Final Order 1

Order Details: Notice of Motion
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MHCC010101712019 Presented on : 05-10-2019
Registered on : 05-10-2019
Decided on : 27-11-2021
Duration : Y M D
02 01 22
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
NOTICE OF MOTION NO.3743 OF 2019
IN
COMMERCIAL SUIT NO.539 OF 2021
(S.C. SUIT NO.2599 OF 2019)
Mr. Imran Sayed,
Aged about 27 years, Indian Inhabitant,
Occupation: Job Work, residing at
Room No.16, Hussain Khan Chawl,
Nityanand Nagar, Ghatkopar(W),
Mumbai86. ..Plaintiff
Versus
Mr. Mohd. Yunus Mohd. Khalil,
aged Not known, Indian Inhabitant,
residing at Room No.3, First Floor,
Kanthariya Mahal, Near Naaz Hotel,
L.B.S. Marg, Kurla(W), Mumbai400 070. ..Defendant
________________________________________________________
Ld. Advocate Ashutosh Shukla for plaintiff.
Ld. Advocate Mujib Khan for defendant.
________________________________________________________
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ORAL ORDER
(Dated this 27th day of November, 2021)
1. This notice of motion is taken out by plaintiff
praying to make an appointment of Court Receiver for managing
the affairs of shop bearing Gala No.1/189, Plot No.6/11, Super
Molding Company, Kurla Industrial Premises Cooperative
Society Ltd., Opp. Union Bank, N.S.S. Road, Naryan Nagar,
Ghatkopar (W), Mumbai400 086 (hereinafter referred to as
'suit property') and for interim injunction restraining defendant
from alienating the suit property.
Plaintiff’s case is as under:
2. Plaintiff was in need of a commercial shop. One
Mohammad Khalil, father of defendant, was owner of the suit
property. On 28/04/2017, Mohammad Khalil executed an
agreement for sale in respect of suit property for total
consideration of Rs.17.51 lacs in favour of plaintiff. Plaintiff
made part payment of Rs.14.51 lacs to Mohammad Khalil. By
executing receipts dated 10/02/2017, 17/03/2017 and
28/04/2017, Mohammad Khalil acknowledged receipt of an
amount of Rs.14.51 lacs. As per terms of the agreement,
plaintiff is liable to pay balance amount of Rs.3 lacs. He is ready
and willing to perform his part of the contract. In August2019,
plaintiff visited the suit property and inquired about Mohammad
Khalil. He came to know from defendant that Mohammad
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Khalil passed away. Plaintiff informed about agreement
executed by defendant's fatherMohammad Khalil to defendant.
Defendant assured to hand over possession of the suit property
to plaintiff in first week of September2019. In first week of
September2019, plaintiff visited the suit property and requested
defendant for handing over possession of suit property. Plaintiff
is ready and willing to pay balance consideration amount to
defendant. However, defendant refused to obey the agreement.
Defendant is trying to sell the suit property to third person.
Plaintiff has primafacie case. Balance of convenience also lies
in favour of plaintiff. If defendant alienates the suit property,
plaintiff would suffer irreparable loss. By making these
submissions, plaintiff prayed to allow this notice of motion.
3. During the course of arguments, Ld. counsel for
plaintiff submitted that plaintiff is not interested in claiming for
an appointment of Court Receiver and he is interested only in
claiming injunction praying to restrain defendant from
alienating the suit property.
Defendant’s case :
4. Defendant by filing his reply affidavit strongly
resisted the notice of motion. It is submitted that suit is filed on
the basis of fabricated document. The agreement for sale dated
28/04/2017 is not signed by his father Mohammad Khalil. Suit
is filed only to harass defendant. Suit claim is not a commercial
dispute. In April 2018, his father Mohammad Khalil transferred
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the suit property in his name in the presence of society
Treasurer Mr. Karshan Bhanushali.
5. On 14/05/019, his fatherMohammad Khalil passed away.
One Naim Umar Sayed, who has nearby shop, started showing
interest in the suit property. Said Naim Umar started
pressurizing defendant for selling the suit property. He brought
one customer by name Kishore Bhanushali. Kishore Bhanushali
gave offer of Rs.52 lacs. Defendant agreed for the same.
Defendant has taken token amount of Rs.3 lacs. He signed
agreement dated 16/09/2019. In the agreement, it is mentioned
that in case, if any dispute arises or the deal is cancelled,
defendant is liable to pay double the amount of token money.
This clause was forcibly added in the agreement by Naim Umar.
The purchaserKishore Bhanushali was ready to pay the entire
consideration amount in one month. But, Naim Umar
mentioned three month's time in the agreement. Thereafter,
defendant received Court Summons. Naim Umar told defendant
that he can help him through his family lawyer S.K. Dubey.
Thereafter, Naim Umar offered to purchase the suit property for
Rs.40 lacs from defendant.
6. Defendant was forced to sell the suit property for a
consideration of Rs.52 lacs. Out of which, he received an
amount of Rs.12 lacs. Defendant has specifically denied
execution of agreement dated 28/04/2017 in favour of plaintiff.
He also denied that original documents of the suit property were
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handed over to plaintiff. By making all the above submissions,
defendant prayed to dismiss the notice of motion.
7. Heard both sides.
8. Following points arise for determination, findings
thereon for the reasons to follow are as under:
Sr.No. Points Findings
1. Does the plaintiff establish
primafacie case?
Yes
2. Whether the balance of
convenience lies in favour of
plaintiff?
Yes
3. Whether the plaintiff would
suffer irreparable loss if
injunction as prayed is not
granted?
Yes
4. What order? Notice of Motion is partly
allowed.
R E A S O N S
Point Nos.1 to 3
9. Ld. Counsel appearing for plaintiff submits that suit
is for specific performance of agreement. Defendant's father
Mohammad Khalil agreed to sell the suit property for a
consideration of Rs.17.51 lacs. Out of which , Rs.14.51 lacs was
paid by plaintiff to defendant's fatherMohammad Khalil.
Plaintiff is ready to pay balance consideration amount of
Rs.3 lacs. Ld. Counsel for plaintiff referred agreement for sale
filed alongwith plaint. He referred to paragraph No.2 of the
agreement and submitted that vendor Mohammad Khalil has
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disclosed particulars of his title. Vendor became owner of the
suit property by virtue of registered agreement executed by Bind
Shivshankar. He also referred to para.8 of the agreement for
sale, wherein it is mentioned that vendor has handed over
original documents of the suit property i.e. original agreement
for sale of vendor, original photopass, original assessment bill,
electricity bill and other documents relating to title of the suit
property to the purchaser. Relying upon this clause in the
agreement, Ld. Counsel for plaintiff submits that defendant's
father Mohammad Khalil handed over all the documents
regarding title of the suit property to plaintiff at the time of
executing the agreement dated 28/04/2017. These documents
are in possession of plaintiff. Plaintiff has paid an amount of
Rs.14.51 lacs. Defendant's father Mohammad Khalil has duly
acknowledged receipt of said amount by executing the receipts
dated 10/02/2017, 17/03/2017 and 28/04/2017. Therefore,
the contention of defendant that agreement dated 28/04/2017
is forged, cannot be accepted. It is further submitted that
agreement for sale does not require registration. To buttress
this submission, he placed reliance upon following judicial
pronouncements :
i) Sheshrao s/o. Pandhari Ghule Age V/s Yadav s/o
Jyotiba Bhosale Age, 2016 DgLaw(Bom)1038.
ii) Sham Pundalik Dhumatkar V/s Smt. Pushpa
Mohanlal Talreja(deceased), 2016 DgLaw (Bom)
1498.
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10. Ld. Counsel for defendant contravened above
submissions with following arguments :
(a) It is submitted that agreement for sale dated
28/04/2017 is not registered as per provisions of Indian
Registration Act.
(b) Plaintiff was 25 years old at the time of execution of
document. There is no material on record to show that plaintiff
was capable of generating such huge amount at the time of
executing agreement for sale.
(c) Entire amount mentioned in the agreement is
alleged to be paid in cash.
(d) Defendant's fatherMohammad Khalil did not
execute the agreement dated 28/04/2017 and receipts dated
10/02/2017, 17/03/2017 and 28/04/2017. The agreement for
sale dated 28/04/2017 and receipts filed on record bear the
signatures of same witnesses. Therefore, it can be inferred that
these documents are forged with the help of same witnesses.
(e) Agreement for sale dated 28/04/2017 is registered
before Notary Mr. S.K. Trivedi, but, the provisions of Notaries
Act are not followed for registration of the said document.
Notarial number and Serial number of the registration are not
mentioned in the agreement for sale as per Notarial Rules, 1956
framed under Notaries Act, 1952. He relied upon the case of
H.K. Taneja and ors. V/s Kezer Kharawala, Suit No.1094 of
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2007 dated 17/12/2008, wherein Hon’ble Bombay High Court
held,
"the procedure relating to notarization under the Notaries
Rules 1956 framed under the Notaries Act, 1952 has not
been followed. Under Rule 11)2, the notary is required to
maintain a notarial register in prescribed form No.XV. The
form shows 11 columns, including the column of the serial
number, Date, Name of the Notarial act, name of the
executant, contents of documents, Notarial fee, signatures of
the executant and the Notary. The purpose of this rule is to
relate each notarized document to the serial number in the
notarial register required to be maintained by each notary
in the prescribed form. Hence the serial number of the entry
must be put on the document to collate the entry with the
document. In case of dispute the factum of notarization
would have to be separately proved by the Applicant since,
unlike registration, there is no presumption of execution of
a notarized document. It is seen that in this case the notary
has not shown the serial number and the register number in
which the entry is made. It would be for the applicant to
prove the notarization in view of the dispute. The applicant
has not got produced the relevant notarial register of the
notary, kept in the normal course of his conduct as such
notary, to prove the execution of the document before him.
The document being otherwise unregistered and inadmissible
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in evidence is, therefore, not even prima facie shown to be
notarized."
11. Considered the submissions advanced on behalf of
both the sides. Ld. Counsel for defendant challenged the
agreement for sale on the ground that it is not registered as per
Notaries Rules, 1956. On perusal of agreement for sale dated
28/04/2017, it is evident that said agreement is not registered
as per Notaries Rules, 1956, but, the effect of non registration of
the document, as per the provisions of Notaries Rules, would be
that it is not notarized as per law. On the ground of failure to
follow provisions in the Notaries Rules, it cannot be inferred that
said document is forged.
12. Agreement for sale is not required to be registered
as per Indian Registration Act. The copy of agreement for sale
filed on record shows that it was executed by defendant's father
Mohammad Khalil. Defendant claims that the said document
was not signed by Mohammad Khalil. Defendant claims that
signatures on the agreement for sale and receipts filed on record
are not signatures of his fatherMohammad Khalil. However,
defendant has not filed on record specimens of signatures of his
fatherMohammad Khalil to show that signature of his father
was different from the signatures on agreement for sale filed on
record.
13. Defendant contends that present dispute is not a
commercial dispute. Section 2(1)(c)(vii) of The Commercial
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Courts Act, 2015 provides that commercial dispute arising out of
agreements relating to immovable property used exclusively in
trade or commerce, is a commercial dispute. As per the
averments in the agreement, suit property is exclusively used in
trade or commerce. Present suit arises out of dispute regarding
agreement of property which is being used exclusively in trade
or commerce. Thus, present dispute is a commercial dispute as
defined under 2(1)(c)(vii) of The Commercial Courts Act, 2015.
14. In clause no.8 of the agreement dated 28/04/2017,
it is specifically mentioned that vendor handed over all the
original documents relating to title of suit property to plaintiff.
During the course of arguments, Ld. Counsel for plaintiff
submits that plaintiff is in possession of all the documents
relating to title of suit property as per clause no.8 of the
agreement. Ld. Counsel for defendant has not given explanation
regarding this material aspect during the course of arguments.
Defendant could not explain as to how plaintiff got custody of
these documents.
15. Defendant in his written statement contends that
present suit is filed at the instance of one Naim Umar.
Defendant further claims that he has executed the agreement for
sale in favour of said Naim Umar. However, copy of the said
agreement is not filed on record. If, suit is filed in collusion with
said Naim Umar and defendant executed agreement for sale in
favour of said Naim Umar, plaintiff would not have pressed for
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relief of injunction restraining defendant from alienating suit
property.
16. Defendant contends that firstly, he has agreed to
sell suit property to one Kishore Bhanushali for consideration of
Rs.52 lacs. He has also executed an agreement for sale dated
16/09/2019 by accepting part payment of Rs.3 lacs. Copy of the
said agreement is not filed on record. Defendant further
contends that thereafter, he executed agreement for sale of suit
property in favour of Naim Umar Sayyed. Nowhere, it is
mentioned in written statement that defendant cancelled the
agreement of sale executed in favour of Kishore Bhanushali.
Defendant has not explained as to how defendant executed
another agreement in favour of Naim Umar Sayyed without
canceling the agreement executed in favour of Kishore
Bhanushali.
17. Defendant has mainly challenged, plaintiff's case on
the ground that agreement was not registered before Notary in
accordance with the Notaries Rules, 1956. However, as stated
above, the effect of non compliance of provisions of Notarial
Rules would not be that said agreement is forged one.
Agreement of sale, as stated above, is not required to be
registered as per the provisions of Indian Registration Act or it is
not required to be registered as per Notarial rules. As stated
above, plaintiff is claiming to be in possession of original title
documents of the suit property on the basis of agreement of sale.
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Defendant could not give explanation as to how plaintiff got
custody of those documents. Therefore, primafacie it cannot be
inferred that agreement for sale is a forged document. No
material is brought on record on behalf of defendant to show
that agreement for sale filed on record is forged. Plaintiff is
coming with specific case that defendant's fatherMohammad
Khalil executed agreement for sale on 28/04/2017. He paid an
amount of Rs.14.51 lacs in pursuance to the said agreement.
Plaintiff is seeking specific performance of the agreement. Thus,
plaintiff has raised a fair question which requires trial. Thus,
plaintiff establishes primafacie case. If defendant alienates suit
property, plaintiff would suffer inconvenience and irreparable
loss. Comparative hardship or inconvenience caused to the
plaintiff by refusing the injunction order would be greater than
which is likely to be caused to the defendant by granting it.
Thus, balance of convenience lies in favour of plaintiff and
plaintiff would suffer irreparable loss if injunction restraining
defendant from alienating suit property is not granted. Point
Nos. 1 to 3 are answered accordingly. In the result, following
order:
ORDER
1. N/M No.3743/2019 is partly allowed.
2. Defendant is temporarily restrained from alienating suit
property till decision of the suit.
3. No order as to costs.
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4. N/M No.3743/2019 is disposed of accordingly.
27/11/2021 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 27/11/2021
Transcribed on : 29/11/2021
Signed on : 30/11/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
30/11/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
27/11/21
Judgment and order signed by P.O. 30/11/21
Judgment/order uploaded on 30/11/21
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