1 nms-2284-06-s-1946-06 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO. 2284 OF 2006 IN SUIT NO. 1946 OF 2006. Rampratap Gangaprasad Upadhyay. ..Plaintiff. vs. Yashoda Ramdas Upadhyay & Ors. ..Defendants. .... Mr.A.G. Damle, a/w. J.P. Dubey, for Plaintiff. Mr.M.G. Gawde, for Defendant Nos. 4 & 5. .... CORAM : S.J. KATHAWALLA, J. DATE : 29TH NOVEMBER 2010. P.C. The above Notice of Motion is for hearing and final disposal. 2. The Plaintiff is admittedly the 50% owner of a shop being Shop No.5 on the ground floor, Atul Apartment Co-operative Housing Society Limited, Babhai, L.T. Road, Borivli (West), Mumbai-400 092 (the suit shop). The brother of the Plaintiff i.e. Ramdas Gangaprasad Upadhyay (now deceased) was admittedly the 50% owner of the balance suit shop. Defendant nos. 1 to 3 are admittedly the heirs of the deceased Ramdas Gangaprasad Upadhyay. The share certificate of the society till date stands in the name of the Plaintiff and his deceased brother Ramdas. 3. According to the Plaintiff, he and the said Ramdas were thus the joint owners of the suit shop and members of the said Atul 2 nms-2284-06-s-1946-06 Co-operative Housing Society Limited. They were as the joint owners in use, possession and occupation of the suit premises/shop and were carrying on business thereat. According to the Plaintiff, after the demise of his brother Ramdas, there had been certain differences of opinion between the Plaintiff and the heirs of his deceased brother Ramdas i.e. Defendant Nos. 1 to 3. In view of these differences, the suit shop was kept locked. One key was retained by the Plaintiff and another by Defendant no.3. The resolution of the dispute regarding partition of the suit shop and distribution of the shares between the Plaintiff and Defendant Nos. 1 to 3 was awaited. The Plaintiff and Defendant Nos. 1 to 3 continued to be in joint possession of the suit shop. 4. According to the Plaintiff, on 24th November 2005 the son of the Plaintiff - Jaiprakash R. Upadhyay noticed that the suit shop was open and some furniture work was being carried out. The son of the Plaintiff who is also his Constituted Attorney (C.A.) inquired from the workers about the furniture work being carried on by them in the suit shop. Since the workers did not reveal any information and gave evasive replies by a letter dated 27th November 2005, the said C.A. of the Plaintiff reported the incident to the local Borivli Police Station. Though the Plaintiff came to know that Defendant Nos. 4 and 5 were in possession of the suit shop, the police failed to take any action and the Defendants also failed to respond to the queries raised by the Plaintiff. The Plaintiff therefore, filed the present Suit seeking a declaration that he has 50% share in the suit shop and a decree for partition of the suit shop or in the alternative to sell the said shop and share the proceeds equally between the Plaintiff and Defendant Nos. 1 to 3. 3 nms-2284-06-s-1946-06 5. At the ad-interim stage, Defendant Nos. 4 and 5 informed the Court that they are in possession of the suit premises under a registered Lease Deed. In view thereof, this Court by its order dated 20th December 2006 passed an order against Defendant Nos. 4 and 5 in terms of prayer clause (c) of the Notice of Motion, which reads as under :- “(c) Pending the hearing and final disposal of the Suit, the Defendant Nos. 4 and 5, his agents and servants be restrained by an order of injunction of this Court from alienating, encumbering or parting with possession of inducting third party in the Suit shop No.5, on the ground floor, Atul Apartment, Atul Apartment Co-operative Housing Society Limited, Babhai, L.T. Road, Borivli (West), Mumbai-400 092, or any part thereof;” 6. It is submitted by the learned Advocate for the Plaintiff that they are not served with any Affidavit-in-reply to the Notice of Motion by any of the Defendants. The learned Advocate for Defendant Nos. 4 and 5 informed the Court that the Affidavit-in- reply of Defendant Nos. 4 and 5 has been affirmed today and he be allowed to tender the same. This Court has taken the Affidavit-in- reply on record. The Affidavit filed by Defendant Nos. 4 and 5 is interesting. Except for reproducing the order passed by this Court at the ad-interim stage and the statement of Defendant Nos. 4 and 5 that they will not sell or transfer the suit shop to any third party without obtaining written permission from the co-owner i.e. the Plaintiff, Defendant Nos. 4 and 5 have not set out any relevant facts in their Affidavit-in-reply explaining how they came to be in position of the suit shop. They have also not given any particulars pertaining to the purported Lease Deed nor have they annexed a copy of the purported Lease Deed. In fact, they have not even craved leave to refer to or rely upon the purported Lease Deed in their said Affidavit- 4 nms-2284-06-s-1946-06 in-reply. When this Court pointed out to the learned Advocate for Defendant Nos. 4 and 5 the above facts, he has tendered a Photostat copy of the Lease Deed dated 9th November 2005. 7. From the said photostat copy of the Lease Deed, it appears that the purported Lease Deed is executed by and between Defendant No. 3 who is one of the heirs of Ramdas Gangaprasad Upadhyay and Defendant No. 5 whereunder Defendant No.3 after wrongly representing that he is the absolute owner, fully seized and possessed and sufficiently entitled to the suit shop has permitted Defendant Nos. 4 and 5 to use and occupy the suit shop on lease basis for a period of 30 years i.e. from 10th November 2005 upto 9th November 2035 only upon payment of security deposit of Rs. 5,00,000/- (Rupees Five Lacs Only). This Court inquired from the learned Advocate appearing for Defendant Nos. 4 and 5 whether his clients had gone through the Share Certificate issued by the Society in the name of the Plaintiff and his brother Ramdas (now deceased) whilst executing the Lease Deed. The learned Advocate on instructions from Defendant No.5 who is present in Court informed the Court that Defendant No. 5 had perused the said Share Certificate and had also realized that the suit shop stands in the name of the Plaintiff and the deceased Ramdas and not in the name of Defendant No.3. When asked as to why such a Lease Deed was entered into despite being aware of the true and correct facts in the matter, the learned Advocate on instructions stated that there is one more Agreement which is at present not available. However, it is pertinent to note that even though the said document may not be available at present, Defendant Nos. 4 and 5 have not made any mention about the same in their said Affidavit-in-reply nor have they cared to provide any particulars about the same, across the bar. On a 5 nms-2284-06-s-1946-06 further query raised by the Court as to what is the lease rent agreed to be paid to Defendant No.3 by Defendant Nos. 4 and 5 for the lease period of 30 years, this Court is informed by the Advocate for Defendant Nos. 4 and 5 upon instructions from Defendant No.5 that no lease rent is payable to Defendant No.3 for the lease period of 30 years and the only consideration for the said lease of 30 years is a security deposit of Rs.5,00,000/- (Rupees Five Lacs Only). 8. Defendant Nos. 1,2 and 3 have not filed any Affidavit-in -reply. Defendant Nos. 4 and 5 as stated hereinabove have entered into the purported Lease Agreement with Defendant No.3 knowing fully well that the suit shop does not belong to Defendant No.3 exclusively but the Plaintiff has a 50% share in the suit shop and the remaining 50% is owned by Defendant Nos. 1, 2 and 3 as heirs of the deceased brother of the Plaintiff. Defendant Nos. 4 and 5 were therefore, at all relevant times aware that an incorrect statement is made in the Lease Deed that Defendant No.3 is the sole owner of the suit shop and that he has no right to give the said shop on lease or on any other basis to Defendant Nos. 4 and 5. It is for this reason that Defendant Nos. 4 and 5 did not provide any particulars of the purported Lease Deed in their Affidavit-in-reply. In fact, they have also not craved leave to refer to or rely upon the purported Lease Deed in their said Affidavit. The admission on the part of Defendant No.5 that the suit shop is given on lease by Defendant No.3 to Defendant Nos. 4 and 5 for 30 years without any lease rent but only upon payment of security deposit of Rs.5,00,000/- (Rupees Five Lacs Only) also goes to show that the transaction is not genuine. 9. From the aforesaid facts, it is therefore, clear that the said lease Agreement is a sham and a bogus document created by 6 nms-2284-06-s-1946-06 Defendant No.3 who is one of the heirs of deceased Ramdas Gangaprasad Upadhyay in collusion with Defendant Nos. 4 and 5 only with a view to deprive the Plaintiff of his 50% share in the suit shop. Defendant Nos. 4 and 5 therefore, have no right, title and/or interest in the suit premises and are in wrongful possession / occupation of the same. 10. In view thereof, Notice of Motion is allowed in terms of prayer clause (a). However, the Court Receiver after taking possession of the suit shop from Defendant Nos. 4 and 5 shall not handover the same to the Plaintiff as prayed but shall invite offers from parties interested in running the suit shop as the Agent of the Court Receiver on usual terms and conditions including payment of security deposit and compensation. The parties hereto including Defendant Nos. 4 and 5 are allowed to submit their offers to the Court Receiver for use and occupation of the suit shop as the Agent of the Court Receiver. The Court Receiver to act on a copy of this order duly authenticated by the P.A. of this Court. Until the Court Receiver takes possession of the suit flat, the Defendants are restrained from disposing of, parting with possession, encumbering and/or creating any third party rights in respect of the suit shop. 11. The Notice of Motion is accordingly, disposed of. [ S.J. KATHAWALLA, J. ]