Final Order 1

Order Details: Notice of Motion
Pdf Text: NM In SC 435/18 Oral Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2214 OF 2018
(CNR NO.MHCC010071402018)
IN
SUMMARY SUIT NO.435 OF 2018
(CNR NO.MHCC010116802017)
Mrs.Kesar Lalji Shah,
W/o.Shri.Lalji Hemraj Shah
Age about 64 years, A Senior Citizen
Indian Inhabitant of Bombay,
Occupation :Housewife
R/o: D4, 1 st Floor, Pannalal Terrace
Lamington Road, Grant Road (East)
Mumbai 400007. ...Plaintiff
V/s
1. Ms. Kanchi Manish Shah ,
D/o.Shri. Manish Harjivandas Shah
Aged about 34 years,
Residing at: Pannalal Terrace,
BWing, Room No.38, 2 nd Floor,
Dr.D.B.Marg, (Lamington Road),
Grant Road, (East), Mumbai 400007.
And also at:
Shri.Vivekanand Nagar C.H.S.Ltd.
Building No.1, Bwing, Flat No.7,
Ground Floor, 56, S.V.Road,
Borivali (West), Mumbai400092.
2. Mr.Manish Harjivan Shah
Aged about : 68 years
Residing at: Pannalal Terrace,
BWing, Room No.38, 2 nd Floor,
Dr.D.B.Marg, (Lamington Road),
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Grant Road, (East), Mumbai 400007.
And also at:
Shri.Vivekanand Nagar C.H.S.Ltd.
Building No.1, Bwing, Flat No.7,
Ground Floor, 56, S.V.Road,
Borivali (West), Mumbai400092. ...Defendants
Coram : His Honour Judge Shri M.M.UMAR(C.R. No.28)
Dated : 03/11/2018
Adv. Ms.Kavita Shinde for plaintiff.
Adv. Ms.Neeta Parikh for defendants.
ORDER BELOW NOTICE OF MOTION NO.2214/18
1. This Notice of Motion is taken out by the plaintiff for
restraining to the defendant by an order of temporary injunction from
selling, creating any third party rights in respect of flat no.7, BWing,
Swami Vivekanand Nagar Cooperative Society Ltd. Borivali (W),
Mumbai. The defendant has resisted to the said application by filing
reply at Exhibit 7 and has contended that the said flat is already sold to
one Mr.Shailesh M.Dagha and Mrs.Chitra S.Dagha and they have
received part payment towards the sale of said flat. It is contended that
as the interest of the third party is already created, therefore, the Notice
of Motion does not survive and it be dismissed.
2. Read the application and reply.
3. Heard . The learned advocate for the plaintiff has submitted
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that the defendant no.1 resides in the building of plaintiff at Pannalal
Terrace and the defendant no.1 treated her like mother and gained her
trust by sharing all her personal information, like saving and financial
position etc. It is submitted that defendant no.1 informed to the
plaintiff that she has been appointed as a vice president of Appejay
Group and that she is getting handsome salary of Rs.5,00,000/ and
Rs.10,00,000/ as a commission. It is submitted that defendant no.1
assured to the plaintiff that her family own two buildings at Dadar near
Shivaji Park, being Shah Sadan building no.1 and Shah Sadan building
no.2 . So also, she informed to the plaintiff that they are in the process
of redevelopment of both the buildings and the defendant no.1
convinced to the plaintiff to invest in the said project. So also, she told
that the price of the flat would be 40 to 50% lesser than the normal
price. Thereafter the plaintiff paid Rs.30,00,000/ as a booking amount
by way of cash installment to the defendant during August2014 to
September2015, which she had borrowed from her son. She also paid
Rs.10,00,000/ as a balance portion amount. It is submitted that the
plaintiff came to know that the defendant cheated her by giving the
false assurances and promises. It is submitted that the plaintiff is the
Senior citizen and suffering from various ailments and therefore to
protect the interest of the plaintiff, it is just and necessary to restrain to
the defendant by an order of temporary injunction from selling, or
creating third party interest in the said property.
4. Per contra, the advocate for defendant has submitted that the
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plaintiff has not appeared to the Court with clean hands and she has
suppressed the material fact from the Court, so she is not entitled to
discretionary releif. It is submitted that the said flat was owned by the
defendant no.1 and her grandmother Mrs.Kamlaben Shah, who is no
more and Probate Petition is pending before the Hon'ble High Court. It
is submitted that the defendant has already sold the said flat to one
Mr.Kamlesh Dagha and Mrs.Chitra S.Dagha and they have received the
part payment and the plaintiff was already informed regarding the
creation of third party right during the course of hearing, of the suit. It
is submitted that the defendant has already paid Rs.6,00,000/ to the
plaintiff on 04/01/2015 at the office of her uncle Mr.Rajesh Parikh and
the plaintiff has suppressed this material fact. It is submitted that as
per the order of Hon'ble Bombay High Court dated 22/12/2016, the
defendant has deposited an amount of Rs.24,00,000/ in Hon'ble High
Court. Therefore, it is submitted that the plaintiff is not entitled for the
temporary injunction as prayed for.
5. I have duly considered the above submissions of both the
sides so also, I have gone carefully through the case record. It appears
that the plaintiff moved the Notice of Motion no.448/18 in Commercial
Summary Suit no.608/17 before the Hon'ble High Court seeking the
relief to restrain the defendant from selling the said flat and that Notice
of Motion no.448/18 is disposed off by the Hon'ble High Court on
22/3/2018 and the defendant did not restrain from dealing with the
said flat. It appears that on the basis of report lodged by Mr.Manish
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Harjivandas Shah, with D.B.Marg Police Station, a Crime came to be
registered against the defendant and the defendant came to be
arrested. It appears that as per order dated 22/12/2016 the defendant
no.1 came to be released on bail on furnishing PR Bond of Rs.25,000/
and depositing an amount of Rs.24,00,000/ with the Registrar of the
Hon'ble High Court.
6. Thus, in view of the matter considering the nature of the suit,
facts and circumstances on record, in my opinion, the plaintiff has not
raised the serious issue in the matter, and in my opinion the plaintiff
has failed to make out a prima facie case for the grant of temporary
injunction. The balance of convenience does not lie in favour of
plaintiff, no irreparable loss would cause to the plaintiff if the
temporary injunction is refused, which cannot be compensated in terms
of money. The material on record certainly do not establish a case by
the plaintiff for the grant of temporary injunction. In the result, the
notice of Motion needs to be rejected. Hence, following order:
: ORDER :
1. Notice of Motion no.2214/18 is hereby rejected.
2. No order as to costs.
(M.M.UMAR)
Judge,
03/11/2018 City Civil Court, Gr. Mumbai
Date of Dictation : 03/11/18.
Date of Transcription : 12/11/18.
Date of signature : 17/11/18
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
17/11/18 1.30p.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri M.M.Umar(CR
No.28)
Date of Pronouncement of
Judgment/Order.
3/12/18
Judgment/order signed by P.O on 17/12/18
Judgment/order uploaded on 17/12/18
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