Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2623 OF 2019
IN
SUIT NO.2309 OF 2018
Keshav Atmaram Koregaonkar
age 59 years, Occ.Advocate
Residing at 1001, Sunbeam,
Swastik Park,Village Road,
Nahur (W),Mumbai400 079. ....Plaintiff
V/s
1. Mr.Shibu Danial Joy
Age 35 years, Occ.Business
Residing at F 804, Atlas Tower,
Near Hyper City, Kasar Vadavli,
G.B.Road,Thane.
And
Having office at F223, Dream Mall
L.B.S.Marg, Bhandup(W),
Mumbai400 078.
2. Mrs.Sneha Shibu Joy
age 27 years, Occ.Not known
Residing at F 804, Atlas Tower,
Near Hyper City, Kasar Vadavli,
G.B.Road,Thane.
And
Having office at F223, Dream Mall
L.B.S.Marg, Bhandup(W),
Mumbai400 078. ....Defendants
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And
Mr.Chhotelal Ramdin Varma
age 71 years, Occ. not known
Having address at C13, Basant Kaur
Villa Patil Wadi, Tank Road, Bhandup(W),
Mumai400 078
And
Having office at F223, Dream Mall
L.B.S.Marg, Bhandup(W),
Mumbai400 078. ....Respondent
APPEARANCE:
Advocate Ranvir Shekhawat for plaintiff.
Advocate Sonali Pawar for defendant nos.1 and 2.
Ld.Advocate S.B.Sharma for respondent.
CORAM : H. H. ADHOC JUDGE
SHRI MILIND A. BHOSALE
(COURT ROOM NO. 32)
DATE : 19th November, 2019
ORDER
Perused Notice of Motion alongwith affidavit in reply tendered by
defendant nos.1,2 and Mr.Chhotelal Ramdin Varma.
2. Plaintiff has taken out Notice of Motion on the ground that the
defendant no.1 had intend to sell suit premises to the plaintiff and
consequent their they are entered into memorandum of understanding
dated 13/6/2016. It is further submitted that after execution of MOU
dated 13/6/2016 he came to know that only defendant no.1 is not
owner of suit property but defendant nos.1 and 2 are joint owner of suit
property. It is further submitted that as per MOU dated 13/6/2016 he
paid amount of Rs.5 lac and balance amount of Rs.16,21,000/ was to
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be paid by cheque within 60 days of registration of sale deed. It is
further submitted that the defendant has agreed to provide all the
necessary documents and support require in availing loan facility and
therefore, on 1/8/2016 further amount of Rs.2 lac was paid to the
defendant. But the defendant failed and neglected to provide requisite
document for registration of agreement for sale and hence, letter dated
29/8/2016 by the plaintiff and cancelled MOU dated 13/6/2016 and
sought refund of an amount of Rs.7 lac paid towards earnest money. It
has further submitted that instead of refund of earnest money
defendant has issued notice dated 27/9/2016 and demanded
12,88,815/ towards damages and Rs.15,000/ towards rent from him
therefore, he filed suit against defendant. It is further submitted that
the defendant enter their appearance, filed reply to the Notice of
Motion and after hearing both the parties Notice of Motion No.3612 of
2018 is made absolute in terms of prayer clause (a). It is further
submitted that recently he came to know that the defendant sold and
delivered the suit premises to the third party vide sale deed dated
8/4/2019. The defendant nos.1 and 2 sale the property by giving go
back to the order passed in Notice of Motion No.3612 of 2018 and thus
they have committed civil contempt under the contempt of Court
Act,1971 and they are liable for punishment.
3. Defendant nos.1,2 and 3 tendered their written say and denied
entire contention made in the Notice of Motion. It is contended by
defendant nos.1 and 2 that the plaintiff has filed false and frivolous
Notice of Motion. It has further contended by defendant nos.1 and 2
that the defendant nos.1 and 2 are joint owners and peaceful possession
and occupation of the suit property. It is further contended by
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defendant nos.1 and 2 that they have entered in memorandum of
understanding but defendant has failed to comply the terms and
conditions. Moreover, it is pointed out by defendant nos.1 and 2 that
the plaintiff has failed and neglected to his commitment and also failed
to comply the terms and conditions of the MOU. It is further contended
by defendant nos.1 and 2 that in Notice of Motion No.3612 of 2018 it
was granted till payment of amount of Rs.7 lac in the Court and it was
operative to the extent of payment of amount and accordingly they had
paid amount of Rs.7 lac in the court. It is submitted by defendant
nos.1 and 2 that they have sold and delivered the suit premises vide
agreement dated 8/4/2019 because order dated 26/3/2019 was not
inforce.
4. Mr.Chhotelal who has shown as third person according to
plaintiff he has purchased the property which is involved in the present
suit he appeared and tendered his written reply. It is submitted that he
does not have any knowledge about the litigation and order passed by
the Court in Notice of Motion. It is further submitted that the order
passed by the Court in Notice of Motion is not at all convey to the
concern and therefore, the said order does not come to the concern
persons who executed permissions and agreement to sale in his favour.
He pointed out that he does not know about the litigation in between
defendant nos.1 and 2. Lastly, it is submitted that he is not concerned
with the present litigation and therefore, Notice of Motion may kindly
be rejected.
5. I have heard Ld.Counsel for plaintiff, defendant nos.1 and 2 and
advocate appointed by Chhotelal Ramdin Varma.
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6. After gone through the relevant record I find that the defendant
nos.1 and 2 has admitted that suit property which is a subject matter of
the present suit was sold out by them to third person Chhotelal Ramdin
Varma. However, third party Chhotelal Ramdin Varma is not added by
the plaintiff in the title clause as a party defendant.
7. The plaintiff as well as defendant no.3 admitted that the Notice of
Motion No.3612 of 2018 was taken out by plaintiff and it was decided
by the court on 26/3/2019. As per the order the Notice of Motion
No.3612 of 2018 is made absolute in terms of clause (a) only till the
deposit of amount of Rs.7 lac only in the court. It is true that as per
order dated 26/3/2019 the defendant has complied the order has not
disputed by plaintiff also. Only the grievance of plaintiff is that when
the order dated 26/3/2019 was in force the defendant nos.1 and 2 sold
the property to Chhotelal Ramdin Varma. To which the defendant
nos.1 and 2 took stand that the order dated 26/3/2019 is conditional
order and after payment of Rs.7 lac it would not be in force in future
and therefore, they did not sale the property by giving go back to the
order dated 26/3/2019. Admittedly, the plaintiff has failed to bring
order dated 26/3/2019 to the concern who is related to the property in
which defendant nos.1 and 2 is related. In absence of publication of
order dated 26/3/2019 naturally the order does not came into the
knowledge of Chhotelal Ramdin Varma. Moreover, as correctly pointed
out by defendant nos.1 and 2 that the order dated 26/3/2019 is
conditional order and after deposit of amount of Rs.7 lack. The rest of
order is automatically vacated. I find that there is no contempt on the
side of defendant nos.1, 2 and Chhotelal Ramdin Varma. In the
abovesaid reason I do not find any merit in the Notice of Motion.
Hence, I proceed to pass following order.
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ORDER
Notice of Motion No.2623 of 2019 is dismissed with costs.
Date:19/11/2019 (Milind A.Bhosale)
AdHoc Judge
City Civil & Sessions Court,
Gr.Bombay
Dictated on : 19/11/2019
Typed on :19/11/2019
H.H.J.Signed on :19/11/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
19.11.2019 at 5.30 p.m. (Mrs.P.P.Khanvilkar)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room no.) SHRI M.A.BHOSALE
(C.R. NO.32)
Date of Pronouncement of JUDGMENT/
ORDER
19.11.2019
JUDGMENT/ORDER signed by P.O. on 19.11.2019
JUDGMENT/ORDER uploaded on 19.11.2019
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