Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 4644/19 in Suit 2956/19
(Interim)
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
INTERIM ORDER
IN
NOTICE OF MOTION NO.4644/2019
IN
S.C. SUIT NO. 2956/2019
1. Mr. Ashok Kumar Ratanlal Agarwal
2. Mrs. Lalitadevi Ashok Agarwal ..Plaintiffs
V/s.
1. Mr. Anil Kantaprasad Patel,
2. Mr. Sunil Kantaprasad Patel,
3. Mrs. Sunita Tejbahadur Patel,
4. Sahakar Nagar Vibhag2 CHS Ltd.
5. Godrej Redevelopers (Mumbai) Pvt.Ltd. ..Defendants
Appearance:
Adv. Mr. Rakesh Agarwal @ Mr. Chattiyar for plaintiffs.
Adv. Mr. D.V. Saroj for defendants no. 1 to 3.
Adv. Ms. Divya Tyagi for defendant no.4.
Adv. Ms. Archana Venkatrama with representative of defendant no.5.
CORAM : HHJ Shri V.V Vidwans.
C. R. No.03.
DATE : 09.12.2019.
ORAL ORDER
1. This urgent Notice of Motion (N/M) has been taken out by
plaintiffs for seeking adinterim relief in terms of prayer clause (c). It is
supported by an affidavit of plaintiff no.1 Ashok Agarwal.
2. I have heard Ld. Counsels for the plaintiffs and defendants
no. 1 to 3 only on the point of grant of adinterim relief. Ld. Counsel for
the plaintiffs took me through the relevant pleadings from the plaint
and documents filed on record as per list at pg.32 and submitted that,
the plaintiffs have approached this Court by filing present Suit for
seeking relief of specific performance of contract/ agreement dated
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27.10.2002 by defendants no.1 to 3 and for further directions and
delivery of possession as well as consequential relief of injunction. The
plaintiffs have also prayed in alternate for appointment of court receiver
and temporary injunction during pendency of the suit.
3. It is submitted by the plaintiffs that, the agreement for
specific performance of the contract was entered into between the
plaintiff no.1 and father of defendants no.1 to 3, deceased Kantaprasad
Patel on 27.10.2002. Defendant no.4 is a registered Coop. Housing
Society, while defendant no.5 is a Developer appointed by Participating
Societies. It is submitted that, the fact of execution of the agreement for
sale and its terms and conditions etc. are admitted facts on record. The
fact of death of deceased Kantaprasad Patel is also an admitted fact on
record. As per the transaction in the suit, the defendant no.5 developer
was appointed by Participating Societies of the redevelopment of plot of
land bearing Survey No. 14(part) of City Survey No.52(part) and 53
(part) admeasuring 15,903.46 sq. meters situated at Sahakar Nagar,
Chembur, Mumbai 71.
4. It is further submitted that, relationship between the
plaintiff and father of the defendants no.1 to 3 late Kantaprasad Patel
were friendly and cordial at the time of execution of the agreement.
Therefore, late Kantaprasad Patel had requested the plaintiff no.1 to
provide financial assistance of Rs.6 Lakh to him by way of friendly loan
to enable him to purchase residential premises. He had assured to repay
the said amount by August' 2002. He had also informed the plaintiff
no.1 that he is purchasing the residential premises as an investment and
he will sale it at enhanced price for getting profit of about Rs.1 lakh in
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the said transaction. It is submitted on behalf of the plaintiffs that, in
view of agreement dated 27.10.2002, plaintiff no.1 and his family has
started residing in the suit room and has filed on record necessary
documents in that regard vide Exhs.'C' to 'N' along with the plaint. It is
further submitted that, before transaction between the plaintiff no.1
and father of defendants no.1 to 3 late Kantaprasad Patel was
completed as per registered documents as agreed and understood, he
died on 6.3.2003. He left behind defendants no.1 to 3 who are his legal
heirs and successors and therefore, the agreement is binding upon
them. Therefore, it is submitted that, interest has been created in favour
of the plaintiffs in respect of suit premises and they were in lawful
possession, until they are required to vacate and therefore, they are
protected u/s. 53A of Transfer of Property Act.
5. On the above factual background, it is submitted by Ld.
Counsel for the plaintiffs that, MHADA had accepted plaintiff no.2 as
occupant of the suit premises and used to get transit rent during the
period of redevelopment. It is submitted that, the redevelopment
process commenced and completed as per provisions of Regulation
33(5) of DCR Rules 1991 and thereafter, defendant no.5 has handed
over the possession of the permanent alternate accommodation in the
newly constructed building to defendant no.4 society as trustee of the
person who will entitled for the same.
6. It is further submitted that, thereafter, defendant no.5 had
stopped payment of transit rent to the plaintiff no.2. Thus, effectively
plaintiff no.2 is not getting the transit rent nor getting possession of the
newly constructed permanent alternate accommodation in lieu of room
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(Interim)
which he was required to vacate. Under the above circumstances, the
plaintiff no.2 is entitled for mandatory order from the court during
pendency of the suit against defendant no.4 to hand over vacant
peaceful possession of flat no.201, admeasuring 650 sq. ft. carpet area,
and flat no.202, admeasuring 400 sq.ft carpet area, in the Tower No. T
7, in the building known as 'Godrej Prime', Road No.1, Shell Colony,
Chembur(E), Mumbai 400 071. Alternatively, the plaintiffs have also
prayed for appointment of court receiver as per Order 40 Rule 1 of CPC
to take possession of the suit premises from defendant no.4 and to hand
over to plaintiff no.2 as its agent till decision in the case.
7. However, Ld Counsel for the plaintiffs has pressed for grant
of adinterim relief only in respect of prayer clause(c) at this stage
against defendants no.1 to 3 seeking to restrain them from executing
any document or entering into an agreement or creating third party
right in respect of the suit premises. Ld Counsel for the plaintiff has also
produced on record photocopies of IT Return of plaintiff no.1, Saral
Form no.2D for the financial years 20022003 and 200304. In the said
IT Return, an amount of investment of Rs.6 Lakh has been shown as
loan amount in Assets Column.
8. Per contra, Ld Counsel for the defendants no.1 to 3 has
strongly opposed the oral request of Ld Counsel for the plaintiffs for
grant of adinterim relief on the ground that, there is no urgency in the
mater for passing any adinterim order in favour of the plaintiffs till
defendants no.1 to 3 file their reply / affidavit in reply to the N/M. He
submitted that, he has just received notice in the matter and has put his
appearance before the court today itself. He submitted that, as per
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leave and license agreement dated 26.5.2009,father of defendants no.1
to 3 had entered into the said agreement with plaintiff no.2 Smt.
Lalitadevi Agarwal. The Leave and License agreement was executed for
the period of 55 months i.e. from 30.5.2009 to 29.10.2014, as per terms
and conditions mentioned in the same. It is submitted that, as per leave
and license agreement, plaintiff no.2 was in possession of the suit
premises as licensee till 29.10.2014. But, thereafter she cannot claim
any right, title or interest in respect of the suit premises. Ld. Counsel
for the plaintiffs has denied execution of any such agreement by
plaintiff no.2 and submitted that, he will file rejoinder in that respect
after defendants no.1 to 3 submit their affidavit in reply. Ld. Counsel for
the defendants no.1 to 3 argued that it is a Notarized document and
cannot be brushed aside by simply denying the same.
9. Considering rival contentions made on behalf of the
plaintiffs and defendants no.1 to 3 and after considering prima facie
material and documents on record, I am of the view that, plaintiffs are
entitled for interim protection. If adinterim protection, as prayed by Ld.
Counsel for the plaintiffs, is granted with reference to the prayer
clause(c) of the N/M, no prejudice will be caused to defendants no.1 to
3, as they are seeking time to file their reply/ affidavit in reply to the
Motion. The plaintiffs are seeking adinterim protection with reference
to the prayer clause(c) of the Motion to the effect that, till court decides
the Motion, the defendants no.1 to 3 shall not execute any document or
enter into any agreement or create third party right in respect of the
suit premises, so as to protect the interest of the plaintiffs and to avoid
multiplicity of the litigation. I find that, when the defendants no.1 to 3
are seeking time to file affidavit in reply to the Motion, they are
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expected to maintain statusquo in respect of legal status of the suit
premises till court decides this Motion. hence, I proceed to pass
following order:
ORDER
1. Adinterim protection in terms of prayer clause (c) is
granted to the plaintiff.
2. The defendant no.1 to 3 are hereby directed not to
execute any document or enter into any agreement or
third party interest in respect of suit premises i.e. Suit
Flats No. 201 and 202, Tower No. T07 in the building
known as Godrej Prime, Road no.1, Shell Colony,
Chembur(E), Mumbai400071, till court hears the
Motion and decide the same on merit.
3. Ld. counsel for plaintiff and defendants no. 1 to 3 to
note the above order for their information and
communicate the same to the defendants for necessary
compliance on their part.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 9.12.2019 Gr. Bombay (C.R. 03)
Dictated on :9.12.2019 and 10.12.2019
Typed on : 9.12.2019 and 10.12.2019
Signed by HHJ on : 10.12.2019
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(Interim)
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 11.12.2019
TIME: 12.18 pm (NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 9.12.2019
Judgment/ order signed by P.O on 10.12.2019
Judgment/ order uploaded on 11.12.2019
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