Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 4499 OF 2019
IN
SUIT NO. 2729 OF 2019
1. Mr. Ghanshyam Naik ]
and another. ]..plaintiffs.
V/s.
1. Mr. Vilas Chandrakant ]
Gaokar and other. ]..Defendants.
Advocate Mr. Rajeev Matkar for the plaintiffs.
Advocate Mr. Pathak h/f Advocate Mr. Kandekar for defendant No.2.
None present for defendant No.1.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.09).
DATE : 04th MAY, 2022
ORDER
The suit is instituted for the relief of declaration and
mandatory and perpetual injunction. The suit property is Flat No. 1201
having 1200 ft² carpet area situated in the building under
redevelopment now known as Samarth Heights in the place of
R.K.Building 1 and 2 previously located at Freehold land admeasuring
1131.48 yd² or 946 m² situated at Ranade Road – Gokhale Road
Junction, Dadar West, Mumbai 400 028 and it is hereinafter referred as
suit property for the sake of convenience.
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2. It is the case of plaintiffs that they purchased the suit flat
from defendant No.1 for the consideration of Rs. 1,36,00,000/- with a
parking facility for his personal use. The entire amount of consideration
was paid by plaintiffs to defendant No. 1 in the year 2012. Plaintiffs
were in need of bigger flat. Hence, plaintiffs approached to defendant
No. 1. Defendant No. 2 has granted NOC and IOD for the said project.
Defendant No. 1 assured plaintiffs to hand over the possession of the
flat within 36 months subject to entire payment to be made by plaintiffs
before the end of year 2012. Accordingly, plaintiffs have paid the entire
consideration amount of Rs. 1,36,00,000/- to defendant No. 1.
3. Defendant No.1 executed MOU with the plaintiffs on
27/03/2009. plaintiffs paid amount of Rs.34,00,000/- to defendant No.
1 by cheque and Rs.1,00,000/- in cash to defendant No. 1. In the
meantime, the person through whom plaintiffs had approached
defendant No.1 that is Mr. Hirlekar alerted plaintiffs to get the
agreement registered. When plaintiffs ask defendant No.1 regarding
registration of the agreement, he replied that it was under printing.
The defendant No. 1 kept demanding the balance amount to plaintiffs.
The defendant No. 1 delayed the execution of the agreement for one or
the other reason. plaintiffs went on paying amounts to defendant No. 1
by cheque and defendant No. 1 issued receipts thereof to plaintiffs from
time to time.
4. It is the case of plaintiffs that nothing happened till October
2010. Then defendant No. 1 informed plaintiffs that there was certain
problem in construction in Dadar area as it was declared as a heritage
area and the matter was pending before Hon'ble High Court. In spite of
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that plaintiffs paid the amount of Rs.20,00,000/- to defendant No. 1 x 2
different cheques.
5. Plaintiffs have further stated that when they insisted for
execution of the agreement, defendant No. 1 told them that the process
is slowed down due to change in DC rules. Thereafter again plaintiffs
paid the amount of Rs.10,00,000/- to defendant No.1. Thereafter, on
11/09/2012, defendant No.1 executed the agreement with the
plaintiffs.
6. The plaintiffs have further stated that the MCGM granted
permission on 2009-2010. plaintiffs have paid the entire amount of
consideration. However, the defendant No. 1 has avoided to register
the agreement. In the meantime, the period of 36 months also came to
an end but plaintiffs have not received the possession. Defendant No. 1
assured plaintiffs to recommence the construction work which was
halted.
7. Plaintiffs have further stated that at the end of the year
2017 and in the beginning of the year 2018, the shops on the ground
floor were partly constructed and they were occupied one after the
another. On taking follow by plaintiffs on phone, defendant No. 1
acknowledged the receipt of a entire amount and at some occasions he
shown his readiness to refund the amount. In fact, defendant No. 1 did
not hand over the flat to plaintiffs.
8. Plaintiffs have further stated that one Rahul Shewale
opened his office on the ground floor of the said building just before the
elections of the year 2019. Defendant No. 1 also admitted that he was
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negotiating with Rahul Shewale regarding the project, but the building
will be constructed by him only. Plaintiffs also came to know that the
suit flat was agreed to be sold to multiple persons though plaintiffs had
paid for the same fully.
9. Plaintiffs have submitted that the actions of the defendant
No. 1 are dishonest. He may sell the entire project to third-party or may
create third-party interest in the suit flat. Hence, plaintiffs was
constrained to institute the present suit.
10. Plaintiffs filed notice of motion with the relief that the
defendant No.1 may be restrained from selling or transferring or
creating any third-party interest in the suit flat. plaintiffs have further
prayed for appointment of Court Receiver. plaintiffs have filed affidavit
in support of the Notice of Motion.
11. Plaintiffs have filed service affidavit on 12/03/2020
whereby he has affirmed that the defendant No. 1 was duly served.
12. The defendants have not filed their reply though they were
served. None appeared for the defendant No. 1 at the time of argument
of notice of motion. Hence, I heard learned advocate for plaintiffs and
defendant No. 2 on the notice of motion.
13. Considering the plaint, documents filed on record and
submissions of both learned advocates, following points arise for my
determination and my findings to them are as stated below for the
following reasons.
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Sr.
No.
POINTS FINDINGS
1 Whether plaintiffs has proved her
prima
facie case ?
Partly In the
Affirmative
2 Whether plaintiffs has proved that she will
suffer irreparable loss, if this Notice of
Motion is dismissed?
Partly In the
Affirmative
3 In whose favour does the balance of
convenience lie?
Partly In favour of
the plaintiffs
4 What order? As per final order
R E A S O N S
AS TO POINT No.1 :
14. It is the case of plaintiffs that the defendant No. 1 agreed to
sale suit flat to plaintiffs for the consideration of Rs.1,36,00,000/–. The
defendant No.1 avoided to execute registered agreement. plaintiffs
paid the entire amount of consideration to the defendant No. 1 against
which he passed receipts. The defendant No. 1 had agreed to hand over
the possession of the suit flat to the plaintiffs within 3 years but even
after much period beyond three years the possession was not handed
over to the plaintiffs. Subsequently, plaintiffs came to know that the
defendant No. 1 was about to sell the suit flat to multiple persons and
hence the suit came to be filed.
15. Plaintiffs have produced Memorandum of Understanding
dated 27/03/2009 on record which shows that the defendant No. 1
agreed to sell the suit flat to plaintiffs in the presence of witnesses.
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plaintiffs have produced receipts issued by the defendant No. 1 as per
following description.
Sr.
No.
Date Amount
Rs.
Mode of Payment
1 27.03.2009 34,00,000/- By Cheque received by Mr.Bose
2 27.03.2009 1,00,000/- By Cheque received by Mr.Bose
3 27.04.2009 5,00,000/- By Cheque received by Mr.Bose
16. Plaintiffs have produced on record a copy of Agreement for
Sale. plaintiffs have produced on record the description of entire
payment at Exhibit-P. plaintiffs have produced on record a copy of
photographs showing the existing condition of the building.
17. Plaintiffs have produced on record various documents
which are showing that they have actually paid the entire amount of
consideration to the defendant no. 1. However, the defendant no. 1 has
failed to perform his part of the contract and put the plaintiffs in
possession of the suit property. The development agreement is on
record. Therefore,
prima facie the plaintiffs appear to be the lawful
purchasers of the suit property. Therefore, plaintiffs have
prima facie
right to purchase the suit property and get possession of the same.
18. Considering the facts and circumstances, I find no need to
appoint the Court Receiver in this matter because the building is under
construction and the purpose of plaintiffs will be served and his interest
will be protected even, if the order of interim injunction is passed in
favour of plaintiffs. Hence, I find no reason to appoint the Court
Receiver in the present matter. Hence I answer point no. 1 partly in the
affirmative.
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AS TO POINT NOS.2 AND 3:
19. Plaintiffs has given cause of action to the suit that recently
he came to know that the defendant no. 1 may create interest of
multiple persons in the entire project. He is likely to sell the suit
property to multiple persons and create third party interest in the suit
property. As plaintiffs are prima facie having first right to purchase the
suit property, they will suffer irreparable loss if the suit property is sold
by the defendant no. 1 to third person or if defendant no. 1 creates any
third party interest in the suit property. The balance of convenience lies
partly in favour of the plaintiffs. Accordingly I answer point no. 2 partly
in the affirmative, point No. 3 partly in favour of the plaintiffs and in
answer to point no. 4 proceed to pass the following order.
O R D E R
1. Notice of Motion No. 4499 of 2019 is partly allowed.
2. Defendant No. 1, his servants, agents or any one on
their behalf are hereby temporarily restrained from
further selling or executing any document in respect of
or transferring or encumbering or creating any third
party interest in the suit property i.e. Flat No. 1201,
admeasuring about 1200 Sq.Ft. carpet area on the 12th
floor of the ‘Samarth Hights’ building constructed in the
place of R.K.Building Nos. 1 and 2 (since demolished)
located at the freehold land admeasuring about 1131.48
Sq. Yards or 946 Sq. Mtrs. situated at Ranade Road
Gokhale Road Junction, Dadar (West), Mumbai-400028
bearing C.S.No.1646 and 1/1646 of Mahim Division and
bearing Final Plot No. 217, TPS-IV of Mahim Division till
final disposal of this suit.
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3. Remaining reliefs claimed in the Notice of Motion are
rejected.
4. Cost of this Notice of Motion will follow in main
cause.
5. Notice of Motion No. 4499 of 2019 is disposed of
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 04.05.2022 Gr.Mumbai.
Dictated on: 04.05.2022
Typed on : 04.05.2022
Signed on : 06.05.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
06.05.2022 AT 12.05 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
No.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.09)
Date of ProNo.uncement of
Judgment/Order
04.05.2022
Judgment/Order signed by P.O. on 06.05.2022
Judgment/Order uploaded on 06.05.2022
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