Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: S.C.Suit No.2794/2019. 1 Ex-parte judgment
MHCC010103492019
Presented on 09102019
Registered on 01112019
Decided on 15012024
Duration Yrs. M. Days
04 03 06
CNR no. MHCC010103492019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
S.C. SUIT NO. 2794 OF 2019
Exhibit No.13
Mr. Kabir Ahmed Abdul Qayum,
Aged 62 years, an audlt, Indian
Inhabitant of Mumbai, residing at
C202, Hussain Tower, Near Prime
Hospitel, Old MumaiPune Marg,
Kausa, Mumbra, District Thane. ... Plaintiff
V/s.
1. AlAmmar Developers,
79/A, Mezbaan House,
1st Floor, M.P. Marg, Pine Road,
Kurla (West), Mumbai70.
2. Mr. Hakim Rafiq Qureshi, Age now
known
AlHamd Residency, Flat No.001,
Ground Floor, Brahman Wadi,
Pipe Road, Kurla (West), Mumbai70.
3. Mr. Haleem, Age not known
AlHamd Residency, Flat No.G2,
Ground Floor, Brahman Wadi,
Pipe Road, Kurla (West), Mumbai70.
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4. Ms. Haleema, Age not known
AlHamd Residency, Flat No.G2,
Ground Floor, Brahman Wadi,
Pipe Road, Kurla (West), Mumbai70.
All adult, Indian Inhabitant of Mumbai. ... Defendants
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.29).
DATE : 15/01/2024.
Appearance :
Ld. Advocate Shri. V.T. Dubey alongwith Adv. Fawaz and Rashid Ansari
for the plaintiff.
None for defendants. Suit proceed exparte against the defendants.
JUDGMENT
1. Plaintiff has filed present suit for declaration, possession of
the flat and perpetual injunction.
Brief facts of the plaintiffs’ case are as under
2. Defendant No.2 is a proprietor of defendant No.1 firm,
which was carrying on business of construction. Defendant No.1 was
constructing building known as AlHamd Residency at Brahman Wadi,
Pipe Road, Kurla (West), Mumbai400 070. Defendant Nos.1 and 2
received commencement certificate on 08.04.2004. Defendant No.2
offered to sale flat in the proposed building to plaintiff. After
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negotiations, the consideration of Rs.20,00,000/ was agreed. Thereby
plaintiff agreed to purchase flat No. G/2 on ground floor in the
proposed building on aforesaid property (hereinafter referred as “Suit
Flat”). Defendant No.2 executed agreement for sale dated 29.12.2016
and registered the same in favour of plaintiff. Plaintiff paid entire
consideration of Rs.20,00,000/ as mentioned in the said agreement.
As per the agreement, plaintiff's name is recorded in the share
certificate of the society of the said building for suit flat. Defendant
No.2 told plaintiff that, he would hand over possession of suit flat to
plaintiff on receipt of occupation certificate on or before July, 2017.
3. It is further contended that, despite repeated requests by
the plaintiff, defendant No.2 avoided to hand over possession of suit flat
to plaintiff. Hence, plaintiff issued notice on 09.09.2019 through his
advocate and called upon defendant Nos.1 and 2 to hand over vacant
and peaceful possession of the suit flat, but defendant No.2 did not
respond to the notice. Plaintiff came to know that defendant Nos.3 and
4 are illegally in use, occupation and possession of suit flat. Hence,
plaintiff also issued notice dated 09.09.2019 to defendant Nos.3 and 4
and called upon them to hand over vacant and peaceful possession of
the suit flat. They also failed to comply the notice. Hence, plaintiff filed
present suit for declaration that, the agreement dated 29.12.2016 is
valid subsisting and binding on plaintiff and defendant Nos.1 and 2.
Plaintiff also sought declaration that defendant Nos.3 and 4 have no
right for the suit flat and they are trespassers in possession of suit flat.
Plaintiff also sought reliefs of vacant and peaceful possession directing
defendant to hand over possession of suit flat to him and perpetual
injunction restraining defendants from creating third party interest and
parting possession of the suit flat to the third party.
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4. Despite service of writ of summons, defendant Nos.1 and 2
failed to appear in the suit. Defendant Nos.3 and 4 refused to accept
service of writ of summons. Hence, suit is proceeded exparte against
them.
5. Plaintiff adduced evidence on affidavit at Exh.6 and relied
on following documents
a. Power of Attorney (Exh.8).
b. Copy of agreement for sale dated 29.12.2016 (Exh.9).
c. Share Certificate (Exh.10).
d. Copy of notice dated 09.09.2019 (Exh.11).
6. I have heard Ld. Advocate Shri. V.T. Dubey for the plaintiff.
7. In view of the pleadings of the plaintiff, following points
arose for my determination and findings with reasons thereon are
stated as below:
Sr.No Points Findings
1 Whether the plaintiff proves that,
defendant Nos.1 and 2 entered into an
agreement dated 29.12.2016 on
payment of consideration of Rs.
20,00,000/ for the suit flat ?
In the affirmative.
2 Whether the agreement for sale dated
29.12.216 is still valid, subsisting and
binding on defendants ?
In the affirmative.
3. Whether the plaintiff proves that
defendant Nos.3 and 4 are trespassers
in possession of suit flat ?
In the affirmative.
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4. Whether the plaintiff is entitled for
reliefs claim ? In the affirmative.
5. What order? As per final order
REASONS
As to point nos.1 to 5 :
8. Plaintiff adduced evidence of affidavit Exh.6 supporting to
claim and contentions in the plaint. Agreement dated 29.12.2016 at
Exh.9 is corroborating to contentions in the evidence affidavit Exh.6. It
shows that, defendant No.2 signed and executed said agreement in
favour of plaintiff. Clause 2 of the agreement shows agreed
consideration of Rs. Rs.20,00,00/. Oral evidence and agreement
further shows that, plaintiff being buyer paid consideration to
defendant Nos. 2 and thereupon defendant No.2 executed said
agreement in favour of plaintiff. Thus, the oral and documentary
evidence produced by plaintiff shows that defendant Nos.1 and 2
entered into an agreement for sale dated 29.12.2016 and agreed to sale
the suit flat in favour of plaintiff and plaintiff paid consideration of
Rs.20,00,000/ to the defendant Nos.1 and 2.
9. Oral evidence and share certificate Exh.10 also shows that,
name of plaintiff is entered on the share certificate for holding 5 shares
for the suit flat. The copy of notice Exh.11 also shows that defendant
Nos.3 and 4 are in possession of suit flat and therefore, said notice was
issued on 09.09.2019 to them. The oral evidence and notice shows that
defendant Nos.3 and 4 are in possession of suit flat without any right,
title and interest. At least the evidence adduced by plaintiff is remained
unrebutted and I have no reason to disbelieve the same. Hence, I hold
that, plaintiff became owner of the suit flat by virtue of agreement
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Exh.9. It is also proved that defendant Nos.3 and 4 are in illegal
possession of suit flat and trespassers. Hence, I have no hesitation to
hold that plaintiff is entitled for declarations as sought in the plaint and
possession of the suit flat. Therefore, I answer point Nos.1 to 4 in the
affirmative. In answer to point No.5, I pass following order :
ORDER
1. Suit is decreed with costs.
2. It is hereby declared that, the agreement for sale dated
29.12.2016 is valid, subsisting and binding on plaintiff and
defendant Nos.1 and 2.
3. It is hereby declared that, defendant Nos.3 and 4 have no
right, title and interest in the suit flat and they are in illegal
possession as trespassers of the suit flat.
4. Defendant Nos.1 to 4 are hereby directed to hand over
vacant and peaceful possession of suit flat No.G2, Ground Floor,
Brahman Wadi, Pipe Road, Kurla (West), Mumbai70 within 3
months from today.
5. Defendant Nos.3 and 4 are hereby permanently restrained
from creating third party interest or parting with possession of
suit flat to any third party.
6. Decree be drawn up accordingly.
(N.G. Shukla)
Judge,
City Civil and Sessions Court,
Greater Bombay.
Date :15.01.2024
1. Dictated on : 15.01.2024
2. Transcribed on : 15.01.2024
3. Checked and Signed on : 16.01.2024
4. Delivered to Certified :
Copy Section on
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16.01.2024 4.15 p.m. Mrs. Shravanti Karre
Name of the Judge (with Court Room no.) HHJ Shri N.G. Shukla
(Court Room No.29).
Date of Pronouncement of Judgment/Order 15.01.2024
Judgment/Order signed by P.O. on 16.01.2024
Judgment/Order uploaded on 16.01.2024
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