Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 299619, in Suit no.2827 of 2015
MHCC010082182019
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
ORDER IN NOTICE OF MOTION NO.2996 OF 2019
IN
SUIT NO.2827 OF 2015
Mr. Shakeel Ahmed Mushtaq Ahmed Ansari ...Plaintiff
V/s
Mr. Mohammed Sajid Shahzad Ansari & Ors. ....Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 11th DAY OF OCTOBER, 2022
: Appearances:
The learned Adv. Iqbal Siddiqui for the plaintiff.
None for the defendants.
ORAL ORDER
The plaintiff has taken out present notice of motion for
claiming reliefs interalia for an appointment of Court Receiver, High
Court Bombay and to restrain defendant no.2 from creating third
party interest in suit premises and for other reliefs.
2. In short, it is contention of the plaintiff that, he has filed
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2 Ord. in NM no 299619, in Suit no.2827 of 2015
suit for specific performance of contract in respect of the suit
premises; for declaration and for permanent injunction.
3. It is contended that, on 09/12/2015 this Court has
granted adinterimorder in favour of the plaintiff thereby restrained
defendants temporarily from creating third party interest in the suit
premises. However, by making breach of the said order, the
defendant no.1 sold out suit property to defendant no.2. Thus, the
plaintiff has taken out contempt notice of motion. Now, the plaintiff
has apprehension that the defendant no.2 may alienate or create third
party interest in the suit property. Hence the present notice of
motion.
4. The suit proceeded exparte against defendant no.1.
5. Inspite of ample opportunities, defendant no.2 failed to
file written statement. Hence the matter proceeded without written
statement and reply to notice of motion.
6. Heard the learned advocate for the plaintiff. Perused the
record.
7 The plaintiff has filed suit for specific performance of
contract; declaration and permanent injunction. It is contention of
the plaintiff that by virtue of agreement to sale dated 17/05/2014,
defendant no.1 agreed to sale suit premises to him. However during
pendency of the suit and by making breach of order dated
09/12/2015 the defendant no.1 has transferred suit premises to
defendant no.2.
8. It is submitted that, previously adinterim temporary
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3 Ord. in NM no 299619, in Suit no.2827 of 2015
injunction was granted in favour of the plaintiff, thereby restrained
defendant no.1 from creating third party interest. It reveals that,
inspite of it defendant no.1 has sold the suit premises to defendant
no.2. The plaintiff has legitimate apprehension that the defendant
no.2 may create third party interest in the suit property. On the basis
of agreement to sale dated 17/05/2014, the plaintiff has got right
accrues in his favour to seek relief of specific performance of contract
and accordingly he has filed the present suit. Thus in my view to
avoid multiplicity of litigation, it is necessary to restrain defendant
no.2 from creating third party interest. The plaintiff has made out
prima facie case, balance of convenience and irreparable loss in his
favour.
9. So far as the appointment of Court Receiver is
concerned, nothing on record to show that the plaintiff at any point
of time was in possession of the suit premises. There is no eminent
danger or threat to the suit premises. Hence no case made out by the
plaintiff for an appointment of Court Receiver, High Court Bombay.
Thus, in view of my above discussion , I pass the following order:
ORDER
Notice of motion no.2996/2019 is partly allowed.
The defendant no.2 is hereby restrained by an order of
temporary injunction from creating third party interest in
the suit premises, till decision of the suit.
The relief regarding an appointment of Court
Receiver, High Court Bombay is hereby rejected.
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4 Ord. in NM no 299619, in Suit no.2827 of 2015
Notice of motion stands disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date:.11.10.2022 (C.R. No.1)
Dictated on : 11.10.2022
Transcribed on : 13.10.2022
Checked & Signed on : 13.10.2022
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5 Ord. in NM no 299619, in Suit no.2827 of 2015
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 14.10.2022 NAME OF STENOGRAPHER(GI)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 11.10.2022
JUDGMENT/ORDER signed by P.O. on 13.10.2022
JUDGEMENT/ORDER uploaded on 14.10.2022
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