Final Order 1

Order Details: Other
Pdf Text: 1 Review Petn.No.17/2019
MHCC010006262019
Presented on : 14-01-2019
Registered on : 17-01-2019
Decided on : 03-04-2023
Duration : 4 Y. 2 M. 20 D.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
REVIEW PETITION NO. 17 OF 2019
IN
SUIT NO. 2073 OF 2014
Sea Flama cooperative
Housing Society Ltd. ...Petitioner
Vs.
1. Dosti Corporation & Ors. ...Respondents.
Appearance :
Adv. Mr. Vishal Sapre i/b.M/s.Thakore Jariwala and Associates for
plaintiff
Adv. Mr. Vikrant Makhare I/b. Negandhi Shah and Himalayatullah
for defendant No.1
CORAM : HHJ Rajesh A. Sasne
(C.R.NO.62)
Date: 3rd April, 2023
O R D E R
This review petition is taken out by the plaintiff requesting
to set aside, quash, recall or review the order dated 15.12.2018 passed
by my predecessor in Chamber Summons No.1120/2018.
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2. It is the contention of the plaintiff that the impugned order
suffers from error apparent on the face of the record. The cause of
action shown in chamber summons is that of introduction of provisions
of the RERA Act, 2016 which has come into force on 01.05.2016 i.e.
almost two years after date of filing of the present suit. It is further
contended that said order failed to consider the submission of the
plaintiff. It failed to consider that the facts sought to pleaded are
contrary to the findings of interim order dated 27.07.2015 whereby it is
held that defendant No.1 has not obtained, informed consent of the
plaintiff and defendant Nos.3 to 5 Societies. It failed to consider the
submissions, various findings, observations and admitted position
recorded in the Judgment and Order dated 25.02.2016 passed in
Appeal from Order No.117/2016. The completion certificate for the
project was issued on 28.03.2008. The subsequent amendment to
layout plan was not permitted without consent of the plaintiffs and
defendant Nos.3 to 5. There was no disclosure made by defendant No.1
to the flat purchaser about such development in future, based on any
further FSI. The plans sanctioned until year 2007 were in respect of
entire plot and purchasers and societies were entitled to get the
conveyance deed executed from defendant No.1. Defendant No.1 is in
breach of provision of MOFA Act. It is contended that the learned
Judge failed to consider the submission that the proposed amendment
will cause serious prejudice to the plaintiff's right. The learned Judge
failed to consider that the amendment is after thought and an attempt
to overcome the findings recorded in the earlier orders. There was gross
delay in filing chamber summons. The pleading proposed is mutually
destructive, the enactment of RERA will have no role. The RERA Act is
not made applicable retrospectively. The RERA Act does not enable or
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give any fresh right. The learned Judge failed to consider that it was
never the case of the defendant that “Dosti Falmingos” project is
governed and/or registered under the provisions of RERA Act. The
proposed pleadings are contrary to the finding of earlier orders dated
27.07.2015, 25.02.2016. It failed to consider that the provisions of
RERA Act, are used as back door entry to plead a case and/or to claim
any right which is barred. The proposed paragraph No.3 (o) of the
amendment is false and after thought. The reliance on the provisions of
RERA Act, 2016 is misconceived. The order failed to consider that the
project stood complete on 31.03.2008 and the completion certificate
was duly issued. With these contentions, the plaintiff prays to review
the order date 15.12.2018 passed in chamber summons No.1120/2018.
3. Defendant No.1 by affidavit in reply Exh.2 resisted this
chamber summons. It denied the contentions made in the review
petition. It also denied the grounds raised to allow the review petition.
It is contended that the amendment to the written statement is already
carried out. The impugned order does not warrant any interference.
The order is passed after considering the merit in chamber summons.
The suit is interalia seeking conveyance of the suit property in favour of
the petitioner and defendant Nos.3 to 5. There was no delay in
amendment. According to defendant No.1 the provisions of RERA Act
are attracted to the suit. The defendant denied the grounds raised in
review petition and requested to dismiss the petition.
4. Heard learned Advocate for the plaintiff and the learned
advocate for defendant No.1 in review petition. No argument of rest of
the defendants.
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5. I have gone through the contents of chamber summons
No.1120/2018, reply and the order dated 15.12.2018 passed therein.
In the said order it is observed that at the stage of settlement of issues,
the defendant took out the said chamber summons for amendment in
the written statement in view of enactment of RERA. It is observed by
my predecessor that after considering the submission of both the
parties, on perusal of record, as the amendment is sought in the written
statement to add further defences, it shall be allowed.
6. It is the contention of the plaintiff that though the RERA
Act is not applicable to the facts, the proposed pleading in respect of the
same are allowed by the amendment. In the impugned order my
predecessor has observed that on perusal of the proposed pleading it
does not appear that the proposed pleading is related to the provision of
law only. Therefore, the contentions made in review petition are
already considered in the impugned order.
7. In the review petition, it is not the case that discovery of
new and important matter or evidence has been made and same was
not within the knowledge or it could not be produced at the time of
decision of chamber summons. According to the plaintiff the impugned
order suffers from mistake or error apparent on the face of record and
therefore, review is necessary. If one considers the grounds stated for
review of impugned order, it will be noticed that the plaintiff raised all
the contentions in respect of merit of the amendment when there is a
settled position of law that merit of amendment need not be considered
at the stage of allowing the amendment. Whether the provisions of
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RERA Act are applicable or not that may be a point of dispute. Merely
by allowing the amendment, it cannot be concluded that the Court has
recorded the finding on the said disputed issue. The facts in the
proposed amendment if included in the written statement, necessarily
there will be issue based on said facts. Said issue will be for the trial.
Hence, no prejudice is caused to the plaintiff by allowing amendment.
Therefore, by considering the grounds for which this review petition is
filed, I am of the view that the petition deserves to be dismissed. There
is no error apparent on the face of the record. All the contentions raised
are considered, rejected. My predecessor has passed order by
considering the contentions raised by the plaintiff. It is also observed in
the order that no prejudice would be caused to the plaintiff. In review
petition no different findings can be recorded. Hence, I am of the view
that review petition deserves to be dismissed. In the result, I pass
following order:
ORDER
1. Review Petition No.17/2019 is dismissed.
2. Parties to bear their own costs.
Date : 03.04.2023 (Rajesh A. Sasne)
Dictated on : 03/04/2023. Judge, C.R.No.62,
transcribed on : 06/04/2023. City Civil Court,
Signed on : 13/04/2023. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
15.04.2023 at 11.15 a.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. R.A. SASNE
(C.R.No.62)
Date of pronouncement of Order 03/04/2023
Order signed by P.O. on 13/04/2023
Order uploaded on 15/04/2023
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