for renovation purpose. Thereafter
plaintiff along with his family came to the suit premises, broken the
door of the suit premises and illegally staying in the suit premises.
Therefore defendant no.1 to 3 claims the plaintiff as trespasser in the
suit premises.
21. Admittedly plaintiff had mortgaged the suit premises with the
Union Bank of India and outstanding dues was Rs.31,00,000/-. Plaintiff
sold the suit premises to defendant no. 1 and 2 to redeem the debt of
Union Bank of India, mortgage loan of Rs.15,00,000/- and hand loan of
Rs.2,50,000/- taken from defendant no. 1 and 2. Defendant no. 1 and 2
purchased the suit premises from the plaintiff by registered Agreement
for Sale dated 26/04/2017 and released the suit premises from Union
Bank of India by obtaining loan from DHFL. Fact of taking loan by
defendant no. 1 on the suit premises also evident from reply of the
plaintiff dated 23/05/2018 to recovery notice sent to defendant no. 1
by DHFL on the address of the suit premises.
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22. Admittedly at present, plaintiff is in possession of the suit
premises but only on that count, it cannot be said that he has made
out prima facie case for grant of temporary injunction. It is not the
contention of the plaintiff that he repaid any amount to defendant no.
1 and 2 which they have paid to the plaintiff in respect of sale and
mortgage transaction and to redeem the suit premises from Union
Bank of India. He also suppressed material fact from defendant no. 1
and 2 at the time of obtaining mortgage amount that suit premises is
mortgaged with the Union Bank of India.
23. Further defendant no. 3 to 5 admitted defendant no. 1 as
eligible member of the society by removing the name of plaintiff.
Plaintiff has not challenged the action of defendant no. 3 to 5 before
the Dy. Registrar of Co-operative Housing Society. Though plaintiff is
admitting execution of registered Agreement for Sale in respect of the
suit premises in favour of the plaintiff but he has not sought
declaration or cancellation of said Agreement for Sale. It prima facie
appears that plaintiff has not come before the Court with clean hand.
Conduct of the plaintiff dis-entitles him to assistance of the Court as
per section 41 (i) of the S.R. Act, 1963. Hence in the interest of
justice, equity and good conscience, plaintiff is not entitled for
temporary injunction. Under the facts and circumstances, notice of
motion is liable to be dismissed. In the result, following order.
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ORDER ..12.. NM NO. 2149/2018
ORDER
(1) Notice of motion no. 2149/2018 is dismissed.
(2) No order as to costs.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date: 20.04.2022.
Typed on : 20.04.2022.
HHJ signed on : 20.04.2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 21.04.2022 11.30 a.m.
UPLOAD DATE AND TIME Mrs. S. S. Girkar.
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
20.04.2022.
JUDGMENT/ORDER signed by P.O.
on
20.04.2022.
JUDGMENT/ORDER uploaded on 21.04.2022.
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