Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 1042/2020 in S.C.Suit No. 2285/19. 1 Order.
MHCC010029682020
Presented on : 07-03-2020
Registered on : 07-03-2020
Decided on : 20-08-2022
Duration : 2 years, 5 months, 13 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 1042 OF 2020
IN
S.C. SUIT NO. 2285 OF 2019
Mr. Ravi Vilas Jadhav )...Plaintiff
Versus
Mr. Tukaram Maruti More )...Defendant
CORAM : HIS HONOUR JUDGE SHRI R.R.BHAGWAT.
(COURT ROOM NO.66).
DATE : 20th AUGUST, 2022.
Shri Suresh Muluk, Advocate for the plaintiff.
Shri Vipin Pathak, Advocate for the defendant.
ORDER
1. The plaintiff has taken out the notice of motion for
temporary injunction restraining the defendant or his representative
from creating third party rights in the suit premises and parting with
possession of the suit premises. Perused notice of motion, affidavit in
reply filed by the defendant and rejoinder filed by the plaintiff. I have
also gone through the suit proceedings. Heard learned counsel Shri
Suresh Muluk for the plaintiff and learned counsel Shri Vipin Pathak for
the defendant.
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2. Case of the plaintiff, in brief, is as under :
The suit property is consisting of Room No.12, (Old Room
No. NXC 1336/7), Karnik Plot No. 108, Near Buddha Temple,
Nityanand Nagar, L.B.S. Marg, Ghatkoper (West), “N” Ward, B.M.C.,
Mumbai400 086, admeasuring about 10 x 10 sq. ft. of pucca nature
having Mezzanine Floor lying and situated at C.T.S.No. 3953, 3972 to
3977 of VillageGhatkoper, TalGhatkoper, MumbaiSuburban District
and District Mumbai having four boundaries as described in para 1 of
the plaint. The defendant is owner and in use, occupation, possession
and enjoyment of the suit premises. The defendant is a head of the
family having family members wife Lahanabai, elder son Nivruti,
younger son Yogesh and one daughter Surekha. Yogesh is engaged in
real estate business.
3. The plaintiff was in search of suitable accommodation in
Navi mumbai. The plaintiff came in contact of one Sharad Ananda
Chavan who told him that without investing heavy amount, he is
purchasing residential accommodation and there is a better option to
purchase the residential accommodation sealed, seized and attached by
the nationalized banks. Sharad Chavan referred names of agents of
Central Bank of India Ranjit Pawar and Yogesh who furnished details of
three to four sealed premises by Central Bank of India. The plaintiff
visited and inspected these premises from outside and selected one flat
at M.G.Complex, Vashi, Navi Mumbai. Then, meeting was held at
Vasundhara Hotel, Navi Mumbai with Sharad Chavan, Sagar Chougule,
Ranjeet Pawar and Yogesh who represented the plaintiff that the said
flat is offered at Rs.40,00,000/ after due intimation and information to
the officers of Central Bank of India, Mumbai. After due discussion, the
said estate agents reduced consideration amount to Rs.39,00,000/ and
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requested the plaintiff to pay Rs.13,00,000/ to bank agents or to
deposit in Central Bank of India, Mumbai.
4. The plaintiff paid an amount of Rs.6,00,000/ to Mr.
Ranjeet Pawar and Yogesh in cash on 2223/08/2016. The plaintiff
asked them to issue payment receipt. Ranjeet Pawar and Yogesh as
partners of M/s. Aabhar International executed M.O.U. dated
23/8/2016 finalizing transaction of sale and purchase of said flat. On
03/09/2016, the plaintiff paid amount of Rs.7,00,000/ to the assigners
or sellers. After receiving the second installment, the agents approached
the plaintiff and asked him to fill up a tender in advance.
5. The plaintiff alongwith the agents went to Central Bank of
India, Fort, Mumbai and met with Mr. Shirsat, incharge of Recovery
Department. Mr. Shirsat told the plaintiff that Ranjeet Pawar and
Yogesh are authorized bank agents and earlier amounts paid to them
are received by the bank. The plaintiff believed the words of the said
estate agent and the bank officials. The agents informed the plaintiff
that permission of DRT is necessary and asked the plaintiff to pay
Rs.26,00,000/ by cheque. Accordingly, the plaintiff handed over
cheque no. 69917 dated 09/11/2016 drawn on Chembur Nagrik
Sahakari Bank, Branch Koparkhairne without writing name of drawee
on the say of the bank agents to them. Yogesh deposited the cheque in
his account and withdrew the amount after about one and half month.
6. The said bank agents prepared Leave and Licence
Agreement in absence of the plaintiff representing it as Sale Deed and
obtained signatures of the plaintiff in hurry and got it registered. When
the plaintiff obtained certified copy of the registered document, he
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came to know that it is Leave and Licence Agreement in respect of Flat
No.2B/B05, 3 rd Floor, Sadguru CHS Ltd., Sector10, Koparkhairane,
Navi Mumbai.
7. Then, the plaintiff made complaint dated 14/09/2017 to
Deputy Commissioner of Police, Crime Branch, Navi Mumbai. He also
made complaint dated 01/03/2019 to Police Commissioner, Navi
Mumbai. Even then, no action is taken by the police. When the
plaintiff persuaded the matter, Yogesh and Mr. Pawar issued cheques of
Rs.26,00,000/ and Rs.13,00,000/ respectively to the plaintiff for
returning the amount, but both cheques were dishonoured on
depositing in the bank of the plaintiff. Meanwhile, the plaintiff
obtained the copies of online eauction deed and documents relating to
the transfer of the said flat.
8. Yogesh and the defendant requested the plaintiff to resolve
the dispute amicably by admitting liability to pay Rs.26,00,000/. The
defendant executed notarized Sale Deed dated 29/04/2017 in respect
of the suit premises in favour of the plaintiff. The defendant also
executed General Power of Attorney dated 29/04/2017 in favour of the
plaintiff. Similarly, affidavit dated 29/04/2017 came to be executed by
the parties to the suit. Similarly, many other documents came to be
executed as mentioned in para 25 of the plaint. He also relied upon
documents of predecessor in title of the suit premises as enumerated in
para 26 of the plaint. On the basis of these documents, the plaintiff has
prayed for interim relief.
9. The defendant has filed affidavit in reply. He has also
relied upon his written statement (Exh.7). The defendant has come
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up with the case as under :
The plaintiff has suppressed material facts. The suit is bad
for nonjoinder of necessary party. There is no privity of contract
between the plaintiff and the defendant. The defendant is not liable and
responsible for the act of his son Yogesh. The defendant is neither
necessary nor proper party to the suit. The suit is filed to bring undue
pressure on the defendant. The defendant has not received any payment
either from his son Yogesh or from the plaintiff at any point of time.
Suit is not maintainable under Section 20 and 34 of the Specific Relief
Act. The plaintiff should have filed the suit for recovery of money
against Yogesh and Ranjeet Ashok Pawar. The plaintiff has filed the suit
as a counterblast to the plaint made by the defendant in S.C.Suit No.
1538/2017 which is pending in C.R.No.9 of the City Civil Court,
Mumbai.
10. The defendant has disinherited his son Yogesh. The
defendant and other family members are not having any kind of
relation and transaction with Yogesh. He has denied execution of
documents in respect of the suit premises against alleged payment of
Rs.26,00,000/ received by his son Yogesh as mentioned in para 25 of
the plaint. It is case of the defendant that he was forced, compelled and
coerced by the plaintiff to hand over original copies of documents to
him. The defendant executed, signed and notarized all documents
(Exh.H to H5 filed with the plaint) in the office of Notary in favour of
the plaintiff. He denied rest of the contentions of the plaintiff and
prayed for dismissal of the notice of motion.
11. Learned counsel Shri Suresh Muluk for the plaintiff
advanced arguments as under :
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The plaintiff is purchaser of the suit premises. Transaction
of the plaintiff is with son of the defendant namely Yogesh and one
Ranjeet Pawar. He also referred the documents executed by the
defendant in respect of the suit premises in favour of the plaintiff.
According to him, the defendant has given 'no objection' for electricity
meter and ration card as per Exh.H4. He denied the aspect of coercion.
The plaintiff has filed written statement in Suit No. 1538/2017 which is
filed by the defendant. Considering contents in the plaint in Suit No.
1538/2017, present plaintiff constrained to file the present suit and
seek interim reliefs. He prayed to allow the notice of motion.
12. On the contrary, learned counsel Shri Vipin Pathak for
the defendant argued as under :
The suit is filed by the defendant and injunction was
granted. The said suit is pending in C.R.No. 62. He further submitted
that the plaintiff has claimed relief without title. Son of the defendant
had received the amount. According to him, it is not case of the plaintiff
that the defendant received any amount. He further submitted that
Sale Deed executed by the defendant does not bear his signature. He
further submitted that father is not liable to pay amount received by the
son. He further stated that the defendant is not necessary party to the
suit. He further referred page 128 of the plaint (Exh.H5) in which
possession of the suit premises is shown to have been handed over to
the plaintiff. According to him, the defendant is still in possession of the
suit premises. No prima facie case is made out. He prayed for dismissal
of the notice of motion.
REASONS
13. Considering rival submissions and material on record, it
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appears that the plaintiff had given cash of Rs.13,00,000/ to Ranjeet
Pawar and Yogesh. Similarly, amount of Rs.26,00,000/ came to be
deposited in the account of Yogesh by the cheque. The plaintiff
proceeded to pay amount of Rs.39,00,000/ on the assurance of Ranjeet
Pawar and Yogesh that they would ensure purchasing of a flat in Navi
Mumbai in the name of plaintiff in DRT auction proceeding by
representing themselves as agents of Central Bank of India. Accordingly,
Leave and Licence Agreement (Exh.C) came to be executed on
29/12/2016.
14. As the sale transaction could not be effected in respect of
the flat in Navi Mumbai, the plaintiff approached the police authority by
filing complaints (Exh.D and D1). As the plaintiff could not get the
amount of Rs.39,00,000/ back from Ranjeet Pawar and Yogesh, the
defendant being father of Yogesh proceeded to execute notarized Sale
Deed and other documents in respect of the suit premises (Exh.H to H
5).
15. All developments as narrated above are demonstrating that
the defendant came forward to save his son Yogesh from civil and
criminal action and he executed the documents in respect of the suit
premises in favour of the plaintiff. The defendant filed Suit No.
1538/2017 against the plaintiff. It shows that the defendant had no
intention to act upon the documents executed by him. Furthermore,
the defendant has come up with the case that he executed the
documents under pressure and coercion. All attending circumstances
show that the defendant executed the documents in respect of the suit
premises in favour of the plaintiff thoughtfully knowing the situation
bringing his son Yogesh into troubles. Therefore, the documents
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executed by the defendant can be considered while considering the
aspect of granting interim relief.
16. The plaintiff has admitted ownership as well as possession
of the defendant over the suit premises. It is only contention of the
plaintiff that the defendant should be restrained from creating third
party interest in the suit premises and parting with possession of the
suit premises. Expectation of the plaintiff is reasonable. In order to
preserve the purpose of filing the suit by the plaintiff, the defendant can
be restrained from disposing off the suit premises and parting
possession of the same. The plaintiff has prima facie case in his favour.
Balance of convenience tilts towards the plaintiff. If interim relief is not
granted, the plaintiff would suffer irreparable loss. Principle of greater
hardship is also in favour of the plaintiff. In the light of all above
discussion, the plaintiff is entitled to interim relief. Hence, I pass the
following order :
ORDER
1. Notice of Motion No. 1042/2020 is made absolute in terms
of prayer clause (a).
2. Proceeding of N/m No. 1042/2020 is closed.
(R.R.BHAGWAT)
Judge, City Civil Court,
(Court Room No.66)
Date : 20/08/2022. Mumbai.
1. Dictated online on : 20/08/2022.
2. Signed on : 20/08/2022.
3. Delivered to Certified :
Copy Section on
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
20/08/2022. 5.44 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri R.R.Bhagwat.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 20/08/2022.
Judgment/Order signed by P.O. on 20/08/2022.
Judgment/Order uploaded on 20/08/2022.
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