Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no.3193-19 in Suit no.2316 of 2019
MHCC010086622019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER IN NOTICE OF MOTION NO.3193 OF 2019
IN
SUIT NO.2316 OF 2019
Mr. Shamshad Ahmed Abdul Hameed Ansari ... Plaintiff
V/s
Mr. Prakash Ajit Merchant ... Defendant.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE: 22nd DAY OF NOVEMBER, 2023
-: Appearances: -
Advocate Shri. M.V. Holmagi for the plaintiff.
None for Defendant
ORAL ORDER
The plaintiff has taken out present notice of motion for
seeking relief of temporary injunction thereby defendant be restrained
from disturbing possession of the plaintiff or dispossessing the plaintiff
from the suit premises and be further restrained from creating third
party right, title and interest in the suit property.
2. In short, it is contention of the plaintiff that defendant is
the owner of landed property ad-measuring 4316 Sq. yards having old
land revenue No. 20-20, new No. 1/15795, A/15795 and new survey
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2 Ord. in NM no.3193-19 in Suit no.2316 of 2019
No. IB/312 and cadastral survey No. 322 of Dharavi Division together
with building erection known as ‘Kharkana’ and assessed by the
Municipal Corporation under G-ward No. 6303 (1), 6303 (2), 6303 (4),
6305 (1), 6305 (2) and street No. 192- 194 (A) situated at Dharavi
(West), Mumbai and in the said property there is a godown ad-
measuring about 950 sq.fts., Carpet area comprising of ground floor
plus upper floor (here-in-after referred to as “Suit property”).
3. The defendant entered into an agreement to sale out suit
property to the plaintiff. Accordingly, Memorandum of Understanding
dated 15.10.2018 was executed by the defendant in favour of the
plaintiff. The defendant agreed to sold and plaintiff agreed to purchase
suit property for total consideration of Rs. 3,50,00,000/-. The plaintiff
has paid Rs. 25,00,000/- toward part consideration to the defendant.
The defendant has to make marketable title and thereby execute the
Deed of Conveyance upon receiving balance consideration. In the suit
property there is another structure ad-measuring about 105 Sq.fts
carpet area. The defendant had handed over possession of same to the
plaintiff on execution of MOU dated 15.10.2018. The transaction has to
be completed within 120 days from the date of execution of said MOU.
4. Thereafter, the plaintiff repeatedly requesting the
defendant to complete the part of his agreed terms but the defendant
went on avoiding to perform the specific performance of his contract.
The plaintiff reliably learnt that defendant is trying to negotiate with
third party and also create complication though the plaintiff has the
possession of suit property. Hence, the suit and notice of motion.
5. Inspite of opportunity the defendant failed to file written
statement and reply. Hence, the matter proceeded without written
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3 Ord. in NM no.3193-19 in Suit no.2316 of 2019
statement and reply of the defendant.
6. Heard the Ld. Advocate for the plaintiff. Perused the record.
7. Herein it is to be seen that the plaintiff has filed the present
suit for permanent and mandatory injunction. The plaintiff has filed an
application for grant of leave under Order II Rule 2 of Code of Civil
Procedure, 1908 (Exh.6). The said application came to be rejected
vide
order dated 15.02.2019. Nothing on record to show that the said order
has been challenged by the plaintiff. No amendment carried out for
seeking the relief of specific performance of contract.
8. By way of present notice of motion, the plaintiff wants to
restrain the defendant from interfering with his possession over the suit
property and from creating third party interest in the suit property on
the basis of MOU dated 15.10.2018.
The Hon’ble Madras High Court in the case of R. Chendilvel
Vs. G. Damodaran AIR 2015 MADRAS 1996 held that,
“merely filing a
suit, seeking bare permanent injunction, not to alienate property based
on an agreement for sale would not be legally maintainable, as it would
show that the plaintiff is interested in gaining time, without being ready
and willing to perform his part of the contract,”.
9. In the case of Chellingi Narayanmurthy VS. Chellingi
Satyanarayana decided by Hon’ble Andra Pradesh High Court on
27.06.2007, it is held that,
“plaintiff who is transferee under the
agreement of sale failed to perform his part of contract i.e., in paying
the balance of sale consideration to the transferor i.e.., the appellant
herein. Hence, the plaintiff is not entitled to claim protection under
Section 53-A of the Transfer of Property Act on the basis of part
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4 Ord. in NM no.3193-19 in Suit no.2316 of 2019
performance of the contract. Suit filed for permanent injunction only
without seeking the relief of specific performance of the agreement of
sale is barred under Order 2, Rule 2 of the Civil Procedure Code,”.
10. As discussed supra, the leave under Order II Rule 2 of CPC
is refused by my Ld predecessor-in-court. The plaintiff has failed to seek
the relief of specific performance of contract. The relief of injunction is
an equitable relief. Nowhere plaintiff shown his readiness and
willingness to perform his part of contract to get execute registered sale
deed in his favour by making remaining payment of Rs.3,25,00,000/- to
the defendant. The conduct of the plaintiff shows that he is interested in
only gaining the time, without performing his part of contract. Thus, the
plaintiff failed to made out prima facie case, balance of convenience
and irreparable loss in his favour. Therefore, the plaintiff is not entitled
for the relief of temporary injunction as claimed. Thus, I inclined to pass
the following order.
ORDER
1. Notice of Motion No. 3193 of 2019 stands rejected.
2. Notice of Motion stands disposed of.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Date:.22.11.2023 Court, Gr. Mumbai
(C.R. No.1)
Dictated on : 22.11.2023
Transcribed on : 22.11..2023
Signed on : 22.11..2023
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5 Ord. in NM no.3193-19 in Suit no.2316 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 24.11.2023 NAME OF STENOGRAPHER(G-I)
Mrs. Rashmi Hate
TIME:
Name of the Judge (With Court
room no.)
HHJ Shri Virendra D.Kedar
(Court Room No.1)
Date of Pronouncement of
JUDGEMENT/ORDER
22.11.2023
JUDGMENT/ORDER signed by P.O.
on
22.11.2023
JUDGEMENT/ORDER uploaded on 24.11.2023
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