Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 3925/19 in S.C.Suit No. 2506/19. 1 Order.
MHCC010107952019
Presented on : 23-10-2019
Registered on : 23-10-2019
Decided on : 16-12-2023
Duration : 4 years, 1 months, 24 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 3925 OF 2019
IN
S. C. SUIT NO. 2506 OF 2019
Shivshakti Co.Op. Hsg. Society (Proposed) )
and others )...Plaintiffs
Versus
Shri Shishir Shivapurkar )...Defendant
Shri Sanjay Prabhala h/f Shri Dhananjay Pathak, Advocate for the
plaintiffs.
Smt. Rashmika Lokhande, Advocate for the defendant.
CORAM : HIS HONOUR JUDGE SHRI S.D.KULKARNI.
(COURT ROOM NO.66).
DATE : 16th DECEMBER, 2023.
ORDER
1. The plaintiff has taken out the notice of motion to restrain
the defendant from disposing off or creating any third party right,
interest over the suit property. The plaintiff further prayed that the
defendant be directed to hold a meeting with plaintiff / original tenant
and execute undertaking in their favour.
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N/m No. 3925/19 in S.C.Suit No. 2506/19. 2 Order.
2. It is alleged by the plaintiff that defendant is a builder
developer. The defendant had redeveloped building namely ‘Bori
Building’ and after redevelopment property known as ‘Neha Residency’.
The contention of the plaintiff that defendant agreed that and also he
had given undertaking by letter dated 11/05/2013 that he will not
dispose off or create third party interest over the premises of ground
floor and one flat on upper floor as a collateral security. The defendant
without following the terms and conditions of MHADA handed over the
possession of shop to the original tenant with lot of the pending work.
Therefore the contention of the plaintiff that if defendant sold the
ground floor premises and first floor flat, then, it gets difficult for the
plaintiff to constrain defendant to do the pending work as per
agreement. Hence, filed this notice of motion.
3. The defendant failed to file reply to the notice of motion.
Lastly on 04/09/2023 and 23/11/2023 specific direction was given to
the defendant to argue the notice of motion otherwise it will be heard
in their absence, then also the defendant failed to argue the matter. The
plaintiff has filed the written notes of arguments long back. Therefore
there is no point in keeping notice of motion pending and wait for
indefinite period for the arguments of the defendant. Therefore, notice
of motion is taken for order (ex-parte).
4. Alongwith the application the plaintiff has filed many
documents. Important document is filed at Exh.B (page no.3) dated
11/05/2013, therein the defendant himself admitted that he will not
alienate or sell one premises on ground and one flat on upper floor as a
collateral security. The plaintiff has also filed on record the
correspondence in between the plaintiff and defendant regarding
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N/m No. 3925/19 in S.C.Suit No. 2506/19. 3 Order.
arrears of rent and non-payment of alternate accommodation’s rent
from last one year to show the strained relations in between the parties.
The advocate for the plaintiff submitted that defendant agreed in the
year 2013 that he will not sell the ground floor premises and one flat,
but now considering the relation between the parties there is a
possibility of transfer or alienation of abovesaid premises.
5. On going through the documents filed on record by the
plaintiff, it revealed that the defendant had not completed entire work,
therefore, certainly plaintiffs are entitled for the relief prayed. If
defendant sold the premises on open ground and a flat at first floor,
then it gets difficult for the plaintiff to constrain defendant to do the
pending work as per agreement. Therefore, in my opinion, if the
injunction is granted, defendant will not suffer any loss. But if the relief
prayed by the plaintiff is not granted, plaintiff will suffer more loss than
the defendant. Considering this, I pass following order :
- ORDER -
1. Prayer clause (a) of Notice of Motion No. 3925/2019 is made
absolute.
2. The defendant is restrained from alienating or disposing off the
one premises on ground floor and one flat at upper floor of the plaintiff
no.1 building Neha Residency.
3. N/m No. 3925/2019 is disposed off accordingly.
(S.D.KULKARNI)
Judge,
City Civil Court,
(Court Room No.66)
Date : 16/12/2023. Mumbai.
1. Dictated online on : 16/12/2023.
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N/m No. 3925/19 in S.C.Suit No. 2506/19. 4 Order.
2. Placed for correction on : 19/12/2023.
3. Checked on : 19/12/2023.
4. Correction carried on : 19/12/2023.
5. Signed on : 19/12/2023.
6. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
20/12/2023. 4.21 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri S.D.Kulkarni.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 16/12/2023.
Judgment/Order signed by P.O. on 19/12/2023.
Judgment/Order uploaded on 20/12/2023.
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