Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.4233/2019 ..1.. Commercial Suit No.154/2019
CNR No.MHCC01-011593-2019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 4233 OF 2019
IN
Commercial Suit No.154/2019
Naveed Siddiqui. .. Plaintif
Versus
Ms. Jennifer N. Sanjana and others. .. Defendants
Advocates
Dipesh Siroya for the plaintif.
Malcolm Singaporia for defendant nos.1 and 2.
Mrs. Sonali Salaskar for defendant no.3.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 15th February, 2020
ORAL ORDER
Notice of motion is taken out on behalf of the plaintif
for directing defendants to furnish security of Rs. 30 Lakhs, in
default attachment of property of defendant no.1 and 2.
2. Plaintif fled suit against defendants no.1 and 2 for
recovery of Rs.30 Lakhs. Defendant nos. 1 and 2 were joint
owners of Flat no.1401 situated in Rustomji Oriana Building,
M.I.G. Colony, N.O. Marg, Bandra East, Mumbai 400 051 (Suit
flat). Defendant no.3 is a developer.
3. Plaintiffs case is that he orally agreed to purchase suit
flat from defendant nos.1 and 2 in the month of February 201r
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for consideration of Rs.8.75 Crores. Plaintif has to pay Rs.25
Lakhs on or before 28.03.201r, remaining amount by
15.04.201r and delayed payment beyond 15.04.201r will hike
rate by Rs.10/- per sq. fts. Plaintif paid earnest amount of
Rs.9 Lakhs and Rs.1r Lakhs to defendant no.1 on 0r.04.201r
and 11.04.201r respectively. Defendant nos.1 and 2 failed to
supply requisite documents and execute agreements in favour
of the plaintif. However, on 14.09.201r, defendant no.1 and 2
sold suit flat to Ms. Charu Agarwal for consideration of
Rs.5,20,00,000/-.
4. Contention of the plaintif is that defendant nos.1 and 2
sold suit flat to Ms. Charu Agarwal for consideration of
Rs.5,20,00,000/- without informing the plaintif. They agreed
to return earnest amount to the plaintif with 12% interest but
did not return the amount. Hence the plaintif sent notice to
defendant nos.1 and 2 for refund of amount with interest but
defendant nos.1 and 2 did not comply the notice. Hence the
suit.
5. Contention of advocate for the plaintif is that apart
from the plaintif, defendant has cheated many other people.
Defendant nos.1 and 2 have residential flat at Colaba,
Mumbai. Defendant no.1 and 2 is trying to dispose of their flat
at Colaba and run away to defeat claims of their creditors
including the plaintif. If they succeed in disposing their flat at
Colaba, plaintif will not be able to recover his dues and
decree, if passed, shall remain a mere paper decree. Hence
prayed for making notice of motion absolute in view of
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provisions of Order XXXVIII, Rule 5 of the C.P.C.
r. Defendant no.1 and 2 fled reply and opposed notice of
motion. Contention of advocate for defendant nos.1 and 2, is
that suit flat is already sold to Charu Agarwal on 14.09.201r.
Before that defendant nos.1 and 2 given public notice in two
news papers calling objections of the concerned to sale of suit
flat. Plaintif failed to pay remaining sale consideration on or
before 15.04.201r. Hence earnest amount of the plaintif is
forfeited. Plaintif was aware about forfeiture of his earnest
amount. Hence he has not claimed earnest amount in spite of
giving public notice in news papers about sale transaction of
suit flat. Plaintif is not entitled for refund of earnest amount
as he failed to perform his part of contract. Notice of motion is
not tenable. Hence prayed for rejection of notice of motion.
7. Advocate for the plaintif relied on the judgment of the
Hon'ble Apex Court in Appeal (Civil) 802 of 2008 (Rajendran
and others v/s. Shankar Sundaram and others), decided on
30.01.2008 and advocate for defendant nos.1 and 2 relied on
the judgment of the Hon'ble Apex Court reported in (2008) 2
Supreme Court Cases 302 ( Raman Tech. & Process Engg. Co.
and another v/s. Solanki Traders ).
8. Contention of advocate for the defendant no.3 is that
plaintif has no privity of contract with defendant no.3. No
cause of action arose to fle suit against defendant no.3. No
relief is claimed against defendant no.3. Defendant no.3 is
neither necessary nor proper party to the suit. Hence prayed
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for dismissal of notice of motion.
9. Perused the citations relied on both the parties.
Principles emerged therefrom is that the plaintif has to make
out prima-facie case and the Court is required to form prima
facie opinion to invoke provisions of Order XXXVIII, rule 5 of
the C.P.C.
10. As per Order XXXVIII, rule 5 of the C.P.C., where, at any
stage of the suit, the Court is satisfed, by afdavit or
otherwise, that the defendant, with intent to obstruct or delay
the execution of any decree that may be passed against him-
(a) is about to dispose of the whole or any part of his property,
or
(b) is about to remove the whole or any part of his property
from the local limits of the jurisdiction of the Court, the Court
may direct the defendant to furnish security in such sum as
may be sufcient to satisfy the decree.
11. The Court must be satisfed about the fact, by afdavit
or otherwise, that defendant is trying to dispose of the
property with intent to obstruct or delay the execution of any
decree that may be passed against him. Power under Order
XXXVIII, rule 5 of the C.P.C. is drastic and extraordinary. Such
power should not be exercised mechanically or merely for the
asking. Any attempt by a plaintif to utilize provisions of Order
XXXVIII, rule 5 of the C.P.C. as a leverage for coercing the
defendant to settle the suit claim should be discouraged.
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12. Defendant nos. 1 and 2 appeared before the Court and
given reply to notice of motion. They also fled their written
statement and denied claim of the plaintif on the ground that
plaintif forfeited earnest money as he failed to perform his
part of contract. Though no reliefs are claimed and no cause of
action arose to fle suit against defendant no.3, plaintif made
it a party to the suit. Except the vague statement made by the
plaintif, there is nothing on record to show that defendant
nos. 1 and 2 is trying to dispose of their Flat at Colaba,
Mumbai. It appears that the plaintif is coercing defendant
no.1 and 2 to settle the claim under the garb of provisions of
Order XXXVIII, rule 5 of the C.P.C. Notice of motion is without
substance and not supported with any documentary evidence
to corroborate apprehension of the plaintif regarding disposal
of property at the hands of defendant nos.1 and 2. Under the
facts and circumstances, case is not made out on behalf of the
plaintif to invoke provisions of Order XXXVIII, rule 5 of the
C.P.C. In the result, following order.
ORDER
Notice of Motion No.4233 of 2019 is rejected.
(Sunil T. Soor)
Judge
Date : 15.02.2020 Gr. Bombay
Typed on : 15.02.2020
HHJ signed on : 18.02.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
18.02.2020, 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
15.02.2020
JUDGMENT/ORDER signed by
P.O. on
18.02.2020
JUDGMENT/ORDER uploaded on 18.02.2020
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