IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.810 OF 2006 NOTICE OF MOTION NO.810 OF 2006 NOTICE OF MOTION NO.810 OF 2006 IN IN IN SUIT NO.770 of 2006 SUIT NO.770 of 2006 SUIT NO.770 of 2006 Padmini Jain ...Plaintiff Padmini Jain ...Plaintiff Padmini Jain ...Plaintiff Vs. Vs. Vs. Ashok Kumar Jain ...Defendant Ashok Kumar Jain ...Defendant Ashok Kumar Jain ...Defendant Mr.Shahi Jain Advocate with Mrs. Naina Desai for Mr.Shahi Jain Advocate with Mrs. Naina Desai for Mr.Shahi Jain Advocate with Mrs. Naina Desai for Plaintiff Plaintiff Plaintiff None for Defendant None for Defendant None for Defendant CORAM: SMT. ROSHAN DALVI, J. CORAM: SMT. ROSHAN DALVI, J. CORAM: SMT. ROSHAN DALVI, J. DATE : 18TH DECEMBER, 2006. DATE : 18TH DECEMBER, 2006. DATE : 18TH DECEMBER, 2006. P.C. P.C. P.C. 1. It is the Plaintiff’s case that under the 1. It is the Plaintiff’s case that under the 1. It is the Plaintiff’s case that under the Agreement for Sale, Power of Attorney and an Affidavit, Agreement for Sale, Power of Attorney and an Affidavit, Agreement for Sale, Power of Attorney and an Affidavit, all executed on 28th January, 2005 the Plaintiff purchased all executed on 28th January, 2005 the Plaintiff purchased all executed on 28th January, 2005 the Plaintiff purchased the suit premises which is a shop bearing No.F/S/M-3-2/19 the suit premises which is a shop bearing No.F/S/M-3-2/19 the suit premises which is a shop bearing No.F/S/M-3-2/19 in Parel, Mahatma Co-Operative Housing Society Ltd., in Parel, Mahatma Co-Operative Housing Society Ltd., in Parel, Mahatma Co-Operative Housing Society Ltd., Jerbai Wadia Road, Bhoiwada, Parel, Mumbai-400 012 from Jerbai Wadia Road, Bhoiwada, Parel, Mumbai-400 012 from Jerbai Wadia Road, Bhoiwada, Parel, Mumbai-400 012 from the Defendant and took possession thereof. However, since the Defendant and took possession thereof. However, since the Defendant and took possession thereof. However, since the Defendant has to wind-up his business/affairs the the Defendant has to wind-up his business/affairs the the Defendant has to wind-up his business/affairs the Plaintiff allowed the Defendant to continue in possession Plaintiff allowed the Defendant to continue in possession Plaintiff allowed the Defendant to continue in possession under a separate Agreement for permissive use executed under a separate Agreement for permissive use executed under a separate Agreement for permissive use executed three days thereafter on 1st February, 2005. Under the three days thereafter on 1st February, 2005. Under the three days thereafter on 1st February, 2005. Under the said agreement the Defendant was to handover the said agreement the Defendant was to handover the said agreement the Defendant was to handover the possession to the Plaintiff on 31st December, 2005. The possession to the Plaintiff on 31st December, 2005. The possession to the Plaintiff on 31st December, 2005. The Defendant failed to handover the possession. Hence, this Defendant failed to handover the possession. Hence, this Defendant failed to handover the possession. Hence, this suit is filed for possession. suit is filed for possession. suit is filed for possession. 2. The Plaintiff prays for possession and incidental 2. The Plaintiff prays for possession and incidental 2. The Plaintiff prays for possession and incidental reliefs, appointment of Court Receiver in respect of the reliefs, appointment of Court Receiver in respect of the reliefs, appointment of Court Receiver in respect of the suit shop. suit shop. suit shop. 3. The Defendant has filed his affidavit in reply. 3. The Defendant has filed his affidavit in reply. 3. The Defendant has filed his affidavit in reply. The copy of the affidavit in reply has been served upon The copy of the affidavit in reply has been served upon The copy of the affidavit in reply has been served upon the Plaintiff. The original Written Statement is on the Plaintiff. The original Written Statement is on the Plaintiff. The original Written Statement is on record. record. record. 4. The case of the Defendant is that the Plaintiff is 4. The case of the Defendant is that the Plaintiff is 4. The case of the Defendant is that the Plaintiff is a money lender and he had lent financial help of a money lender and he had lent financial help of a money lender and he had lent financial help of Rs.10,00,000/- to him and had got executed the aforesaid Rs.10,00,000/- to him and had got executed the aforesaid Rs.10,00,000/- to him and had got executed the aforesaid documents without allowing the Defendant to read them or documents without allowing the Defendant to read them or documents without allowing the Defendant to read them or give him a copy thereof. The Defendant as well as his give him a copy thereof. The Defendant as well as his give him a copy thereof. The Defendant as well as his brother signed, not knowing about the contents of the brother signed, not knowing about the contents of the brother signed, not knowing about the contents of the documents and the Plaintiff assured them that it would not documents and the Plaintiff assured them that it would not documents and the Plaintiff assured them that it would not be prejudicial to them and will be returned upon repayment be prejudicial to them and will be returned upon repayment be prejudicial to them and will be returned upon repayment of the amount of Rs.10,00,000/-. The loan not having been of the amount of Rs.10,00,000/-. The loan not having been of the amount of Rs.10,00,000/-. The loan not having been repaid, the Plaintiff has sought specific performance of repaid, the Plaintiff has sought specific performance of repaid, the Plaintiff has sought specific performance of the Agreement for sale dated 28th January, 2005. the Agreement for sale dated 28th January, 2005. the Agreement for sale dated 28th January, 2005. 5. The suit is therefore, for possession of immovable 5. The suit is therefore, for possession of immovable 5. The suit is therefore, for possession of immovable property as well as for specific performance of the property as well as for specific performance of the property as well as for specific performance of the transaction of that immovable property. The Suit is transaction of that immovable property. The Suit is transaction of that immovable property. The Suit is valued at Rs.10 Lakhs which is the loan amount. The suit valued at Rs.10 Lakhs which is the loan amount. The suit valued at Rs.10 Lakhs which is the loan amount. The suit shop is stated to be admeasuring 240 Sq.ft. This area is shop is stated to be admeasuring 240 Sq.ft. This area is shop is stated to be admeasuring 240 Sq.ft. This area is not mentioned in the documents. It is orally stated to not mentioned in the documents. It is orally stated to not mentioned in the documents. It is orally stated to Court. For an immovable property at Parel even Court. For an immovable property at Parel even Court. For an immovable property at Parel even admeasuring 240 sq. Mtr.the valuation in the suit does admeasuring 240 sq. Mtr.the valuation in the suit does admeasuring 240 sq. Mtr.the valuation in the suit does not represent the value of the property as in 2006. The not represent the value of the property as in 2006. The not represent the value of the property as in 2006. The suit is therefore, incorrectly valued. The Plaintiff suit is therefore, incorrectly valued. The Plaintiff suit is therefore, incorrectly valued. The Plaintiff cannot be granted reliefs in respect of an immovable cannot be granted reliefs in respect of an immovable cannot be granted reliefs in respect of an immovable property without valuing the immovable property itself as property without valuing the immovable property itself as property without valuing the immovable property itself as on the date of suit as per its market value as required on the date of suit as per its market value as required on the date of suit as per its market value as required under Section 6(v) of the Bombay Court Fees Act. The under Section 6(v) of the Bombay Court Fees Act. The under Section 6(v) of the Bombay Court Fees Act. The Plaintiff cannot be granted reliefs with regard to the Plaintiff cannot be granted reliefs with regard to the Plaintiff cannot be granted reliefs with regard to the immovable property, after the valuation is made on the immovable property, after the valuation is made on the immovable property, after the valuation is made on the basis of the loan given by the Plaintiff. For the return basis of the loan given by the Plaintiff. For the return basis of the loan given by the Plaintiff. For the return of the loan the immovable property of the Defendant cannot of the loan the immovable property of the Defendant cannot of the loan the immovable property of the Defendant cannot be secured. Hence, no relief as prayed in the Notice of be secured. Hence, no relief as prayed in the Notice of be secured. Hence, no relief as prayed in the Notice of Motion can be granted since the suit is inadequately Motion can be granted since the suit is inadequately Motion can be granted since the suit is inadequately valued. In fact the suit as valued is liable to be valued. In fact the suit as valued is liable to be valued. In fact the suit as valued is liable to be rejected. rejected. rejected. 6. Mr. Jain, on behalf of the Plaintiff, states that 6. Mr. Jain, on behalf of the Plaintiff, states that 6. Mr. Jain, on behalf of the Plaintiff, states that the Plaintiff shall correctly value the suit based upon the Plaintiff shall correctly value the suit based upon the Plaintiff shall correctly value the suit based upon the market value of the suit premises as on the date of the market value of the suit premises as on the date of the market value of the suit premises as on the date of the filing of the suit and apply for reliefs. Liberty is the filing of the suit and apply for reliefs. Liberty is the filing of the suit and apply for reliefs. Liberty is granted to the Plaintiff to take out a further Notice of granted to the Plaintiff to take out a further Notice of granted to the Plaintiff to take out a further Notice of Motion for same or similar reliefs after valuing the suit Motion for same or similar reliefs after valuing the suit Motion for same or similar reliefs after valuing the suit correctly. correctly. correctly. 7. An ad-interim order came to be passed on 17th 7. An ad-interim order came to be passed on 17th 7. An ad-interim order came to be passed on 17th March, 2006 in which the Defendant made a statement that March, 2006 in which the Defendant made a statement that March, 2006 in which the Defendant made a statement that he will not part with the possession or create third party he will not part with the possession or create third party he will not part with the possession or create third party rights in respect of the suit premises. That statement rights in respect of the suit premises. That statement rights in respect of the suit premises. That statement shall continue until further orders. shall continue until further orders. shall continue until further orders. (SMT. ROSHAN DALVI, J.) (SMT. ROSHAN DALVI, J.) (SMT. ROSHAN DALVI, J.)