Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
Exp. Jud in Suit 53 of 2020
MHCC010119492019
Presented on : 16112019
Registered on : 02012020
Decided on : 18082022
Duration : 02Y,09M,02D
IN THE CITY CIVIL COURT OF MUMBAI
S.C. SUIT NO. 53 of 2020
Exh.23
Jiten Nandkumar Jain
Age: 38 years, Occ: Business
Having address at Office No.10,
Ground floor, 187, Dadiseth Agyari Lane,
Ganesh Baug,
Opp. Naviwadi, Chira Bazar,
Mumbai – 400002. ...Plaintiff
Versus
1) Shantabai Mohanlal Sarvaiya
Age: Not known (Adult),
Occ: Not known
Having address at 5/165,
Nirmal Nagar, Bandra (East),
Mumbai 400051
2) Manohar Shripat Narvekar
Age: Not known (Adult),
Occ: Not known
Hindu Adult, Indian Inhabitant,
Having Address at 5/165,
Nirmal Nagar, Bandra (East),
Mumbai – 400051 .… ….Defendants
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Exp. Jud in Suit 53 of 2020
CORAM : HIS HONOUR JUDGE
SHRI. VIRENDRA D. KEDAR
(C.R. NO.1)
DATE : 18th DAY OF AUGUST 2022
:Appearances:
Adv. Bhavana Jain for the plaintiff
None for the defendants.
JUDGMENT
(Delivered on this 18th day of August 2022)
The plaintiff has filed the present suit against defendants
for specific performance of contract and for permanent injunction.
2. It is contention of the plaintiff that, defendant no.2 is the
owner of land admeasuring about 77.76 sq. meters or about 93 sq.
yards bearing New Street No. 273/279, Kalachowky Road, bearing
Cadastral Survey number 815 of Mazgaon division having dwelling
houses situated thereon known as Godavari Bhavan, Dattaram Lad
Marg, Chinchpokli, Mumbai – 400012 (herein after referred as 'Suit
Property').
3. It is further contention of the plaintiff that, originally Mr.
Ratilal Tulsidas and Godavri Tulsidas were the owners of suit property.
They sold suit property by registered sale deed dated 25.09.1952 to
Smt. Shantabai Mohanlal Sarvaiya i.e., defendant no.1. Thereafter
defendant no.1 sold the suit property to defendant no.2 vide registered
sale deed dated 30.12.2004.
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4. It is further contention of the plaintiff that, defendant no.2
approached to the plaintiff to sell and convey the suit property for total
consideration of Rs.2,75,000/. Accordingly he had executed agreement
of sale dated 29.10.2020 in favour of the plaintiff by accepting total
consideration of Rs.2,75,000/. The defendant no.2 had acknowledged
the payment and handed over the original title deeds to the plaintiff.
The plaintiff was put in possession of the suit property.
5. It is further contention of the plaintiff that, thereafter he
gave public notice in daily news papers inviting objections on
09.11.2010, however no objection was raised till date. The defendant
no.2 handed over bank passbook of his saving account no.8088 to show
that he has received total consideration from the plaintiff. The plaintiff
has also paid outstanding taxes amounting to Rs.25,000/.
6. It is further contention of the plaintiff that, defendant no.2
has executed another agreement for sale dated 06.01.2011 wherein
accepted the fact of receipt of Rs.25,000/. Thereafter the defendant
no.2 has executed General Power of Attorney in favour of one Mr.
Gaurav Jain on 06.01.2011. The defendant no.2 has also executed an
indemnity bond on same date in favour of the plaintiff.
7. It is further contention of the plaintiff that, in pursuance to
the contract, defendant no.2 was required to make out clear and
marketable title and to perform his obligation to sign and execute the
conveyance deed in favour of the plaintiff.
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8. It is further contention of the plaintiff that, the defendant
no.2 has also agreed to furnish all the relevant documents necessary for
the purpose of certification of tenants occupying the suit property
required to be submitted in the adjudication department of the
Superintendent of Stamps, Mumbai office for payment of necessary
stamps. As it required some time, the plaintiff and the defendants
thereafter mutually agreed to extend period for executing the deed of
conveyance. Thus regarding the same letter of confirmation dated
23.11.2022 extending the period till 29.11.2013 was executed.
9. It is further contention of the plaintiff that, he on his own
efforts collected relevant documents as available and lodged both the
sale deeds for payment of stamp duty in the office of the Collector of
Mumbai. Thereafter another letter of confirmation dated 26.01.2015
was executed by the defendant no.2 in favour of the plaintiff and date
for execution of the deed of conveyance was further extended till the
documents were received duly stamped from the Collector of Mumbai
office. It is further contended that, said documents were in custody of
Adjudication Department of the Collector of Stamps and were certified
in the year 2019. Accordingly the appropriate stamp duty was paid on
both the documents in the month of July, 2019 and the sale deeds from
defendant no.1 to defendant no.2 and the subsequent document of
agreement for sale from defendant no.2 to the plaintiff, were delivered
to the plaintiff duly stamped and cleared by the Collector of Stamps,
Mumbai on 23/07/2019.
10. It is further contention of the plaintiff that, thereafter he
requested the defendant no.2 to take necessary steps and to get the
mutation entry passed in the office of the Land record, Collector office,
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Mumbai and to provide updated copy of the property card to the
plaintiff. However inspite of repeated request and reminder, defendant
no.2 failed and neglected to do so. Now the defendant no.2 started
threatening the plaintiff and refused to perform his part of contract.
Whereas the plaintiff was and is willing and ready to get perform his
part of contract. The plaintiff having apprehension that the defendant
no.2 may alienate suit property to the third party. Hence the present
suit.
11. Inspite of receiving service of writ of summons defendants
failed to appear. Hence the matter proceeded exparte against them.
12. The plaintiff has examined himself as (PW1) by filing his
affidavit in lieu of examination in chief (Exh.8). The plaintiff has relied
on the documents such as original copy of deed of conveyance dated
15.09.1952 (Exh.10); original copy of deed of sale dated 30.12.2004
(Exh.11); original copy of agreement of sell dated 29.10.2010 (Exh.12);
original copy receipt dated 08.11.2010 and news paper copy dated
09.11.2010 ( Exh.13Colly); original bank passbook (Exh.14); original
copy of receipt by MCGM (Exh.15 Colly); original power of attorney
dated 06.01.2011 (Exh.16); original indemnity bond dated 06.01.2011
(Exh.17); original confirmation letter dated 23.01.2011 (Exh.18);
original letter of confirmation dated 26.01.2015 (Exh.19); office copy of
notice from collector office (Exh.20) and office copy of demand notice
(Exh.21). The plaintiff closed his evidence by filing pursis Exh.23.
13. Heard the learned advocate for the plaintiff at length.
Perused the record.
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14. Following points arise for my determination, to which, I
record my findings with reasons as under :
Sr.
No
Points Determination
1. Whether the plaintiff prove that the
defendant no.2 has executed an agreement
for sale dated 29.10.2010 in his favour ?
Yes
2. Whether the plaintiff prove that he was and is
ready and willing to perform his part of
contract?
Yes
3. Whether the plaintiff is entitled for the relief
of specific performance of contract as
sought ?
Yes
4. Whether the plaintiff is entitled for the relief
of permanent injunction as prayed ?
Yes
5. What order and decree ? As per final
order.
REASONS
As to Points no.1 to 4 :
15. All the points are arising out of the same set of evidence
hence taken for discussion together.
The plaintiff Jiten Nandkumar Jain examined himself as
PW1. He deposed as per the contention of the plaint, hence I do not
want to reproduce the same. His testimony remained unshattered.
16. It is main contention of the plaintiff that, the defendant
no.2 had approached the plaintiff and shown his intention to sale suit
property. Accordingly, after negotiation an agreement of sale dated
29.10.2010 was executed in between the plaintiff and defendant no.2.
The plaintiff has filed original copy of agreement to sale (Exh.12) on
record. Upon perusal of same it reveals that the defendant no.2 was
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agreed to sell the suit property for the total consideration of
Rs.2,75,000/ to the plaintiff. The defendant no. 2 acknowledged
receiving of Rs.2,75,000/ by cash at Mumbai on 28.10.2010. It is
further contention of the plaintiff that thereafter he has called objection
by issuing public notice. However, no objection was received. To
substantiate the same, the plaintiff has filed copy of paper publication
(Exh13). It is further contention of the plaintiff that the defendant
no.2 has handed over his passbook of his saving account no. 8088
maintained in Syndicate bank confirming payment of consideration.
Tom prove the same, the plaintiff has filed copy of original passbook
(Exh.14). It is further contended by the plaintiff that he has paid
Municipal taxes. To support said contention, he has filed original copy
of receipts Exh.15. It is further contended by the plaintiff that the
defendant no.2 has executed Power of Attorney in favour of one Mr.
Gaurav Nandkumar Jain which is at Exh.16. The defendant no.2 has
also filed copy of Indemnity bond dated 06.01.2011 executed by
defendant no.2 in his favour which is at Exh17.
17. It is to be noted that, the defendant no.2 vide letter dated
23.11.2011 has extended period for execution of sale deed from
30.11.2011 to 29.11.2013. The letter of confirmation is at (Exh.18). It
is further contention of the plaintiff that, again vide letter of
confirmation dated 26.01.2015 the date of execution of sale deed is
extended till receiving the documents duly stamps from the Collector
office. This letter is at (Exh.19). Thereafter the plaintiff has submitted
the documents for adjudication in the custody of Adjudication
Department of Collectors of Stamps. To support it, the plaintiff has
filed office copy of notice from Collector office (Exh.20). It is
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contended that same got cleared in the year 2019 and the appropriate
stamp duty was paid on both the documents in the month of July 2019.
The sale deed between the defendant no.1 and defendant no.2 and the
subsequent documents of agreement of sell in between defendant no.2
and the plaintiff were duly stamped and cleared by the Collector of
Stamps Mumbai on 23.07.2019. To support it, the plaintiff has filed the
document (Exh.21). Now, it is contention of the plaintiff that the
defendant is avoided to perform his part of contract. It is to be noted
that inspite of receiving writ of summons, the defendants failed to
appear and contested the suit. Hence the matter proceeded exparte
against the defendant. The testimony of the plaintiff remained
unchallenged.
18. It is to be seen that, the plaintiff has paid the entire amount
of total consideration of Rs. 2,75,000/in lieu of agreement of sale
dated 29.10.2010 to the defendant no.2. The defendant no.2 also
acknowledged receiving of entire amount. It is further to be noted that,
the plaintiff is in possession of the suit property and there is no denial
to the same. It further reveals that as the title documents were lodged
for adjudication in the custody of Adjudication Department of Collector
of Stamps and they were got cleared in the year 2019 upon payment of
appropriate stamp duty in the month of July, 2019. Thereafter the
plaintiff requested defendants to execute registered sale deed in his
favour. However defendants refused to same. Hence the suit is well
limitation. Even otherwise defendant no.2 extended period for
executing registered sale deed. Thus the plaintiff duly proved execution
of agreement of sell by defendant no.2 in his favour. The plaintiff has
shown his readiness and willingness to get execute registered sale deed
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in his favour. Thus the plaintiff is entitled for the relief of specific
performance of contract as claimed. As the plaintiff is succeeded to
prove his claim to get execute registered sale deed in his favour, thus
the question of parting suit property in favour of other persons by
defendant does not arises. Therefore the plaintiff is also entitled foe the
relief of permanent injunction as claimed. Hence, my answer to points
no.1 to 4 is in the affirmative.
As to point no.5:
19. In view of my above discussion, I pass the following order:
ORDER
The suit is decreed with cost.
The defendant no.2 is directed to execute the
deed of conveyance infavour of the plaintiff in respect of
suit property within two months.
The defendants are restrained by decree of
permanent injunction from executing any agreement in
relation to the suit property in favour of any other party.
Decree be drawn up accordingly.
(Virendra D. Kedar )
Judge,
Date: 18/08/2022. City Civil Court, Greater Mumbai.
(C R No.1)
Dictated on :18/08/2022
Transcribed on :19/08/2022
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 24/08/2022 NAME OF STENOGRAPHER(GI)
Mrs. V.V.Mhatre
TIME:
Name of the Judge (With Court
room no.)
Shri Virendra D. Kedar
(Court Room No.01)
Date of Pronouncement of
JUDGEMENT/ORDER
18.08.2022
JUDGMENT/ORDER signed by
P.O. on
24.08.2022
JUDGEMENT/ORDER uploaded on 24.08.2022
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