Interim Order 1

Order Details: Order below exhibit
Pdf Text: 1 Order on Exh.5, Execu. no. 540 of 2017 in Suit no. 878 of 2010
MHCC010004812018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
ORDER BELOW EXHIBIT NO.5
IN
EXECUTION APPLICATION NO. 540 OF 2017
IN
SUIT NO. 878 OF 2010
Mr. Balkrishna Gautam Karande ...Plaintiff
(Decree Holder)
V/s
1. Mr. Pratik Subhash Patil And Ors. ...Defendants.
(Judgment Debtors)
CORAM : HIS HONOUR JUDGE
SHRI R. R. PATARE
(COURT ROOM NO.01)
DATE : 11th DAY OF MARCH, 2024
: Appearances:
The learned Sandeep Bane for the plaintiff/ DH.
The learned Datar for defendants/JD
ORAL ORDER
Perused the pleadings and heard advocates for the
parties. This application is taken out by JD no. 1 and 2 requesting
to dismiss Execution application on the ground that Execution
application is premature. JD no.1 and 2 came with the case that
necessary permission for construction of 6th and 7th floor is not
received / granted, therefore construction of 6th and 7th floor has
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2 Order on Exh.5, Execu. no. 540 of 2017 in Suit no. 878 of 2010
not commenced and therefore Execution application is premature
and requested for dismissal of the same. The learned advocate for
JD no. 1 and 2 would submit that the suit is decreed with
direction to perform statutory obligation by the defendants subject
to grant of permission by the competent authorities. He made
reference to the correspondence made between the parties and
tried to demonstrate that competent authority did not grant
necessary permission for construction of 6th and 7th floor. He
would further submit that unless and until competent authority
grant permission for construction of 6th and 7th floor, the present
decree cannot be enforced. He would further submit that the
decree passed in the present case is unenforceable.
The learned advocate relied on the case of Tanaji Krishna
Shinde Vs. Mahadev Maruti Pissal and Ors. Reported in 2015
(6)ALL MR 50; wherein it is observed in para 4 as under: “ It is
not in dispute that all the questions in respect of creation of
fragment and also of the fact whether the land in question is an
irrigated land are required to be decided by the Competent
Authority under the said Act. If the questions are answered
holding that such permission is not required to be granted then the
decree passed by the lower appellate Court shall become
unenforceable, but if the competent Authority grants the
permission then the decree would become enforceable on the
terms specified in the order passed by the lower appellate Court. It
is also made clear that the Competent Authority under the said Act
shall decide all the questions arising between the parties in respect
of fragment without being influenced by any of the observations
either made by this Court or the lower appellate Court or the trial
Court”.
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3 Order on Exh.5, Execu. no. 540 of 2017 in Suit no. 878 of 2010
2. JD no.1 is builder and developer. JD no.2 is Architect
appointed by JD no.3. The JD no.3 is Cooperative Housing Society,
who have appointed JD no. 1 and 2 to carryout construction of
proposed floor no. 6th and 7th of building of JD no.3. JD no.1 and 2
are trying to point out that decree in question in unenforceable for
want of necessary permission from the competent authority.
Admittedly the defendants/ JD have executed concluded contract
in favour of DH for sale of flat by accepting valuable consideration.
It is admitted fact on record that the suit no. 878 of 2010 ended in
favour of plaintiff with direction to the defendant to perform
statutory obligation. The defendants gave assurance to perform
statutory obligation by accepting consideration amount from the
plaintiff and now came with the defence that decree is
unenforceable for want of permission of competent authority. The
question for consideration arises as to on what basis the
defendants have executed concluded contract in favour of plaintiff
by accepting consideration amount. Non action on the part of
defendant/JD cannot be a ground to term the decree as
unenforceable. If such type of defence is accepted, then it will be
very easy for developer after receiving consideration amount to say
that competent authority did not grant necessary permission and
therefore decree is unenforceable. The Decree holder is yet to
exercise his option for appointment for Court Commissioner for
getting permission from the competent authority. The facts in the
present case and facts in the case law cited supra are not identical
and hence will not come to the help of JD in the present case. In
the result following order is passed:
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4 Order on Exh.5, Execu. no. 540 of 2017 in Suit no. 878 of 2010
ORDER
1. The application Exh.5 stands rejected.
( R. R. Patare)
Judge, City Civil & Sessions Court,
Date:.11.03.2024 Gr.Mumbai (C.R. No.01)
Dictated on :11.03.2024
Transcribed on:11.03.2024
Signed on :11.03.2024
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5 Order on Exh.5, Execu. no. 540 of 2017 in Suit no. 878 of 2010
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE:13.03.2024 NAME OF STENOGRAPHER(G I)
Mrs. V. V. Mhatre
TIME:
Name of the Judge (With Court
room no.)
HHJ Shri R. R. Patare
(Court Room No.1)
Date of Pronouncement of
JUDGEMENT/ORDER
11.03.2024
JUDGMENT/ORDER signed by
P.O. on
12.03.2024
JUDGEMENT/ORDER uploaded
on
13.03.2024
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