Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1.. NM NO.4462/2019
MHCC010122292019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 4462 OF 2019
IN
S.C.SUIT NO.3098 OF 2019
Anil Kumar Mourya. ...Plaintiff.
Versus
Rashtra Sarathi Sukhada CHS Ltd., … Defendant.
Advocates
Mamta Tiwari for the plaintiff.
Kirti Kulkarni for the defendant.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor
COURT NO.2
DATED : 5th January 2022.
ORAL ORDER
Heard advocate for both parties on notice of motion moved on
behalf of the plaintiff for grant of temporary injunction to restrain the
defendant or anybody on its behalf from dispossessing the plaintiff from
the suit flat i.e., Flat no.E-171 situated in the defendant society without
following due process of law.
2. Contention of advocate for the plaintiff is that one Miss
Mansighani Indra Ramchand is the owner of the suit flat. She was
suffering from kidney problem and not feeling well since last so many
years. Hence she appointed the plaintiff as her care-taker. Plaintiff was
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ORDER ..2.. NM NO.4462/2019
taking her care and hence she executed the Care Taker Agreement
dated 02.02.2019 in favour of the plaintiff. She has also appointed the
plaintiff as nominee in her bank account with State Bank of India. She
also executed Will in favour of the plaintiff.
3. After Care Taker Agreement dated 02.02.2019, defendant
created dispute saying that Care Taker Agreement is not binding on the
defendant as the plaintiff is residing in the suit flat illegally without
consent of the defendant. Hence the plaintiff brought the registered
Leave and Licence Agreement dated 25.02.2019.
4. Miss. Mansighani Indra Ramchand expired on 04.04.2019.
Defendant lodged report to Navghar Police Station after death of Miss.
Mansighani Indra Ramchand and created unnecessary dispute against
the plaintiff. Hence police disposed the body of Miss. Mansighani Indra
Ramchand as nobody claimed her body. Plaintiff is paying maintenance
charges to the defendant society.
5. On 12.10.2019, defendant's office bearer came to the suit flat
and threatened the plaintiff to vacate the suit flat. Hence plaintiff filed
the present suit for permanent injunction against the defendant and by
way of present notice of motion claimed temporary injunction to
restrain the defendant or anybody on its behalf from dispossessing the
plaintiff from the suit flat i.e., Flat no.E-171 situated in the defendant
society without following due process of law.
6. Contention of advocate for the defendant is that under
Indenture of Lease dated 13.07.1984 executed by the Maharashtra
Housing and Area Development Authority (MHADA) in favour of the
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defendant society, said authority demised a plot of land as reserved for
the Societies of Central Government Employees for the construction of
building for housing its members. Accordingly, defendant Society
constructed a building on the said plot of land and allotted flats to its
members being the Government Employee. Hence Society members or
their legal heirs only can become the member of defendant society.
7. Defendant society is formed by the Central Government
Employees and is registered under classification “Housing Society” with
sub classification “Tenant co-partnership” under Rule no.10(1) of the
Maharashtra Co-operative Society Rules, 1961 (MCS Rules) under the
Maharashtra Co-operative Societies Act, 1961 (MCS Act). Under the
said bye-laws, only the Central Government Employee can become
member of the defendant society.
8. Defendant denied that the plaintiff' is residing in the suit flat
since last 15 years or Miss. Mansighani Indra Ramchand was not feeling
well and suffering from kidney problem since 15 years. Defendant
denied the execution of any Will by Miss. Mansighani Indra Ramchand
in favour of the plaintiff. Defendant denied that its office bearer given
any threat to the plaintiff after death of Miss. Mansighani Indra
Ramchand.
9. Leave and Licence Agreement dated 23.02.2019 come to an end
on 31.01.2020 and plaintiff ceased to have any Leave and Licence from
the licensor. Care Taker Agreement dated 02.02.2019 also come to an
end after death of Miss. Mansighani Indra Ramchand. Maintenance bill
is raised in the name of Miss. Mansighani Indra Ramchand and it is not
the receipt as alleged by the plaintiff. Said maintenance bill shows
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arrears of Rs.9,870/- due to be paid by the deceased member to the
defendant society and it shows that maintenance charges are not paid
for 7 months i.e. from March 2019. Defendant informed the Navghar
Police Station about death of their member Miss. Mansighani Indra
Ramchand since she did not have any heirs or relatives in order to avoid
future legal complications.
10. Defendant society is the owner of building containing the suit
flat. Hence injunction cannot be granted against the defendant being a
owner. On death of a member, Miss. Mansighani Indra Ramchand, her
membership ceased under bye-law no.55 of the defendant society.
Consequently plaintiff also ceased to have any existing right, title or
interest in the suit flat allotted to the deceased member. No cause of
action arose to file the present suit. Plaintiff is illegally residing in the
suit flat. Hence prayed for dismissal of notice of motion.
11. Perused the notice of motion, written statement and counter
claim of the defendant and document filed on record. After perusing
the record and hearing advocate for both parties, it appears that
plaintiff is claiming to be in possession of the suit flat by virtue of Care
Taker Agreement dated 02.02.2019 and registered Leave and Licence
Agreement dated 25.02.2019. Plaintiff is also claiming right, interest
and title in the suit flat by virtue of Will executed by Miss. Mansighani
Indra Ramchand.
12. It is not in dispute that Miss. Mansighani Indra Ramchand was
owner of the suit flat and a member of the defendant society. She died
on 04.04.2019 without leaving any heirs or legal representatives.
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13. As per clause no.1 of Leave and Licence Agreement dated
25.02.2019, no right, title or interest is created in favour of the plaintiff
and said licence comes to an end on 31.01.2020. As per Care Taker
Agreement dated 02.02.2019 also no right, title or interest is created in
favour of the plaintiff in respect of the suit flat. It also provides that
after expiry of said Care Taker Agreement dated 02.02.2019, plaintiff
shall vacate the suit flat with his belongings and family members. Hence
after death of Miss. Mansighani Indra Ramchand, Leave and Licence
Agreement dated 25.02.2019 and Care Taker Agreement dated
02.02.2019 comes to an end. Thus residence of the plaintiff in the suit
flat is illegal.
14. Defendant denied the possession of the plaintiff in the suit
premises since 15 years as Care Taker of the deceased Miss. Mansighani
Indra Ramchand. Defendant also denied that Miss. Mansighani Indra
Ramchand was not feeling well and suffering from kidney problem
since 15 years. Defendant also denied execution of any Will by Miss.
Mansighani Indra Ramchand in respect of the suit flat in favour of the
plaintiff.
15. During the course of hearing, this Court specifically asked
advocate for the plaintiff whether the Will is probated. Advocate for the
plaintiff submitted that the Will is not probated.
16. Defendant also filed counter claim for declaration that the
plaintiff has no right in the suit flat, possession and for permanent
injunction restraining the plaintiff from creating third party interest in
the suit premises.
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17. For grant of temporary injunction as per Order 39, Rule 1 of the
C.P.C., plaintiff has to prove by affidavit or otherwise prima facie case,
balance of convenience and irreparable loss in his favour.
18. Copy of Will is not filed on the record though plaintiff is
claiming title on the basis of said Will executed by Miss. Mansighani
Indra Ramchand in his favour in respect of the suit flat. Even date of
Will is not mentioned in the plaint.
19. Maintenance bill is raised in the name of Miss. Mansighani
Indra Ramchand and it is not the receipt as alleged by the plaintiff. Said
maintenance bill shows arrears of Rs.9,870/- due to be paid by the
deceased member to the defendant society and it shows that
maintenance charges are not paid for 7 months i.e. from March 2019.
20. Plaintiff is residing in the suit flat by virtue of Care Taker
Agreement dated 02.02.2019 and registered Leave and Licence
Agreement dated 25.02.2019 executed by Miss. Mansighani Indra
Ramchand. Hence after death of Miss. Mansighani Indra Ramchand,
plaintiff has existing no right, title or interest in the suit flat. Thus no
prima facie case is made out in favour of the plaintiff. Even no cause of
action arose for the plaintiff to file this suit. Hence question of
irreparable loss and balance of convenience in favour of the plaintiff
does not arise. Plaintiff has not come before the Court with clean hands.
It appears that plaintiff is trying to protect his illegal possession in the
suit flat. Under the facts and circumstances, notice of motion is liable to
be dismissed with costs. In the result, this Court proceeds to pass
following order.
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ORDER ..7.. NM NO.4462/2019
ORDER
1. Notice of motion no.4462/2019 is dismissed with costs.
2. Costs shall follow the event.
3. Notice of motion no. 4462/2019 is disposed of accordingly.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 05.01.2022
Typed on : 05.01.2022
HHJ signed on : 05.01.2022
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ORDER ..8.. NM NO.4462/2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 05.01.2022, 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
05.01.2022
JUDGMENT/ORDER signed by P.O.
on
05.01.2022
JUDGMENT/ORDER uploaded on 05.01.2022
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