Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Order in NM 3363/19 in S.C.Suit 2087/19
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3363 OF 2019
IN
S.C.SUIT NO. 2087 OF 2019
CNR NO. : MHCC010092022019
Rasiklal Chaganlal Chheda …. Plaintiff
V/s.
Alka Nipesh Gada & Anr. …. Defendants
Appearance:
Ms. Sirat Khan, Advocate for the plaintiff.
None for Defendants.
CORAM : SMT. S.S. NAGUR,
JUDGE, (C.R.NO.04)
DATE : 24.11.2021
ORAL ORDER
(Dictated in open Court)
The Notice of Motion is filed by the plaintiff against
defendants seeking following reliefs.
(a) The defendant be permanently restrained by an order and injunction
of this Hon'ble Court from refund the said amount that is
Rs.25,00,000/(Rupees Twenty Lakh Only) towards the loan payable
by the defendant with respect to her residential flat purchase or
towards any other purpose.
(b) The defendant be permanently restrained by an order and injunction of
this Hon'ble court from paying the said amount that is Rs.25,00,000/
(Rupees Twenty Lakh Only) to the defendant.
(c) The defendant by herself, her family members, servants and agents or
any other person or persons claiming through the defendant be
permanently restrained by an order and injunction of this Hon'ble Court
from in any manner dealing with and/or alienating and/or
encumbering, and/or parting with possession and or creating third party
right in respect of the said flat being Flat No. 404 on the 4th floor of the
B wing building known as Willow tower situated at Vasant Garden,
Mulund West, Mumbai – 400 080 or any part thereof;
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2. The Notice of Motion is supported by Affidavit of plaintiff
Rasiklal Chaganlal Chheda. He has adopted the contents of plaint. The
plaintiff is father of defendant no. 1. It is the contention of the plaintiff
that he has advanced loan of Rs.25,00,000/ to defendant no. 1 to
purchase the suit property in the year 2005. The defendant no. 1 has
failed to pay the amount of Rs.25,00,000/ to the plaintiff. The plaintiff
demanded the said amount from the defendant. She failed to pay the
amount to the plaintiff. The transaction to purchase the property will
not amount to benami transaction, as the defendant no. 1 was member
of HUF of the plaintiff. Hence, prayed to allow the Notice of Motion.
3. The defendant no. 1 filed reply through Affidavit and
denied the contents of plaint in toto. The defendant has come with a
defence that the suit is not within limitation. The plaintiff has filed the
suit against his sister bearing no. 1423 of 2019 in City Civil Court at
Dindoshi. The plaintiff has harassed all the members of the family and
troubled her mother therefore because of the violence and mental
torture by the plaintiff, her mother was constrained to file matrimonial
proceedings before the Family Court at Bandra for decree of divorce.
There is no receipt annexed by the plaintiff to show that he has paid
Rs.23,52,000/ for purchase of the suit flat. There is no contribution of
the plaintiff towards the purchase of the flat. The defendant no. 1
denied that the plaintiff has paid the amount for purchase of the suit
flat. The claim of the plaintiff is bogus hence prayed to reject the Notice
of Motion.
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4. The plaintiff filed Affidavit in rejoinder to the Written
Statement of the defendant and denied the contents/allegations in toto.
5. In view of the above pleadings of the plaintiffs, the
following points arise for my determination and the reasons with
finding thereon are as under :
POINTS FINDING
1) Whether the plaintiff has made
out a prima facie case?
No
2) In whose favour balance of
convenience lies?
Defendant No. 1
3) Who will suffer irreparable
loss?
Defendant No. 1
4) What order? Notice of Motion is rejected.
R E A S O N S
6. Heard Advocate Shri. Sirat Khan for the plaintiff. Defendants
remained absent, hence their argument is not heard. Perused the
contents of Notice of Motion supported by Affidavit and reply of the
defendant no. 1. I have gone through the contents of plaint and
documents relied by the plaintiff.
As to point no. 1
7. The relationship of the plaintiff with the defendant no. 1 is
not disputed. The plaintiff has annexed the copy of Agreement for Sale
dated 18.06.2005 between Dinesh M. Sharda and Alka Nitesh Gada i.e.
defendant no. 1. He has issued notice to the defendant on 01.04.2019
stating that he has paid the amount of Rs.25,00,000/ for purchase of
the flat and demanded the said amount along with interest at the rate
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of 18% per annum. The notice is replied by the defendant no. 1 on
10.04.2019. The contents of notice are denied by the defendant no. 1.
In that also, the contents are in respect of harassment of the plaintiff to
his family members i.e. herself, her mother and sister. The plaintiff has
also annexed the bank account statement which shows that on
09.06.2005 amount of Rs.25,00,000/ is withdrawn by the defendant
no. 1 Alka N.G. vide Cheque no. 88257.
8. The plaintiff is seeking declaration that he is full owner of
the suit flat on the ground that he has paid the amount of
Rs.25,00,000/ to the defendant no. 1. The plaintiff has also sought
refund of amount of Rs.25,00,000/. In the Notice of Motion, the
plaintiff is claiming refund of Rs.25,00,000/ and restraining the
defendant from dealing with the suit property. The account statement
and the execution of the document for Agreement for Sale prima facie
shows that the plaintiff has paid the amount to the defendant no. 1 who
is his daughter. However, there is nothing on record to show that the
said amount was advanced as loan to the defendant no. 1. Considering
the relationship of father and daughter, it was for the plaintiff to show
that the said amount was paid by him to the defendant no. 1 towards
loan to be repaid by her. The transaction is of 2005 and for the first
time in the year 2019 the plaintiff has issued a notice calling upon the
defendant no. 1 to pay the amount of Rs.25,00,000/. The defendant
no. 1 has stated the family dispute and the complaint filed against him
under Domestic Violence Act before Metropolitan Magistrate Court,
Kurla.
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9. Considering the above facts, it is a dispute between the
plaintiff and his family therefore prima facie it shows that now the
plaintiff desires to get back the money of Rs.25,00,000/ paid to his
daughter i.e. the defendant no. 1. There is nothing on record to show
that the said amount is paid by him as loan. The plaintiff is now
claiming because he has paid the amount of Rs.25,00,000/ for
purchase of the suit property, therefore the said property is owned by
him and the bar of benami transaction will not apply on the ground that
the defendant no. 1 is a member of HUF of his family. Hence, I hold
that the plaintiff has not made out prima facie case and answer point
no. 1 in negative.
As to point no. 2 & 3
10. The plaintiff has not made out prima facie case. There is
nothing on record to show that the amount of Rs.25,00,000/ was
advanced to the defendant no. 1 as loan in the year 2005. In the Notice
of Motion, the plaintiff is claiming final relief i.e. to refund the amount
of Rs.25,00,000/. Balance of convenience is not in favour of the
plaintiff. The plaintiff will not suffer irreparable loss. The plaintiff has
claimed a monitory relief and now claiming to be owner of the property
only on the ground that he has advanced the amount of Rs.25,00,000/
to defendant no. 1. On the contrary, the suit property is in the name of
the defendant no. 1 and in case injunction is granted, she will suffer
loss. Balance of convenience is in favour of defendant no. 1, as prima
facie it shows that the present suit is filed out of family dispute between
them. Accordingly, answering point no. 2 &3, pass following order :
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ORDER
1. The Notice of Motion is rejected.
2. No order as to costs.
3. Accordingly, the Notice of Motion is disposed of.
(SMT.S.S.Nagur)
Date :24/11/2021 Judge
City Civil Court,
Greater Mumbai.
Pronounced on : 24.11.2021
Dictated on : 24.11.2021
Typed on : 25.11.2021
Checked & Signed on : 25.11.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
26/11/2021 11.25 a.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.4)
Date of Pronouncement of
Judgment/Order.
24/11/2021
Judgment/order signed by P.O on 25/11/2021
Judgment/order uploaded on 26/11/2021
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