Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
Draft Notice of Motion
In
L.C.Suit No 274 of 2018
Shiromani "A"Wing CHS Ltd ...Plaintiffs
V/s
Raj Kamal Kala Mandir Pvt Ltd and Ors ...Defendants
Advocate Tanvir Shaikh for plaintiff
Advocate Mrs Chavan for BMC.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 8th May 2018.
(Court Room No.06)
O R D E R
1 Plaintiff has taken out this draft notice of motion for grant
of following reliefs:
a) Pending the hearing and final disposal of the Suit, the
Defendant Nos. 1 & 2 by way of temporary injunction, be restrained
from Renting out Suit Property to any person/outsiders who are not
Members of the 10 Housing Society, the suit property being the Club
House, situate at Plot No. 1A,CS No. 191 (pt.) of Parel Sewri Division,
Raj Kamal Lane, Parel, Mumbai400 012
b) Pending the hearing and final disposal of the Suit, the
Defendant No.1 be directed to apply for Occupation Certificate for the
Suit Property, as directed by office of the Executive Engineer, Building
Proposal CityIII, by their letter dated 06/03/2017
c) Pending the hearing and final disposal of the Suit,
Defendant Nos.1 and 2, jointly and severally, be directed to render
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Accounts of the Income earned from Renting of the Suit Property from
the year 2010 onwards
d) Pending the hearing and final disposal of the Suit, the
defendant No.4 be directed to cause the due inspection of Suit Property
and file report before this Hon'ble Court.
2. According to plaintiff, plaintiff is a Cooperative Housing
Society registered under the Maharashtra Cooperative Societies Act,
1960. Defendant nos 1 & 2 are the promoters of the building of the
plaintiffs society. Defendant no 3 is the Municipal Corporation for
Greater Mumbai. Defendant no 4 is the office of the Chief Fire Officer
under whose jurisdiction the building of the Society is situated. Plaintiff
is one of the cooperative housing society in a lay out comprising 10
housing societies and club house. Hereinafter said club house is
referred as suit property. Defendant no 1 & 2 have constructed the suit
property (Club house) over plot no 1A,CS No. 191 (Pt) of Parel Sewree
Division, Raj Kamal Lane, Parel, Mumbai400 012. The suit property
was constructed on Recreation ground 1 and 2, and is situated in the
said layout of 10 societies. Defendant no 1 had submitted said plain to
defendant no3. The Executive Engineer of defendant no 3 has
sanctioned the said plan subject to conditions incorporated in clause no
5 i.e. "The ownership of the Club house shall be with the society or
Federation of society as case may be.
3 That around 2010 the suit property was ready for use .
Plaintiff had challenged the legality of the construction of the suit
property in the Hon'ble High Court in Writ Petition No 594 of 2016.
Thereafter, defendant no 1 had applied for occupation certificate to
defendant no 3. One Kiran V. Shantaram, the director of defendant no
1 have furnished undertaking to MCGM dated 30/01/2017 stating that
"the ownership of the club house shall be with the Federation of
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society as and when formed ". Thereafter, application for OC was
rejected by defendant no. 3 with direction to apply for O.C through
online mechanism. However till today MCGM have not received any
online application from defendant no 1 for obtaining O.C. Thus, the
suit property is being used and occupied in absence of O.C
4 The suit property is regularly given on Rent for private
functions/parties to the outsiders, who are not members of the 10
Housing Societies. The suit property cannot be rented out to outsiders
who are not members of the 10 housing societies. The suit property is
situate in immediate adjacent to the plaintiffs building and causing
nuisance to the resident members of the plaintiffs society. In a private
functions, food is cooked in the suit property, which is again a serious
fire hazard because there is no sufficient space for fire brigade to enter
the suit property in case of any fire.
5 Plaintiff has made representations to defendant no 3
Municipal Corporation. However, no action is taken. Defendant no 1 &
2 have not obtained any requisite licenses under the shops and
establishment Act and U/s 394 of MMC Act. Defendant no 1 & 2 are
not entitled to give the suit property to the outsiders hence, amongst
these grounds prayed to grant ad interim relief.
6 Notice served to the defendants.
7 I have heard Shri Tanvir Shaikh advocate for plaintiff. He
submitted that suit property is developed for the use of 10 housing
societies. However, defendant no 1 & 2 did not obtain O.C from
defendant no.3. Defendant no 1 & 2 are illegally giving the suit
property to the outsiders for functions/parties therefore, nuisance is
causing . He invited my attention towards the documents and
according to him, defendant have not given any accounts to the
plaintiff till today. Hence he prayed to grant adinterim relief.
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8 We are at interim stage. Hence, plaintiff has to prove
prima facie case, balance of convenience, irreparable loss in case of
refusal of injunction . Plaintiff has to prove that they have right in the
suit property. Plaintiff has come with a specific case that suit property
i.e. club house is constructed for the use of 10 housing societies.
However, defendant no 1 and 2 have not obtained O.C from defendant
no.3 and given the suit property to outsiders for private functions and
parties.
9 It is to be noted that plaintiff is one of the cooperative
housing society. There are other 9 cooperative housing societies. From
the pleadings of the plaintiff it appears that still no occupation
certificate is obtained by the defendant no 1 & 2. Therefore, the suit
property is not assigned to the society or the federation of the society.
Defendant no 1 & 2 had applied to the defendant no 3 for O.C
however, they were told to apply on online. Thus, the matter of
granting of O.C is pending. Plaintiff had filed writ petition no
594/2016 before Hon'ble High Court and the same is pending.
Therefore, it is necessary to hear all the parties before issuance of
injunction.
10 As discussed in supra, the suit property still is not vested in
the federation of the society. Therefore, plaintiff has no right, in the
suit property. Plaintiff may approach to defendant corporation for
taking any action in respect of O.C. and other formalities. Thus, the
plaintiff has equally efficacious remedy. Hence, in such a
circumstances, plaintiff is not entitled for adinterim relief as sought.
Therefore, the following order is passed:
ORDER
1 Ad interim relief is refused.
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2 Draft notice of motion be registered.
Date : 8/5/2018. (G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 8/5/2018
Typed on : 9/5/2018
Signed by HHJ. :10/5/2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
4/6/18 Mr. S.D. Raje
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with Court
Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
8/05/2016
JUDGEMENT/ORDER signed by
P.O. on
10/05/2018
JUDGEMENT/ORDER uploaded
on
4/6/18
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