Order 1

Order Details: Notice of Motion
Pdf Text: IN THE COURT OF CITY CIVIL FOR GREATER BOMBAY
AT BOMBAY
NOTICE OF MOTION NO.295 OF 2020
IN
S.C.SUIT NO.201 OF 2020
1. Mr.FarhanNoor Mohammed Roshan,
2. Mrs.Shaheeda Noor Mohammed Roshan ...
Plaintiffs
Versus
1. Royal Realtors,
2. M/s.Al Fatah Tenants Assoiation
Through Mr.Syed Parvez Alam,
3. Jamal Ahmed Haji Mohd.Amin ... Defendants
CORAM: HIS HONOUR JUDGE SHRI K.P.NANDEDKAR
(COURT ROOM NO.9)
DATE : 24th JANUARY, 2020
Mr.M.A.Khan, ld. adv. for plaintiffs.
Mr.Aditya Khanna, ld adv. for defendant no.2.
Mr.Malhar, ld. adv. for defendant no.3.
O R D E R
1. This notice of motion is taken out by plaintiff for
appointment of Court Receiver, High Court, Bombay to be the
Receiver of suit fat under Order-40 Rule-1 of CPC including the
powers to take possession of the suit fat from defendants or
whoever found in possession thereof bearing fat no.1001 on
10th foor admeasuring 405a sq..ft. carpet area situated in
Mariam bee building, 11 Sankali Street, 3rd Cross lane, Byculla,
Mumbai-08 with further directions to deliver and hand over
possession of suit fat to plaintiffs and to put the plaintiffs in
possession thereof ever after sun-set or before sun-rise, on
holidays, with the help of police or by breaking open the lock
of the suit fat. Plaintiffs have also prayed for temporary
injunction restraining defendants from creating third party
rights, parting with possession of suit fat to and in favour of
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any person whosoever may be. Further plaintiffs have prayed
for temporary injunction restraining defendant no.1, its
partners, ofcers or any other person acting on their behalf
from handing over possession of suit fat and/or from
delivering the possession of suit fat thereof to defendant no.3.
2. Plaintiff no.1 has fled his afdavit in support of notice
of motion contending that he has fled the suit for the reliefs
prayed in the plaint. It is further contended that himself and
his mother had booked fat bearing no.1004, open plot bearing
CS No.1773 situated at 11, Sankli Street, 3rd Cross lane,
Byculla Division,Mumbai-08. It is contended that plaintiffs
have purchased said fat for the consideration of
Rs.5a7,95a,000/- vide registered agreement dated 15a/10/2016. It
is contended that in the month of November, 2019 plaintiff
no.1 along with his brother had attended the meeting of the
Society i.e. Al-Fateh CHSL wherein they learnt from the
members of the society that name of plaintiff no.1 has not
been appearing in the list of purchasers of the fat. Having
learnt about said fact, plaintiffs repeatedly approached the
defendant no.1 and tried to meet Mr.Raizwan and Mr.Imran,
the partners of defendant no.1, who refuted the information
and have assured plaintiff the delivery of possession of said
fat as per the agreement. It is contended that on the ofcial
website of Joint Sub-Registrar, Mumbai made the search
regarding suit fat was made by plaintiffs and they were
surprised to know that on 19/12/2019 an agreement for
permanent alternate accommodation has been registered by
defendant no.2 in fvour of defendant no.3 i.e. Jamal Ahmed
Ansari in respect of above suit fat.
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3. It is contended that is learnt after registration of
agreement of permanent alternate accommodation, defendant
no.3 is claiming that immediately after completion of fnishing
work, defendant no.3 will take possession of suit fat. It is
contended that defendant no.1 has fied the date 26/01/2020
as the date for handing over possession of suit fat to
defendant no.3. Hence, according to plaintiffs, the notice of
motion is necessary to be made absolute.
4. It is pertinent to note here that defendant no.1 has not
appeared in the matter inspite of service of notice of motion
and he has not fled reply to the notice of motion. However,
defendant nos.2 and 3 have resisted the notice of motion by
fling their separate reply. Mr.Sayeed Parvez Alam has fled
afdavit on behalf of defendant no.2 M/s.Al Fatah Tenants
Association contending that present proceedings instituted by
plaintiffs is a blatant abuse of due process of law, plaintiffs
have not approached the Court with clean hands. It is alleged
that plaintiffs have fled this proceedings with ulterior motive
by making false, frivolous, vague and baseless averments in
the plaint. According to defendant no.2, it is neither necessary
party nor a proper party to this suit. Defendant no.2 is not
directly or legally connected to the subject matter of the suit
instituted by plaintiffs against defendant no.1 in particular.
There is no cause of action against defendant no.2. It is
alleged that plaintiffs have approached the Court by
suppressing material facts and documents and therefore, the
notice of motion is necessary to be dismissed. It is contended
that defendant no.2 is the owner of the property bearing CS
No.1773 of Byculla Division situated at 11, Saankli, 3rd Cross
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Lane, Byculla, Mumbai-08. Vide agreement dated 23/05a/2008
between defendant nos.1 and 2, the development rights for
constructing a new building on above property which is
admeasuring 485a sq..mtrs and 379 sq..mtrs together are given
to defendant no.1 and the redevelopment of building namely
Maryambee was agreed to be made. Copy of development of
agreement is anneied as Eih.F to the plaint. It is contended
that on 23/05a/2008 defendant no.1 had agreed to construct
and provide free of cost premises admeasuring 225a sq..ft.
carpet area to each of the tenant of defendant no.2,
completed in all respect. It was further agreed that defendant
no.1 developer shall have the right to allot, sale, lease, grant
leave and license or otherwise deal with the fats and podium
parking spaces in the new building eicluding all rooms
reserved for the members/tenants of the defendant no.2 and
all consideration of such sold premises shall be received by
the developers from such purchasers and said consideration
shall belonging to developers.
5a. It is contended that said development agreement
dated 23/05a/2008 contemplated that the construction of
proposed building shall be completed within 18 months from
the date of commencement certifcate with further eitension
of sii months aggregating to 24 months. However, developer
miserably failed in complying the obligation and was not able
to complete the construction of proposed new building in time.
Therefore, it was agreed between defendant nos.1 and 2 that
defendant no.1 shall complete remaining construction of the
building and supplementary Deed dated 27/08/2919 was
eiecuted by them. In said deed also list of purchasers was
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anneied. Copy of said deed is anneied as Eih.A to the
afdavit of defendant no.2.
6. It is contended that thus defendant no.2 has
entered into agreement with developer defendant no.1 for
development of its property. Defendant no.2 envisages
construction for rehab building to accommodate its member
and for construction of buildings/ fats to be sold to outsiders.
It was agreed that defendant no.2 or its member shall not be
liable or responsible to any such outsiders so far as the
consideration is concerned either for refund thereof or of any
misapplication thereof. Plaintiffs have fled this suit on the
basis of agreement dated 15a/10/2016 allegedly entered
between plaintiffs and defendant no.1 to which defendant no.2
was not the party. Thus, according to defendant no.2 the
privity of said contract is only between plaintiffs and said
defendant no.1. Therefore, defendant no.2 is not liable in any
manner in respect of said agreement.
7. It is contended that vide letter dated 02/12/2019
addressed by M/s.Al-Fateh CHSL to resident Eiecutive
Engineer, The Eiecutive Engineer E-2 Division, Mumbai
Building Repairs & Reconstruction Board, defendant no.2 and
Society has categorically informed about the status of
allotment of various fats in the new building to the respective
tenant of the defendant no.2 wherein it is specifcally
mentioned that suit fat no.1001 from proposed new building
has been allotted to the tenants of the defendant no.2
namely Mr.Jamal Ahmed Haji Mohd Amin Ansari Viz the
defendant no.3. Copy of said letter is anneied to the afdavit
at Eih.B. According to defendant no.2 the suit fat thus in any
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event could not have been sold by defendant no.1 to any third
party. It is contended that plaintiffs had the noticed of
Development Agreement and its terms and conditions,
however plaintiffs have audacity to make false statements and
pleadings in terms of assertion that at the time of booking and
also registration of said agreement defendant no.1 has
redeveloped the building by demolishing old structure
occupying by 5a0 tenants. It is contended that defendant no.2
is not owner of suit fat and it is not entitled to grant suit fat
to defendant no.3.
8. It is contended that from a contractual standpoint,
in the present facts and circumstances, the plaintiffs have not
made out prima face case against defendant no.2 and they
have and not claimed any remedies against defendant no.2. It
is contended that clauses of Development agreement and
supplemental deed read together and in their proper
perspective clearly envisage the development and sale of the
free sale component of the redevelopment project by
defendant no.1 on their own account and as an independent
contracting party, and not as agents of defendant no.2. The
contract between defendant nos.1 and 2 is an principal to
principal basis and it does not constitute a partnership nor a
joint venture or agency between them. Defendant no.2 in
further paragraph has narrated the contents of development
agreement between defendant nos.1 and 2. It is further
contended that plaintiffs are not the eiecutent of the
agreement for permanent alternate accommodation dated
13/12/2019 eiecuted between defendant nos.2 and 3 inspite
of it plaintiffs have not sought its cancellation. According to
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defendant no.2, q.uestion of seeking cancellation of said
agreement does not arise at least in respect of of plaintiffs. It
is also pointed out that plaintiffs have deliberately valued the
suit insufciently and they have not paid req.uisite Court fees.
It is also pointed out that balance of convenience lies in favour
of defendant no.2 because redevelopment project is the need
for 5a2 tenants of defendant no.2 and their respective families
who have already surrendered their tenaments for
redevelopment project. Since, 2008 tenants have been living
in temporary alternative accommodation because of the
demolition of Mariambee building. Hence, according
defendant no.2 reliefs claimed in the plaint and notice of
motion of the plaintiffs be dismissed.
9. Defendant no.3 has resisted the notice of motion
by fling his afdavit of reply contending that plaintiffs claim is
mischievous not maintainable and false one. It is contended
that plaintiffss claim cannot be entertained for want of
payment of proper Court fees. It is contended that defendant
no.2 is the original tenant of Mariam Bee Building. Defendant
no.3 has also brought on record the fact of redevelopment of
Mariambee building and development agreement between
defendant nos.1 and 2. It is contended that on 31/03/2019 a
meeting was called by the tenants/ member of tenants
association and it was decided to take up work of completion
of the building by Association therefore, resolution was passed
in said meeting which was attended by maiimum members of
the association. However, by supplementary agreement
dated 27/08/2019, remaining completion work of building was
taken over by the association and said development is
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confrmed by fnal list of allotments of fats to the tenants as
per the allotment given on 08/02/2013. Copy of said
allotment list is anneied to the afdavit of reply as Eih.D.
Accordingly, agreement for permanent alternate
accommodation was registered in respect of fat no.1001 in
lieu of old room no.4 situated on ground foor of Marim bee
building. Copy of agreement is anneied to the afdavit of
reply at Eih.B. It is contended that defendant no.3 is old
tenant and as has frst right to get permanent alternate
accommodation against his old room no.4 being the member
of tenants association defendant no.2. It is contended that
privity of contract between plaintiff and defendant no.1 is not
between them only and plaintiff cannot have any claim
against defendant no.3. Again as like defendant no.2,
defendant no.3 also has referred contents of development
agreement between defendant nos.1 and 2.
10. It is contended that as like defendant no.2 plaintiffs
have fled the suit on the basis of alleged agreement for sale
dated 15a/10/2016, however defendant no.3 is not party to it
and therefore, defendant no.3 cannot be held liable to plaintiff
in any manner whatsoever. As like defendant no.2 , defendant
no.3 has also referred the letter dated 02/12/2019 sent by
defendant no.2 to Eiecutive Engineer E-2, Division Mumbai
Building Repairs and Reconstruction board. It is contended
that agreement between defendant nos.1 and 2 is valid,
subsisting and enforcible, however it is alleged that plaintiffs
are habituated to make false statements and plaintiffs have
made contrary statements to the agreement between
plaintiffs and defendant no.1. Further contentions raised in
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the reply of defendant no.3 are as like the reply defendant
no.2 hence to avoid the repeatation it an be said that
defendant nos.2 and 3 have raised same stands for resisting
the notice of motion.
11. I have herd plaintiffss advocate Mr.M.A.Khan,
advocate Mr.Aditya Khanna for defendant no.2 and advocate
Mr.Malhar for defendant no.3. Plaintiffss advocate referred
agreement eiecuted by defendant no.1 in favour of plaintiffs
which is at page no.5a3 of the plaint. Plaintiffss advocate also
referred agreement eiecuted by defendant no.2 in favour of
defendant no.3. It is argued that plaintiffs have paid all
consideration of suit fat, however defendant no.2 has
eiecuted agreement in favour of defendant no.3 in respect of
suit fat and thereby defendant no.3 has decided to hand over
possession of suit fat to defendant no.3 by discarding
Plaintiffss right which are created on the basis of agreement
eiecuted by Defendant no.1 developer. It is argued on behalf
of plaintiffs that the suit fat was kept for sale by the builder
and not for the alternate accommodation of the tenants.
Plaintiff advocate also referred the list contending it to be the
list issued by MHADA under RTI Act in which the name of
Defendant no.3 is appearing at serial no.5a and it is mentioned
in said list that room no.1 from 6th foor was proposed to be
allotted to Defendant no.3. On perusal of alleged list, it is
noticed by the court that there is nothing to believe that said
list is issued by MHADA under RTI Act, because Plaintiffs have
not fled any document to show that they have fled any
application under RTI Act with MHADA and in response to it,
MHADA has issued said list. When Court has pointed out said
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fact and directed the plaintiff to fle the copy of alleged list
with application, letter of MHADA, plaintiffs have fled the copy
of application under RTI submitted by him with MHADA.
However till passing of this order, plaintiffs have not fled the
document showing alleged list is given by MHADA to him in
response to the RTI application. Generally the documents
under RTI are issued along with the covering letter, it was
eipected that plaintiff should have fled the covering letter
sent by MHADA to plaintiff with which the alleged list was
given to plaintiff. Further, on perusal of the plaint, court has
noticed that plaintiffs have prayed for declaration that
agreement between Defendant nos.2 and 3 is null and void
and plaintiffs have also prayed for decree of possession of suit
fat. However, while hearing the arguments itself the Court
has made it clear that unless plaintiff claims relief of specifc
performance of alleged agreement eiecuted by defendant
no.1 in favour of plaintiff, no such relief for possession of suit
fat can be claimed by Plaintiff. Court has also made it clear
that if Plaintiff desires, he may amend the plaint for that
purpose. Any how, plaintiffss advocate submitted that the
notice of motion is necessary to be made absolute at least in
terms of prayer clause (b) of the Notice of Motion.
12. Advocate for Defendant no.2 while arguing has
referred page no.118 of plaint and clause 20 from the
agreement between Defendant nos.1 and 2. He has also
referred para no.6 and para no.18 of the plaint and it is
argued that plaintiffs are claiming rights from Defendant no.1
on the basis of agreement between Defendant nos.1 and 2
however, plaintiffs have contended in para no.6 that
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Defendant no.1 has not disclosed the fact that Defendant no.1
has redeveloped said building by demolishing the old
structure occupied by 5a0 tenants. Advocate for Defendant
no.2 further argued that agreement between Plaintiff and
Defendant no.1 it is mentioned in it that redeveloped building
was being constructed by demolishing old building. According
to advocate for defendant no.2, plaintiffs have undervalued
his claim and advocate for Defendant no.2 argued that
plaintiffs are not eiecutant of the agreement between
Defendant nos.2 and 3 hence Plaintiff cannot claim for
cancellation of said agreement and Plaintiff only can claim
that said agreement is not binding upon plaintiff. However
such prayer is not made by plaintiff therefore, according to
advocate for defendant no.2 on said ground the prayers made
in notice of motion cannot be granted.
13. Advocate for Defendant no.3 referred para no.7 of
the plaint and he has also referred supplementary agreement
eiecuted between Defendant nos.1 and 2 which is anneied to
the reply of Defendant no.2. Advocate for defendant no.3
referred page nos.25a to 31 of the reply of Defendant no.2 and
pointed out that names of plaintiffs are not mentioned by
developer Defendant no.1 as the purchaser of any fat from
the building developed by the developer. Letter of allotment
issued by Defendant no.1 in favour of Defendant no.3 was also
referred by advocate for defendant no.3. Said letter is
allegedly issued on 08/02/2013 and according to advocate for
Defendant no.3 by said letter fat no.1 from 10th foor of newly
constructed building is agreed to be allotted to Defendant
no.3. On perusal of letter dated 08/02/2013 it is noticed by the
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court that it is the ieroi copy of the fresh document and not
of the old document which was prepared before 7 years.
Hence, Court has also directed defendant no.3 to produce the
alleged letter given by defendant no.2 to Defendant no.3. Adv
for Defendant no.3 referred the alleged list of MHADA which is
produced by Plaintiff along with afdavit of rejoinder. Advocate
for Defendant no.3 pointed out that name of Smt.Saeeda,
daughter of Naziruddin, is shown at serial no.19 of said list
and said list further shows that fat no.1 from 10th foor was
proposed to be allotted to said lady. It is argued that said fat
no.1 from 10th foor is the suit property, hence plaintiff cannot
claim the reliefs as prayed in Notice of Motion on the basis of
list produced by Plaintiff himself.
14. After hearing the arguments, Court has also
directed plaintiff to take steps for challenging supplementary
agreement dated 27/08/2019 eiecuted between Defendant
nos.1 and 2 and Court has also directed plaintiffs that they will
have to take necessary step to implead Smt.Saeeda, daughter
of Naziruddin in this suit because as per the list of allotment
of fats issued by MHADA suit fat was proposed to be allotted
Smt.Saeeda, daughter of Naziruddin. Court has given above
directions because as per the MHADA list of suit fat was
proposed to be alloted to Smt.Saeeda, daughter of Naziruddin
and Court was and is of the opinion that in her absence this
Court cannot pass any order in respect of suit fat. If such
orders will be passed in her absence defnitely injustice will be
caused against her. This is the interesting suit in which the
plaintiffs are claiming to be owner of fat no.1 from 10th Floor
of redeveloped building of defendant no.2 and at the same
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time defendant no.3 is also claiming that defendant no.1
being tenant is entitled to have possession of said fat for his
permanent alternate accommodation. However, list of MHADA
is referring the name of third person i.e. Smt. Saeeda
daughter of Naziruddin. It seems that defendant nos.1 to 3
have not taken care of list showing the names of the tenants
to whom which fats were to be allotted. The document
between plaintiff and defendant no.1 and documents between
defendant nos.2 and 3 are the documents between private
parties and defnitely those documents will have less value
against the list prepared by MHADA. Yesterday plaintiffss
advocate has also obtained online list of the tenants
submitted to BMC showing that in said list also name of
defendant no.3 was referred in respect of fat no.1 from 6th
foor. However again the list submitted to BMC is also showing
same position as like the list of MHADA. In said list also name
of Smt.Saeeda daughter of Naziruddin In said list also name
of Smt. Saeeda daughter of Naziruddin is shown as the
person entitled from 10th foor of the building constructed by
defendant no.2. As such it seems that plaintiff and defendant
nos.2 and 3 with the help of defendant no.1 are fghting
together behind back of the real benefciary i.e. Smt.Saeeda
daughter of Naziruddin. This is the interesting case in which
tears of plaintiff as well as tears of defendant no.3 can be
called as tears of crocodile. For all above reasons, I fnd that
reliefs claimed in the notice of motion cannot be granted. It is
made clear that if plaintiff will implead Smt.Saeeda daughter
of Naziruddin in this suit and if plaintiff along with defendant
nos.1 to 3 will think for settlement it will be better for all the
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parties in the suit so that they themselves can settle their
rights peacefully and there will be no dispute in future forever.
Hence, I proceed to pass following order.
O R D E R
Notice of Motion No.295a of 2020 stands disposed
off/dismissed.
Sd/-
(K.P.NANDEDKAR)
24/01/2020 JUDGE,
CITY CIVIL COURT, MUMBAI.
Dictated on : 24/01/2020
Transcribed on : 30/01/2020
Signed by HHJ on : 05/02/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
05/02/2020 04.05PM B.R.HATEKAR S.G.
Name of the Judge HHJ Shri K.P.NANDEDKAR(CR No.9)
Date of Pronouncement of Judgment/Order. 24/01/2020
Judgment/order signed by P.O on 30/01/2020
Judgment/order uploaded on 05/02/2020
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