Final Order 1

Order Details: Notice of Motion
Pdf Text: : 1 : Notice of Motion No.1145 of 2011
CNR No.MHCC010000902019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.1145 OF 2011
IN
S.C. SUIT NO.1304 OF 2011
Vivekkumar Ramanuj Dube and Anr. .. Plaintiffs.
Versus
Ranvijaykumar Ramanuj Dubey and Ors. .. Defendants
Appearance :
Plaintiff no.1inperson.
Advocate for defendant absent.
CORAM : HIS HONOUR JUDGE
SHRI ANAND L. YAWALKAR
(COURT ROOM NO. 31)
DATED : 04.01.2019
: ORDER :
This Notice of Motion is taken out by plaintiffs for grant of
injunction and thereby restraining the defendants from dispossessing
them and also for preventing them from disconnecting electricity supply
and water supply.
2. Plaintiff submitted that he is the owner and in possession of
flat No. B/102 admeasuring 430 sq.ft. with terrace 600 sq.ft. at 1st
Floor, in Surendra Apartment, at Kanta Suendra Cooperative Housing
Society Ltd., Hira Nagar, Nahur Road, Mulund (West), Mumbai
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: 2 : Notice of Motion No.1145 of 2011
(hereinafter referred as the suit property). Plaintiffs are twin brothers.
Defendant no. 1 is the elder brother of plaintiffs. Defendant no. 2 is
the registered Cooperative Housing Society and defendants no. 3 to 5
are the builders and developers. According to the plaintiffs the suit
property was purchased by their late grandfather and mother after
death of his father from M/s. Hiranandani Constructions on 06.06.1984
and since then they are residing in suit property. Defendant no.1 is also
shown as purchaser alongwith their late grandfather. The original
agreement of sale was in custody of defendant no. 1 to show that they
are in possession of the suit property plaintiff relied upon his
examination report card, UPC addresses, income tax intimation letter,
letter received from Janata Sahakari Bank, C.J. Advani Law College,
Gorakhpur Development Authority, Secretary of Maharashtra Assembly,
High Court of Sikkim, LIC premium intimation, letter received Asst.
Commissioner of Sales Tax, election ID card. Plaintiff further submitted
that society issued circular dated 01.05.2011, wherein he came to know
that the society has appointed defendant no. 3 as a developer for
development of society. Plaintiff also came to know that the defendant
no. 1 had given consent for redevelopment. Further circular dated
15.12.2011 plaintiff came to know that the defendant no. 2 has
received conveyance in the name of society through defendant no. 4. It
was also intimated by the said circular that defendant no. 4 was
appointed as builder and developer for redevelopment of society
building. Further again by circular dated 10.01.2018 issued by the
society it was intimated by the defendant no. 2 had appointed
defendant no. 5 as a builder and developer for redevelopment of
society. Plaintiff further contended that he was not informed about the
appointment of developer and change in developer. Plaintiff further
submitted that he is use in occupation of the suit property.
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: 3 : Notice of Motion No.1145 of 2011
Defendant/developer is obtaining the consent of the occupants of the
flat. Defendant no. 1 their brother is not in possession of flat and had
given consent for redevelopment. According to the plaintiff he is
entitled for alternate accommodation. He further submitted that the
consent given by defendant no. 1 is void and illegal. Plaintiff is having
apprehension that he may be dispossessed during the courses of
development and the defendant may discontinue his electricity and
water supply and force him to vacate the suit property and due to this
he filed the notice of motion before the court.
3. Defendant no. 1 appeared. He filed his written statement and
submitted that suit is filed by plaintiff with delay as he is raising the
dispute since 1997. According to defendant no. 1, plaintiffs are not the
sole owner of the suit property. Since he is the coowner injunction
cannot be granted against them. He further submitted that he was
carrying the business since 1983. His grandfather was looking after
family property and after his death in 1986, all the family responsibility
was carried out by the defendant. He admitted that the suit property
was purchased in the joint name of their grandfather and himself in
1984. According to the defendant he alongwith plaintiff are the co
owners of the suit property. He admitted share certificate of the society,
possession letter, electricity bill stands in his name and he had lost the
original agreement for sale. Defendant contented that the document
relied by the plaintiff shows his possession and not exclusive possession.
He admitted that he is not staying the suit property, but is the lawful
owner of the suit property. Defendant denied the relief as claimed by
the plaintiff and prayed to reject the motion.
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: 4 : Notice of Motion No.1145 of 2011
4. Defendant no. 2 appeared, filed their written statement and
submitted that notice under Maharashtra Cooperative Societies Act is
not given and due to this the suit is not maintainable. They further
submitted that plaintiff challenged the order of Dy. Registrar of the
Cooperative Societies in appeal regarding the membership of the
society. They denied the ownership and possession of the plaintiff over
the suit property. They admitted that the defendant no. 1 is the owner
of the suit property and share certificate is issued to him. Defendant no.
2 contended that the plaintiff had not paid maintenance charges to the
society and as they are in the possession they should pay it. Defendant
society further submitted that there are 103 members in the society and
they have appointed defendant no. 3 as a builder and developer. They
denied plaintiff is having any right, title and right interest of the suit
property and prayed to reject the motion.
5. Heard plaintiff no. 1 in person. Perused the written statement
of defendants no. 1 and 2. Defendants no. 3 to 5 did not filed their
written statement.
6. Upon considering the hearing and perusing the material on
record it is apparent that the suit property was purchased in the name
of grandfather of plaintiff and defendant no. 1. Prima facie plaintiff and
defendant no. 1 are the coowners of the suit property. It is also on
record that both the plaintiffs are staying in suit property. Defendant
no.1 their brother is staying at some other place. As per contention of
defendant no. 2 society the suit property is going for redevelopment and
they have appointed defendant no. 3 as a developer. Subsequent event
suggest that further defendant no. 4 thereafter as informed by society
on 10.01.2018 defendant no. 5 is appointed for redevelopment of the
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: 5 : Notice of Motion No.1145 of 2011
defendant no. 2 society. From the contention of the defendant no. 2
society it is also evident that share certificate was issued in the name of
defendant no. 1, who has given NOC for redevelopment of society.
7. In this case plaintiffs and defendant no. 1 are brothers. It is
also not disputed that the suit property was purchased in the name of
grandfather of plaintiff and defendant no. 1 in 1984 and since then both
plaintiffs are in possession of the suit property. The suit property is
going for redevelopment and NOC is given by defendant no. 1, who is
not in possession of the suit property. It is also evident that at the time
of redevelopment plaintiff shall be asked to vacate the suit property.
Prima facie both plaintiffs and defendant no. 1 has right, title and
interest in the suit property. What is important at this stage is the
possession and undisputedly both the plaintiffs are in possession of the
suit property. Due to this they are entitled for alternate accommodation
during the period of redevelopment. Plaintiffs are not opposing the
redevelopment of the society. But it is their contention that during the
courses of redevelopment they be provided with alternate
accommodation. Since plaintiffs and defendant no.1 are coowner it is
necessary that the plaintiffs should be aware about the process of
development. Hence defendant no. 2 should obtain the consent of
plaintiff along with the defendant no.1 hereinafter. Considering the
long standing possession of the plaintiff the notice of motion can be
allowed as per the order. Hence, considering this accordingly I pass
the following order.
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: 6 : Notice of Motion No.1145 of 2011
: ORDER :
Notice of Motion No. 1145 of 2011 is allowed in terms of
prayer clause (a), (a)(1), and (b), (b)(1).
Anand.L.Yawalkar
Judge,
City Civil & Sessions Court,
Date: 04.01.2019 Gr. Mumbai
Dictated on : 04.01.2019
Transcribed on : 04.01.2019
Signed on : 04.01.2019
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
On 05.01.2019 at 3.22 p.m.
UPLOAD DATE AND TIME Mrs. P.R.Vengurlekar
NAME OF STENOGRAPHER
Name of the Judge
(With Court Room No.)
H.H.J. Anand.L.Yawalkar
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
04.01.2019
JUDGMENT/ORDER signed by P.O. on 04.01.2019
JUDGMENT/ORDER uploaded on 05.01.2019
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