Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 4420/2019 in Suit 8476/1994
NOTICE OF MOTION NO. 4420 OF 2019
IN
SUIT NO. 8476 OF 1994
(HIGH COURT SUIT NO. 1992 OF 1994)
CNR NO. : MHCC010121242019
Mr. Ashish Hasmukhraj Piparia … Plaintiff
Versus
Smt. Manjula Arvind Shah & Ors. ...Defendants
Appearance:
Adv. Shri. Udayan Jain for Defendant No. 2 to 5 & 9 to 13.
Adv. Shri. S. Shamim for Plaintiff.
CORAM : SMT. S.S. NAGUR
JUDGE, (C.R.NO.4)
DATE : 22/10/2021
ORDER
The Notice of Motion is filed by the defendants under Order 7
Rule 11 of the Code of Civil Procedure to reject the plaint. The Notice
of Motion is supported by Affidavit of Bipin Jariwala, the defendant no.
9 (a). The defendant stated that the suit is filed by the plaintiff against
the defendants for declaration and injunction that Deed of Conveyance
dated 05.05.1994 executed in favour of defendants with respect to the
suit property is illegal and null and void.
2. The defendants stated that by two orders dated 20.05.1994 and
09.12.1997 in the suit, all the defendants were restrained from selling,
transferring, dispossessing off or creating third party right with respect
to their 50% undivided right, title, interest and shares as purchased in
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the suit property. During pendency of the suit, the plaintiff has
executed diverse documents thereby waiving/abandoning his claims
against the defendants and forfeiting, destroying, extinguishing the
cause of action. The defendant has stated the documents executed by
the plaintiff during the pendency of the suit. Therefore, no cause of
action survives. Hence, prayed to allow the Notice of Motion.
3. The plaintiff filed reply through Affidavit of Vardhman
Chhaganlal Shah, the Constituted Attorney of the plaintiff. The
contents of the Notice of Motion is denied. The Agreements/Deed of
Assignments entered into between the plaintiff and some other
defendants are without prejudice to the right of the plaintiff to the
reliefs sought in the plaint. In the Deed of Assignment, it is specifically
stated that the Agreements have been entered into subject to the rights
of the plaintiff in the suit. They have not admitted the Deed of
Conveyance dated 05.05.1994. Hence, prayed to reject the Notice of
Motion.
4. Heard Advocate Shri. Udayan Jain for Defendant No. 2 to 5 & 9
to 13 and Advocate Sajid Shamim for plaintiff. Perused the contents of
Notice of Motion and reply supported by Affidavit. I have also gone
through the contents of plaint.
5. Advocate Shri. Udayan Jain for defendants have drawn my
attention to the documents executed by the plaintiff to show that the
plaintiff has confirmed/admitted the Deed of Conveyance dated
05.05.1994. Therefore, the cause of action in view of the execution of
the documents during pendency of the suit does not survive. The plaint
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is liable to be rejected.
6. On the other hand, Advocate Sajid Shamim for plaintiff has
drawn my attention to the documents of Deed of Assignments to show
that it is without prejudice to the rights of the plaintiff in the suit. The
plaintiff has purchased the share of the defendants, who agreed to part
away their share to the plaintiffs. The remaining defendants did not
agree for the amount of purchase. They tried to restrain the other
defendants also to part away their share to the plaintiffs. The execution
of documents will not affect the cause of action, which still survives
against the other defendants with whom the dispute cannot be settled.
7. Advocate for plaintiff has relied on authorities reported in
Dahiben Vs. Arvindbhai Kalyanji Bhanusali (D) through LRs & Ors.
: MANU/SC/0508/2020 that the remedy under Order VII Rule 11 of
Code of Civil Procedure is independent wherein the Court is empowered to
summarily dismiss a suit at threshold, without proceeding to record
evidence and conduct trial on the basis of the evidence adduced, if
satisfied that the action should be terminated on any of the grounds
contained in the said provision.
8. The suit is filed by Jaysukhlal Chhaganlal Shah for specific
performance of the Agreement seeking relief that defendant no. 1 be
directed to sign and execute Deed of Conveyance in favour of the
plaintiff, in the alternative to pay sum of Rs. 30,37,000/. The
contention of the plaintiff in the plaint is that in the suit property there
is unused balance FSI available for development. Therefore, on
03.07.1992 the agreement was executed between the plaintiff and the
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defendant no. 1. It was agreed that the original plaintiff will be
entitled to have a flat of 550 sq.ft. carpet area for consideration of
Rs.7,80,000/.
9. In para no. 5 of the plaint, the plaintiff stated that the defendant
no. 1 came out with suggestion that if the plaintiff is ready and willing
to buy the entire building, then the defendant is ready and willing to
sell the same. Initially the plaintiff is agreed to purchase 50% share of
the suit property. There was Memorandum of Understanding in that
respect on 03.04.1993. In the month of April, 1993 there was further
agreement between the plaintiff and the defendant no. 1 that the
defendant will sell the balance 50% share of the suit property for
consideration of Rs. 2 lakh. The plaintiff agreed and has also paid the
amount of Rs. 20,000/ to the defendant no. 1. The plaintiff was out of
country and when he came back on 02.05.1994, he was shocked to
know that the defendant no. 1 was intending to sell the entire suit
property to defendant no. 2 to 13. Hence, filed the suit.
10. The order of Hon’ble High Court in Notice of Motion No. 1258 of
1994 dated 11.05.1994 and 20.05.1994 are as under:
(i) Order dated 11.05.1994
The order was passed after hearing plaintiff and counsel for
defendant no. 2 to 13. The defendant no. 1 was not served. It
was stated by the plaintiff that the defendant no. 1 was not
present in the house and notice was given to the daughter but
she refused to sign. The Counsel for defendant no. 2 to 13
brought to the notice of the Court that they have already
purchased half share in the entire building from defendant no.
1 under Sale Agreement dated 05.05.1994. The Hon’ble High
Court passed the following order :
“Anyway, the remaining half of the property is still intact
and not sold to anybody. It is, therefore, necessary to
maintain statusquo pending the hearing of the Notice of
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Motion. Hence, it is ordered that first defendant is
restrained from alienating or creating third party rights
in the remaining fifty percent of the property which is the
subject matter of the suit agreement till 7th June 1994”.
(ii) Order dated 20.05.1994:
“Pending the hearing and final disposal of this Notice of
Motion, the defendants Nos. 2 to 13 are restrained from
selling, transferring, disposing of or creating any third
party rights in respect of 50% shares purchased by them.
Hearing of the Notice of Motion is expedited”.
11. The Hon’ble High Court after hearing both the parties has
decided Notice of Motion No. 1258 of 1994 on 09.12.1997 and pass
following order:
“the Notice of Motion is made absolute and the order
dated 20th May 1994 is hereby confirmed”.
12. During the pendency of the suit, the contention of the
defendants is that the plaintiff has executed the following documents
a) Copy of Assignment Deed dated 1st March 2013 between Shri. Manoj R.
Zaveri, “The Assignor” and Shri. Ashish Hasmukhrai Piparia “The Assignee”
stating that,
i. “And the said Erstwhile Owner had executed a Deed of Conveyance
dated 5th May 1994 in favour of the Assignor and 11 Others and
interalia sold, assigned and transferred unto the Assignor herein and
11 Ors., his 50% undivided share and his right, title and interest in
the said Uravashi Building vide registered Conveyance Deed dated 5th
May 1994.
ii. The Assignee is already owner of undisputed 50% undivided share in
the said property under Deed of Conveyance dated 3rd September
1994.
iii. The Assignor has acquired 4.17% undivided rights in the said Urvashi
building, out of the 50% undivided share jointly purchased under the
said Deed of Conveyance date 05.05.1994.
iv. The Assignee had filed Suit No. 1992 of 1994 before the Hon'ble High
Court which is now transferred to Bombay City Civil Court, being suit
No. 8476 of 1994, wherein the Assignee is challenging the said Deed
of Conveyance dated 05/05/1994 executed by the Erstwhile owner in
favour of the Assignor and 11 Others, the Assignor is assigning all the
rights acquired by him under the said Deed of Conveyance dated
05/05/1994 in respect of the said property, in favour of the said
Assignee, subject to the said pending suit.
b) Copy of the Transfer of Tenancy Agreement dated 15th February 2013
between Shri.Ashish Hasmukhrai Piparia “Landlord” AND Smi. Jagruti
Vardhman Shah “Tenant” and Shri. Manoj R. Zaveri, “Confirming Party“
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that
i) the confirming party has surrendered his rights, title and interest in
the said premises in favour of tenant with consent of the landlord
and have no objection if the landlord transfers the tenancy rights and
rent receipt of the said flat premises in the name of tenant herein.
c) Copy of Deed of Assignment dated 17th December 2014 between (i) Shri.
Ashish Hasmukhrai Piparia, (ii) Mrs. Varsha Bharat Shah, (iii) Mr. Bharat
Gunvantrai Shah (iv) Mrs. Nayna Piramal Chapia, (v) Shri. Jasukh C. Shah
as Assignors and JMC Enterprises LLP as “Assignee” showing the Hon'ble
High Court has in Notice of Motion taken out in the said suit. 1992/1994
passed orders dated 20/05/1994 and 09/12/1997 restrained the 12
purchasers under the said Deed of Conveyance dated 05/05/1994 from
selling, transferring, disposing off or creating third party rights in respect of
the said undivided rights purchased by them under Deed of Conveyance
dated 05/05/1994, however the said Orders were passed for the benefit of
the Plaintiff therein i.e. Shri. Jayshukh C. Shah i.e. the Successors in title
the Assignor No. 1, therefore by virtue of the same the Assignors are
transferring their rights in favour of the Assignee who will acquire not only
the rights of erstwhile plaintiff i.e. Shri. Jayshukh C. Shah but also entitled
for the fruits of the litigation.
d) Deed of Registered Transfer of Tenancy Agreement dated 30th June 2014
thereby plaintiff acquired the tenancy right of defendant no. 6 with respect
to flat no. 6 in the suit property.
e) Deed of Registered Transfer of Tenancy Agreement dated 30th June 2014
thereby plaintiff acquired the tenancy right of defendant no. 6 with respect
to flat no. 5 in the suit property.
f) Copy of the Index2 for the Deed of Assignment dated 7 th November 2016
whereby plaintiff claims to have purchased 4.17% undivided share of
defendant no. 4 (a), (c) and (d) in the suit property.
g) Deed of Registered Transfer of Tenancy Agreement dated 07.11.2016
thereby plaintiff acquired the tenancy right of defendant no. 4(a), (c) and
(d) with respect to flat no. 3 in the suit property.
13. On perusal of the documents, the contention of the
plaintiff that the said document is without prejudice to the rights of the
plaintiff could be gathered from the document Deed of Assignment
para 6, 7 wherein it is stated that :
“6. The Assignors Nos. 1 to 4 hereby assign, grant, convey, transfer
and assure unto the Assignee forever absolutely and irrevocably the
said undivided 62% share together with all the singular the houses,
edifices, buildings, courts, yards, plants, area, compounds, gullies,
waters, water courser plants, lights, liberties, privileges, easements,
profits, advantages, rights, members and appurtenances, whatsoever
to the said piece or parcel of and or ground or any part thereof
belonging or in anyway appertaining to or with the same or any part
thereof now or at any time hereto for usually held, used occupied or
enjoyed therewith or reputed or known as part or member thereof or
to belong or be appurtenant thereto AND ALSO TOGETHER WITH all
deeds, documents, writings, vouchers, papers and other evidences of
title, exclusively of or relating to the said land, hereditaments and
premises or any part thereof AND ALL the estate, right, title, interest,
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claim and demands whatsoever both at law and equity of the
Assignors in, to out of or upon the said piece or parcel of land or
ground or any part thereof TO HAVE AND TO HOLD all and singular
the said property hereby granted, conveyed, transferred and assured
or expressed so to be with their and every of their rights, members,
and appurtenances unto to the use and benefit of the Assignee for ever
absolutely in so far as the said property together with the common
areas and facilities appurtenant to the said undivided share on
ownership basis SUBJECT NEVERTHLESS to the payment of all rents,
rate taxes, assessments, dues and duties, impositions, cess, betterment
charges and land revenues now chargeable upon the same or which
may hereafter become payable to the Government of India,
Government of Maharashtra or the Municipal Corporation of Greater
Mumbai or to any other Public Body or Local Authority in respect
thereof AND the Assignor No. 5 do and each of them doth hereby so
far as it relates to their own acts and deeds only but not further or
otherwise covenant with the Assignee that the Assignors have not any
time hereof made, done, executed, omitted or knowingly or willingly
permitted, suffered or been party or privy to any act, deed, matter or
thing whereby or by reasons or means whereof they are prevented
from granting, conveying, transferring and assuring the said premises
in the manner aforesaid or whereby or by reasons or means thereof
the same of any part thereof are, is, can, shall or may be charged.
Encumbered, impeached or prejudicially affected in estate, title or
otherwise howsoever.
7. The Hon'ble High Court has in the Notice of Motion taken out in
the Suit No. 1992/1994 passed orders dated 20th May 1994 and 9th
December 1997 against the Assignors and 9 others restraining them
from selling, transferring, disposing off or creating any third party
rights in respect of their 62.51% undivided rights and shares
purchased by them, but the said orders were passed for the benefit of
the Assignee and his successors in title, at their instance, therefore
the Assignors are assigning all their share and rights in respect of the
said property in favour of the Assignee to put an end to the litigation
between them.”
14. The execution of the sale of 50% of the suit property is not
disputed. The plaintiff tried to settle the dispute with the defendants
and some of the defendants agreed to settle the dispute but the said
settlement is subject to outcome of the suit. Hence, the contention of
the defendants that there is no cause of action is not made out. The
plaint is to be considered while deciding the objection raised under
Order 7 Rule 11 of the Code of Civil Procedure. Cause of Action means
every fact which would be necessary for the plaintiff to prove if
traversed in order to support his right to Judgment. It consists of
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bundle of material facts which are necessary for the plaintiff to prove
in order to entitle him the reliefs claimed in the suit. On perusal of the
first order dated 11.05.1994, it was disclosed that 50% share of the
suit property is sold by defendant no. 1 to defendant no. 2 to 13
therefore the protection order was only for 50% share in the suit
property against defendants. The plaint discloses the cause of action.
Even during the pendency of the suit, though there is transaction, but
it is subject to outcome of the suit. Hence, I hold that the Notice of
Motion is not tenable and pass following order :
ORDER
1. The Notice of Motion is rejected.
2. No order as to costs.
3. The Notice of Motion is disposed of accordingly.
(SMT. S.S.NAGUR)
Judge
Dt.: 22/10/2021 City Civil Court,
Gr. Mumbai
Declared on : 22/10/2021
Dictated on : 22/10/2021
Typed on : 22/10/2021
Checked & Signed on : 29/10/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
30/10/2021 3.05 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.4)
Date of Pronouncement of
Judgment/Order.
22/10/2021
Judgment/order signed by P.O on 29/10/2021
Judgment/order uploaded on 30/10/2021
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