Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/m-2652/19 in Su.484/16
MHCC010072742019
Presented on : 16.07.2019
Registered on : 16.07.2019
Decided on : 13.06.2025
Duration : 5 Y 10 M 29 D
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.2652 OF 2019
IN
SHORT CAUSE SUIT NO. 484 OF 2016
Kaluchand Harakchand Bokadia …Plaintiff
Versus
M/s. Akshay Vitta Management & Investment
Consultancy Services Pvt. Ltd. & Ors. …Defendants
CORAM : HIS HONOUR JUDGE
SHASHIKANT EKNATHRAO BANGAR,
CITY CIVIL COURT, GR. BOMBAY
(C. R. NO.65)
DATE : 13th JUNE, 2025.
Appearance :-
Mr. Gaurang Zaveri, advocate for plaintiff.
Ms. Kavita Sharma, advocate for defendant Nos. 1 to 3.
O R D E R
The Plaintiff has preferred the present Notice of Motion
seeking various interim reliefs pending the hearing and final disposal of
the suit, particularly:
a. Appointment of the Court Receiver, High Court,
Bombay, in respect of the suit property known as
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Daruwalla House, located at 15, Ardeshir Dady Cross
Lane, Khetwadi, Mumbai – 400 004;
b. Injunction restraining Defendant Nos. 1 to 3 from
acting upon or dealing in any manner under the Deed of
Conveyance dated 31.12.2009 or from creating third
party rights in the suit property;
c. Injunction restraining Defendant Nos. 1 to 3 from
undertaking construction or entering into agreements for
sale concerning the suit property;
d. Ad-interim reliefs in terms of above prayers.
2. The Plaintiff’s case is premised on the assertion that he is
the sole executor and beneficiary under the alleged Will dated
25.08.2011 executed by one Ms. Hilla Jamshedji Mistry, who is stated
to be a tenant of Room No. 6 in the suit property. It is contended that
the Deed of Conveyance dated 31.12.2009 executed by Defendant No. 4
in favour of Defendant No. 1 is illegal, inoperative, void, and not
binding upon the Plaintiff, as the title of Defendant No. 4 is alleged to
be unclear.
3. On the other hand, Defendant Nos. 1 to 3 have filed a
detailed affidavit in reply opposing the Notice of Motion. It is asserted
that:
Defendant No. 4 was the sole and absolute owner of the suit
property, having derived title through a series of successions traced
from the year 1920. The Deed of Conveyance dated 31.12.2009 is a
registered document executed for valid consideration and duly acted
upon. Defendant No. 1 has been paying property taxes and is in settled
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possession. The Plaintiff’s claim is speculative and based merely on
tenancy rights of Ms. Mistry, who had no ownership in the suit
property. Plaintiff’s suit is barred by limitation, lacks urgency, and is an
abuse of the process of court.
4. The Defendants have also raised preliminary objections,
contending that:
The suit is not maintainable in the present form; The Plaintiff lacks
locus standi; The Court lacks pecuniary jurisdiction; The Plaintiff has
suppressed material facts; The Plaintiff has approached the Court with
unclean hands.
5. The genealogy and succession documents placed on record
by the Defendants reveal a long chain of inheritance of the suit property
from the original owners Mr. Ruttonji Daruwalla and Mrs. Dhunbaiji
Daruwalla, culminating in Defendant No. 4 being the sole and absolute
owner. Defendant No. 1 purchased the suit property from Defendant
No. 4 by a registered deed dated 31.12.2009.
6. It is admitted that Ms. Hilla Jamshedji Mistry was only a
tenant in Room No. 6, and no title to the suit property vested in her.
Therefore, even assuming the genuineness of the alleged Will, no
ownership rights over the suit property could have devolved upon the
Plaintiff.
7. The Plaintiff has filed the present suit on 03.02.2016,
claiming that he became aware of the Deed of Conveyance on
02.05.2015. However, material placed on record by Defendants belies
such contention. A letter dated 28.12.2009 addressed by Defendant No.
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4 to Plaintiff’s wife (who was a tenant of the garage in the suit
property), as well as multiple police reports and statements recorded in
2011, indicate that the Plaintiff was aware of the conveyance as early as
2010–2011.
8. Particularly, the statements of both the Plaintiff and
Defendant No. 2’s son before V.P. Marg Police Station on 28.08.2011,
and the subsequent reports by the Assistant Commissioner of Police and
the Administrator General, unmistakably record the title of Defendant
No. 1 based on the said conveyance deed.
9. Furthermore, the First Information Report (FIR No. 259 of
2013) registered against the Plaintiff for criminal trespass after the
death of Ms. Mistry clearly establishes that Plaintiff attempted to take
forcible possession of Room No. 6 after her demise and affixed signage
to suggest ownership.
10. Having considered the pleadings, affidavits, and
documents, this Court is of the view that:
The Plaintiff has not established a prima facie case for grant of interim
relief;
The balance of convenience is not in favour of the Plaintiff, especially
when the property has been in Defendant No. 1’s possession for over a
decade pursuant to a registered sale deed;
There is no irreparable harm shown to justify interference;
The Plaintiff’s claim appears stale and barred by limitation, being raised
years after constructive knowledge and physical acts indicating transfer
of ownership.
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Consideration and Legal Analysis :
Upon perusal of pleadings and material placed on record, the following
points emerge:
(i) No Prima Facie Case:
The Plaintiff has not demonstrated any prima facie title
over the suit property. It is an admitted fact that Ms. Hilla Mistry was a
tenant of Room No. 6, and not the owner. Even assuming the Will to be
valid, the same would not confer ownership in the land or building. As
held in:
"Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira"
(2012) 5 SCC 370, it is observed by Hon’ble Supreme Court that,
"A person claiming injunction must show lawful possession or
ownership. Injunction cannot be granted to a trespasser or
one with disputed possession without clear title or legal
interest."
(ii) Delay and Limitation:
The Deed of Conveyance is dated 31.12.2009, and the
Plaintiff has admitted knowledge thereof at least by 28.08.2011, when
he made a statement at V.P. Marg Police Station, Mumbai. The suit was
filed only on 03.02.2016, clearly beyond the 3-year period prescribed
under Article 59 of the Limitation Act, 1963.
"K.K. Modi v. K.N. Modi" (1998) 3 SCC 573, it is observed by Hon’ble
Supreme Court that,
“A suit for cancellation must be instituted within the
limitation period from the date when the plaintiff had
knowledge of the document sought to be cancelled.”
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"R. K. Roja v. U.S. Rayudu & Anr." (2016) 14 SCC 275, it is observed
by Hon’ble Supreme Court that,
“Delay defeats equity. The court must be slow to grant
discretionary relief to a party who has slept over their rights.”
(iii) Conduct of the Plaintiff – Unclean Hands:
The FIR (No. 259/2013) and police reports on record reveal that
Plaintiff attempted to illegally enter and seal Room No. 6 after Ms.
Mistry’s death and was later found to have placed scrap furniture to
create an appearance of possession.
"Dalip Singh v. State of U.P." (2010) 2 SCC 114, it is observed by
Hon’ble Supreme Court that,
“The courts of law are meant for those who approach with
clean hands. Suppression of material facts and misleading
averments disentitle one from equitable relief.”
"Satya v. Teja Singh" (1975) 1 SCC 120, it is observed by Hon’ble
Supreme Court that,
“Fraud and deception will disentitle a party to discretionary
and equitable relief.”
(iv) Title of Defendants Supported by Lawful Documents:
The Defendants have traced a credible and unbroken chain
of ownership from the 1920s, culminating in the registered conveyance
in 2009. Prima facie, the transfer is legal and acted upon. Property tax
payments, police records, and tenancy details support this.
"State of Rajasthan v. Padmavati Devi" (1995 Supp (2) SCC 290), it is
observed by Hon’ble Supreme Court that,
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"Registration of a deed of sale raises a presumption of due
execution and valid transfer, which the plaintiff must rebut by
strong evidence."
(v) No Balance of Convenience or Irreparable Loss:
The Plaintiff’s claim is speculative and indirect. The
Defendants are in settled possession since 2009. Granting interim relief
would upset longstanding possession and commercial arrangements.
The balance clearly tilts in favour of Defendants.
"Best Sellers Retail (India) Pvt. Ltd. v. Aditya Birla Nuvo Ltd." (2012) 6
SCC 792, it is observed by Hon’ble Supreme Court that,
“An injunction cannot be granted when damages are an
adequate remedy or where the plaintiff’s title is not clear.”
3. Judicial Position –Honourable Bombay High Court Observations:
In similar circumstances, the Hon’ble Bombay High Court
has repeatedly held that injunctions cannot be granted to speculative
claimants relying on alleged Wills of tenants or ambiguous claims.
"Nanakram Gokaldas v. Shri Shivram Girdharilal" 1994 (3) BomCR
563, it is observed by Hon’ble Bombay Court that,
“A tenant has no authority to transfer or bequeath ownership.
The recipient cannot claim superior title than the tenant
herself.”
"Suresh D. Sharma v. Aniruddha L. Bhargava" 2021 SCC OnLine Bom
3030, it is observed by Hon’ble Supreme Court that,
“A plaintiff without clear legal interest and significant delay in
approaching the court is not entitled to equitable interim
reliefs.”
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11. The object of granting temporary injunction is to preserve
the subject matter of the suit and prevent irreparable damage. In the
present case, no such compelling circumstance has been demonstrated.
On the contrary, the Plaintiff’s conduct, delay, and prior knowledge
disentitle him from equitable reliefs under Order XXXIX Rules 1 and 2
of CPC.
12. The settled principle of law is that a party seeking equitable
relief must approach the Court with clean hands. The Plaintiff’s
suppression of material facts and attempt to portray urgency belatedly
fails to meet that threshold.
ORDER
1. Notice of Motion No. 2652 of 2019 is dismissed with costs.
2. The Plaintiff is not entitled to any of the ad-interim or interim
reliefs sought therein.
3. No order as to further reliefs.
Pronounced in open court on this 13th day of June, 2025
Place: Mumbai
(Shashikant Eknathrao Bangar)
Judge, City Civil Court, Mumbai
Court Room No.65
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17.06.2025 at 10.45 am ( Samruddhi Jadhav)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Shri. Prashant C. Kale (C.R.No.65)
Date of Pronouncement of
JUDGMENT/ORDER
13.06.2025
JUDGMENT/ORDER signed by
P.O.on
13.06.2025
JUDGMENT/ORDER uploaded on 17.06.2025
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