Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 466519 in Suit no. 3067 of 2019
MHCC010127682019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER IN NOTICE OF MOTION NO.4665 OF 2019
CNR NO.MHCC010127682019
IN
SUIT NO. 3067 OF 2019
Shri Anwar Ezhar Khan ...Plaintiff
V/s
Shri Abdul Sattar M Shaikh & Ors. ....Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 12 TH DAY OF JULY, 2022
: Appearances:
Adv. Shrinivas Singh for the plaintiff
Adv. Jafri for the defendants
ORAL ORDER
The plaintiff has taken out this notice of motion for
seeking relief of temporary injunction thereby prayed to restrain
defendants from disposing off, alienating, selling, parting with
possession, and or/ creating third party interest and from
dispossessing the plaintiff from suit premises.
2. In short, it is contention of the plaintiff that late Mr.
Mastan Shaikh was the owner of flat no. 7, on first floor, in building
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2 Ord. in NM no 466519 in Suit no. 3067 of 2019
no. 12, of the Vinoba Bhave Nagar, situated at Gulshan Cooperative
Housing Society Ltd., situated at L.I.G. Colony, Vinoba Bhave Nagar,
Kurla (W), Mumbai70( herein after referred to as 'suit premises').
3. Defendants are the legal heirs of late Mr. Mastan Shaikh.
After death of Mr. Mastan Shaikh they became joint owner of the suit
premises.
4. It is further contention of the plaintiff that defendants
had entered into an agreement to sell the suit premises for total
consideration of Rs.21 lacs with him. Accordingly, defendants had
executed affidavit cum NOC cum Indemnity bond dated 06/02/2016
in favour of the plaintiff in respect of suit premises.
5. It is further contention of the plaintiff that defendants
have also executed General Power of Attorney dated 06/02/2016 in
his favour. On same day defendants have handed over the possession
of suit premises to the plaintiff and since then, he is in exclusive
possession of the suit premises. Defendants assured the plaintiff that
they will attend the office of SubRegistrar and will execute registered
sale deed in his favour. Defendants have signed sale deed blank
dated 2016 and admitted its terms and conditions. After some time
when the plaintiff called defendants at SubRegistrar office to execute
sale deed then defendants on one or other count sought time and
avoided to execute the sale deed.
6. It is further contention of the plaintiff that on
08.04.2019 he had received letter from defendant no.1 thereby he
demanded alleged balance amount of Rs.41 lacs. As the plaintiff had
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3 Ord. in NM no 466519 in Suit no. 3067 of 2019
already paid entire amount of consideration i.e. Rs.21 lacs hence
question of demanding and paying Rs.41 lacs does not arise.
Therefore, the plaintiff has sent reply through his advocate on
20/05/2019 and requested defendants to execute registered sale
deed as admitted between them. However, defendants do not amend
to their act. In fact defendants now started harassing and threatening
to the plaintiff of dispossessing from the suit premises. On
17/06/2019 defendants no.1, 3 to 5 visited suit premises and started
demanding remaining amount of consideration of Rs.41 lacs or either
to vacate the suit premises. Defendants abused and threatened the
plaintiff of dire consequences.
7. It is further contention of the plaintiff that on 5/6/2019
defendant no.1 alongwith his friends visited the suit premises and
again demanded balance consideration or to hand over vacant
possession of suit premises. Therefore, the plaintiff approached to
police station Vinoba Bhave to lodged the report however, PSO police
station Vinoba Bhave refused to take appropriate legal action and
advised the plaintiff to approach the Court of law. Hence the suit and
present notice of motion.
8. Defendants filed their written statement (Exh.6) and
strongly opposed the claim. They prayed to treat their written
statement as reply to Notice of motion. It is contention of defendants
that they entered into an agreement of sell with the plaintiff of suit
premises. However the total consideration was fixed to Rs.62 lacs.
They have received only Rs.21 lacs towards part payment.
Defendants are always ready and willing to perform their part of
contract on accepting remaining amount of Rs.41 lacs. However the
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4 Ord. in NM no 466519 in Suit no. 3067 of 2019
plaintiff avoided to perform his part of contract. Therefore, the
plaintiff is not entitled for the reliefs claimed. The plaintiff
approached the Court without clean hands. Therefore he is not
entitled for the discretionary relief. Hence the notice of motion may
kindly be dismissed.
9. Heard the learned advocate for the plaintiff. None
present for defendants when called from time to time. Perused the
record.
10. Following points arise for my determination to which
I have recorded my findings with reasons as below:
Sr.No. Points Findings
1. Whether the plaintiff has made out
prima facie case ?
Yes
2. Whether the balance of
convenience lies in favour of the
plaintiff ?
Yes
3. Whether the plaintiff would suffer
irreparable loss if the injunction is
refused in his favour ?
Yes
4. What order ? As per final order.
REASONS
As to Points no.1 to 3:
11. At the out set, I want to say that, defendants no where
disputed of entering into an agreement to sell suit premises with the
plaintiff. However, it is contention of defendants that they have
entered into an agreement for total consideration of Rs.62 lacs.
Whereas it is contention of the plaintiff that entire transaction took
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5 Ord. in NM no 466519 in Suit no. 3067 of 2019
place for the total consideration of Rs.21 lacs and he had paid entire
amount to the defendants.
12. It is to be noted that, defendants in para no.8 of their
written statement categorically admitted that they have put the
plaintiff in peaceful possession of the suit premises in the year 2016
itself and since then the plaintiff is in use and occupation of the suit
premises. I have perused the documents filed along with the plaint.
Upon perusal of the draft sale deed undated it reveals that the
transaction in between the parties had taken place for the total
consideration of Rs.21 lacs. So far as the contention of the defendants
that it is for Rs.61 lacs, they have failed to produce documents to that
effect on record. Even otherwise this question required to be decided
on merits. Upon perusal of pleadings it reveals that defendants have
admitted possession of the plaintiff over the suit premises since 2016.
It further reveals that defendants have received Rs.21 lacs from the
plaintiff. Thus in view of above stated facts and circumstances of the
case the plaintiff has made out prima facie case in his favour. The
possession of suit premises and payment of Rs.21 lacs to the
defendants tilt needle of balance of convenience in favour of the
plaintiff. Naturally if the injunction is refused then it is the plaintiff
who will suffer irreparable loss. Therefore the plaintiff made out the
essential three ingredients in his favour for seeking relief of
temporary injunction. Hence, my answer to points no. 1 to 3 is in
affirmative.
As to Point no.4:
13. In view of my above discussion, I pass the following
order:
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6 Ord. in NM no 466519 in Suit no. 3067 of 2019
ORDER
Notice of motion No.4665/2019 is hereby
allowed and made absolute in terms of prayer clause (a) and
(b).
Notice of motion is disposed of accordingly.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date:.12.07.2022 (C.R. No.1)
Dictated on : 12.07.2022
Transcribed on : 12.07.2022
Signed on :
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7 Ord. in NM no 466519 in Suit no. 3067 of 2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 14.07.2022 NAME OF STENOGRAPHER(GI)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 12.07.2022
JUDGMENT/ORDER signed by P.O. on 14.07.2922
JUDGEMENT/ORDER uploaded on 14.07.2022
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