Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 2756-19 in Suit no. 801-15
1 Date : 03.09..2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2756 OF 2019
IN
SUIT NO. 801 OF 2015
(CNR NO.MHCC010075992019)
Mr. Ravinder Kalekar .. Plaintiff
Versus
Mr. Suresh Murlidhar Kalekar .. Defendant
Appearances :
Adv.Vasima Kazi for plaintiff present.
Defendant and his advocate absent.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 03.09.2019
ORDER
1. The Plaintiff filed instant Notice of Motion for grant of
injunction restraining the defendant, his agent, servants from
creating third party right, title and interest in respect of suit
property bearing Shop No.6, ground floor, Ismail Building,
174/155, V. P. Road, Mumbai (hereinafter shall be referred to as "
suit shop").
2. It is the case of Plaintiff that defendant is his real brother. He
has filed present suit against the defendant for getting his share in
the suit shop. It is contended by the Plaintiff that their late, father
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namely Muralidhar Hari Kalekar was the tenant of the suit shop.
Their father expired on 29.04.1974 leaving behind five sons
namely Shankar, Ravindra, Ramesh, Suresh and Sharad.
3. It is further contended by the Plaintiff that his three brothers
namely Shankar, Ramesh and Sharad, vide affidavit dated
24.02.2000 relinquished their right, title, share and interest in
favour of Plaintiff and defendant. They also issued NOC to transfer
rent receipt of the suit shop in favour of Plaintiff and defendant.
4. It is further contended by the Plaintiff that in the year 2012,
the defendant by keeping in dark to the Plaintiff, behind his back,
got transfer the rent receipt in his name. It is submitted by the
Plaintiff that it was mutually agreed between Plaintiff and
defendant that the defendant alone will do the business and the
Plaintiff shall relinquished his right, title and interest in the suit
shop on the payment of Rs.6,40,000/. It is alleged by the Plaintiff
that the defendant till date did not pay the aforesaid amount to
him nor he is permitted to participate in the business. Thus,
Plaintiff filed present suit for claiming his share in the suit shop
therefore, the plaintiff prayed for grant of injunction restraining
the defendant to create third party interest in the suit shop till
decision of the present suit.
5. The notice of motion is opposed by the defendant by filling
of his say. The defendant raised the objection of Jurisdiction of this
court. It is submitted by the defendant that at the time of death of
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his father, the Plaintiff was Municipal servant. He was running the
suit shop with his father. The suit shop is admittedly tenanted
shop. Thus, as per section 5(11)(c)(ii) of Bombay Rent Act, he
being the member of family, was carrying business at the time of
death of original tenant. Hence, Plaintiff has no right, title and
interest in the suit shop. Hence, plaintiff suit is misconceived. This
court cannot grant final relief, therefore, interim relief needs to be
rejected.
6. Heard both the side, perused notice of motion and reply, on
the basis of the same, following points arises for my
determination:
POINTS FINDINGS
1. Whether Plaintiff made out
prima facie case in his favour to
grant injunction?
NO
2. Whether balance of conveniance
lies in favour of Plaintiff ?
NO
3. Whether Plaintiff would suffer ir
reparable loss, if the injunction is
not granted?
NO
4. What Order? NM rejected.
REASONS
7. The Plaintiff filed instant suit for claiming right in the suit
shop on the basis that he is one of the legal heirs of his deceased
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father who died on 29.04.1974. Admittedly the suit shop is
tenanted premises and father of the Plaintiff was the original
tenant. The Plaintiff did not file single document showing that
since the date of death of his father he was carrying on business
from the suit shop. It is the specific case of the Plaintiff that he has
relinquished his right in the suit shop for consideration of Rs.
6,40,000/. However, the defendant till date did not pay the said
amount. Admittedly, the Plaintiff did not file any recovery
proceedings against the defendant. Moreover, the Plaintiff has
quantified his interest in the suit shop. Hence, in view of the
above, if, the injunction is refused, the Plaintiff would not suffer
irreparable loss which could not compensated in terms of money.
Hence, I answer above points in negative. Thus, in view of the
above discussion, in my view, no case is made out by the Plaintiff
to grant injunction. Thus, I proceed to pass following order:
ORDER
1. Notice of motion no. 2756 of 2019 is hereby rejected.
2. The parties to bear their cost.
3. Notice of Motion No. 2756 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 03.09.2019 Gr. Bombay.
Dictated on : 03.09.2019
Typed on : 03.09.2019
Draft Submitted on : 03.09.2019
Checked on : 03.09.2019
Signed on : 17.09.2019
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NM 2756-19 in Suit no. 801-15
5 Date : 03.09..2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
17/09/2019 at 3.00 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
03/09/2019
JUDGMENT/ORDER signed by P.O.
on
17/09/2019
JUDGMENT/ORDER uploaded on 17/09/2019
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