Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1..
MHCC010076972019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2798 OF 2019
IN
S.C.SUIT NO.2008 OF 2019
Mrs. Lata W/o. Narendra Canser. ...Plaintiff.
Versus.
Vivekanand CHS Ltd., .… Defendant.
Appearance :
Adv. Ashok Saraogi for the plaintiff.
Adv. Chacko Joseph for the defendant.
CORAM : HIS HONOUR JUDGE
R.R.Patare
COURT NO.2
DATED : 5th November 2022.
ORAL ORDER
Perused pleadings, evidence and heard advocate for the parties.
The plaintiff and defendant have filed notes of arguments on record.
This notice of motion is taken out by the plaintiff seeking order of
injunction restraining the defendant from causing obstruction in respect
of shop no.2 situated at Vivekanand CHS Ltd., T. H. Kataria Road,
Mahim West, specifically described in plaint para no.1 (hereinafter
referred as 'suit premises' for the short).
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ORDER ..2..
2. Brief facts of the plaintiff's case are as under :
Plaintiff is owner of suit premises. She purchased suit premises
for valuable consideration. The plaintiff is member of defendant society.
It is alleged that defendant society denied basic amenities to plaintiff.
Therefore, she approached Dy. Registrar, Co-operative Societies. Dy.
Registrar, Co-operative Societies passed order in favour of plaintiff ,
however defendant did not obey the order passed by Dy. Registrar, Co-
operative Societies. Hence plaintiff filed contempt petition against the
defendant before Hon'ble High Court. It is alleged that due to institution
of legal proceedings the office bearers of defendant society started
causing obstruction in the right of plaintiff in respect of suit premises.
Hence plaintiff has filed suit alongwith this notice of motion.
3. Defendant filed reply to the notice of motion and opposed the
claim made by plaintiff. It is contended that dispute between plaintiff
and defendant is touching to the business of Co-operative Society,
therefore suit is not maintainable before Civil Court. It is further
contended that suit simplicitor for relief of injunction is not
maintainable. it is the defence of defendant that plaintiff has purchased
suit premises under unregistered document and without payment of
proper stamp duty. It is alleged that the then Managing Committee
wrongly admitted the plaintiff to the membership of defendant society.
The defendant society has denied the allegations regarding obstruction
made by the plaintiff and lastly requested for rejection of notice of
motion.
4. From the above facts and circumstances, following points are
arising for my determination and I have recorded my findings thereon
as under:-
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ORDER ..3..
Sr.
No.
POINTS FINDINGS
1. Whether plaintiff has made out prima
facie case ?
In the affirmative.
2. Whether balance of conveyance is in
favour of plaintiff ?
In the affirmative.
3. Whether plaintiff will suffer irreparable
loss ?
In the affirmative.
4. What order and decree ? As per final order.
R E A S O N S
AS TO POINT NO.1 TO 3:
5. The plaintiff is claim title and lawful possession to suit premises.
The plaintiff has filed on record copy of agreement dated 26.11.2008
executed between plaintiff and one Mr. Akshay Arun Jagtap. The copies
of share certificate issued by defendant society are also brought on
record. The documentary evidence on record shows that plaintiff has
occupied suit premises under agreement date 26.11.2018. It is further
seen that plaintiff was admitted to membership of defendant society on
the basis of said agreement. However, defendant came with the defence
that title document of plaintiff is defective and that she was wrongly
admitted to membership by the previous committee of defendant society.
Admittedly, the plaintiff has occupied the suit premises under agreement
dated 26.11.2018. The possession of plaintiff in the suit premises is not
in dispute. However, defendant came with the case that they never
obstructed the defendant. The plaintiff has produced on record
documentary evidence to prove her possession in the suit premises. The
defendant appeared and filed defence statement. From the defence
statement it is seen that defendant is interested to deny the right of
plaintiff. The plaintiff has made specific statement in respect of
obstruction caused by the defendant. The plaintiff has made out prima
facie case for grant of order of injunction. There is threat to the lawful
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ORDER ..4..
possession of plaintiff. In such circumstances, the plaintiff will suffer
irreparable loss in case of refusal of order of injunction. The balance of
conveyance lies in favour of plaintiff. In the result, point no.1 to 3 are
answered in the affirmative and following order is passed.
ORDER
Notice of motion no. 2798 of 2019 is hereby allowed without
costs.
2. The defendant society is hereby restrained from causing
obstruction in the lawful possession of plaintiff in respect of suit
premises till the final decision of suit.
(R.R.Patare)
Judge
City Civil Court, Gr.Mumbai
Date : 05.11.2022
Typed on : 05.11.2022
HHJ signed on : 05.11.2022
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ORDER ..5..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 05.11.2022 , 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. R.R.Patare
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
05.11.2022
JUDGMENT/ORDER signed by P.O.
on
05.11.2022
JUDGMENT/ORDER uploaded on 05.11.2022
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