Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 4544/19 in Comm. Suit 549/21
MHCC010123892019
IN THE COURT OF CITY CIVIL COURT, GR. BOMBAY
NOTICE Of MOTION NO. 4544 OF 2019
IN
COMMERCIAL SUMMARY SUIT NO. 549 OF 2021
Amarnath Bhaskar Yadav & Ors. … Plaintiffs.
Versus
Irfan Akramullah Malik & Ors. … Defendants.
Appearance:-
Ld. Adv. Sarita Donde for Plaintiff.
Ld. Adv. Farooq Chowdhary for Defendants.
CORAM : SHRI. A.S. SALGAR
JUDGE, (C.R. NO.24)
DATE : 27th JUNE, 2023.
ORDER
The plaintiffs have taken out this Notice of Motion for grant
of temporary injunction against defendants for restraining the
defendants and their family members from dispossessing or evicting the
plaintiffs from the suit premises. Plaintiffs also prayed that the
defendants be directed not to enter the suit premises and be restrained
from interfering with the peaceful use/occupation and possession of
plaintiff in suit premises. The plaintiffs also prayed that pending hearing
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of the suit, the defendants, their family members, servants, agents,
hirelings be restrained from disturbing possession of plaintiffs.
2. Perused notice of motion and affidavit in support of notice
of motion and reply filed by the defendants.
3. Heard Ld. Advocate Sarita Donde for Plaintiffs and Ld.
Advocate Farooq Chowdhary for Defendants No.1 and 2 at length.
4. It is case of plaintiffs that they are in use, occupation and
possession of the premises at M/s. Royal Aqua, Gala No.1, Akram
Compound, Haji Market, A.G. Link Road, Asalfa Village, Ghatkopar
(West), Mumbai – 400 084. The plaintiffs have acquired and leased the
right of the suit premises from Irfan Malik and Rashid Malik i.e. original
allotee of the suit premises. Plaintiffs are in use, occupation and
possession of the premises from March 2019 by virtue of Memorandum
of Understanding (MOU) and affidavit dated 16.03.2019 executed by
original allotee in favour of plaintiffs. Plaintiffs requested to the
defendants to give suit premises on lease for 10 years. As per terms and
condition the suit premises would be handed over to the plaintiffs for
the period of 10 years and it was decided between parties that the
plaintiffs will deposit Rs.1,25,00,000/- and monthly compensation of
Rs.3,10,000/- per month for first two years and thereafter there will be
increment of 10% after every two years. Accordingly, MOU was
executed between the parties. The plaintiffs further submitted that after
handing over the possession of the suit premises by the defendants to
the plaintiffs, plaintiffs continued to be in use and occupation of the
premises. Plaintiffs also obtained the Pan Card and Udyog Adhar Card.
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Plaintiffs also obtained Gumasta License. Plaintiffs are in settled
possession of premises from the date of execution of MOU. Defendants
visited suit premises and threatened plaintiffs that they will throw out
of suit premices. Defendants disturbed the possession of plaintiff over
suit premises. On 19.10.2019 the defendants illegally came in the suit
premises and damaged the Entrance and Board of the suit premises.
Hence, plaintiffs prayed that defendants be restrained by order of
temporary injunction from interfering peaceful possession of plaintiffs
over the suit premises till disposal of the suit. Plaintiffs have claimed
interim relief in terms of prayer clause 'a' to 'd' in notice of motion.
5. Defendants appeared and filed reply to the notice of motion
and resisted the notice of motion. Suit filed by the plaintiffs is not
tenable. Plaint does not disclose the cause of action. Therefore, plaint is
liable to be rejected. Plaintiffs have not come with clean hand.
Defendants are the owners of the suit premises. On 16.03.2019 the
defendants entered into MOU with one M/s. Royal Aqua, an
unregistered partnership firm through its partners to take the suit
premises on lease for 10 years. Plaintiffs paid Rs.5,00,000/- only in cash
to the defendants at the time of execution of MOU. Plaintiffs also
transferred total amount of Rs.71,00,000/-. Thereafter, plaintiffs did not
pay single penny to the defendant and Rs.54,00,000/- is balance
amount. Defendants requested plaintiffs to pay balance amount but the
plaintiffs failed to pay the balance amount. Defendants have no option
but to give suit premises to other person. On 20.07.2019 defendants
have handed over the suit premises on Leave and License basis to one
Ajitkumar Singh for running the hotel business. The said Ajitkumar
Singh is in possession of the suit premises. Plaintiffs have filed the
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present suit on the basis of bogus and fabricated facts and forged
payment receipt. Suit is not maintainable in the eyes of law.
Defendants have never breached any obligation. Plaintiffs have failed to
pay the balance amount. Plaintiffs failed to establish prima facie case.
Lastly defendants prayed for dismissal of notice of motion.
6. Defendant No.3 not filed reply to the notice of motion.
7. Ld. Advocate Sarita Donde for plaintiffs submitted that by
virtue of MOU, plaintiffs are in use and occupation and possession of
premises from March 2019. Agreement between parties is binding on
the defendants. She also argued that the payment were made by the
defendants to the plaintiffs. All consideration as per MOU i.e. deposit
was paid by the plaintiffs. She also drawn attention of the Court
towards the documents filed alongwith list of documents showing the
possession of plaintiffs over the property. She also pointed out recitals of
Leave and License agreement which shows the possession of plaintiff
over the suit premises. The defendants created third party rights in the
property. Hence, she submitted that order of temporary injunction be
passed against defendants by allowing the notice of motion.
8. On the contrary the Ld. Advocate Farooq Chowdhary for
the defendants strongly opposed notice of motion. He argued that
plaintiffs were not in possession over suit premises. Defendants argued
that plaintiffs avoided to make payment. Defendants also argued that
the possession of suit premises was handed over to the defendant No.3
by virtue of Leave and License agreement. Plaintiffs are not in
possession over the property. Hence, they are not entitled for grant of
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temporary injunction. Lastly, defendants prayed for dismissal of notice
of motion.
9. According to the plaintiff as per MOU the plaintiffs have
been in possession of suit property. The defendants obstructed the
possession of plaintiff over the suit property. Hence, plaintiffs prayed
that defendants be restrained from causing obstruction to the
possession of plaintiffs over the suit property till disposal of the suit. On
the contrary the defendants submitted that the suit filed by the plaintiffs
is not tenable. The plaintiffs have not come with clean hands. The
plaintiffs have filed the present suit on the basis of forged payment
receipt. Lastly, defendants prayed for dismissal of notice of motion.
10. Perused notice of motion and reply filed by defendants. I
have gone through the suit proceeding. It is the contention of plaintiffs
that they are in possession of suit premises from March 2019 by virtue
of MOU and affidavit dated 16.03.2019 executed by original allotee in
respect of suit premises in favour of plaintiffs. The plaintiffs placed on
record the copy of MOU alongwith plaint which is marked as Exh.B. On
perusal of said MOU it appears that the defendant No.1 and 2 have
executed the MOU on 16.03.2019 and defendant No.1 and 2 have given
suit premises to the plaintiffs for period of 10 years from 1.05.2019 to
30.04.2029. The terms and conditions were mentioned in para No.2 of
the MOU which shows that it was decided between parties that the
plaintiff will deposit an amount of Rs.1.25 crores and monthly
compensation of Rs.3,10,000/- per month for two years and thereafter
there will be increment of 10% after every two years. The recitals of the
MOU shows that it was agreed between the parties that plaintiffs will
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deduct Rs.1 lac from the security deposit every month against monthly
rent. The MOU filed on record bears the signature of defendant No.1
and 2. The defendants in their reply admitted that they are the owner of
premises. Defendants further admitted that on 16.03.2019 defendants
entered into the MOU with one M/s. Royal Aqua to take the premises
on lease. Thus, defendants in their pleading have admitted in respect of
execution of MOU in respect of suit premises. Defendants have not
denied this fact that defendant No.1 and 2 have entered into the MOU
with plaintiffs and the premises was handed over to the plaintiffs for the
period of 10 years. Copy of receipt at page No.56 also shows that
defendant No.1 and 2 have received the amount of Rs.55,00,000/-.
Defendants also admitted in their reply that plaintiffs transferred total
amount of Rs.71,00,000/- to him on 18.03.2019, 19.03.2019 and
26.03.2019. Thus, it appears that defendants have not denied the fact in
respect of amount of Rs.71,00,000/- received by defendants from
plaintiffs.
11. According to plaintiffs they are in possession over the suit
premises on the basis of execution of MOU. The plaintiffs placed on
record the copy of PAN card at Exh. C which shows the address of
plaintiff’s premises. So also copy of Account in the name of M/s. Royal
Aqua also shows address of suit premises. Plaintiffs also placed on
record the copy of Intimation Receipt at Exh. F which shows the address
of suit premises. The Gumasta License also shows the address of suit
premises. The documents filed on record by the plaintiffs prima facie
shows that they are in occupation and possession of suit premises from
the date of execution of MOU. Defendants have not denied the contents
of MOU. The recitals of MOU is binding upon defendants. Thus, prima
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facie documents on record shows that plaintiffs are in possession over
the suit premises. The avernment made by the plaintiffs are supported
by documentary evidence in the form of MOU and payment receipt.
Prima facie documents shows that by virtue of Lease Agreement in the
form of MOU, plaintiffs are in possession over the suit property.
Defendants have no right to disturb the possession of plaintiffs over the
suit property. Defendants without following the due process of law
cannot dispossess plaintiffs from suit premises. Plaintiffs have prima
facie proved their case. If interim relief is not granted in favour of
plaintiffs, then great prejudice will be caused to the plaintiffs. On the
contrary no prejudice will be caused to defendants if interim relief
granted against them. Defendants are not in possession over the suit
premises. Hence, they will not suffer any loss.
12. It is contention of defendants that plaintiffs did not pay
balance amount of Rs.54,00,000/- to the defendants. However, it is
material to note that defendants have not issued any notice to the
plaintiffs and not demanded the amount of Rs.54,00,000/- to the
plaintiffs. If really the amount is due from plaintiffs, in that case
defendants could have filed appropriate legal proceeding against
plaintiffs. But defendants have no right to cause obstruction to the
possession of plaintiffs over the suit premises.
13. It is submissions of plaintiffs that defendants tried to create
third party interest in the suit property and also causing obstruction to
the possession of the plaintiff over the suit property. Hence, plaintiffs
submitted that the possession of plaintiffs be protected. Defendants in
their reply have admitted that they have given the suit premises to other
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person on 20.07.2019 on Leave and License basis. Thus, the pleading of
the defendants itself indicate that they created third party right in the
property. Therefore, it can be said that defendants are causing
obstructions to the possession of plaintiffs over the suit property.
Therefore, it is necessary to protect the possession of the plaintiffs over
the said property and defendants must be restrained from causing
obstructions to the possession of plaintiffs.
14. It is contended by the defendants that the plaint does not
disclose the cause of action. On perusal of plaint, it appears that
plaintiffs have specifically mentioned that they are in possession of the
suit property. Plaintiffs also specifically mentioned that plaintiffs are in
settled possession over the suit premises on the basis of execution of
MOU. Prima facie the averment in the plaint disclosed the cause of
action. Hence, there is no substance in the contention of defendants
that the plaint does not disclose the cause of action.
15. It is contention of defendants that plaintiffs filed the suit on
the basis of forged receipt and hence plaintiffs are not entitled to claim
interim relief. In my view, defendants have not lodged any report to the
police station against plaintiffs in respect of alleged receipt. There is
nothing on record to show that payment receipt filed on record by
plaintiffs is forged document. Defendants themselves admitted in their
reply that they received amount of Rs,55,00,000/- from plaintiffs.
Therefore, defendants cannot claim that the document i.e. payment
receipt is forged.
16. In view of aforesaid discussion, I am of the view that
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plaintiffs have prima facie proved their case. Plaintiffs have prima facie
proved that they are in possession over the suit property on the basis of
MOU. Plaintiffs cannot be evicted from the suit premises without
following due process of law. Hence, plaintiffs are entitled for the relief
of temporary injunction against defendants. Therefore, notice of motion
needs to be allowed. Hence, I pass the following order :-
ORDER
1. Notice of Motion No.4544/2019 in Commercial Suit
No.549/2021 is allowed in terms of prayer clause (a) and (b).
2. The defendants or their servants or their agents are hereby
temporarily restrained from causing any obstruction to the
possession of plaintiff over the suit premises till disposal of suit.
3. The defendants are directed not to enter the suit premises and
not to evict the plaintiff from the suit premises without following
the due process of law till disposal of the suit.
4. Proceeding of Notice of Motion No.4544/2019 in Commercial
Suit No.549/2021 is closed.
(A.S. SALGAR)
Judge
Dt.: 27/06/2023. City Civil Court,
Gr. Mumbai
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
03.07.2023 12.20 p.m. PRAJWALA V. PHODKAR
Name of the Judge (With Court
Room No.)
HHJ SHRI. A.S. SALGAR (CR 24)
Date of Pronouncement of
JUDGMENT /ORDER
27.06.2023
JUDGMENT /ORDER signed by
P.O. on
03.07.2023
JUDGMENT /ORDER uploaded on 03.07.2023
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