Interim Order 1

Order Details: Notice of Motion
Pdf Text: NM 124-2020 in S.C.Suit no. 2876-19
1 Date : 24.02.2020
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 124 OF 2020
IN
S.C.SUIT NO. 2876 OF 2019
(CNR NO.MHCC01 0007192018)
Hawaldar Shivmurat Singh & Anr. .. Plaintiffs
Versus
Shri. Umeshchandra Mahendra Sahani .. Defendant
Appearances :
Plaintiff in person.
Adv.R.S.Yadav h/f Adv.R.R.Sharma for defendant no.1 and 2.
Coram : His Honour Judge
Shri. A.H.Laddhad
Additional Judge
CR No. : 7
Date : 20.02.2020
ORDER
1. The plaintiff has filed instant Notice of Motion praying for
following reliefs :
a) It may be declared by this Hon’ble Court that the
threats of dispossession of the plaintiffs from the suit
premises being Room No. 67B, Ground Floor,
Ghasletwala Chawl, 60/64, Kehsavrao Khadye Road,
Saat Rasta, Jacob Circle, Mumbai – 400 011, are illegal
-- 1 of 6 --
NM 124-2020 in S.C.Suit no. 2876-19
2 Date : 24.02.2020
and malafide and the defendant their servants and
agents have no right to dispose of the suit premises or
without due process of law.
b) The Sale Deed executed on 12.06.2019 shall be
deemed to be null and void unless and until specific
performance by way of oral agreement is completed.
c) The Pending the hearing and final disposal of the suit,
the defendant, their servants and agents be restrained
by an order and injunction of the suit premises Room
Room No. 67B, Ground Floor, Ghasletwala Chawl,
60/64, Kehsavrao Khadye Road, Saat Rasta, Jacob
Circle, Mumbai – 400 011 to any third party or any
person whatsoever or inducting any third part on any
basis whatsoever, without due process of law.
d) For interim and Adinterim reliefs of prayer (b) and (c)
of above.
e) That the defendant be ordered to pay the cost of this
suit and incidental expenses thereto.
f) For further and such other reliefs as the nature and
circumstances of the case may require.
2. It is contended by the plaintiff that he is the owner of Room
No. 67B, Ground Floor, Ghasletwala Chawl, 60/64, Kehsavrao
Khadye Road, Saat Rasta, Jacob Circle, Mumbai – 400 011. On
12.06.2019 he entered into Agreement for Sale with defendant at
oral consideration of Rs. 75,00,000/. The plaintiff was ready to
sale the aforesaid property, in the meantime, the defendant
-- 2 of 6 --
NM 124-2020 in S.C.Suit no. 2876-19
3 Date : 24.02.2020
prepared Notarized Sale Deed mentioning the consideration of Rs.
35,00,000/. The plaintiff being illiterate person, unable to
understand English. Therefore, he has signed on the say of the
defendant.
3. It is contended by the plaintiff that the defendant by way of
oral Agreement, agreed to pay Rs. 75,00,000/ and after payment
of 35,00,000/, he has assured to pay the balance amount within
23 months. But the defendant mislead him. The defendant
without paying outstanding amount of Rs. 40,00,000/ is trying to
dispossess him from the suit premises forcibly. It is further
contended by the plaintiff no. 1 that plaintiff no. 2 is also having
share and without his consent, the property can not be transferred.
Hence, he is seeking injunction against the defendant from
dispossessing him from the suit flat.
4. The Notice of Motion is opposed by the defendant by filing
his say. It is contended by the defendant that the plaintiff is
original tenant of Fatubai Ebrahim Hariyanawalla. The entire
building is taken for redevelopment by M/s. Parekh Construction.
The defendant has paid Rs. 35,00,000/ to the plaintiff for transfer
of tenancy in his favour with the consent of the landlord. The
defendant has executed an Agreement for transfer of tenancy
right. The plaintiff no. 1 also acknowledged the receipt of Rs.
35,00,000/ from him with alterior motive to extract more money
to file instant suit. Hence, the defendant prayed for dismissal of
the Notice of Motion.
-- 3 of 6 --
NM 124-2020 in S.C.Suit no. 2876-19
4 Date : 24.02.2020
5. The plaintiff by filing rejoinder, denied the contention of the
defendant. The plaintiff contended that he is tenant of the suit
premises. He has no right to transfer of tenancy in favour of the
defendant. The plaintiff is protected tenant. He can not be evicted
from the suit premises.
6. Heard both the sides. Perused Notice of Motion and reply. It
appears from the pleadings of the plaintiff that he is in possession
of the suit premises. He has not disputed that he is agreed to
transfer the suit premises to the defendant for consideration. The
plaintiff further not disputed the receipt of Rs. 35,00,000/ from
the defendant. It is the contention of the plaintiff that they have
orally agreed the consideration of Rs. 75,00,000/ and defendant
fraudulently got executed an Agreement for Sale. The plaintiff
further contended that the defendant on the basis of aforesaid
document is trying to evict him.
7. The plaintiff in his rejoinder have also admitted that he is
tenant and took defence that he can not transfer the tenancy to
anybody. On perusal of the reply, it appears to me that when the
plaintiff can not transfer the suit premises either by way of Sell or
by way of transfer of tenancy then on what basis he has taken
huge amount of Rs. 35,00,000/ from the defendant. The plaintiff
further took defence that the consent of the plaintiff no. 2 is also
essential before the transfer of the suit property. It appears to me
that the plaintiff after receipt of huge amount of Rs. 35,00,000/ is
now taking false plea. During argument when it was suggested to
-- 4 of 6 --
NM 124-2020 in S.C.Suit no. 2876-19
5 Date : 24.02.2020
the plaintiff to deposit an amount of Rs. 35,00,000/, the advocate
for the plaintiff argued that the plaintiff can deposit the aforesaid
amount only after the sale of the suit property. The aforesaid
material shows that the plaintiff has not approached the Court
with clean hands.
8. The plaintiff do not want to return Rs. 35,00,000/ to the
defendant and also do not want to part with the possession.
Hence, in my view, the plaintiff is not entitled for any discretionary
relief as he failed to approach the Court with clean hands. Thus, I
proceed to pass the following order :
ORDER
1. Notice of Motion no. 124 of 2020 is hereby dismissed with
cost.
2. Notice of Motion No. 124 of 2020 is disposed off accordingly.
(A.H.Laddhad)
Judge,
City Civil and Sessions Court
Dated : 24.02.2020 Greater Bombay.
Dictated on : 24.02.2020
Typed on : 25.02.2020
Draft Submitted on : 25.02.2020
Checked on : 27.02.2020
Signed on : 27.02.2020
-- 5 of 6 --
NM 124-2020 in S.C.Suit no. 2876-19
6 Date : 24.02.2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
27/02/2020 at 2.45 p.m. (Ms. V.V.Sawant)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
Shri A.H.LADDHAD
(C.R. No.7)
Date of Pronouncement of
JUDGMENT/ ORDER
24/02/2020
JUDGMENT/ORDER signed by P.O.
on
27/02/2020
JUDGMENT/ORDER uploaded on 27/02/2020
-- 6 of 6 --