Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: C. S. No.537 of 2021 -: 1 :- Ex-Parte Judgment
MHCC010091042019
Presented on : 31.08.2019
Registered on : 01.11.2019
Decided on : 04.12.2024
Duration : YY : MM: DD
05 : 03 : 03
Exhibit-41
IN THE BOMBAY CITY CIVIL COURT AT MAZGAON, BOMBAY
COMMERCIAL SUIT NO. 537 of 2021
1. M/S. Nathan Properties Pvt. Ltd.,
A Company Registered under the Provisions of
the Companies Act, 1956, Having its office at
Srishti House, NBS Road, Mulund (West),
Mumbai 400 080.
2. M/S. Mayuresh (Formerly Known as
Rattanchand Rikhabdas Jain Chemical Works)
A Partnership Firm, Registered under the
Provisions of the Indian Partnership Act, 1932,
Having its registered office at 428, Kalbadevi
Road, 2nd Floor, Abhay House, Mumbai
400002.
3. Mr. Vishal Agarwal,
An Adult, Indian Inhabitant, Age: 33 Years,
Occupation: Business. Permanently residing at
No.B 901, Emerald Bay, Plot No. R-3/B Sector,
14, Palm Beach Road, Nerul, Navi Mumbai – 400
706. ... Plaintiffs
V/s.
Ajay C. Sawant,
An Adult, Indian Inhabitant, Age- Unknown,
Occupation : Business. Permanently residing at
Shanil Financial Services Ltd, C/501, Gokul
Galaxy, Thakur Complex, Kandivli East, Mumbai
- 400101. ... Defendant.
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C. S. No.537 of 2021 -: 2 :- Ex-Parte Judgment
CORAM: HIS HONOUR JUDGE
SHRI. A. S. KAZI
(COURT ROOM NO.14)
DATE : 04.12.2024.
-: Appearances: -
The Ld. Advocate Sunaina Chakravarti for the plaintiffs.
Defendant Ex-parte.
EX-PARTE JUDGMENT
By way of present suit, plaintiffs prayed for claiming relief
inter-alia;
a) for declaring that, the termination of the Agreement for Sale dated
08.09.2004, executed by and between the M/s. Nathan Properties Pvt.
Ltd. i.e., the plaintiff No.1 herein, therein referred to as the Promoters
of one part and defendant herein referred to as the Purchaser of the
Other part, duly registered with the Sub-Registrar of Assurances at
Kurla, under Registration Serial No. BDR-7-09930 of 2004 on
14.09.2004, in respect of the flat No.701, admeasuring 435 sq. ft
(Carpet area inclusive of balconies ) on the 7th Floor in the “H Wing” in
the Building No.2, of the society known as “Mayuresh Srishti Building
No.2 CHS Ltd”, situated at Lal Bahadur Shastri Marg, Bhandup (West)
Mumbai-400 078 is valid, binding and subsisting on the defendant.
b) for directing the concerned Sub-Registrar of Assurances, Kurla or
such Officer appointed under the Provisions of the Indian Registration
Act, 1881, to cancel and / or to strike down the agreement for Sale
dated 08.09.2004 under the Agreement for Sale dated 08.09.2004 came
to be registered by the registration authorities under the provisions of
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C. S. No.537 of 2021 -: 3 :- Ex-Parte Judgment
the Indian Registration Act.
The present suit previously filed as S. C. No.2790 of 2019,
thenafter, upon personal verification, it was converted in to Commercial
suit No.537 of 2021.
2) Briefly stated facts of the case are as under: -
The plaintiff No.1 is the Developer / Promoter of the project
name as “Mayuresh Srishti” comprising of 3 Buildings consisting of
Wings A to F (Building No1), Wings G to J, (Building No.2) and Tower
P and Q (Building No.3), situated at LBS Marg, Bhandup West, Mumbai
400 078 (Hereinafter referred to as “the said project”). The Plaintiff
No.2 is a registered Partnership Firm and the Plaintiff No.3 is an adult.
3) It is submitted that, by Registered Agreement for Sale dated
08.09.2004 was executed by and between the parties, and the plaintiff
No.1 agreed to sell the flat to the defendant for the total consideration
amount of Rs.11,08,380/- and more particularly on the terms and
conditions as contained therein. The Said Agreement for Sale dated
08.09.2024 is registered with Sub-Registrar Kurla-2, Mumbai under
Serial No.BDR-7-09930-2004 on 14.09.2004 (Hereinafter referred to as
“the said Agreement”). As per Clause No.1 of the said Agreement, the
defendant was to require to make payment of the consideration amount
within the time. At the time of execution of the the said Agreement for
Sale, defendant paid only token amount of Rs.5,000/- vide cheque
No.005305 dated 06.09.2004 to the plaintiff No.1 and thenafter, the
defendant applied to the C.K.P. Co-Operative Bank Ltd for obtaining
loan for making the payment towards balance consideration to the
plaintiff for the said flat. Thereafter, the plaintiff No.1 issued No-
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C. S. No.537 of 2021 -: 4 :- Ex-Parte Judgment
Objection Certificate dated 10.09.2004 to the said Bank to grant loan in
favour of the defendant, to enable the defendant to grant loan in favour
of the defendant, to enable the defendant to make payment of the
balance consideration amount. The above bank sanctioned loan facility
to defendant and remitted only a sum of Rs.5,49,190/- to plaintiff No.1,
in September 2004 vide cheque No.040239 dated 24.09.2004 drawn on
the C.K.P. Co-operative Bank Ltd. Thus, the plaintiff received only
Rs.5,54,190/- (being 50% of the total consideration amount) in respect
of the said flat. Thereafter, the defendant failed to make balance
payment.
4) Thereafter, the plaintiff No.1 issued vide Demand Letters
dated 07.10.2004, 29.10.2004, 30.12.2004, 04.04.2005 and 13.10.2005
to the defendant, calling upon him to make the payment of the balance
consideration amount. But, the defendant failed and neglected to make
payment of the balance consideration amount. Thereafter, the plaintiff
No.1 issue vide notice dated 27.07.2007 to the defendant and the said
society, that for terminating the said agreement for sale dated
08.09.2004. But this time also defendant failed and neglected to
respond the said letter. Thereafter, the plaintiff issued another notice
dated 23.08.2008 and 11.06.2009, through its advocate to the
defendant and the said bank with a copy marked to the society and
once again informed them about the termination / cancellation of the
said agreement and also called upon the said bank to collect the amount
of Rs.5,49,190/-, paid by the bank to the plaintiff No.1 on behalf the
defendant and also called upon the said bank to return the Original
Agreement for Sale as well as Original NOC to the plaintiff No.1 for
cancellation. But till date there is no reply either by the defendant and
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C. S. No.537 of 2021 -: 5 :- Ex-Parte Judgment
the said bank to the said notice. Thereafter, the defendant through their
advocate letter dated 23.06.2009 replied to the notice dated 11.06.2009
and raised frivolous grounds and excuses for not making payment in
time and admitted the default committed by him and requested to the
plaintiff No.1 to accept the interest on delayed payment. The plaintiff
No.1 vide their advocate letter dated 09.08.2009, replied to the said
letter and informed that, the said agreement is already terminated and
therefore, question of now accepting any installments with interest does
not arises. Thereafter, the defendant failed to take any action against
the plaintiff No.1 and till date no litigation has been filed by the
defendant against the plaintiff No.1. It is also submitted that, as on date
the said remedy of the defendant is already time barred and therefore,
the termination of the said agreement for Sale has become final, valid
and binding on the defendant.
5) It is further submitted that, subsequent to said cancellation
and / or termination of the said agreement, the plaintiff No.1 vide an
Agreement for Sale dated 26.03.2018 sold, transferred and assigned the
said flat to the plaintiff No.2 and 3 in equal proportions at consideration
amount of Rs.30 Lakhs and on the terms and conditions as contained
therein. The said Agreement for Sale is also registered with Sub-
Registrar of Assurances at Kurla-3 under serial No.KRL-3-34999-2018
on 26.03.2018. The plaintiff No.1 has also handed over vacant and
peaceful possession of the said flat to the plaintiff No.2 and 3 and the
names of the plaintiff Nos.2 and 3 are duly updated in the record of the
society and accordingly, the society has issued the Share Certificate
bearing No.53, distinctive Nos.261 to 265 i.e. holding 5 fully paid
shares of Rs.50/- each in favor of the plaintiff Nos.2 and 3.
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C. S. No.537 of 2021 -: 6 :- Ex-Parte Judgment
6) It is also further submitted that, termination of the said
Agreement i.e. registered Agreement for Sale dated 08.09.2004, the
defendant has lost all the rights. The defendant even after last
correspondence dated 09.08.2009, miserably failed to approach any
court of law to seek appropriate reliefs against the termination of the
said agreement. Therefore, now after a period of almost 10 years
nothing survives for the defendant to raise any kind of right in premises
vide the said agreement. The Plaintiff No.1 has already dealt with the
said flat in favour of the Plaintiff Nos.2 and 3 and have also placed
them in the vacant and peaceful possession of the said flat on
26.03.2018. Even though, the said agreement has been terminated, it
has remained on the record of the Sub-Registrar of Assurances at Kurla
and thus creating a hurdle in the way of providing free and clear title in
respect of said flat to the plaintiff Nos.2 and 3. Hence, the present suit.
7) Inspite of service, defendant failed to appear hence, suit
proceed Ex-parte against him
vide order dated 13.04.2022.
8) In support of its claim, the plaintiff has filed affidavit of
examination in chief of PW-1, Vishal Agarwal, at Exh.9 and Additional
Affidavit of Examination at Exh.9A. The plaintiff has relied upon the
documents filed along with List at Exh.10 and Additional List of
Documents at Exh.10A. The Ld. Advocate for the plaintiff filed evidence
closing pursis Exh.40.
9) Heard the learned Advocate for the plaintiff. Perused the
record.
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C. S. No.537 of 2021 -: 7 :- Ex-Parte Judgment
10) Following points arise for my determination, to which I have
given my findings with reasons as follows: -
Sr.
No.
Points Findings
1. Whether the plaintiffs are entitled
for declaration that, the termination
of the Agreement for Sale dated
08.09.2004, executed by and
between the M/s. Nathan Properties
Pvt. Ltd. i.e., the plaintiff No.1
herein, therein referred to as the
Promoters of one part and defendant
herein referred to as the Purchaser
of the Other part, duly registered
with the Sub-Registrar of Assurances
at Kurla, under Registration Serial
No. BDR-7-09930 of 2004 on
14.09.2004, in respect of the flat
No.701, admeasuring 435 sq. ft
(Carpet area inclusive of balconies )
on the 7th Floor in the “H Wing” in
the Building No.2, of the society
known as “Mayuresh Srishti Building
No.2 CHS Ltd”, situated at Lal
Bahadur Shastri Marg, Bhandup
(West) Mumbai-400 078 is valid,
binding and subsisting on the
defendant, as claimed?
In the affirmative.
2. Whether the plaintiffs are entitled
for direction to the concerned Sub-
Registrar of Assurances, Kurla or
such Officer appointed under the
Provisions of the Indian Registration
Act, 1881, to cancel and / or to
strike down the agreement for Sale
dated 08.09.2004 under the
Agreement for Sale dated
In the affirmative.
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C. S. No.537 of 2021 -: 8 :- Ex-Parte Judgment
08.09.2004 came to be registered by
the registration authorities under the
provisions of the Indian Registration
Act.
3. What Order & Decree? As per final order.
REASONS
As to point Nos.1 & 2: -
11) PW-1 deposed as per the contents of the plaint averments;
hence, I do not want to reproduce the same to avoid the repetition. The
plaintiff has filed Copy of Power of Attorney dated 20.01.2023
(Exh.12). Thereby, the witness is authorized to depose on behalf of the
plaintiff. The testimony of the witnesses have remained unchallenged.
12) It is case of the plaintiffs that, there is no valid and subsisting
agreement of sale in favour of the defendant. Hence, they are entitled to
declaration as prayed. To substantiate its claim, they relied upon the
documents filed along with List of Documents at Exh.10 and Additional
List of Documents Exh.10A, Exh.12 to Exh.39. The suit is lodged on
31.08.2019 thus, it is well within limitation.
13) On the basis of oral and documentary evidence (Exh.12 to
Exh.39) the plaintiffs are duly proved their case that, the defendant has
no interest / title left in the said suit premises. The said evidences are
unchallenged and uncontroverted. Hence, the case of the plaintiffs
stands proved. Thus, in view of my above discussion, my answer to
point No.1 & 2 are in affirmative and I proceed to pass the following
order: -
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C. S. No.537 of 2021 -: 9 :- Ex-Parte Judgment
ORDER
1) Commercial Suit No.537 of 2021 is decreed with costs.
2) It is hereby declared that, termination of the Agreement for Sale
dated 08.09.2004, executed by and between the M/s. Nathan Properties
Pvt. Ltd. i.e., the plaintiff No.1 herein, therein referred to as the
Promoters of one part and defendant herein referred to as the Purchaser
of the Other part, duly registered with the Sub-Registrar of Assurances
at Kurla, under Registration Serial No. BDR-7-09930 of 2004 on
14.09.2004, in respect of the flat No.701, admeasuring 435 sq. ft
(Carpet area inclusive of balconies ) on the 7th Floor in the “H Wing” in
the Building No.2, of the society known as “Mayuresh Srishti Building
No.2 CHS Ltd”, situated at Lal Bahadur Shastri Marg, Bhandup (West)
Mumbai-400 078 is valid, binding and subsisting on the defendant.
3) The concerned Sub-Registrar of Assurances, Kurla or such Officer
appointed under the Provisions of the Indian Registration Act, 1881 is
hereby directed to cancel and / or to strike down the agreement for Sale
dated 08.09.2004, under the Agreement for Sale dated 08.09.2004
came to be registered by the Registration Authorities under the
provisions of the Indian Registration Act.
4) Decree be drawn up accordingly.
5) Commercial Suit No.537 of 2021 disposed off accordingly.
(A. S. Kazi)
Addl. Sessions Judge,
City Civil & Sessions Court,
Date: 04.12.2024. Mazgaon, Gr. Mumbai
Direct Typed On : 04.12.2024. (C. R. No.14)
Signed on : 04.12.2024.
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C. S. No.537 of 2021 -: 10 :- Ex-Parte Judgment
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 04.12.2024 NAME OF STENOGRAPHER
TIME: 01.55 p.m. Mr. Ashok Sudhakar Patil
Name of the Judge (With Court
room no.)
HHJ Shri. A. S. Kazi.
(Court Room No.14)
Date of Pronouncement of
JUDGEMENT/ORDER
04.12.2024
JUDGMENT/ORDER signed by P. O.
on
04.12.2024
JUDGEMENT/ORDER uploaded on 04.12.2024
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