KANHAIYALAL NATHULAL JOSHI Vs. JAGDISH HARKISHAN SHARMA

JUDGEMENT

(1.) The Appeal challenges the Order dtd. 24/8/2017 passed by the City Civil Court allowing Notice of Motion No. 3929 of 2016 filed by Plaintiff-Respondent for grant of temporary injunction. By the impugned order, the City Civil Court has restrained the AppellantDefendant from dealing with, disposing of or creating any third party rights/interests or encumbrances in the suit property or allowing any third party to enter upon the suit property and from collecting rent from the tenants. The City Civil Court has further restrained the AppellantDefendant from acting upon the Deed of Assignment and Transfer dtd. 21/10/2013. The Municipal Corporation is directed to stay the process of issuing development permission in favour of the Appellant- Defendant during the pendency of the suit. The City Civil Court has however recorded an undertaking on behalf of the Plaintiff that he would pay monthly temporary accommodation amounts and other statutory amounts to the tenants during the pendency of the suit.

(2.) The dispute between the parties is with regard to property bearing Plot No.169, Jawahar Nagar Road No.2 Goregaon (West), Mumbai 400 062 admeasuring 790.90 square meters bearing CTS No. 600, 600/1 to 16 together with building standing thereon known as 'Sharda Niwas' consisting of ground plus one floor having carpet area of 8255 square feet with 5 shops and 23 rooms / tenements in occupation of tenants/occupants (Suit Property). Mr. Shyamlal Ramswaroop Sharma was a registered lessee in respect of the suit property and after his death his legal heirs Smt. Ramrati, Subhash, Navin and Anil had agreed to sell the suit property to the AppellantDefendant for consideration of Rs.21,75,000.00 and accordingly Articles of Agreement dtd. 1/3/2000 was executed. Defendant had issued 4 cheques of Rs.2,50,000.00 towards earnest money and according to the Plaintiff, one out of the 4 cheques was dishonoured. It is Plaintiff's case that despite Smt. Ramrati writing to the Defendant to pay the amount of dishonoured cheque and also the balance amount of consideration, Defendant failed to do so. Smt. Ramrati, therefore, terminated the Articles of Agreement dtd. 1/3/2000 and called upon Defendant to take back the earnest money of Rs.7,15,000.00. Later, the heirs of late Shyamlal Ramswaroop Sharma (Ramrati, Subhash, Navin and Anil), who were by then armed with Letters of Administration issued by this Court, executed registered Deed of Conveyance in respect of the suit property in favour of the Plaintiff on 28/8/2001.

(3.) It is Plaintiff's case that in March 2002, he was abducted by the Defendant and by giving a threat of life, his signatures and initials were taken on blank papers. In similar manner, signatures and initials of Plaintiff's wife were also taken on blank papers. That no consideration was paid to the Plaintiff. In the meantime, Plaintiff applied for transfer of Share Certificate in his name in the records of the society, which issued a Public Notice in the newspapers. Defendant's Advocate raised an objection to the Public Notice stating that Deed of Conveyancecum-Assignment and Power of Attorney, both dtd. 15/3/2002, were executed by Plaintiff in Defendant's favour in respect of the suit property. It is Plaintiff's case that despite requisition by the society, Defendant failed to produce Deed of Conveyance-cum-Assignment and Power of Attorney before the society, which therefore transferred the membership in respect of the suit property in the name of the Plaintiff. It is Plaintiff's case that he started collecting rent from the tenants and one of the tenants of Shop no.2 surrendered the tenancy in his favour in April 2005. Plaintiff avers that on 8/9/2005, Defendant's Advocate wrote to the heirs of late Shyamlal Ramswaroop Sharma showing readiness and willingness of the Defendant to perform the obligations under the Agreement dtd. 1/3/2000 and called upon them to complete the sale transaction. It is Plaintiff's case that if the Defendant had indeed become owner of the suit property by virtue of alleged Deed of Conveyance-cum-Assignment dtd. 15/3/2002, there was no need for him to seek specific performance of the earlier Agreement dtd. 1/3/2000 executed with the heirs of Mr. Shyamlal Ramswaroop Sharma. Plaintiff claims that he started the process of re-development of the suit property by obtaining various NOCs and permissions from society and various other authorities in the year 2006. At this juncture, Plaintiff claims that while carrying out search in the City Survey Office and Registrar of Assurances, he came across Registered Deed of Confirmation dtd. 8/9/2006 confirming the execution of the Deed of Conveyance-cum-Assignment and Power of Attorney dtd. 15/3/2002. Plaintiff claims that the Deed of Confirmation was executed and registered by Defendant alone in absence of Plaintiff without payment of any consideration to him.