Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. Order in N/M no.2614/2019 in S.C.Suit 1334/2019
MHCC010071832019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2614 OF 2019
IN
S.C.SUIT NO. 1334 OF 2019
Manoj Dungarshi Vira ...Plaintiff.
Versus
Ruparel Estate (I) Pvt. Ltd. And Ors ...Defendants.
Appearance:
Adv. J.S.Jamkhandi h/f. Adv. Suraj Gupte for the Plaintiff.
Adv. Abhishek Kothari @ Adv. Genevive D’Souza for Defendant No.1 to
3
Adv. M.S. Patankar @ S.D.Patankar for Defendant No.5 to 11.
CORAM : SMT. S.S.NAGUR
JUDGE, (C.R.NO.62)
DATE : 08.06.2026
ORAL ORDER
(Dictated in open Court)
1. The Notice of Motion is filed by plaintiff to restrain
defendant No.1 to 5, themselves or any other on their behalf the order
of injunction restraining them from creating third party interest ;
appoint Court Receiver to take possession of the property situated at
final Plot no.288, T.P.S.III bearing city survey no.655 at Moghal Lane,
Mahim (Bhandar Lane) Mumbai -16 admeasuring about 292 sq.mtrs
(hereinafter referred to as 'suit property').
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2. The Notice of Motion is supported by affidavit of Manoj D.
Vira, the plaintiff no.1. The plaintiffs stated that the defendant No.1 is
partnership firm and defendant No.2 is overall incharge of the
administrative and financial affairs of defendant no.1. The defendant
No.3 is working as Manager and authorised signatory of the firm.
3. The plaintiff stated that on 28/04/2012 a front page
advertisement for inviting public to purchase the flat in their proposed
building "THE RIDGE" was published. The plaintiff has purchased one
flat on 17th floor for consideration of Rs.1,61,00,000/-. The defendant
No.1 and 2 issued allotment letter to him. The plaintiff no.2 booked his
flat on 16th floor of the building and paid sumptuous amount to the
defendants. There are other 9 allotees to whom allotment letters were
issued including both the plaintiffs.
4. The plaintiff stated that the defendants assured that the
construction will start within 15 days from June 2012. They promised
to complete the construction work within 18 to 24 months. The
defendants did not carry out any construction work. In August 2014 the
defendant No.2 and 3 mortgage the suit property alongwith some other
properties to defendant No.5 i.e. IDBI Trusteeship Limited through Ms.
Jyoti Agarwal for Rs.24,00,00,000/-.
5. The plaintiff stated that the defendant No.1 to 3 have
collected Rs.2,89,00,000/- from them. The defendant No.1 to 3
declared on 5th September 2018 that they will not do any construction
on the suit property. The plaintiffs and other flat owners have lien on
the suit property. The defendant No.1 to 3 are trying to create third
party interest in the suit property. Hence, prayed to allow the notice of
motion.
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6. Defendant No.1 to 3 filed reply to the notice of motion
through affidavit of Amit Mahendra Ruparel, defendant No.2. They
have denied the allegations in the notice of motion. The defendants
have filed written statement on 19/08/2019. He has reiterated the
contents of written statement. The defendants stated that the court has
no jurisdiction to decide the suit.
7. The defendants stated that the defendant No.1 issued letter
dated 22/12/2014 offering refunds of the amounts received from the
plaintiffs. Therefore the cause of action to seek specific performance
arose on 22/12/2014. The suit is barred by limitation.
8. The defendants did not dispute the issuance of allotment
letter and the intention of the plaintiffs to purchase the suit property.
The defendants stated that as per the payment scheduled agreed upon
in the letters of allotment the plaintiffs were required to pay 20% of sale
price/consideration as earnest amount. The plaintiffs sought allotment
of said flats for the purpose of investment and not for their residential
purpose. It is a commercial transaction wherein the plaintiffs on their
own accord invested in the construction project.
9. The defendants stated that the allotment letter does not
show that defendants stated about the completion of project. As per
clause 6 of the said allotment letter the defendant No.1 represented to
handover possession of the said flats to the plaintiffs only after
obtaining occupation certificate/part occupation certificate.
10. The defendants have informed the plaintiffs about the
problems faced by them in getting sanctioned plan from the concerned
authorities. The then Municipal Commissioner Mr. Subodh Kumar
proposed amendments to the D.C. Regulations due to which all the
approvals of the proposed plans were kept on hold. The defendant No.1
by letter dated 22/12/2014 informed the plaintiffs that issues relating
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to sanction plans were not yet resolved. Although IOD was received the
application for issuance of Commencement Certificate was declined by
MCGM. The defendants offered to refund the earnest amount paid by
the plaintiffs with 12% interest p.a. The plaintiffs declined by letter
dated 22/12/2014. The plaintiffs admitted that owing to the nature of
dispute they would continuously visit the office of defendants at Dadar
and Parel since August 2012.
11. The defendants stated that the plaintiffs by letter dated
02/04/2018 through advocate informed the defendants that they have
no intention to withdraw from project and called upon the defendants
to pay the plaintiffs the interest component payable from the date of
investment upto the date of said letter. The defendants replied the said
letter on 23/04/2018 and called upon the plaintiffs to refrain/resist on
creating any unwarranted situation.
12. The defendants stated that Mangesh Mulay filed the
complaint before MAHARERA, Bandra bearing complaint
No.CC10000435 against Defendant No.1 for violation of Section 3 of
the Real Estate (Regulation and Development) Act 2016 in respect of
non-registration of the project "THE RIDGE" situated on the said
property. The Hon'ble Authority heard both the parties and passed an
order dated 3rd October, 2018 recording that in circumstances when
permissions and approvals for development of the project have not be
granted/given by the Competent Authority, MAHARERA cannot register
the project under Section 3 of the RERA Act.
13. The defendants are ready and willing to refund the
principal amount paid by the plaintiffs alongwith interest as per the
rates prescribed by RERA Act. Hence, prayed to reject the application.
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14. The defendant No.5, 6, 8, 10 & 11 filed reply to the notice
of motion through affidavit and have supported the case of the
plaintiffs.
15. The plaintiff filed rejoinder reply and has denied the
contents of the defence raised by the defendants.
16. The defendant No.5, 6, 7, 8, 9 & 11 filed rejoinder affidavit
and have reiterated the contents of their case. They stated that one of
the purchaser Devdatta Sanzgiri had filed application bearing
no.196/2017 before RERA Authorities. He appeared before RERA
Authorities and gave undertaking before the said authority to return our
money within the period of one year, till today he has not paid any
single paisa to any purchaser.
17. The defendants stated that one of the purchaser Shri M.S.
Patankar had filed application before State Consumer Commission
bearing Consumer Complaint No.1543/2017, in the said Complaint the
Hon'ble Consumer Commission by order dated 07/09/2021 directed the
defendant No.1 and 2 to refund the amount of Rs.40,00,000/- (forty
lakhs) with interest alongwith cost of Rs.1,00,000/- (one lakhs) and
damages. The total amount due and payable by the defendants comes
to Rs.90 lakhs but not a single rupees has been paid to Mr. Patankar.
The Defendants have not paid any payment to comply the order of state
commission.
18. The defendants stated that the defendants company and its
Directors are all bogus and fraudulent in their financial activities. They
have changed their office premises from time to time. They came to
know from reliable source that defendant No.1 to 3 and their Directors
are trying to dispose of the suit flat to third person. In case third party
interest is created they will lose near about Rs.3 Crores paid to the
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defendants in the year 2012. Hence prayed to allow the notice of
motion.
19. In view of the above pleadings of the plaintiffs, the
following points arise for my determination and the reasons with
finding thereon are as under:-
POINTS FINDINGS
1) Whether the plaintiffs have
made out a prima facie case?
No.
2) In whose favour balance of
convenience lies?
Defendants.
3) Who will suffer irreparable
loss?
Defendants.
4) What order? Notice of motion is rejected.
R E A S O N S
20. Heard Advocate Shri M.S. Patankar for plaintiff and
defendant No.5 to 11 and Advocate Shri Abhishek Kothari for defendant
No.1 to 3. Perused contents of notice of motion, reply, rejoinder reply
supported with affidavits of both the parties. Perused the written notes
of arguments filed by both the parties.
21. Advocate for defendants relied on ratio of authorities
reported in ; (i) Shiv Kumar Sharma vs. Santosh Kumari, (2007) 8 SCC
600, that a suit is ordinarily tried on the issues raised by the parties. The plainitff-
respondent did not ask for payment of any damages. No prayer for payment of
damages by way of mesne profit or otherwise was also made by the plaintiff. If the
plaintiff was to ask for a decree, he was required to pay requisite court fees on the
amount claimed. In such a situation, having regard to Order 20 Rule 12 of the Code,
a preliminary decree was required to be passed. A proceeding for determination of
the actual damages was required to be gone into ; (ii) National Insurance
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Co.Ltd., vs Mastan and Another, (2006) 2 SCC 641, The facts of the case is
in respect of liability of insurer under Workman Compensation Act, 1923, that the
“doctrine of election” is a branch of “rule of estoppel”, in terms whereof a person
may be precluded by his actions or conduct or silence when it is his duty to speak,
from asserting a right which he otherwise would have had. The doctrine of election
postulates that when two remedies are available for the same relief, the aggrieved
party has the option to elect either of them but not both. Although there are certain
exceptions to the same rule but the same has no application in the instance case ;
(iii) Speech and Software Technologies (India) Private Limited, (2009)
1 SCC 475, that it is well settled legal position that an agreement to enter into an
agreement is not enforceable nor does it confirm any right upon the parties ; (iv)
Abid Shiraz Merchant vs. State of Maharashtra & Anr., (Writ Petition
No.8410/2025 dated 27/07/2025 of Hon’ble High Court), that the law
has developed to the point that the litigant who approach the Court with unclean
hands are not even entitled to be heard on the merits of their case. When a party
seeks equitable relief, the conduct of such party is required to be decided on the
touchstone of principle of uberrima fide and (v) Bhaskar Laxman Jadhav and
Others vs. Karamveer Kakasaheb Wagh Education Society and Others,
(2013) 11 SCC 531, that it is not for a litigant to decide what fact is material for
adjudicating a case and what is not material. It is the obligation of a litigant to
disclose all the facts of a case and leave the decision-making to the court.
As to point no.1 to 3 :-
22. The admitted fact between the parties is that the
advertisement was issued by defendant No.1 and 2 on 28/04/2012
inviting sale of units in real estate residential project “THE RIDGE” to be
constructed in the suit property. The allotment letters were issued to
plaintiff No.1 (dated 05/05/2012) and other prospective purchasers.
The project could not be started due to the issues for sanction of the
project.
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23. The suit is filed by the plaintiff in the year 2019. The
plaintiff has approached the Consumer Forum in the year 2021.
Therefore the question of suppression of fact in respect of proceedings
before Consumer Forum will not apply.
24. The letter of allotment issued by the defendant shows the
consideration amount of the flat as Rs.1,61,00,000/-. The amount of
consideration to be paid is shown in para 3 of the letter. The para 3(B)
shows that the time is essence of the allotment letter. The para 6 of the
allotment letter shows that the construction of proposed new premises
shall be completed and possession of the unit of the flat will be handed
over by defendant after obtaining occupation certificate/part occupation
certificate within a period of 36 months from date of final
commencement certificate obtained from BMC.
25. The terms and conditions stated in the allotment letter is as
good as an agreement between the parties to sell the flat by the
defendants to the prospective purchasers and the same is binding upon
them till the agreement for sale is executed.
26. The plaintiffs as well as other prospective purchasers have
paid earnest amount as per the installments stated in the allotment
letter to defendant No.1 and 2.
27. The defendants have informed the plaintiff by letter dated
23/06/2015 stating that the BMC has cleared 40’ feet road and
permission of the project are in process and will get it soon. They will
start the work of the project as soon as get the commencement
certificate approximately in two months.
28. The defendants have issued letter dated 11/05/2016 to the
plaintiffs stating about the meeting regarding redevelopment of the
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project to be held on 17/05/2016 and letter dated 01/09/2017 about
the meeting dated 16/09/2017.
29. The defendants in the notes of arguments in the chart have
referred a letter issued by them to the plaintiff dated 23/06/2016 that
they have offered to refund a amount paid by the plaintiffs and other
purchasers with interest @ 12% p.a.
30. The allotment letter discloses the time as essence of
contract. The said time starts after the commencement certificate is
issued by BMC. It is not disputed that till date the commencement
certificate is not issued by BMC to start the project. The plaintiff as well
as other purchasers of the proposed flats to be constructed in the project
are waiting for last more than 10 years to get the possession. The
construction of the building is not yet started. The pleading of plaintiff
as well as the defence of defendants show that the efforts were made to
start the project for construction of the building. However due to
difficulties/issues faced for the construction the same could not
commenced.
31. The plaintiffs and other purchasers have paid as per the
installments stated in the allotment letter issued to them. They have
paid the first installment to the defendants. The defendants in the year
2016 have shown their inability and offered the amount to the
prospective purchasers who wants to opt out of the project alongwith
interest @ 12% p.a. for refund of the amount paid by them.
32. Considering the above facts on record the defendants are
not disputing their liability. The project in the suit property is not
started due to non issuance of commencement certificate. The efforts
are being made by the defendants to start the project. The conditions in
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the allotment letter for completion of project is 36 months from the date
of commencement certificate. Therefore I hold that plaintiffs have not
made out prima facie case and answer point No.1 in negative.
33. The plaintiffs have not made out prima facie case. The
project could not be started due to non-issuance of commencement
certificate. The pleading in the plaint does disclose that the attempt was
made by the parties to continue the project. The said project could not
get commencement certificate. In the interim relief the plaintiffs have
sought sought to prohibit defendant No.1 to 5 by perpetual injunction
from creating third party interest in the suit property as a whole ; to
restrain the defendants from doing any other construction work in the
suit property and appoint Receiver and take possession of the suit
property.
34. The suit property is a plot wherein yet construction work
has not started. The plaintiffs have paid the earnest amount for
purchase of flat in the proposed construction. The defendants are ready
to pay earnest amount to the purchasers who are ready to opt out of the
project alongwith interest @ 12% p.a. Therefore I hold that balance of
convenience is not in favour of plaintiffs. No irreparable loss will cause
to the plaintiffs in case injunction is not granted as they can be
compensated with cost. On the other hand the defendants who are
trying to get the commencement certificate for starting the project will
get affected by the injunction order as prayed by the plaintiffs. The
balance of convenience is in favour of defendants. In case injunction is
granted they will suffer irreparable loss. Accordingly answering point
No.2 and 3 pass following order :-
ORDER
1. Notice of Motion No.2614 of 2019 is rejected.
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2. No order as to cost.
3. Accordingly, Notice of Motion is disposed of.
(Smt. S.S. Nagur)
Judge
City Civil Court,
Date : 08.06.2026 Gr. Mumbai.
Pronounced on : 08.06.2026
Directly dictated on PC : 22.05.2026 & 08.06.2026
Typed on : 22.05.2026 & 08.06.2026
Checked & Sign on : 08.06.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
Mrs. Manisha S. Putta	08.06.2026 2.00 PM
Name of the Judge (With C.R. No.) HHJ Smt.S.S.Nagur (C.R.No. 62)
Date of Pronouncement of
JUDGEMENT /ORDER
08.06.2026
JUDGEMENT /ORDER signed by P.O.
on
08.06.2026
JUDGEMENT /ORDER uploaded on 08.06.2026
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