Bombay High Court
Ankur Sambhare vs Ranjana Ravindra Soparkar And 3 Ors on 20 February, 2019
Author: G.S. Patel
Bench: G.S. Patel
23-S2849-06.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 2849 OF 2006
Ankur Sambhare ...Plaintif
Versus
Ranjana Ravindra Soparkar & Ors ...Defendants
Mr Nilesh Modi, with Rachit Thakar & Bhairavnath Jadhav, i/b
Rustamji & Ginwala, for the Plaintiff.
CORAM: G.S. PATEL, J
DATED: 20th February 2019
PC:-
1.The learned Advocate for the 2nd Defendant is at liberty to file an appropriate proceeding for obtaining a discharge. He states that he has received no instructions and the papers were returned several years ago.
2. The suit was originally filed in the City Civil Court. On an amendment increasing the monetary claim, it was transferred to this Court. The suit is for specific performance of a Memorandum of Understanding ("MoU") or Agreement between the Plaintif and 1st Defendant in respect of a commercial premises at Unit No. 108, United Industrial Estate, Moghal Lane, Mahim, Mumbai 400 016. The 2nd Defendant claims to be a bona fide transferee for value Page 1 of 6 20th February 2019 ::: Uploaded on - 21/02/2019 ::: Downloaded on - 20/03/2019 10:00:43 ::: 23-S2849-06.DOC without notice from the 1st Defendant. While issues were framed on 4th July 2016 in the City Civil Court, Mr Modi for the Plaintif states that three additional issues will now arise. I believe he is correct. The third of these is to rectify the monetary claim pursuant to the amendment. The additional two issues are in regard to the claim for cancellation of the documents between the 1st and 2nd Defendants inter se.
3. For convenience, the issues are renumbered and are once again appended to this order including the additional issues.
4. The proposed additional Issue No. 3 will not be cast as a separate issue, but the necessary change will be made to existing Issue No. 5 now renumbered as Issue No. 7.
5. The Plaintif shall, on or before 15th March 2019, file (i) the supplementary Evidence Affidavit of the Plaintif; (ii) supplementary Affidavit of Documents; and (iii) a Compilation of Documents duly indexed and paginated. Copies of each of these will be served on the Advocates for the Defendants on or before that date.
6. Discovery and inspection is to be completed and statements of admission and denial are to be exchanged on or before 22nd March 2019.
7. There will be no extension of time. In default of compliance, the suit will stand dismissed without further reference to the Court.
Page 2 of 620th February 2019 ::: Uploaded on - 21/02/2019 ::: Downloaded on - 20/03/2019 10:00:43 ::: 23-S2849-06.DOC
8. On the Plaintif complying with these directions, the matter will be taken up for marking of the Plaintif's documents and further directions on 12th April 2019, irrespective of the caption under which the matter appears.
(G. S. PATEL, J.) Page 3 of 6 20th February 2019 ::: Uploaded on - 21/02/2019 ::: Downloaded on - 20/03/2019 10:00:43 ::: 23-S2849-06.DOC ISSUES FRAMED ON 20TH FEBRUARY 2019 SUIT NO. 2849 OF 2006
1. Whether the suit is barred by the law of limitation?
2. Whether the Defendant No. 2 proves that the suit is bad for non-joinder of necessary parties?
3. Whether the Plaintiff proves that he is entitled to a decree and order directing the Defendant No. 1 to execute a formal agreement of sale in his favour?
4. Whether the Plaintiff proves that he was ready and willing to perform his part of the contract?
5. Whether the Plaintiff proves that he is entitled to specific performance of the contract or suit agreement for sale of the suit premises to the Plaintiff and execution of the Deed of Conveyance or transfer and completion of the suit sale transaction in his favour?
6. Whether the Plaintiff is entitled to quiet, vacant and peaceful possession of the suit premises from the Defendants or any of them?
7. In the event of specific performance not being granted, whether the Plaintiff is alternatively entitled to damages in the sum of Rs.1,02,80,176/- with interest of 18% from date of filing of the suit till date of payment/realization?
8. Whether the Plaintiff proves that he has a statutory charge in respect of the suit premises to the extent of Rs. 3,50,000/- paid by the Plaintiff to Defendant No. 1 as earnest Page 4 of 6 20th February 2019 ::: Uploaded on - 21/02/2019 ::: Downloaded on - 20/03/2019 10:00:43 ::: 23-S2849-06.DOC money/part-payment together with interest thereon at the rate of 18% per annum from the date of the suit?
9. Whether Defendant No. 2 proves that Defendant No. 2 has purchased the unit for valuable consideration of Rs. 11,00,000/- vide an Agreement to Transfer dated 25th May 2004 which has been duly stamped and registered with the office of Sub-Registrar of Assurances at Mumbai?
10. Whether Defendant No. 2 proves that Defendant No. 2 was not aware of the dealings between the Plaintiff and Defendant No. 1 until receipt of the Plaintiff's Advocate's letter dated 15th November 2006?
11. Whether Defendant No. 2 proves that she is a member of Mahim United Industrial Premises Cooperative Society Limited and holding shares of the Society?
12. Whether the Plaintiff proves that the Defendant No. 2 has trespassed in the suit unit and has broken the lock and is unlawfully occupying the same by acting in collusion with Defendant No. 1 without adopting any due process of law?
13. Whether Defendant No. 2 proves that she is in possession of the suit unit after 25th May 2004 and is carrying on business therein?
14. Whether Defendant No. 2 proves that she is a bona fide purchaser for valuable consideration and therefore, the Plaintiff is not entitled to specific performance?
15. Does the Plaintiff prove that the purported Agreement of Transfer dated 25th May 2004 allegedly executed between Defendant No. 1 and Defendant No. 2 stands cancelled and/or Page 5 of 6 20th February 2019 ::: Uploaded on - 21/02/2019 ::: Downloaded on - 20/03/2019 10:00:43 ::: 23-S2849-06.DOC revoked?
16. Is the Plaintiff entitled to an order and decree directing the concerned Sub-Registrar of Assurances to record cancellation and/or revocation of the purported Agreement of Transfer dated 25th May 2004 in their records and/or directing Defendant Nos. 1 and 2 to execute and register a formal Deed of Cancellation recording cancellation and revocation of the said purported Agreement of Transfer dated 25th May 2004?
17. Whether the Plaintiff is entitled to permanent injunction as prayed in the Plaint?
18. What order, including as to costs?
(G. S. PATEL, J.) Page 6 of 6 20th February 2019 ::: Uploaded on - 21/02/2019 ::: Downloaded on - 20/03/2019 10:00:43 :::