Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. Notice of Motion No.3510/2019
MHCC010095592019
IN THE BOMBAY CITY CIVIL COURT, GREATER MUMBAI AT
MAZGAON
NOTICE OF MOTION NO.3510 OF 2019
(CNR NO.MHCC01-009559-2019)
(H. C. NOTICE OF MOTION NO.2683 OF 2010)
IN
SUIT NO.4538 OF 2010
Mr. Harish Bhavanji Savla and others )...Plaintiffs
Versus
Damodar Govind Thakur and others )...Defendants
Appearances :-
Learned Advocate Dinesh Chamboowala for plaintiffs.
Learned Advocate Chimalkar for defendants.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.84.
DATE : 13/03/2024.
ORDER
1 This notice of motion is taken out for restraining the
defendants from transferring, alienating or creating third party rights of
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any nature in respect of the suit property and allowing plaintiff to
deposit a sum of Rs.38,89,360/- as part payment.
2 Plaintiffs are in business of development and constructions
of building in the name and style of M/s. Krishna Associates which is a
registered partnership firm. Defendant Nos.1 to 16 belong to the same
family. Defendant No.1 is the husband of defendant No.2 and father of
defendant Nos.3, 5, 6, 10, 14 and 16. Defendant No.4 is the wife of
defendant No.3. Defendant No.7 is the wife of defendant No.6 and
defendant Nos.8 and 9 are the children’s of defendant No.6. Defendant
No.11 is wife of defendant No.10 and defendant No.12 and 13 are
children’s of defendant No.10. Defendant No.15 is wife of defendant
No.14, defendant No.16 is the married daughter of defendant No.1.
3 Plaintiffs have come with the case that defendant No.1
represented alongwith his sons in respect of agricultural land being
Survey No.105, Hissa No.3, bearing corresponding C.T.S. No.1217,
original admeasuring about 2 Acres out of which, area of approximately
1609.6 square meters is elaborately described in para No.2 of the plaint.
4 Defendant Nos.1 to 14 represented that they are owners of
the property and defendant Nos.1 and his children are having 1/6th
share in the suit property; they want to dispose the suit property and on
negotiation the total price is fixed to Rs.46,89,360/-. It was further
agreed that one flat admeasuring 350 sq. ft. should be given to
defendant No.1 and defendant No.1, 3, 5, 6, 10 and 14 are to be given
6 equal shares of amount of Rs.7,81,560/-. They all executed 6
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..3.. Notice of Motion No.3510/2019
agreements for sale dated 22/05/1995 in favour of plaintiffs. The
cheques are as mentioned in the plaint and thereafter, it was agreed
that defendants will execute conveyance deed, but later on defendants
kept the plaintiffs on assurance and did not abide their promises. It is
also further pleaded that there was a Writ Petition filed in respect of the
suit property which is still pending and having found that suddenly on
11/05/2010, defendant No.1 called meeting with the plaintiffs and
flatly told that agreement should be cancelled to which plaintiffs
refused and having found that defendants are intending to turn down
their responsibility to perform their part of their contract, plaintiffs have
filed this suit in the year 2010, with this notice of motion before the
Hon'ble High Court.
5 During pendency, defendant Nos.1 to 16 have informed
that they have already alienated the property to defendant Nos.17 and
18, therefore, defendant Nod.17 and 18 came to be made party to the
suit. Suit thereafter, came to be transferred to the City Civil Court,
Mumbai and the notice of motion was re-numbered.
6 Defendants replied to the notice of motion denying all the
allegations of plaintiffs, claiming that there is no cause of action to file
the suit for specific performance. They have informed them that they
have already executed conveyance deed in favour of defendant Nos.17
and 18 and prayed for dismissal of notice of motion.
7 It appears from the record that defendant No.3 on behalf of
defendant No.1 to 16 have tendered reply on 14/10/2008, but till date
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notice of motion remains pending. It also appeared from the record that
defendants have failed to file written statement within time; notice of
motion for condonation of delay came to be rejected and the suit is
being proceeded without written statement of defendants.
8 Heard learned advocate for plaintiffs and defendants. It
appears from the roznama that when the suit was taken up for hearing
on notice of motion, plaintiffs have tendered their additional affidavit
in support of instant notice of motion on 10/01/2024, claiming that a
person namely Raju Chunilal Varma has got information that
defendants Nos.17 and 18 are intending to dispose of the property.
Therefore, now after a lapse of about 14 years, the learned advocate for
plaintiff has advanced acute argument regarding restraining the
defendants to alienate the suit property. According to the plaintiff,
further additional affidavit is sufficient to draw an inference regarding
the intention of defendant Nos.17 and 18 to transfer or alienate the suit
property and plaintiffs are claiming their substantial right in the suit
property, therefore, they are entitled for temporary injunction as prayed
for.
9 It is vehemently argued by the learned advocate for
defendants that there is an issue of limitation. Plaintiffs want to enforce
their right through agreement which is executed in the year 1995 by
filing suit in the year 2010, therefore, suit is beyond limitation.
10 While considering the prayer of temporary injunction, the
Court has to ascertain whether there would be irreparable loss to
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plaintiffs besides the prima facie case and balance of convenience. It is
opined by the Hon'ble Supreme Court in the case of M/s. Best Sellers
Retail (India) Pvt. Ltd. V/s. M/s. Aditya Birla Nuvo Ltd. & others,
reported in (2012)6 SCC 792, wherein the Hon'ble Supreme Court has
observed that,
“Satisfaction that there is a prima facie case by itself is
not sufficient to grant injunction. The Court further has
to satisfy that non-interference by the Court would result
in “irreparable injury” to the party seeking relief and that
there is no other remedy available to the party except
one to grant injunction and he needs protection from the
consequences of apprehended injury or dispossession.
Irreparable injury, however, does not mean that there
must be no physical possibility of repairing the injury, but
means only that the injury must be a material one,
namely, one that cannot be adequately compensated by
way of damages.”
11 Plaintiffs are in the business of developing properties, thus,
definitely they are having aim and object of earning profit through
business of construction and development. They have entered into an
agreement of purchase of suit property so as to develop the suit
property and after construction to earn profit from the same. Even if it
is presumed that defendant Nos.17 and 18 are intending to dispose of
suit property, probable loss of plaintiffs may be calculated in terms of
money. It is not the case of plaintiffs that the suit property is purchased
for their own use, it is not to be developed and it is to be kept for
personal use. Therefore, on the face of record from the pleading, the
plaintiffs want to develop the property and they agreed to give one flat
out of the constructed building to defendant No.1. Thus, the entire
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purpose of plaintiffs to purchase the property is to earn profit.
Therefore, I am of the view that there is no irreparable loss to the
plaintiffs in case of alienation of the suit property.
12 Defendants are claiming that the suit is barred by limitation
and the alleged agreements for sale dated 22/05/1995 are not
enforceable. I am of the view that these issues are to be decided by
allowing the parties to adduce evidence though the suit is proceeded
without written statement against defendants, they are at liberty to
raise their legal defence. Hence, at this stage, I am of the view that
plaintiffs are not entitled for injunction, restraining the defendants from
alienating suit property as well as permission to deposit the part
amount as claimed in prayer clause (b).
13 It is not clear from the record that whether suit property in
question is having same position as on the filing of the suit or it is
developed or building is constructed, therefore, to avoid future
complication, it will be apposite to direct the defendants that if third
party interest is created, the sale deed in question shall clearly stipulate
that the matter is subjudice and all the sales shall be subject to ultimate
decision of the suit, as directed by the Hon’ble Supreme Court in the
case of Mandali Ranganna and others Vs. T. Ramachandra and others
reported in 2008 (11) SCC 1. In the result, I proceed to pass the
following order :-
ORDER
1. Notice of Motion No.3510 of 2019 in Suit No.4538 of
2010, is hereby dismissed.
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2. However, defendants are directed that in case
alienation and third party interest is created in the suit
property, the deeds in question shall clearly stipulate
that the matter is subjudice and all the sales shall be
subject to ultimate decision of the suit.
3 Notice of Motion is disposed of accordingly.
(Order dictated and pronounced in open Court)
sd/-
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court, Mazgaon
Mumbai
Date: 13/03/2024. Court Room No.84
Dictated on : 13/03/2024.
Transcribed on : 14/03/2024.
Signed by HHJ on : 15/03/2024.
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“Certified to be true and correct copy of the original signed order”.
15/03/2024
at about 5.45 p.m.
(Ms. Sonali S. Sawant)
Stenographer (Grade-III)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge, Court
Room No.84, Mazgaon, Mumbai
Date of pronouncement of Order : 13/03/2024
Order signed by Hon'ble Judge on : 15/03/2024
Order uploaded on : 15/03/2024
at about 5.45 p.m.
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