Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM4178/2019
MHCC010114582019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 4178 OF 2019
IN
SUIT NO. 1983 OF 2019
1. Kishor Lalu Rathod & Anr. … Plaintiffs
Vs.
Ms. Asmita Ankush Barve … Defendant.
Appearance
Learned Advocate Mr. Ashok Garje for the plaintiffs.
Learned Advocate Mr. Prashant Sawant for the defendant.
CORAM : HHJ V. M. Pathade
(C.R.NO.62)
Date : 8th November, 2023
O R D E R
The plaintiffs have taken out this notice of motion for
seeking temporary injunction, seeking impounding of unregistered
Affidavit/General Power of Attorney dated 25.01.2007 and the original
purchase agreement executed between the plaintiffs and Shri
Dhondiram Dadu Sawant in the year 1992, for staying effect, operation
and validity of the said unregistered Affidavit/General Power of
Attorney pending the hearing and final disposal of the suit, seeking
direction to the defendant to surrender the benefits of Rs.6,06,809/- in
favour of the plaintiffs, received from the builder namely M/s. Omkar
Realtors and Developers, Sion (E), Mumbai, for appointment of Court
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Receiver High Court Bombay or any other competent Officer of this
Court in respect of the reliefs and prayers made above, etc.. The
plaintiff No.1 in his affidavit in support of the notice of motion stated
that the present suit is filed for the annulment, termination and
revocation of the unregistered Affidavit and the Power of Attorney, both
dated 25.01.2007 executed between the parties which led to denial of
their legitimate rights to occupy the flat under SRA Scheme. It is further
stated that the said unregistered documents are liable to be treated as
violable, useless, unlawful, without consideration and accordingly liable
to be terminated and annuled. The said documents are executed under
mis-representation and the flat in Matoshree Co-operative Housing
Society is reserved by the builder/developer i.e. M/s. Omkar Realtors
and Developers and by the Slum Rehabilitation Authority.
2. The defendant opposed the notice of motion by filing her
affidavit in reply. It is contended that the notice of motion is not
maintainable and the same is filed with ulterior motive. The suit itself
is barred by Section 42 of the Maharashtra Slum Areas (Improvement
Clearance and Re-development) Act, 1971 and hence the suit and also
notice of motion are liable to be dismissed with compensatory costs.
3. It is also stated that the plaintiffs have not impleaded Slum
Rehabilitation Authority and M/s. Omkar Realtors and Developers, who
developed the said project and as such the suit is hit by Order 1 Rule 9
of the Code of Civil Procedure. It is also her contention that as per the
provision of Art.59 of the Limitation Act, the suit ought to have been
filed within the period of three years from the date of execution of the
disputed documents namely, the affidavit and power of attorney dated
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25.01.2007 and the suit being filed in the year 2019, the same is barred
by limitation. It is further contended that since the plaintiff has not
complied with the requirement of sub-section (1) Section 80 of the CPC,
the plaint is liable to be returned for presentation after complying with
the said requirements.
4. The defendant would make further contention that the old
hut premises bearing No. 76, Sanjay Gandhi Smruti Vasahat, Jerbai
Wadia Road, Bhoiwada, Parel, Mumbai was purchased by plaintiff No.1
from Dhondiram Dadu Sawant in the year 1992. Subsequently, the sale
was finalized between the plaintiffs and defendant and by that time the
plaintiffs handed over the defendant all the documents in respect of the
said premises on 25.01.2007, executed affidavit for transfer of the said
premises and also power of attorney in favour of the defendant on
being paid total consideration of Rs.5,50,000/- in cash. The plaintiff
No.1 acknowledged receipt (of payment of Rs. 5.5 lacs) thereof in
presence of two witnesses. It is also stated that at the same time the
plaintiffs handed over the vacant and peaceful possession of the said
premises to the defendant by relinquishing all their rights therein. The
said premises was standing on plot bearing No.FP No. 174 (part), 655
(part), 795 (part) and 849 (part), Sanjay Gandhi Smruti Vasahat
situated in F/South Ward, Parel-Bhoiwada Division, Jerbai Wadia Road,
Parel, Mumbai. In the mean time the Housing Society was established
on the said plot/premises in the name and style as “Matoshree Co-
operative Housing Society Limited” and the said Society appointed M/s.
Omkar Realtors and Developers Private Limited as a developer under
the Slum Rehabilitation Scheme. The said Society entered into a
Tri-party agreement with the members of the said Society and the
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developer in 2007. The defendant being in actual and lawful physical
possession of the premises entered into agreement dated 25.01.2007
with the said developer and the said Society. The defendant also
executed an affidavit as per the procedure. The supplementary
agreement dated 19.04.2010 was executed between the said Society
and the defendant. The defendant also executed Consent Letter dated
20.04.2010 in favour of the said developer for Rehabilitation Scheme
with confirmation that the defendant will vacate the old premises in
lieu of the premises in proposed rehabilitated building. The said
developer paid rent to the defendant for temporary accommodation till
the rehabilitation is completed and proposed room admeasuring about
269 sq.ft., in the new building consisting of ground plus 16 floors would
be allotted to her. For all these reasons, therefore, the notice of motion
is sought to be dismissed.
5. Heard the learned Counsel for the plaintiffs and also for
the defendant. They would make their submissions on the lines of the
contentions made in the affidavit in support of the Notice of Motion and
affidavit in reply filed by the respective parties.
6. From the perusal of the plaint and particularly, the prayer
clause thereof, and also the prayers made in the notice of motion, it
would reveal that the prayers in the suit and the notice of motion are
identical in nature. Since the disputed documents namely, Affidavit and
General Power of Attorney purportedly executed on 25.01.2007 are not
yet produced before this Court as an evidence in support of the
plaintiffs’ claim or the defence set up by the defendant, there would be
no question for directing the impounding of the said documents. It is
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also a fact that the plaintiff being one of the parties to the said disputed
documents executed in the year 2007 and the same being acted upon by
the concerned authorities while granting and implementing SRA
Scheme and extending the benefits in respect of the old premises to the
defendant at this interim stage without considering the matter in the
light of the evidence adduced by the parties, it would not be just, proper
and appropriate to grant any interim relief as sought for in the notice of
motion. The plaintiffs, therefore can not be said to have made out a
case for grant of interim relief, as sought for in the Notice of Motion.
7. In the aforesaid view of the matter unlike the submissions
of the learned Counsel appearing for the defendant, I would find no
force or merits in the submissions advanced by the learned Counsel for
the plaintiff to allow the notice of motion. The notice of motion would
therefore, fail. Hence, I proceed to pass following order:-
Order
1. The Notice of Motion No.4178 of 2019 stands dismissed.
2. There shall be no order as to costs.
3. The Notice of Motion No.4178 of 2019 stands disposed of
accordingly.
Date : 08.11.2023 (V. M. Pathade)
Dictated on : 08/11/2023. Judge, C.R.No.62,
Transcribed on : 09/11/2023. City Civil Court,
Signed on : 09/11/2023. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
09.11.2023 at 5.50 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. V.M. PATHADE
(C.R.No.62)
Date of pronouncement of Order 08/11/2023
Order signed by P.O. on 09/11/2023
Order uploaded on 09/11/2023
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