Interim Order 2

Order Details: Notice of Motion
Pdf Text: … 1… N/M. No.4058/19 (SC No.2619/19)
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.4058 OF 2019
IN
S. C. SUIT NO.2619 OF 2019
Aspandiar Rashid Irani … Plaintiff
V/s.
Ratilal Keshra Patel & Anr. … Defendants
CORAM : HER HONOUR JUDGE
SMT. H. C. SHENDE
CITY CIVIL COURT, GR. BOMBAY
(C. R. NO.65)
DATE : 22th JANUARY, 2026.
Appearance :-
Adv. Mangaonkar, for the plaintiff.
Adv. P. D. Gandhy, for the defendant.
O R D E R
The plaintiff has filed this notice of motion for grant of ad-
interim and interim reliefs. He also has filed separate notice of motion
for injunction against the defendant.
2. As per the plaintiff he entered into an agreement with
defendant in 1982. However, there is clause No.6 in the agreement
which speaks that the same shall be completed within 24 months from
the date thereof upon payment of 10,900/- being balance of the
purchase money as aforesaid, the vendor and all other necessary parties
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if any shall make an execute, proper conveyance of the said property in
favor of the purchaser or his nominee or nominees. The conveyance and
all necessary documents shall be prepared by the purchaser advocate.
3. Further according to the plaintiff the time was essence of
the contract. It was agreed in between them that purchaser shall
obtained all the permission, the sale shall complete if defendant will
comply clause No.6 of the agreement. However, the defendant No.1 did
not pay balanced consideration of Rs.10,900/- never demanded
conveyance. There is delay and negligence on the part of the defendant.
Defendant failed to act in stipulated time, and was not ready to perform
his part of contract. It was agreed that on demand the vendor will give
vacant possession of properly because it was occupied by unauthorized
occupants. The plaintiff by letter dtd.25.01.1982 executed a letter of
adornment to the tents and issued possession receipt in favor of
defendant No.1. However no conveyance transferring his ownership
right, title executed or granted development right by the plaintiff. The
possession of the properly was given to the defendant as an agent only.
4. Further according to the plaintiff in a public notice issued
by the collector declaring the said property in slum name of the plaintiff
is shown. As published in the government gazette dtd.16.02.2006. The
plaintiff and the defendant also challenged the declaration. In august
2008, the plaintiff came to know that the defendant No.1 claiming
himself as a owner granted development rights in favor of defendant
No.2 by development agreement dtd.31.12.2007 and the POA which is
registered with sub registrar on 04.03.2008. Surprisingly it was
executed without disclosing agreement dtd.25.01.1982, without
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payment of balanced Rs.10,9000/- It all came out in the search report.
5. Further according to the plaintiff, the defendant No.1 and 2
not having any right in the properly. Later the originating summons
No.2887/2008 filed by plaintiff thereafter the letter dtd.25.11.2008
with check was given by defendant No.1. It was refused by the plaintiff.
The plaintiff during pendency served with repl7y and documents dtd.
21.03.2011 from defendant No.2 and came to know that various
sanctions permission granted by the slum authorities in favour of
defendant NO.2 which is illegal. Against the decision of slum criminal
the plaintiff has filed Writ petition No.556/2010 before Hon'ble High
Court and the interim relief granted in favor of plaintiff on 27.02.2010.
6. During the course of hearing of originating summons the
defendant No.1 has filed additional affidavit and it closed as he has
terminated development agreement entered into it defendant No.2, the
slum authority also terminated the defendant No.2 as developer of slum
project. The appeal filed by defendant No.2 also came to be rejected.
7. It has also been submitted for and behalf of plaintiff that
the provision of D.C Regulation and Slum Act are clear that no sanction
on permission can be granted to any person without deciding right title
of person having interest in the property. Agreement dtd.25.01.1982 is
executory agreement, it does not give any right to the defendant No.1.
As per last clause of section 54 of transfer of property act mere
agreement does not itself create any interest, charge on the property.
The defendant No.1 had terminated agreement entered with the
defendant No.2 on 12.03.2017 still to avoid further litigation the
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defendant No.2 added as a party in this suit. By way of notice of motion
the plaintiff is asking injunction against defendant as mentioned in the
notice of motion, to be granted in his favour and also requested to reject
the notice of motion taken by defendants to reject plaintiff’s plaint.
8. In support of his submission advocate for plaintiff has
relied upon the judgment in the case of Nanjegoda and anr Vs.
Gangamma and ors (2011) 13 Supreme Court Cases 232.
9. Further according to defendant, the suit be rejected as per
provision under order 7 Rule 11 of Code of Civil Procedure. As per the
defendants the present suit is barred by law of limitation. The reliefs to
the suit are improperly valued, proper court fee stamp leviable in
respect of the suit have not be paid. No case at all made out by
plaintiff to have injunction. After time gap of more than 30 years
granting injunction as prayed would cause great hardship to defendant.
10. Further as per the defendant the plaintiff was owner of
land CTS No.5807/ Plot No.237 of town planning scheme of Ghatkoper
admeasuring 872 Square yard equivalent to 729.10sq.m. The
defendant desire to purchase it vide agreement of the sale
dtd.25.01.1982 registered with registrar having Sr. No. BOM/S-251/82.
The plaintiff sold the properly to defendant No.1. Simultaneously the
power of attorney also executed by plaintiff on the same date. The
defendant No.1 was put in possession, who took steps to protect the
properly since 1982 the defendant is in possession of the property.
11. It has been further submitted by defendant No.1 that the
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suit property was occupied by various dwellers, Ashtavinayak Co.Op.So.
On application of the society, the premises and some adjoining
properties were declared as a slum u/s.4(a) of slum act. The
government notification were challenged by the defendant and the
others but the appeal was dismissed. The present plaintiff without
having locus filed appeal No.15/2006 against the said government
resolution however it was also came to be rejected. The plaintiff
thereafter has filed originating summons to No.2887/2008 in the
Hon'ble High Court Mumbai on 04.09.2008 against the defendant with
the prayers were therein. Thereafter, the defendant informed to the
plaintiff by letter dtd.25.11.2008 that the plaintiff has paid 98,100/- out
of 1,09,000/- in the year 1982 to the plaintiff and the defendant is
ready and willing to execute the further sale. The chaque of Rs.10,900/-
also enclosed but the plaintiff refused the same.
12. It has been further submitted by the defendant No.1 that
the originating summons suit of a plaintiff was dismissed by Hon'ble
High Court by order dt.13.032019. The Hon'ble High Court observed
that' I am not bound to answer the question of plaintiff' I do not fairly
believed that such an originating summons is an attempt to by pass the
requirement of regular suit to save court fee. He may do so if he wishes
but all defences including limitation shall be kept open.' Thereafter the
suit came to be file after about 35 yrs with the prayers to declare the
agreement and power of attorney dtd.25.01.1982 as a illegal ward to
declared that defendant or any person had no right over any property
and that they be restrained fro,m disclosing and projecting before the
authority like SRA BMC at absolute owner of the property. The suit by
art-58 and 59 of limitation act. It is not valued as per section 6(IV)(ha)
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of Maharashtra court fees act. The plaintiff required to pay maximum
court fee of 3 lakh as property is of worth Rs.4,83,39,330/- and the
court fees paid only 6,630/- for property and 200/- for injunction. The
suit is not all maintainable in the eye of law and itself needs to be
rejected. Therefore no case made out to grant any relief in notice of
motion. The notice of motion of plaintiffs needs to be rejected.
13. In support of his submission advocate for defendant has
relied upon the judgment of in the case of Rajpal Singh Vs. Saroj
(deceased) through Legal Representatives and anr (2022) 15 Supreme
Court Cases 260, Gunjan Agarwal Vs. Ashish Kumar Gautam and anr
2025 SCC OnLine All 7772, Mandali Ranganna and ors Vs. T.
Ramachandra and Ors (2008) 11 SCC.
14. Heard both side at length. Perused record.
15. The another notice of motion taken by defendant to reject
plain. The plaintiff filed suit and present notice of motion.
16. The plaintiff seeks temporary injunction restraining the
defendant from claiming any right, title or interest in the suit property
and projecting themselves as owner before authorities such as SRA,
BMC or any other authority.
17. The execution of agreement for sale and POA Dtd.
25.01.1982 and delivery of possession to defendant No.1 are admitted.
However it is equally undisputed that, no conveyance transferring
ownership has been executed till date and the agreement itself
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contemplated execution of conveyance upon payment of balance
consideration and compliance with conditions.
18. The plaintiff has raised a prima facie contention that, the
agreement was not contemplated within the stipulated period, balance
consideration was not paid within time and, defendant No.1 could not
have projected himself as a absolute owner or granted development
rights without conveyance.
19. Section 54 of the Transfer of Property Act clearly provides
that, a contract for sale does not by itself, create any interest in
immovable property. Whether the defendant has acquired any
enforceable equitable right is a matter for trial.
20. The record shows that development rights granted to
defendant No.2 have already been terminated and proceeding before
slum authorities are pending or have undergone multiple challenges.
21. In such circumstances permitted the defendants to project
themselves as absolute owner before statutory authorities may cause
prejudice to the plaintiffs right and it may multiply the litigation.
22. At the same time considering the long possession of
defendant No.1 a blanket injunction restraining all the act in relation to
the property would be inequitable.
23. The balance of convenience therefore requires a limited
protective order, preserving the subject matter without granting final
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relief at this primary stage.
24. Hence, in the circumstances and for reasons mentioned
above, the court proceed to pass the following order :-
O R D E R
1. The Notice of Motion No.4058/2019 in Suit No.2619/2019
is partly allowed.
2 The defendant or any person asking for and on behalf of
defendants are hereby restrained from representing
themselves as absolute owner of the suit property before
any authority including SRA, BMC or slum authority
without disclosing pendency of the present suit, till final
disposal of the suit.
3. The defendants shall not create third party rights in the suit
property till final disposal of suit.
4. No order as to costs.
5. Proceeding of Notice of motion No. 4058/2019 in suit
No.2619/2019 is closed.
Date : 22.01.2026 (H. C. Shende )
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 22.01.2026
Transcribed on : 23.01.2026
Checked on : 27.01.2026
Signed on : 27.01.2026
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
28.01.2026 11.29 a.m. Mrs.Prajakta K. More
Name of the Judge (With Court
Room No.)
HHJ Smt. H. C. Shende (C.R. No.65)
Date of Pronouncement of
JUDGEMENT /ORDER
22.01.2026
JUDGEMENT /ORDER signed by
P.O. on
27.01.2026
JUDGEMENT /ORDER uploaded
on
28.01.2026
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