( 1 ) 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 SUIT NO.683 OF 2000 SUIT NO.683 OF 2000 SUIT NO.683 OF 2000 Smt.Sohanikumari Surajmull Gouti Flat No.803, Divyalok, L.D. Ruparel Marg, Mumbai-6 ..Plaintiff V/s. 1. Mr. Ranjitmull Jaychandlal Gouti 6-Anita Co-op. Hsg. Society Ltd., Narayan Nagar Road, Ahmedabad - 380 007. 2. Divyalok Co-op. Housing Society Ltd. having office at 1/320, L.D. Ruparel Marg, Malabar Hill, Mumbai-400 006. ..Defendants ...... Mr. Vimadalal for the plaintiff ...... CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 27th February, 2009 DATED : 27th February, 2009 DATED : 27th February, 2009 JUDGMENT : JUDGMENT : JUDGMENT : 1. The plaintiff has instituted this suit in regard to the flat more particularly described in prayer clause (a) of the plaint (hereinafter referred to as "suit flat"). The plaintiff has filed his suit to seek declaration that the plaintiff is the exclusive owner of the suit flat. The plaintiff wants the mandatory order directing defendant No.1 to execute necessary documents in favour of the plaintiff to see that the plaintiff get the suit flat and 5 shares of the society i.e. defendant No.2. ( 2 ) 2. Few facts necessary for the disposal of this suit are as under. 3. The plaintiff entered into an agreement with defendant No.1 on 27.7.1979 (hereinafter referred to as "suit agreement") and by that agreement defendant No.1 agreed to sell the 5 shares of defendant No.2 and the benefit of the suit flat to the plaintiff for a consideration of Rs.1,71,000/-. The consideration set in the suit agreement is paid to defendant No.1 at the time of execution of the suit agreement and this fact is manifested in the suit agreement itself. According to plaintiff, the possession of the suit flat was given to the plaintiff on the day of the agreement and since then the plaintiff has been defraying the outgoings. 4. The plaintiff had entered into the correspondence with the Co-operative Society-defendant No.2 to see that the suit flat is not transferred to anybody else by defendant No.1. Seeing the attitude of the defendant No.1, namely including to execute appropriate documents, the plaintiff was required to institute this suit for the reliefs mentioned aforesaid. The defendants were served with the writ of summons. Filed written statement and hence the suit was set down for ex-parte decree. Hence, no ( 3 ) formal issues are framed. 5. The plaintiff herein has filed evidence affidavit dated 5.12.2008 and has relied upon the suit agreement dated 27.7.1979. True copy of the same is tendered in the Court and the original of the same which was produced in High Court Suit No.526 of 2005 was made available to the Court for Court’s perusal. The plaintiff has also produced the Share Certificate pertaining to the suit shares, which were agreed to be sold to the plaintiff. Here again the original share certificate produced in High Court Suit No.526 of 2005 was made available to the Court for its perusal. Copy of the same has been tendered in the Court. 6. I have heard learned Counsel Mr. Vimadalal appearing on behalf of the plaintiff. In the absence of written statement, the averments in the plaint have gone unchallenged. I have perused the evidence affidavit as well as suit agreement dated 27.7.1979. 7. By the suit agreement defendant No.1 agreed to transfer 5 shares of defendant No.2 and the benefit of the suit flat. The total consideration agreed was Rs.1,71,000/- and the same is received by defendant No.1 as per the acknowledgment in the suit agreement itself, by cheque. The terms of the suit agreement clearly indicate that defendant No.1 wanted to have ( 4 ) right, title and interest in regard to the said shares of defendant No.2 and the suit flat of the plaintiff. In such a situation, it was the duty of the defendant No.1 to execute necessary documents. As defendant No.1 failed and neglected to execute the documents, the plaintiff could not get his title confirmed in as much as the share certificate continued to stand in the name of the defendant No.1. 8. In the absence of written statement, it is the case of the plaintiff that though the suit flat is sold and the said share certificate of defendant No.2 are sold to him had gone unchallenged and that the plaintiff has made out this case. Keeping this in mind, the plaintiff is entitled to reliefs in terms of prayer clauses (a) and (b). 9. It is also necessary to protect the interest of the plaintiff by passing an order of injunction that defendant No.1 should not create third party rights and or interfere with the possession of the plaintiff in regard to the suit flat as otherwise, the plaintiff’s rights in regard to the suit flat would be affected. Averments to that extent be also gone unchallenged. Hence, plaintiff is entitled to decree in terms of prayer clause (b). Once appropriate documents are executed in favour of the plaintiff, the Co-operative Society undoubtly will have to transfer ( 5 ) the suit shares in the name of the plaintiff and allowed plaintiff to enjoy the suit flat as the owner of the suit flat. 10. For the reasons mentioned aforesaid, I pass following order. ORDER ORDER ORDER . Suit is decreed in terms of prayer clause (a), (b) and (d). . Defendant No.1 do pay to plaintiff costs of this suit. . Office to return the documents pertaining to High Court Suit No.526 of 2005, immediately. (R.Y. GANOO, J.) (R.Y. GANOO, J.) (R.Y. GANOO, J.)