Date: 06-08-2019
Business: Adv. Rajendra Mishra I/b Adv. Hiral Doshi for plaintiff present.
Adv. Ashok Singh with Adv. R. N. Gaonkar for defendant no. 1 present.
Adv. Abir Patel for defendant no. 2 present.
The Ld. Advocate for plaintiff tendered registered NM no. 2990/19. TOR.
Memo of apparent filed on behalf of defendant no. 2
Memo of appearance filed on behalf of defendant no. 1.
Heard Ld. Advocate for plaintiff and defendants on adinteirm.
Adjourned for adinterim order to 7.8.2019.
Next Purpose: AD-INTERIM ORDER
Next Hearing Date: 07-08-2019
Date: 07-08-2019
Business: Adv. Rajendra Mishra I/b Adv. Hiral Doshi for plaintiff present.
Adv. Mahi Lalka I/b Adv. Ashok Singh for defendant no. 1 present.
Ad interim order on Notice of Motion No. 2990/2019
Heard. The Ld. counsel for the plaintiff pressed for ad-interim relief for restraining the defendant no. 1 from enforcing, implementing or taking any steps whatsoever in pursuance of the notice dated 5.7.2019 issued by the defendant no. 1 to the plaintiff. The Ld. counsel for the plaintiff submitted that defendant no. 1 is the sister concern of defendant no. 2 and their office are situated in the same premises. The plaintiff purchased the flat no. A3-2312 being a 4 BHK plus Study from the defendant no. 2 admeasuring 2149 sq. ft. and terrace area of 941 sq. ft. for consideration of Rs. 10,29,30,000/-. The Plaintiff had made payment of 2,13,49,741/-. There was Tri-Partie agreement entered between plaintiff, defendant no. 1 and defendant no. 2 for loan payment of Rs. 8,53,97,315/-. There was some dispute and therefore the plaintiff approached to Maharashtra Real Estate Regulatory Authority (MahaRERA) and filed complaint wherein the order was passed and the defendant no. 2 was directed to register the Agreement for Sale. The order dated 20.3.2019 does not give any clarification as regard the dispute about the carpet area of the flat and therefore the plaintiff approached the MahaRERA Appellate Authority. The defendant no. 2, being the sister concern of the defendant no. 1, in connivance, with malafide intention, issued the notice dated 5.7.2019 which was received by the plaintiff on 9.7.2019. The Ld. counsel for the plaintiff argued that the intention of the defendants is that plaintiff should execute agreement with defendant no. 2 as per their whims and terms. The said notice is nothing but to pressurize the plaintiff. By the said notice it is informed that in case he failed to submit original agreement on or before 31.7.2019, the plaintiff would be liable to pay interest at the rate 2 percent per month. The plaintiff therefore claims that the said notice is arbitrary and if the defendant no. 1 proceed with the said notice it would cause irreparable loss to the plaintiff.
On behalf of the defendant no. 1 it is argued that the loan agreement contemplates arbitration clause and therefore the present suit is not tenable. He placed reliance upon the judgment of Honble Supreme Court in the case of A. Ayyasamy Vs. A. Paramsivam (Civil appeal no. 8245/8246 of 2016) delivered on 4.10.2016. He would submit that the defendant no. 1 acted in terms of the loan agreement. The plaintiff failed to furnish the sale document as per the terms of the agreement and therefore he was called upon to furnish the same. He would submit that the plaintiff ought to have sought relief under section 9 of the Arbitration and Conciliation Act, 1996. He pointed out that even before filing of the arbitration proceeding, interim relief can be sought. He further submitted that the notice was served upon the plaintiff, as per his own contention, on 9.7.2019, in spite of that there is considerable delay by the plaintiff in approaching the court. On this count also the interim relief should be denied to the plaintiff.
The Ld. counsel for the defendant no. 2 argued that the order dated 20.3.2019 is clear that the agreement has to be executed and registered within a period of 30 days. The plaintiff failed to take any steps in this regard.
I had considered the rival contentions. In the case of A. Ayyasamy Vs. A. Paramsivam, the defendant, after receipt of the summons, filed the application u/s 8 of the Arbitration and Conciliation Act 1996 raising an objection to the maintainability of the suit in lieu of the arbitration agreement between the parties. In case in hand no such objection is filed by tendering any application. So it would not be proper at this juncture to deal with the aspect of the jurisdiction of this court.
The notice was admittedly received by the plaintiff on 9.7.2019 and the plaintiff approached the court after considerable delay of 20 days and the same cannot be ignored at the time of considering the interim application. It is further required to be considered that the notice was issued by the defendant no. 1 contending that in case the plaintiff failed to produce sale document on or before 31.7.2019, the plaintiff would be liable to pay interest of 2 percent per month of default payment. The claim of the defendant no. 1 for the interest at 2 percent per month can be subjected to the judicial scrutiny in case the same is imposed and challenged by the plaintiff. At this juncture while dealing with interim application, prima facie there is no material to show as to how the plaintiff would suffer irreparable loss if the defendant no. 1 proceed to act upon the said notice. Mere claim of the defendant no. 1 for the interest at the rate 2 percent per month cannot be said to be the apprehension to the plaintiff and by which prima facie the vested rights of the plaintiff are not taken away. In this backdrop the plaintiff has not made out the case for ad-interim injunction. Hence it is expedient to pass following order
ORDER
Ad-interim relief is rejected.
_____________________________
Adjourned for reply to NM to 31.8.2019.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 31-08-2019
Date: 31-08-2019
Business: Adv. Laxmi Singh for plaintiff present.
Adv. Pravin Singh for defendant no. 1 present.
Adv. Abid Patel for defendant no. 2 present.
Vakalatnama filed on behalf of plaintiff. O-Seen and filed.
Vakalatnama filed on behalf of defendant no. 1. O-Seen and filed.
Vakalatnama filed on behalf of defendant no. 2. O-Seen and filed.
Plaintiff to remove office objection.
Adjourned for compliance by plaintiff and reply to NM to 23.10.2019.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 23-10-2019
Date: 23-10-2019
Business: Adv. Lxmi Singh for plaintiff present.
Adv. R. N. Gaonkar for defendant no. 1 present.
Adv. Abir Patel for defendant no. 2 present.
By consent of the parties adjourned for reply to NM 19.12.2019.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 19-12-2019
Date: 19-12-2019
Reason For Adjournment: court time is over
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 21-02-2020
Date: 21-02-2020
Reason For Adjournment: court time is over
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 04-05-2020
Date: 04-05-2020
Reason For Adjournment: National Lock Down
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 26-05-2020
Date: 26-05-2020
Business: In view of Lockdown period pursuant to the declaration of Novel Corona Virus (Covid-19) as global pademic by WHO and as per Office Order 78 of 2020, matter adjourned
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 11-06-2020
Date: 11-06-2020
Business: In view of declaration of Novel Corona Virus (COVID 19 as Global Pandemic by WHO and Office Order No.83/2020, matter is adjourned.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 28-08-2020
Date: 28-08-2020
Business: In view of declaration of Novel Corona Virus (COVID 19) as Global Pandemic by WHO and Office Orders, matter is adjourned.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 19-10-2020
Date: 19-10-2020
Business: Both the parties are absent. Due to Covid-19, the matter is adjourned to 07.01.2021.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 07-01-2021
Date: 07-01-2021
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 01-03-2021
Date: 01-03-2021
Business: None for plff.
Adv. Mahi Lalka for deft. no.1 present.
The matter is adjd for NM hearing to 27/04/2021.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 27-04-2021
Date: 27-04-2021
Business: In view of office order no.81/2021 dated 17.04.2021, the matter not being urgent, is adjourned to 04.08.2021.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 04-08-2021
Date: 04-08-2021
Business: P.O is on leave. Matter adjd to
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 27-09-2021
Date: 27-09-2021
Business: None present for plaintiff.
Adv. Pravin Singh for defendant no.1 is present.
Matter adjd for NM hearing on 18.01.2022.
Next Purpose: NM FOR HEARING
Next Hearing Date: 18-01-2022
Date: 18-01-2022
Business: As per Office Order no. ''07of 2022 and ''103of 2022'' only Ugent matter is to be taken up for hearing therefore matter is adjd to
Next Purpose: NM FOR HEARING
Next Hearing Date: 04-02-2022
Date: 04-02-2022
Business: As the SU No. 2748/19 under which this NM No. 2990/19 was registered is disposed of as withdrawn, therefore this NM No. 2990/19 also stands disposed of.
Nature Of Disposal: OTHER
Disposal Date: 04-02-2022