Order 1

Order Details: Notice of Motion
Pdf Text: NM 2871/19 in S.C. Suit No. 2094/19
1 Date : 01.08.2019
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 2871 OF 2019
IN
SUIT NO. 2094 OF 2019
(CNR NO.MHCC01007925 2019 )
Snehal Yatin Prabhavalkar .. Plaintiff
Versus
Yatin Shamrao Prabhavalkar & Anr. .. Defendants
Appearances :
Mr. Rajesh Devgharkar, Ld. Adv. for plaintiff present.
Defendant and advocate absent.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 01.08.2019
1. The plaintiff has filed instant Notice of Motion seeking
temporary injunction restraining the defendants from transferring,
alienating or creating third party interest in respect of Flat No. 43,
4th floor, in the “The Solitare Co?op. Hsg. Soc. Ltd.”, City Survey
No. 782, Plot No. 427 of TPS III, Senapati Bapat Marg and Bhagoji
Keer Marg, Off. Johnson House, Mahim, Mumbai 400 016. and
property bearing Survey No. 88, Hissa No 2 admeasuring about
328 sq. mtrs. of Southern side out of Bungalow Plot No. 8 (Seema
Bungalow) Opp. Kalubai Mandir, Village Kune N.M. (hereinafter
shall be referred to as suit premises no. 1 and 2).
2. It is the case of plaintiff that she is real daughter of
defendant no. 1 and defendant no. 2 is her stepmother. On
11.05.2017, the defendant no 1 executed Registered Gift Deed of
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2 Date : 01.08.2019
suit premises no. 2 in her favour and on 15.05.2017, the defendant
no. 1 executed Registered Gift Deed of suit premises no. 1 in her
favour. However, subsequently, the defendant no. 1 forwarded
one draft of cancellation of aforesaid Gift Deed to the plaintiff
under the pretext that the defendant no. 1 is required to submit
the same to Income Tax Authority. The plaintiff forwarded the
said draft to the defendant no. 1. However, later on plaintiff came
to know that the Gift Deed is executed between the defendants on
18.08.2017 and 19.08.2017 in respect of suit premises in favour of
defendant no. 2.
3. It is contended by the plaintiff that the aforesaid Gift Deed
has executed subsequently by the defendant no. 1 in favour of
defendant no. 2 is not binding upon her. The defendant no. 1
behind back without her knowledge, cancelled Gift Deed made in
her favour. Therefore, the plaintiff has filed suit for declaration as
well as injunction against the defendants. The defendant no. 2
inspite of service did not appeared hence, matter proceeded
exparte against her.
4. The plaintiff has filed Service Affidavit which shows the suit
summons alongwith the copy of Notice of Motion is served upon
the defendants. In pursuance of the same, the defendant no. 1
appeared and filed his say.
5. It is contended by the defendant no. 1 that defendant no. 2
has filed litigation against him. He has under tremendous
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3 Date : 01.08.2019
pressure. The defendant no. 2 has made wild allegations against
him. Therefore, under coercion, he was compelled to execute Gift
Deed of suit premises in favour of defendant no. 2.
6. Heard both the sides. Perused Notice of Motion and reply
filed by the defendant no. 1. Upon considering the same following
points arise for my determination.
POINTS FINDINGS
1. Whether the plaintiff has made
out prima facie case to grant tempo
rary injunction in the favour?
YES
2. Whether the balance of
convenience lies in favour of the
plaintiff?
YES
3. Whether the irreparable loss
would caused to the plaintiff, if tem
porary injunction is refused?
YES
4. What Order? Notice of Motion is al
lowed.
REASONS
AS TO POINT NOS. 1 TO 4 :
7. It is admitted position that plaintiff is the real daughter of
defendant no. 1. The defendant no. 1 on earlier occasion executed
Registered Gift Deed in favour of the plaintiff. Thus, the right and
interest was created in favour of plaintiff in the suit premises.
Even otherwise also as she is one of the legal heir of the defendant
no. 1 she has every right in the suit premises. As per contention of
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4 Date : 01.08.2019
the plaintiff, the defendant no. 2 is her step mother and the suit
properties are transferred behind her back in favour of defendant
no. 2. Thus, there is every possibility that the defendant no. 2 may
create third party interest. As I have already stated that the
plaintiff have every right and interest as a legal heir in the suit
premises, in my view, it is necessary to protect the interest of
plaintiff by way of temporary injunction restraining defendants
from further transferring or creating third party interest in the suit
premises. Thus, I proceed to pass the following order :
ORDER
1. Notice of motion no. 2871 of 2019 is hereby made absolute
in terms of prayer clause (a) and (b).
2. Defendants or their agents are hereby temporary restrained
from transferring or creating third party interest, right in
respect of suit premises.
3. Plaintiff to register lispendens with concern Registrar office
within whose jurisdiction built property is situated.
4. Notice of Motion No. 2781 of 2019 is disposed off
accordingly.
(A.H.Laddhad)
Additional Judge
Bombay City Civil Court
Dated : 01.08.2019 Greater Mumbai
Dictated on : 01.08.2019
Typed on : 01.08.2019
Draft Submitted on : 01.08.2019
Checked on : 02.08.2019
Signed on : 02.08.2019
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NM 2871/19 in S.C. Suit No. 2094/19
5 Date : 01.08.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
02/08/2019 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
01/08/2019
JUDGMENT/ORDER signed by P.O.
on
02/08/2019
JUDGMENT/ORDER uploaded on 02/08/2019
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