GEETA S RIJHWANI Vs. NARENDRA C. KHANCHANDANI

JUDGEMENT

(1.) By this Appeal, Appellant challenges Order dtd. 3/3/2023 passed by the City Civil Court allowing Notice of Motion No. 2085 of 2021 filed by the Plaintiffs / Respondent Nos. 1 and 2 in terms of prayer clause (b) which reads thus :-

(2.) Plaintiff No.1 and Defendant are siblings. Plaintiff No. 2 is the daughter of Plaintiff No. 1. Plaintiff's case, as captured from pleadings in the plaint, is that Plaintiff No. 1 was engaged in a business which resulted in losses. That all the assets of Plaintiff of No. 1 were attached by the bank, on account of which his residential flat was also auctioned by the bank. Since the family of the Plaintiff did not have any place of residence, they were forced to reside in a rented premises in a building named Crystal Palace Co-operative Society, Malad. It is contended that Plaintiff No. 1 desired to purchase a residential flat in the same building Crystal Palace. His elder sister (Defendant) showed willingness to provide financial assistance to Plaintiff No. 1, who was not in a position to secure any loan from financial institutions. Under such arrangement, the flat bearing No. 202, E-Wing, Crystal Palace Co-operative Society, Linking Road, Malad (West) Mumbai 400 064 came to be purchased in the name of the Defendant. Plaintiffs aver that the purchase transaction in Defendant's name was with an oral understanding that the Plaintiff No.1 and his family would permanently reside in that flat and that the Plaintiff of No. 1 would repay the entire amount of consideration of Rs.15.00 lakhs borne by the Defendant, after which the flat would be transferred in the name of Plaintiff No. 1. It appears that the Defendant paid amount of Rs.3,50,000.00 from her own account and availed loan of Rs.11,50,000.00 for purchase of the flat. This is how the flat came to be purchased in the name of the Defendant, but Plaintiff and his family members started residing in the same.

(3.) Plaintiff claims that in terms of the oral agreement, Plaintiff No. 1 transferred the amount of Rs.10.00 lakhs from his company account in the Defendant's account on 6/8/2011 towards part payment of consideration amount for purchase of the suit flat. That Plaintiff No. 1 further paid amounts of Rs.6,00,000.00 on 5/3/2013, Rs.5,00,000.00 on 14/3/2013 and Rs.3,50,000.00 on 30/10/2013 from the accounts of Plaintiff No. 2 in favor of Mr. Suresh Rijhwani (Defendant's son). Plaintiffs accordingly claim that by now a sum of Rs.24,50,000.00 has been paid by Plaintiffs to the Defendant/her son as against the consideration amount of Rs.15,00,000.00 borne by Defendant. That the additional amount of Rs.9,50,000.00 was paid as per original oral agreement. Plaintiffs claim that despite repeatedly urging the Defendant, she failed to execute a sale deed in respect of the suit flat in the name of the Plaintiffs. Since the Defendant failed to execute the sale deed in favor of the Plaintiffs, they have instituted S.C. Suit No. 1404 of 2021 in the City Civil Court seeking declaration that they are the exclusive and absolute owners in respect of the suit flat and further seeking prayer for specific performance of the oral agreement. Further injunctive relief to restrain Defendant from claiming any right in respect of the suit property has also been sought. In the suit, Plaintiffs filed Notice of Motion No. 2085 of 2021 to restrain Defendant from creating any third-party rights and from disturbing Plaintiffs' possession over the suit flat. The City Civil Court has partly allowed the Notice of Motion granting only prayer clause (b) in the Motion, restraining the Defendants from disturbing Plaintiffs' possession over the suit flat. Defendant is aggrieved by the Order passed by the City Civil Court and has filed the present Appeal.