Order 2

Order Details: Order on Exhibit
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CNR NO.MHSCA30001952022
IN THE COURT OF SMALL CAUSES AT MUMBAI
(BANDRA BRANCH)
ORDER BELOW EXHIBIT NO.13
IN
T.D. SUIT NO. 28 OF 2022
1. Mrs. Nina Ajit Mehta and ors. . . Plaintiffs.
Versus
1. Mr. Satish Beharilal Raheja and anr. . . Defendants.
Advocate for Plaintiffs : Adv. Preeti Ramani
Advocate for Defendants : Adv. Wadia Ghandy & Co.
Coram : S.V.Deshmukh, Judge
C.R.No.32
Date : 10/11/2022.
ORAL ORDER :
1. This is an application filed by the plaintiff for temporary
injunction restraining defendants from disturbing, interfering with
possession over the suit property being land admeasuring 940
sq.mtrs. alongwith structures standing thereon including building
known as Hormuzd Condominium.
2. The case of the plaintiff is as under :
Plaintiff has filed suit for specific performance of
indenture of lease dated 22/3/1991 and lease deed dated 15/3/2021
for land admeasuring 940 sq.mtrs and building thereon. The
averments in plaint be treated as a part of this application. It is the
case of the plaintiff that there is a valid and subsisting renewed lease
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deed between plaintiff and defendant No.1. The deed could not be
registered due to discrepancies in Power of Attorney provided by
defendant No.1. The plaintiffs have always fulfilled obligation by
payment of lease rent. They are ready and willing to pay further
rent. Defendant No.1 however, is now seeking to resile his
obligation under indenture of lease and renewed lease deed. The
defendant is also seeking to oust plaintiff of their legal and valid
possession. The lease deed between former owners and Pheroze
Kudianavala Consultants Private Limited (PKCPL) was for a period of
30 years with renewal clause. The PKCPL as per law assigned
leasehold rights in property to apartment owners of the building
Hormuzd Condominium constructed thereon. Plaintiffs are the
apartment owners and defendant No.1 by a conveyance deed from
erstwhile owners have become the lessor.
3. According to plaintiff, after correspondence between
parties through advocate and exchange of draft of lease deed and
after accepting cheque towards advance rent, lease deed is renewed
by defendant No.1. Plaintiffs have also paid the stamp duty with
penalty and presented the lease deed for registration. However, it
could not be registered due to want of proper Power of Attorney of
defendant. It is the case of the plaintiff that there was subsequent
correspondence between advocates regarding inspection of
documents. However, defendant No.1 by legal notice dated
2/2/2022 resiled from his obligation under renewed lease deed.
Defendant has also returned the cheque of advance lease rent.
According to plaintiff, they have performed their part of agreement
and are ready and willing to perform their obligation. Plaintiff's
possession needs to be secured. It is the case of plaintiff that
defendant No.1 is unreasonably looking to dispossess the plaintiff.
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He has therefore filed the present application. There is a prima facie
case for grant of interim relief. The defendant will not suffer any
loss, however, if relief is not granted, plaintiff will suffer irreparable
injury. It is prayed that defendant No.1 by order of temporary
injunction be restrained from interfering, disturbing with possession
of plaintiff over the suit premises.
4. Defendant No.1 has filed say at Exh.15 and resisted the
application. According to defendant, application is devoid of merit
and filed with oblique motive. No prima facie case is made out. The
pleadings of plaintiff show that there is no registered instrument in
their favour. The suit is nothing, but a counterblast to T.E. Suit 14
of 2022 instituted by defendant No.1 for eviction. Lease deed has
expired by efflux of time on 28/2/2021. The plaintiffs have refused
to hand over possession and have remained illegally thereon. The
plaintiffs have committed fraud in respect of transaction pertaining
to suit property. No valid interest is created in favour of plaintiff.
According to defendant, inspite of being lessees, Manchanda HUF
legal heirs of Late Sneh Sakhuja and defendant No.2 are not the
signatories to the documents. Their names are Suppressed. There is
no valid transfer in favour of defendant Sunil Manchanda, as deed of
apartment is not a registered document. Defendant has returned the
cheque. The defendant is entitled to receive possession of the suit
premises. The occupation of plaintiff is unlawful and no relief can be
granted.
5. Heard both the sides.
6. On rival contentions of both the parties, following points
arise for my determination and my findings thereon alongwith the
reasons are as under :
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Sr.No. Points : Findings :
1. Does the plaintiff prove that he has
made out prima facie case in his
favour ?
. . In the negative.
2. Does the plaintiff prove that
irreparable loss would be caused to
him in case temporary injunction is
refused ?
. . In the negative.
3. Does the plaintiff prove that balance
of convenience lies in his favour ?
. . In the negative.
4. What order ? . . As per final order.
: R E A S O N S :
As to Point No.1 :
7. It is not disputed that plaintiff is the lessor and
defendants are the lessees. The defendant appears to have come
into possession of the respective apartments and the suit premises by
virtue of various deeds executed by original lessee Pheroze
Kudianavala Consultants Private Limited. All the documents of
apartment in favour of defendant are of the period prior to the expiry
of original indenture of lease dated 22/3/1991. Thus the plaintiffs
have come into lawful possession. It is also not disputed that even
today plaintiffs are in possession.
8. The contention of defendant No.1 is that due to efflux
of time of lease, the possession of plaintiff has become unauthorised
and illegal. Admittedly there was a proposal of renewal of lease deed
and renewed lease deed is executed. However, it is not registered
and invalid. It is the case of defendant that renewed lease deed is
obtained by suppression of facts. There is a dispute over the legality
and validity of renewed lease deed.
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9. According to plaintiff defendant No.1 is unreasonably
looking to dispossess the plaintiff. Since defendants have resiled from
their obligation under the renewal lease deed, it is necessary that
their possession in the property is protected. Ld. Advocate Mr. Karim
Vakil for defendants submits that the possession of plaintiff is not
disputed. The defendants have previously instituted a suit for
eviction. No case that defendants are trying to evict the plaintiff
illegally is made out.
10. There appears substance in the submission of Ld.
Advocate Karim Vakil for defendant.
11. It appears that defendants have instituted T.E. Suit
No.14 of 2022 against the plaintiffs for eviction. The present suit is
filed subsequently. There is a dispute between the parties over
subsistence of a valid lease. It is not the contention of plaintiff that
defendant made any attempts and are unlawfully disturbing or
interfering with their possession. It appears that defendants have
adopted recourse to legal remedy to seek the eviction. Plaintiffs
have failed to make out a prima facie case that defendants are
unlawfully and illegally trying to dispossess. I therefore answer
point No.1 in the negative.
As to points No.2 and 3 :
12. I have answered point No.1 in the negative. Plaintiff has
failed to prove prima facie case. The Defendants are not disturbing
or interfering with the possession of the plaintiff unlawfully. Plaintiff
will not suffer any irreparable loss, if injunction is refused. On the
contrary, defendants who are admittedly the owners and lessors of
the suit premises would be unnecessarily burden with injunction. I
therefore answer point No.2 in the negative.
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13. The defendants have filed a suit for eviction and are
following due process of law. The balance of convenience is also in
favour of defendant and not the plaintiffs. I therefore answer point
No.3 accordingly in the negative.
14. I have answered point Nos.1 to 3 in the Negative.
Plaintiff has failed to prove a prima facie case and irreparable loss.
The balance of convenience is also in favour of defendant. The
application is liable to be rejected. Hence, the following order.
ORDER
1. Application is rejected.
2. Costs in cause.
Bandra Mumbai. ( S.V.Deshmukh )
Date : 10/11/2022. Judge, C. R. No.32.
Order dictated on : 10/11/2022.
Order typed on : 14/11/2022.
Order checked & signed on : 21/11/2022.
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