Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. N/M. No.4357/25 (SC No.2619/2019)
MHCC010107252025
IN THE BOMBAY CITY CIVIL COURT AT GREATER MUMBAI
NOTICE OF MOTION NO.4357 OF 2025
IN
S. C. SUIT NO.2619 OF 2019
Aspandiar Rashid Irani … Plaintiff
V/s.
Ratilal Keshra Patel and Anr. … Defendants
CORAM : HER HONOUR JUDGE
SMT. H. C. SHENDE
CITY CIVIL COURT, GR. BOMBAY
(C. R. NO.65)
DATE : 22nd JANUARY, 2026.
Appearance :-
Adv. Mangaonkar for the plaintiff.
Adv. P. D. Gandhy for the defendant.
O R D E R
1. The present notice of motion taken by the defendants with
prayer made therein that 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.
2. Further as per the defendant the plaintiff was owner of land
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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.
3. It has been further submitted by defendant No.1 that the 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.
4. 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
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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 from 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)
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 al all maintainable in the eye of law and it needs to be
rejected.
5. The plaintiff denied all allegations made by the defendant. He
also has filed separate notice of motion for injunction against the
defendant.
6. 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
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.
7. Further according to the plaintiff the time was essence of the
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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 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
allotment 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.
8. 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
payment of balanced Rs.10,9000/- It all came out in the search report.
9. 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.
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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.
10. 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.
11. 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
defendant No.2 added as a party in this suit. By way of the another
notice of motion the plaintiff is asking injunction against defendant as
mentioned in their own notice of motion and asking rejection of notice
of motion taken by the defendant.
12. Heard both side at length. Perused record.
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13. The defendant has taken out the present notice of motion
under Order VII Rule 11 of CPC seeking rejection of the plaint on the
grounds that the suit is framed by limitation under Article 58,59 of the
Limitation Act, suit is under valued and proper court fees under Section
6 (iv) (ha) of Maharashtra Court Fees Act are not paid.
14. At this stage of deciding an application under Order VII
Rule 11 the Court is required to consider only averments in the plaint
and not to defence or disputed question of facts.
15. The plaint in the present suit specifically avers that, the
agreement fro sale Dtd.25.01.1982 was subject to completion within 24
months. The time being essence of the contract. The defendant failed
to pay the balance consideration of Rs.10,900/- within stipulated period
and never demanded execution of conveyance. The plaintiff accepted
that the possession was handed over but further added that, it was
given only as an agent as the property was occupied by unathorised
occupants and that no conveyance transferring the title has ever been
executed.
16. It is important to note that, the plaint further discloses that,
the plaintiff for the first time in August 2008 came to know that, the
defendant No.1 had claimed ownership and granted development rights
to defendant No.2 by a development agreement Dtd.31.12.2007
without disclosure of agreement of 1982 and without payment of the
balance consideration.
17. The plaint also discloses continuous litigation before the
statutory authorities and the Hon’ble High Court including originating
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summons No.2887/2008 dismissed on 13.03.2019 with liberty to file a
regular suit with all defences kept open.
18. The court is of view that, the questions that, whether the
cause of action arose in 1982 or in 2007-2008 and whether the plaintiff
had earlier knowledge of defendant hostile claim are all disputed. The
suit needs to be taken for consideration by the court involves question
of limitation which infact a mixed question of law and fact, which
cannot be decided at the threshold.
19. Further as per settled position of law that a plea of
limitation can be decided under Order VII Rule 11 CPC only when the
bar is apparent in the fact of the plaint. In the present case the plaint
discloses a continuing and recurring cause of action arising from
alleged assertion of ownership by the defendants before the statutory
authorities.
20. The objection about valuation also been raised by the
defendants. In so far as valuation and court fees are concerned the
plaintiff has sought primarily declaratory reliefs with injunction. The
issue as to whether Section 6 (iv) (ha) is attract or whether fixed court
fees are sufficient requires a adjudication and cannot be a ground for
rejection of plaint at this primary stage.
21. Considering the overall facts, circumstances involved in
matter, the averments made in plaint and record, this court is of view
that, the plaint therefore cannot be said to be barred by any law on its
fact.
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22. 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.4357/2025 in Suit No.2619/2019
is dismissed.
2 All the contentions on limitation, valuation of court fees are
kept open to be decided at trial.
3. No order as to costs.
4. Proceeding of Notice of motion No. 4357/2025 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 : 24.01.2026
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 11.01 a.m. Prajakta K. More-Grade-I
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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