Final Order 1

Order Details: Copy of Judgment
Pdf Text: 1 Judgment in S.C. Suit No. 2729-2019
MHCC010103612019 Presented on 11.10.2019
Registered on 17.10.2019
Decided on 24.12.2025
Duration 06 Y : 02 M : 13 D
EXHIBIT- 29
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
S.C. SUIT NO. 2729 OF 2019
1. Mr. Ghanshyam Naik
Age : 62 Years, Occ : Retired from service,
2. Mrs. Smita Ghanshyam Naik,
Age : 55 years, Occu : Service,
Both residing at A/7, Anupam Society, Paralkar
Marg, Shivaji Park, Dadar, Mumbai- 400 028.
]
]
]
]
]
]
] …..Plaintiffs
Versus
1. Mr. Vilas Chandrakant Gaokar,
Sole Proprietor of M/s Shree Swami Samarth
Construction, Residing at Ashoka Tower, Next
to ITC Grant Central, Dr. Babasaheb Ambedkar
Marg, Parel, Mumbai- 400 012.
2. Mumbai Building Repair and Reconstruction
Board,
5th Foor, Griha Nirman Bhavan, Kalanagar,
Bandra (E), Mumbai- 400 051.
]
]
]
]
]
]
]
]
]
] .....Defendants
Appearances :
Learned Adv. Aishwarya Sawant h/f Adv. Rajeev Matkar for the
plaintiffs.
Learned Adv. Devyani Pawar h/f Adv. Kandekar for defendant
No.2/MHADA.
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2 Judgment in S.C. Suit No. 2729-2019
CORAM : SHRI. ARVIND. M. BHANDARWAR
JUDGE, CITY CIVL COURT
(C.R.NO.09)
DATE : 24th DECEMBER, 2025
JUDGMENT
(Delivered on 24th December, 2025)
1. The suit is for declaration and injunction.
Brief facts of the plaintiff’s case are as under :
2. The suit is filed for declaration that by virtue of the
Agreement dated 11.09.2012, the Plaintiffs have become absolute
owners of the suit flat on 13.07.2012 and to register the Agreement for
Sale dated 11.09.2012 with the Plaintiffs in respect of the suit flat,
bearing Flat No. 1201. It is further prayed to direct the defendant No. 1
to duly complete construction, and hand over possession of the suit flat
to the Plaintiffs and not to create third-party interest in the respect of
the suit flat.
3. Defendant No. 1 is the proprietor of M/s. Shree Swami
Samarth Construction engaged in constructing, and selling residential
flats in the redevelopment project now named as “Samarth Heights,” in
place of R.K. Building Nos. 1 and 2 (since demolished). Defendant No. 1
is the promoter. The Defendant No. 2 granted a No Objection Certificate
(NOC) for redevelopment of the project to Defendant No. 1. It is the
case that the project is situated on freehold land admeasuring 1131.48
sq. yards (946 sq. mtrs.) at Ranade Road, Gokhale Road Junction,
Dadar (West), Mumbai 400028, bearing C.S. No. 1646 and 1/1646 of
Mahim Division, Final Plot No. 217, TPS-IV of Mahim Division. The land
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3 Judgment in S.C. Suit No. 2729-2019
is bounded on the East by part of Final Plot No. 221, on the West by
Gokhale Road, on the North by Ranade Road , Gokhale Road Junction,
and on the South by Final Plot No. 220.
4. The Plaintiffs purchased Flat No. 1201, admeasuring 1200
sq. ft. carpet area on the 12th floor of “Samarth Heights,” together with
parking facility, for a consideration of Rs. 1,36,00,000/- (Rs. One Crore
Thirty Six Lakhs Only) for personal use from defendant No.1 and the
entire consideration was paid by them in the year 2012. In 2008,
Defendant No. 1 commenced advertising for sale of flats in the project.
The Plaintiffs, seeking larger accommodation for family and
professional needs, approached Defendant No. 1 through Mr. Manoj
Hirlekar, a sub-inspector of police residing in their building. On
08.06.2009, Defendant No. 2 granted NOC for redevelopment, and the
Municipal Corporation of Greater Mumbai (MCGM) granted IOD with
sanctioned plans in 2009–2010 for the composite building comprising
rehabilitation and sale components. Defendant No. 1 assured the
Plaintiffs that possession of the suit flat would be handed over within 36
months from the date of Commencement Certificate, subject to full
payment by the end of 2012. The Memorandum of Understanding
(MOU) was executed on 27.03.2009, and in pursuant thereto, the
Plaintiffs paid amounts by cheque and cash, which were duly
acknowledged by Defendant No. 1 through receipts. Further payments
were made by the Plaintiffs on 27.04.2009, 27.07.2009, and
19.01.2010, each time by cheque drawn on State Bank of India, and
each time acknowledged by Defendant No. 1. Despite repeated requests,
Defendant No. 1 failed to execute a registered Agreement for Sale,
citing alleged changes in Development Control Rules and government
policies. The Plaintiffs were led to believe that the MOU would be
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4 Judgment in S.C. Suit No. 2729-2019
registered and treated as a valid agreement. Defendant No. 1 continued
to demand payments while delaying execution of the Agreement,
thereby breaching statutory obligations under the Maharashtra
Ownership Flats Act, 1963.
5. It is case that the Plaintiffs made telephonic enquiries with
Defendant No. 1 regarding the progress of the agreement and
construction work. However, Defendant No. 1 informed them that the
agreement was not ready and was pending finalization of the draft and
title certificate from advocates. Subsequently, the Plaintiffs issued
Cheque No. 875416 dated 20.04.2010 drawn on State Bank of India for
Rs. 20,00,000/- (Rs. Twenty Lakhs Only) and Cheque No. 875418 dated
21.06.2010 drawn on State Bank of India for Rs. 11,00,000/- (Rs.
Eleven Lakhs Only) towards further payments. Defendant No. 1
acknowledged receipt of the said cheques, which were duly encashed.
Thereafter, for a considerable period, there was no communication from
Defendant No. 1. The Plaintiffs again made telephonic enquiries about
the progress of the agreement, but until October 2010 no steps were
taken. Defendant No. 1 informed the Plaintiffs that there were issues
relating to projects in the Dadar area being declared as heritage and
that the matter was pending before the High Court.
6. In accordance with the MOU, the Plaintiffs made further
payments by way of RTGS bank transfers. Cheque No. 912933 dated
07.10.2010 drawn on State Bank of India for Rs. 14,00,000/- (Rs.
Fourteen Lakhs Only) and Cheque No. 912934 dated 20.10.2010 drawn
on State Bank of India for Rs. 6,00,000/- (Rs. Six Lakhs Only) were
transferred to the account of Defendant No. 1 maintained with Bank of
Maharashtra, Gadkari Chowk, Shivaji Park Branch, Account No.
60039591490. In 2012, the plaintiffs again requested defendant No.1 to
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5 Judgment in S.C. Suit No. 2729-2019
execute a proper sale agreement and had arranged for stamp duty and
registration charges. Defendant No.1 stated that amendments to the
Development Control Rules had delayed plan sanctions and that the
agreement and registration would follow finalization of revised plans,
while also demanding payment of the balance amount for the flat.
7. On 13.07.2012, the Plaintiffs issued Cheque No. 912945
drawn on State Bank of India for Rs. 10,00,000/- (Rs. Ten Lakhs Only),
which was used for RTGS transfer to Defendant No. 1’s account
maintained with Axis Bank, Shivaji Park Branch, Account No.
911020028275012.
Details of amount paid.
Date Amount Paid Mode of Transaction
27.03.2009 Rs. 34,00,000/- Cheque No. 875403
27.03.2009 Rs. 01,00,000/- Cash
27.04.2009 Rs. 12,50,000/- Cheque No.875404
27.07.2009 Rs. 12,50,000/- Cheque No.875405
19.01.2020 Rs. 15,00,000/- Cheque No.875413
20.04.2010 Rs. 20,00,000/- Cheque No.875416
21.06.2010 Rs. 11,00,000/- Cheque No.875418
07.10.2010 Rs. 14,00,000/- Cheque No.912933
20.10.2010 Rs. 6,00,000/- Cheque No.912934
13.07.2012 Rs. 10,00,000/- Cheque No.912945
Total 1,36,00.000/-
8. After persistent follow-up, defendant No.1 executed an
Agreement for Sale on 11.09.2012. Based on the Commencement
Certificate dated 27.10.2010, possession was due by 26.10.2013. The
plaintiffs paid the full consideration of Rs.1,36,00,000/- by 13.07.2012,
but defendant No.1 failed to register the agreement or hand over
possession, even after five years. Despite repeated follow-ups since
2010, defendant No.1 avoided registration and delayed construction on
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6 Judgment in S.C. Suit No. 2729-2019
various pretexts, while the plaintiffs had fully performed their
obligations.
9. In late 2017 and early 2018, ground-floor shops in the
partially constructed building were occupied, following which plaintiff
No.1 had several recorded mobile conversations with defendant No.1.
In these conversations, defendant No.1 admitted full receipt of
consideration and offered either a refund or possession of the flat or its
equivalent value, but gave evasive responses on timelines, citing
dependence on banks or investors. During these discussions, defendant
No.1 referred to Mr. Rahul Shevale as a potential takeover party. The
plaintiffs noted that Mr. Shevale’s office was opened in the building
before the 2019 Lok Sabha elections. Defendant No.1 admitted
negotiations with Mr. Shevale, changes in internal plans, and prior flat
registration in 2010-2010 and is alleged to have misled the plaintiffs
regarding registration while selling the suit flat to multiple parties. The
plaintiss rely on transcripts of the recorded conversations annexed as
Exhibit “M” (Colly).
10. In the circumstances, the Plaintiffs submit that the actions
of Defendant No. 1 are dishonest and prejudicial to their rights.
Defendant No. 1 may at any time unilaterally and illegally sell the entire
project to third parties or create third-party interests in the suit flats to
the detriment of the Plaintiffs. The Plaintiffs contend that they have
acquired first and full-proof ownership rights over the suit flat, having
paid the entire consideration and having entered into a statutory
agreement as prescribed under the Maharashtra Ownership Flats Act,
1963 and the Maharashtra Ownership Flats Rules, 1964. The
transaction from the Plaintiffs’ side is fully completed, and under
Section 4 of MOFA, Defendant No. 1 was responsible for arranging
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7 Judgment in S.C. Suit No. 2729-2019
registration of the agreement. His failure to discharge this statutory
duty does not affect the Plaintiffs’ lawful and perfect title over the suit
flat. The Plaintiffs further submit that a lien is created in the suit land in
their favour, and Defendant No. 1 has no right to unilaterally change
the plan of the suit building or assign the redevelopment project to any
third party. The Plaintiffs have also filed a separate consumer case
against Defendant No. 1 seeking registration of the agreement,
possession of the suit flat, and compensation for deficiency in service,
unfair trade practice, and mental agony. That complaint is now being
prosecuted only for compensation towards loss of interest, opportunity
loss, and mental agony suffered by the Plaintiffs. In the present suit, the
Plaintiffs seek the reliefs of A declaration that the Plaintiffs have
become absolute owners of the suit flat on 13.07.2012, and that any
further transactions made by Defendant No. 1 in respect of the suit flat
are not binding on the Plaintiffs. A mandatory injunction directing
Defendant No. 1 to register the Agreement for Sale dated 11.09.2012
with the Plaintiffs in respect of the suit flat, being Flat No. 1201,
admeasuring 1200 sq. ft. of carpet area on the 12th floor of “Samarth
Heights.”, a mandatory injunction directing Defendant No. 1 to duly
complete construction and hand over possession of the suit flat to the
Plaintiffs, a permanent injunction restraining Defendant No. 1, his
agents, servants, and successors in title from selling, transferring,
encumbering, or creating any third-party interest in respect of the suit
flat. The Plaintiffs further pray that a Court Receiver of this Hon’ble
Court, or some other fit and proper person, be appointed as Receiver of
the suit flat with all powers under Order XL, Rule 1 of the Code of Civil
Procedure, 1908, including the power to take possession of the suit flat,
with directions to hand over the same to the Plaintiffs, and to appoint
the Plaintiffs as agents of the Court Receiver without security or
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8 Judgment in S.C. Suit No. 2729-2019
compensation, thereby putting them in possession of the suit flat.
11. Defendant No. 1 proceeded Exparte (Order Dated
19/01/2024), Defendant No. 2 proceeded without Written Statement
(Order Dated 27/03/2024).
12. I have framed the following points for my consideration
and determination and decided the same for the reasons to follow :
Sr.
No.
Points Findings
1. Whether plaintiffs are entitled to declaration
that the Plaintiffs have become absolute owners
of the suit flat on 13.07.2012 ?
Not Proved.
2. Whether plaintiffs are entitled to the declaration
that any further transactions made by Defendant
No. 1 with respect to the suit flat are not binding
on the Plaintiffs ?
In the
Affirmative
3. Whether plaintiffs are entitles to a mandatory
injunction directing defendant No.1 to register
the Agreement for Sale dated 11.09.2012 with
the plaintiffs in respect of the suit flat ?
In the
Affirmative
4. Whether plaintiffs are entitles to mandatory
injunction directing Defendant No. 1 to duly
complete construction and hand over possession
of the suit flat to the Plaintiffs ?
In the
Affirmative
5. Whether plaintiffs are entitles for to permanent
injunction restraining Defendant No. 1, his
agents, servants, and successors in title from
selling, transferring, encumbering, or creating
any third-party interest in respect of the suit
flat ?
In the
Affirmative
6. Whether plaintiffs are entitles to appointment of
a Court Receiver ?
In the
Negative
7. What order ? Suit is
Partly
Decreed.
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9 Judgment in S.C. Suit No. 2729-2019
REASONS
13. Heard learned Advocates, Mr. Rajeev Matkar a/w Ms.
Aishwarya Sawant for plaintiffs, and Ms. Devyani Pawar for defendant
No.2/MHADA.
14. Adv. for plaintiffs filed Written Notes of arguments vide
Exh. 28.
15. To prove the case, the plaintiff has examined himself as
PW-1 by filing affidavit of examination-in-chief at Exh.9. He filed
documents with list Exh.10 as follows :
Exh. Nos. Documents
Exh.11 Original Brochure
Exh.12 Original Memorandum of Understanding dtd. 27.03.2009
Exh.13 Original Receipt dtd. 27.03.2009 cheque payment
Exh.14 Original Receipt dtd. 27.03.2009 cash payment
Exh.15 Original Receipt dtd. 27.04.2009 cheque payment
Exh.16 Original Receipt dtd. 21.06.2010 a/w transaction
summary and copy of cheque No. 875418 dtd.
21.06.2010
Exh.17 The counter foil receipt dtd. 07.10.2010
Exh.18 The original counter foil receipt dtd. 20.10.2010
Exh.19 Counter foil receipt dtd 13.07.2012
Exh.20 The bank statement of SBI
Exh.21 Original certificate issue by SBI
Exh.22 The original Agreement for Sale dtd. 11.09.2012 a/w
receipt dtd. 30.04.2024
Exh.23 Copy of the cheque No. 875403 dtd. 27.03.2009
Exh.24 Copy of the cheque No. 875404 dtd. 27.04.2009
Exh.25 Copy of the letter cum receipt for cheque No. 875405
a/w receipt dtd. 27.07.2009
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10 Judgment in S.C. Suit No. 2729-2019
Exh.26 Copy of the letter cheque No. 875413
Exh.27 Copy of the transaction summary of cheque No.875416
a/w original receipt dtd. 20.04.2010
Art.A Photograph of the suit building
Adv. for plaintiff has not filed evidence closure and orally submitted
that he does not want to examine further witness and closed the side.
As to point Nos. 1 to 6 :
16. The plaintiff has filed on record, Written Notes of
Arguments at Exh. 28 and submitted that in the State of Maharashtra,
transactions relating to sale and purchase of flats are governed by the
provisions of the Maharashtra Ownership Flats Act, 1963 (MOFA) and
the Rules framed thereunder, which contain special protective
provisions for flat purchasers, which provides agreements in Model
Form No. V under Rule 5 of the MOFA Rules, 1964, and that suits filed
for enforcement of statutory rights under MOFA are to be notionally
valued at Rs. 1000/-. It is argued that even in absence of execution of
agreement, the suit can be filed for enforcement of statutory obligations
under MOFA. Reliance is placed upon the judgment of the Hon’ble
Bombay High Court in
Mr. C. Radhakrishnan v. M/s. Richa
Construction and Ors. [First Appeal No. 514 of 2014 with Civil
Application No. 1759 of 2014], wherein the Court held that statutory
obligations under MOFA are enforceable notwithstanding non-execution
of agreement. It is argued that under Section 4A of MOFA, even an
unregistered agreement for sale can be received as evidence in a suit for
specific performance or as evidence of part performance. Reliance is
placed upon
Vrindavan (Borivali) CHS Ltd. v. Karmakar Bros. [1982
Mh. LJ 607] and
Maria Philomina Pereira v. Rodrigues Construction
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11 Judgment in S.C. Suit No. 2729-2019
[1990 (2) Bom. C.R. 771]. It is further argued that MOFA was enacted
to counter abuses and malpractices in flat sale transactions, based on
the report of the Committee appointed by the State Government dated
28/05/1960. Reliance is placed upon the statutory scheme of Sections
3, 4, 4A, 7, 8, 9 and 11 of MOFA.
17. It is submitted that Section 3(2) and Section 4(1) require
disclosure of title and encumbrances, and Section 4(1)(A)(a)(ii)
mandates specifying the date of possession. Reliance is placed upon
Ramniklal Tulsidas Kotak v. Varsha Builders [1992 AIR (Bom) 62],
wherein the Hon’ble Bombay High Court emphasized the mandatory
nature of Model Form V and held that any departure from statutory
conditions is void ab initio.
18. It is further submitted that Section 7 prohibits alterations
without consent of flat purchasers, Section 8 creates a statutory charge
in favour of purchasers, and Section 9 prohibits mortgaging or creating
charge without consent. Reliance is placed upon
G. Swaminathan v.
Shivram Co-op Housing Society Ltd. [1983 (2) Bom CR 548], where the
Hon’ble Court discussed the concept of statutory charge. It is further
submitted that under Section 11 of MOFA, the statutory duty of the
developer to execute conveyance in favour of the society continues until
compliance is complete, and there exists a continuous cause of action
until conveyance is executed. Reliance is again placed upon
Mr. C.
Radhakrishnan v. M/s. Richa Construction and Ors. (supra). It is argued
that the definition of “Promoter” under Section 2(c) of MOFA includes
assignees, and therefore obligations extend to successors and agents.
Reliance is placed upon
Farhat Co-op Housing Society Ltd. v. M/s.
Malkani Enterprises [Writ Petition No. 9116 of 2013], which followed
the principle laid down in
Ramniklal Tulsidas Kotak (supra).
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12 Judgment in S.C. Suit No. 2729-2019
Discussion :
19. The evidence adduced, and documents filed on record
clearly shows that MOU was executed on 27.03.2009 and filed at Exh
12. Receipts of payment made are filed at Exh. 13 to19. Bank statement
showing the deopsit is filed at Exh 20, 21. Original Agreement is filed at
Exh 22. Witness has deposed as to the facts of the case and there is no
denial and opposition to the case put forth by the plaintiff. Therefore,
under the background of facts of the case, it needs to see the legal
position on the issue under dispute.
20. The claim is supported by Section 4(1) and (1A) of the
Maharashtra Ownership Flats Act, 1963 (MOFA), which mandates
execution and registration of agreements for sale before acceptance of
consideration. Further, Section 4A MOFA clarifies that even
unregistered agreements may be received in evidence for specific
performance or part performance. Section 11 MOFA obligates the
promoter to convey title to the flat purchaser or society/company.
Accordingly, subsequent transactions by the promoter in respect of the
suit flat are void as against the Plaintiffs.
21. In the case at hand there is no dispute with respect to the
depositing of Rs. 1,36,00,000/-, the receipts to that effect are filed on
record. The plaintiff has proved the execution of MOU dated
27/03/2009. He has also filed on record the receipts with respect to the
payment. The plaintiff has further adduced the evidence and deposed
on oath that he was ready and willing to get execute the conveyance;
however, defendants failed to executed the agreement. The plaintiffs
further deposed that stamp duty along with penalty charges are also
paid. In view of the Judgment cited by the plaintiff, there is no question
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13 Judgment in S.C. Suit No. 2729-2019
issue of limitation so far as the filing of the suit is concerned. The
plaintiff has now claim the relief of declaration of ownership, possession
and injunction.
22. Under the background of above referred facts and
circumstances of the case, it is to see whether the plaintiff is entitled to
the reliefs claimed. The plaintiff has claimed the relief of (a)
declaration that the Plaintiffs have become absolute owners of the suit
flat on 13.07.2012, (b) any further transactions made by Defendant No.
1 in respect of the suit flat are not binding on the Plaintiffs, (c) a
mandatory injunction directing Defendant No. 1 to register the
Agreement for Sale dated 11.09.2012 with the Plaintiffs in respect of
the suit flat, (d) a mandatory injunction directing Defendant No. 1 to
duly complete construction and hand over possession of the suit flat to
the Plaintiffs, (e) a permanent injunction restraining Defendant No. 1,
his agents, servants, and successors in title from selling, transferring,
encumbering, or creating any third-party interest in respect of the suit
flat. (d) the Plaintiffs further prayed for appointment of a Court
Receiver.
23. Under the background of the MOFA Act it is ncessary to
understand the statutory obligations imposed upon the promotor. In
case of M/S. SWAN ENERGY LIMITED AND ANR. Vs STATE OF
MAHARASHTRA AND ANR. 2012 BHC 5638. It is discussed that
Agreements governed and regulated by the MOFA are not agreements
to sell simpiciter, as construed in common law. The legislature has
intervened to impose statutory obligations upon promoters; obligations
of a nature and kind that are not traceable to the ordinary law. The
agreement is impressed with a statutory character and flavour as held
by the Supreme Court in Jayantilal Investments. Agreements governed
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14 Judgment in S.C. Suit No. 2729-2019
and regulated by the MOFA are not agreements to sell simpiciter, as
construed in common law. The legislature has intervened to impose
statutory obligations upon promoters; obligations of a nature and kind
that are not traceable to the ordinary law.
24. Section 4 contemplates that a promoter who intends to
construct or constructs a building of flats must, before accepting any
money as advance or deposit (not more than 20% of the sale price),
enter into a written agreement for sale with each purchaser. This
agreement must be registered under the Registration Act, 1908. The
agreement must be presented for registration within the time allowed
under the Registration Act. If the executant fails to appear, the
registering officer may issue summons, and if he still fails, execution is
deemed admitted. Section 4 obligation is a statutory obligation on the
part of the developer to execute registered agreement after receiving
advance sum in respect of alienation of the units. In a suit for specific
performance based on an unregistered agreement of sale, the purchaser
can ask for registration of the document and possession. Section 4A of
MOFA has an overriding effect over Section 4. It is also held that
however in view of section 4A of the Act, the document did not become
non-est or valueless. It does carry a character and value of the regular
agreement of sale for immovable property. There is no specific
requirement of the registration for agreement of sale of immovable
property. Therefore, a suit for specific performance or performance of a
contract can be instituted on the basis of an un-registered agreement of
sale.
25. In case of Harshal Developers Pvt. Ltd., Pune And Another
Vs. Manohar Gopal Bavdekar And Another, 2012 SCC ONLINE BOM
1725 the issues for considerations were, (1) Whether a suit can lie
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15 Judgment in S.C. Suit No. 2729-2019
under MOFA for specific performance on the basis of unregistered
agreement for sale? (2) whether to invoke the powers under the proviso
(2) of Sub-section (2) of section 4 of the MOFA Act, 1963, the party
demanding execution needs to give an application to the registering
officer? It is held that in the suit for specific performance based on
unregistered agreement of sale the prayers demanding registration of
the document and possession are maintainable. It is further observed
that proviso 2 simply says that if the agreement is presented and other
party is not present, then the registering officer shall issue notice. Mere
presentation of the instrument for registration may not be enough to
issue summons by invoking powers in other circumstances but the
proviso is enacted and worded in such a way that it is obligatory on the
part of the registering officer to take steps. The presentation of that
instrument for registration itself is to be construed that the party has
asked the other person to execute the document. Therefore it is the duty
of the registering officer to verify whether other party is present or not
and if other party is not present then the presentation itself is sufficient
for registering officer to proceed and take the step of sending
summons/notice to the other party.
26. Section 9 deals not to create mortgage or create a charge
on the flat on the land. It contemplates that once a promoter has
entered into an agreement for sale with a flat purchaser under Section
4, the promoter cannot mortgage, charge, or create any encumbrance
on that flat or the building without the prior consent of the purchaser.
The promoter also cannot sell or transfer the flat to any other person
after such agreement has been executed. If the promoter does so, the
transaction is not binding on the original purchaser and is treated as
invalid against their rights. In the case at hand plaintiff has brought on
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16 Judgment in S.C. Suit No. 2729-2019
record sufficient evidence to prove that agreement was entered into to
purchase suit flat and had paid the full consideration amount. In the
case at hand, even though the entire sale consideration amount is paid,
defendant No.1 has not registered the agreement. Therefore, it is
obligation on the part of defendant No.1 to get it registered. Therefore,
the defendant No.1 is directed to register the Agreement for Sale dated
11.09.2012 with the plaintiffs in respect of the suit flat.
27. Section 9 says no mortgage, etc., to be created without
consent of parties after execution of agreement for sale. In the case at
hand already agreement for sale is executed. Therefore, it is statutory
duty to not to create third party interest in the suit property. It is
deposed that from time to time contacted to get the agreement
registered. Plaintiff has further deposited the stamp duty required for
registration. The depositing of entire consideration amount, following
the schedule give to make the payment of money shows that plaintiff
was every ready to execute his part of contract. However, defendant No.
1 failed to perform the statutory obligation cast on him. Thus, in view of
execution of Agreement to Sale dated 11.09.2012 the plaintiff is
entitled to the declaration and injunction restraining the defendant No.
1 permanently from creating any third-party interest in the suit flat No.
1201 and further transactions made by Defendant No. 1 in respect of
the suit flat are not binding on the Plaintiffs.
28. It is further to note that under the agreement it was agreed
to deliver the possession of the suit flat within 36 months from the date
of commencement certificate. Plaintiff has deposed that commencement
certificate is dated 27/10/2010. Therefore, as per the obligation of
plaintiff it was his obligation to perform his part of contract. necessary
to direct to complete the obligation to complete the construction and
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17 Judgment in S.C. Suit No. 2729-2019
hand over possession of the suit flat, on completion by following due
process of law.
29. The plaintiffs have further prayed for the relief of
Appointment of Court Receiver. In this regard, it is to be noted the case
on Panchsadachar of receiver. In the case of T. Krishnaswamy Chetty Vs.
C. Thangavelu Chetty; AIR 995 Madras 430, it has made clear that in
which circumstances, the Court Receiver can be appointed.
The “Panch Sadachar” reproduced as follows :
“ 1. The appointment of a receiver pending a suit is
a matter resting in the discretion of the Court. The
discretion is not arbitrary or absolute: it is a sound
and judicial discretion, taking into account all the
circumstances of the case, exercised-for the purpose
of permitting the ends of justice, and protecting the
rights of all parties interested in the controversy and
the subject-matter and based upon the fact that
there is no other adequate remedy or means of
accomplishing the desired objects of the judicial
proceeding
2. The Court should not appoint a receiver except
upon proof by the plaintiff that prima facie he has
very excellent chance of succeeding in the suit
3. Not only must the plaintiff show a case of
adverse and conflicting claims to property, but, he
must show some emergency or danger or loss
demanding immediate action and of his own right,
he must be reasonably clear and free from doubt.
The element of danger is an important
consideration. A Court will not act on possible
danger only; the danger must be great and
imminent demanding immediate relief. It has been
truly said that a Court will never appoint a receiver
merely on the ground that it will do no harm.
4. An order appointing a receiver will not be.
made where it has the effect of depriving a
defendant of a 'de facto' possession since that might
cause irreparable wrong. If the dispute is as to title
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18 Judgment in S.C. Suit No. 2729-2019
only, the Court very reluctantly disturbs possession
by receiver, but if the property is exposed to danger
and loss and the person in possession has obtained it
through, fraud or force the Court will interpose by
receiver for the security of the property.
5. The Court, on the application of a receiver, looks
to the conduct of the party who makes the
application and will usually refuse to interfere unless
his conduct has been free from blame. He must
come to Court with clean hands and should not have
disentitled himself to the equitable relief by laches,
delay, acquiescence etc.”
In the case at hand yet the suit property is not available to hand it over.
Therefore, under the surmises that there may be danger to the property,
court receiver can not be appointed. The plaintiff has not made ground,
as discussed in above judgment to appoint court receiver Hence, it can
not be granted and I answer point No.6 in the Negative.
30. The plaintiff has prayed the relief of declaration ownership.
Section 11 of MOFA requires the promoter to convey title to the co-
operative society, company, or association of flat takers (or apartment
owners under the Apartment Ownership Act). Therefore, in individual
name it can not be transferred. The plaintiff has filed additional
affidavit on record and submitted that yet society is not formulated.
Therefore, before execution of conveyance deed, no declaration of
ownership can be granted. Hence declaration of ownership can not be
granted at this stage, for want of sufficient evidence. Therefore, I
answered point No.1 as Not Proved and point Nos. 2 to 5 in the
Affirmative.
Conclusion :
31. In view of the discussion and findings made above, suit is
liable to be partly decreed and I proceed to pass the following order :
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19 Judgment in S.C. Suit No. 2729-2019
ORDER
1. The suit is partly decreed with costs.
2. The Defendant No.1 is directed to register the Agreement for Sale
dated 11.09.2012 with the Plaintiffs in respect of the suit flat i.e.
Flat no.1201, Samarth Heights, Dadar West, Mumbai.
3. The Defendant No.1 is hereby restrained by the order of
permanent injunction from creating third party interest in the suit
property.
4. The defendant no.1 is hereby directed to complete the
construction of Suit flat and to hand over the possession on
completion of construction to the Plaintiffs, after following due
procedure of law.
5. Decree be drawn up accordingly.
6. The original documents filed, if any, be returned to the plaintiff
or defendant on substitution on its verified or certified copies, as
per the requirement, after due verification and confirmation, after
appeal period is over.
7. Suit is disposed of accordingly.
8. The Judgment is digitally signed; hence, it be uploaded on Case
Information System (CIS) and the printout of the digitally signed
Judgment, additionally signed by me be kept on record as the
physical record is maintained by the Court.
(Arvind. M. Bhandarwar)
Judge,
City Civil Court,
Date: 24.12.2025 Gr. Bombay.
Dictated on : 24.12.2025
Transcribed on : 29.12.2025
Checked on : 03.01.2026
Signed on : 05.01.2026
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20 Judgment in S.C. Suit No. 2729-2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
08.01.2026 At 5.00 P.M. Mrs. Poonam Y. Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room Number)
HHJ SHRI. ARVIND. M.
BHANDARWAR, JUDGE, CITY
CIVIL COURT (C.R.NO.09)
Date of pronouncement of Judgment/
Order
24.12.2025
Judgment/Order signed by P.O. on 05.01.2026
Judgment/Order uploaded on 08.01.2026
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