Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.128 OF 2019
IN
S.C. SUIT NO.06 OF 2019
1. Praful Kanubhai Merchant
2. Pratapa Jivandas Kapadia ..Plaintiffs
Versus
1. Shrikant Govind Kamat
2. Kanubhai Purshottam Merchant ..Defendants
Ld. advocate Mr.Barot for the plaintiffs
Ld. advocate Mr.Prerak Sharma for defendant no.1
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 12/06/2019
ORAL ORDER
1. The plaintiffs have taken out this Notice of Motion
interalia claiming temporary injunction for
restraining defendant no.1, his servant, agent from
obstructing and/or preventing the contractor and
workers of NOC holders i.e. plaintiffs to carry out
repairs to the back portion of shop no.1 and above
portion of suit property namely Keshav Bhavan, 241,
JSS Road, Mumbai400 004 till disposal of the suit.
2. At the outset it is necessary to address factual matrix
of the case.
3. It is the stand of the plaintiffs that there is Keshav
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building having ground plus four floors situated at
241, JSS Road, Mumbai. In all there are eight
tenants. Defendant No.1 is also one of the tenant of
the commercial premises. The M.B.R & R board has
granted NOC dated 29/10/2013 to carry out repairs
of the suit building. Accordingly, the Municipal
Corporation of Gr. Mumbai(in short 'MCGM') has
issued IOD dated 04/06/2015 and sanctioned the
repair plan in favour of NOC holders. The NOC
holders are plaintiffs and defendant no.1. The
plaintiffs and defendant no.1 have given undertaking
to carry out the repairs as per rules. The architect
was appointed and accordingly repair plan was
submitted to MCGM and IOD has been granted in
favour of NOC holders. All the tenants have
contributed their share for repairs but defendant no.1
was defaulter in contributing his share towards the
repairs. The repair work of the suit property was
carried out by NOC holders. However, the back
portion of shop no.1 occupied by defendant no.1, the
repairs from back portion ground floor to upper
floors are required to be carried out. The back
portion of shop no.1 and above portion of suit
property have been demolished for the purpose of
carrying out repairs. The defendant no.1 with
malafide intention did not allow the contractor and
workers to carry out the repairs by not permitting the
contractor to put column and beam from the back
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portion of shop no.1 whereby defendant no.1 has
obstructed the repairing work of the suit property.
The notice was accordingly issued. In this
background the suit came to be filed.
4. Defendant no.1 resisted the claim of the plaintiffs by
filing written statement. Defendant no.1 claims that
he has handed over the possession of the premises to
defendant no.2 and plaintiff no.1 on 08/03/2013 so
as to enable them to repair the gallery section which
was in poor condition. Under the guise of repairing
the gallery section, defendant no.2 and plaintiff no.1
had also requested defendant no.1 to allow them to
remove the rolling shutter gate of the restaurant
premises so as to enable them to carry out the repair
work. They assured that repair work would be
completed within a week. After removal of the
rolling shutter the contractor engaged by defendant
no.2 and plaintiff no.1 dumped 200 bags of cement,
2000 bricks, and bags and other construction
materials such as iron rods, beams, channels and
other construction equipment in the restaurant
premises thereby virtually converting the same to a
godown for storing construction material. The whole
building was covered with scaffolding comprising of
bamboo sticks. Therefore the restaurant premises
became virtually useless for the purpose of carrying
on the business. Plaintiff no.1 and defendant no.2
are the landlords and assured that entire renovation
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work would be completed in a short span and
defendant no.1 would be put back in possession of
the restaurant premises as it then was. The
defendant no.1 has cooperated them for jointly
applying for NOC from MHADA for the purpose of
carrying out the repair work. He is also one of the
NOC holder. After obtaining the NOC from MBR & R
the plaintiff and defendant no.2 cut off the contacts
with defendant no.1. They have engaged the
contractor of their choice. They did not provide
information as regard the repair work. Despite the
lapse of more than five and half years, the plaintiffs
and defendant no.2 have failed to complete the
repairs work and therefore they are responsible for
the delay.
5. There are gross discrepancies in the repair work as
depicted in the repair plan and actual repair work
being carried out on site in the suit property. He has
denied the contention raised by the plaintiffs and
submitted that he has contributed Rs.1.80 lacs
towards the repair work and denied wrongfully
obstructing the repair work.
6. On the rival submissions of the parties, following
points arise for my determination and findings to it
are recorded for the reasons stated to follow:
POINTS
(i) Whether the plaintiffs have made out a prima
facie case?
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(ii) Whether the balance of convenience lies in
favour of plaintiffs?
(iii) To whom the irreparable loss would be
caused?
(iv) What order?
FINDINGS
(i) In the negative.
(ii) In the negative.
(iii) Not to the plaintiffs.
(iv) As per final order
REASONS
Point Nos. 1 to 3
7. It is the contention of the plaintiffs that the
construction is undertaken after the grant of NOC
and as per sanctioned plan. The contractor and
architect have been appointed by the plaintiffs and
defendant no.1 as NOC holders. The architect had
obtained NOC and IOD from the Competent
authority. The parties are not at dispute that the NOC
was granted jointly in the name of the plaintiffs and
defendant no.1. On perusal of the documents
annexed by the plaintiffs it reflect that the
commencement certificate was issued on
24/02/2016 and it was valid up to 23/02/2017. It
appears that repair work ought to have been
completed on or before 23/02/2017. There is
nothing on record to suggest that the time was
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extended since then for getting the repairs work
completed. It is the claim of the plaintiffs that the
work undertaken by them is as per the sanctioned
plan and in order to support their case they have
filed the photographs. On the contrary, the
contention of defendant no.1 is that photographs
cannot be the basis to show that construction is as
per sanctioned plan. It is the further contention of
the plaintiffs that there was conversation between
plaintiff no.1 and defendant no.1 and from it, it
reveals that the obstruction by defendant no.1 is to
avoid the payment of the repairing costs of shop
no.1. The plaintiffs and defendant no.1 are the NOC
holders and they have to carry out the construction
as per the NOC and sanctioned plan. From the
documents filed by the plaintiffs, it appears that as
on date there is no valid permission and the time
period for carrying out the repairs has been expired
on 23/02/2017. Thus there is no prima facie case
made out by the plaintiffs to carry out the legal
repairs.
8. Defendant no.1 has also given undertaking. The
undertaking given is not a formality. The
undertaking filed is meant for carrying out the
repairs as per the requirements of the plans which
are required to be submitted with MBBR & R boards
and as per the rules, the NOC holders are responsible
if any unauthorized work is done. As on date as
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pointed above, there is no extension of time for
carrying out the repairs of the suit property. So, it
cannot be said that the authorized work was carried
out. Defendant no.1 who is also NOC holder is also
liable for the consequences of the same. Thus, in this
background, it appears that balance of convenience
does not lie in favour of the plaintiffs.
9. The plaintiffs have made vague statement in the
plaint as regard obstruction by defendant no.1 for
restraining them or contractor from carrying out the
repair work. There is no date and time on which and
in what manner, defendant no.1 has restrained the
contractor or workers. The notice was issued to
defendant no.1 by the plaintiffs on 26/09/2018 and
suit was filed after the period of three months. Even
the notice is silent about the date and time and
manner in which the obstruction was made.
Considering the said factor and the vague statement
and absence of extension of time for carrying out the
work, it appears that there is no irreparable loss
which will be caused to the plaintiffs. Thus, in view
of the above discussion, the plaintiffs have not made
out any case for grant of temporary injunction.
Hence, I am inclined to answer point nos.1 to 3 in
the negative.
POINT NO.4
10. In view of the above discussion, the Notice of
Motion deserves to be rejected. Accordingly, it is
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expedient to pass following order:
ORDER
Notice of Motion No.128/2019 stands rejected.
12/06/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 12/06/2019
Transcribed on : 14/06/2019
Signed on : 15/06/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
17/06/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.16
Date of Pronouncement of
judgment/order
12/06/2019
Judgment and order signed by P.O. 15/06/2019
Judgment/order uploaded on 17/06/2019
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