Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 256/19 in Suit No. 1078/17. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 256 OF 2019
(CNR NO. MHCC010006572019)
IN
S. C. SUIT NO. 1078 OF 2017
(CNR NO. MHCC010022402017)
Mr. Raman Shamrao Rath and Others ...Plaintiffs
Versus
Rath Mansion Cooperative Housing Society
Limited and Others ...Defendants
CORAM : SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 4th NOVEMBER, 2019.
Mr. J.G.Damani, Advocate for Plaintiffs.
Mrs. Amrita Athavale, Advocate for Defendant No.3.
Mr. Hasnale, Advocate for Defendant No.5.
Mr. Rakesh Mishra, Advocate for Defendant No.6.
ORDER
This is a motion taken out by plaintiff for injunction against
defendants for restraining them from alienation, creating charge and to
execute any agreement of development etc. without written consent of
owner of the property. It is also claimed to restrict defendants from
parking commercial vehicles in open portion / car parking area of suit
property.
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N/m No. 256/19 in Suit No. 1078/17. 2 Order.
2. Perused reply filed by defendant no.3, 5 and 6 and
rejoinder filed by plaintiff.
3. The suit property is Wing A & B situated at Shivaji Park,
Dadar, namely 'Rath Mansion'. It consists of 13 flats and two open
parking space and one open stilt area as described in para 1 and 3 of
the plaint.
4. Ld. Advocate Damani for plaintiff submits that one
bungalow and 13 flats were constructed by plaintiff and 13 flats came
to be sold to different purchasers. The flat purchasers have formed a
society without consent of owner. However, there is no title of the open
plot has been transferred in the name of society. There is no
conveyance of ownership. Therefore, plaintiff is owner of the suit
property. Defendants have preferred various cases against plaintiff,
however a civil suit came to be withdrawn in 2016. Therefore, plaintiff
has claimed for damages of Rs.90 Lakhs against the defendants. It is
requested to peruse property card, wherein, plaintiff is shown as owner
of the suit property. It is requested to peruse some photographs,
wherein, a commercial car / travel permit car has been parked in
parking shed. Therefore it is claimed for temporary injunction.
5. Ld. Advocate Damani for plaintiff submits that every flat
owner had illegally constructed and made structural changes in the flat
sold to him. Plaintiff had sold the structure and no ownership was
given to any flat owner. Therefore, no flat owner can alienate the
structure nor the society can approach to any developer for new
construction or development of the property. It is claimed for
temporary injunction.
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N/m No. 256/19 in Suit No. 1078/17. 3 Order.
6. Ld. Advocate Rakesh Mishra for defendant no.6 submits
that defendants 1 and 2 are failed to file written statement. Defendant
no.6 is one of the flat owner, there is a registered agreement whereby
defendant no.6 has purchased a flat. As argued by ld. Advocate for
plaintiff, now there is no bungalow existed in suit premises nor there is
any averment in respect of said bungalow. The registered society came
to be formed in 1983. The suit is not tenable as per Section 91 of the
Cooperative Societies Act. It is requested to reject the motion.
7. Ld. Advocate Amrita Athavale for defendant no.3 submits
that defendants no.6 and 3 have submitted their written statement.
According to defendant no.3, she has purchased the Flat No.9 alongwith
a garage. Defendant no.3 holds all relevant documents to fortify her
ownership. There is no illegal construction on the part of defendant
no.3. It is claimed to reject the application.
REASONS
8. On perusal of plaint, Wing A and B situated at Plot No.650,
Mahim, alongwith 13 flats and 2 open parking space is mentioned as
'suit property'. It is not mentioned in plaint that how all 13 flats have
been sold, how much is the area, when it was sold and which flat owner
has started illegal construction. The material averment and the relief
claimed in the plaint is in respect of damages of Rs.90 Lakhs for
litigation between plaintiff and defendant since 25 years.
9. On perusal of pleading, it appears that Criminal Case
No.69/1983 was pending before 9th M.M., Criminal Case No.356/1986
was pending before 37th Court of A.C.M.M., Suit No. 1605/1986
preferred before the High Court was transferred to the City Civil Court.
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N/m No. 256/19 in Suit No. 1078/17. 4 Order.
It has been renumbered as 8271/1986 and withdrawn before 14 th City
Civil Court on 04/02/2016. It would be immature conclusion to create
any opinion at this juncture, without any evidence that plaintiff got
intentionally harassed in false litigation. It require evidence and trial to
comment upon compensation as claimed by plaintiff.
10. As submitted by ld. Advocate for defendant no.3 and 6, no
documents are given in respect of their sale deed alongwith flat
alongwith garage. However, it is admitted that a society came to be
formed in 1983. On perusal of resolution of society dated 04/03/2008,
the permission came to be granted for construction. In view of Exh.B
dated 27/07/1981, 13 flats are shown as an authorized construction.
However, it contains three car parking as stilt portion.
11. Ld. Advocate Damani for plaintiff requested to note that
garage 9A and 9B shown in the name of Shobha V. Patil and Rajendra
Vasantrao Patil are illegal constructions. It is surprising to note that
Shobha V. Patil and Rajendra Patil are not made party in the suit.
12. On the contrary, in a construction detail dated 27/07/1981
three car parking as stilt portion are shown as reserved for car parking.
Therefore no conclusion can be drawn that space of car parking or the
parking of car in particular place is illegal.
13. Ld. Advocate for plaintiff intentionally avoided to reply that
why the open plot has not been transferred in the name of society,
when all 13 flats has been sold by plaintiff before 30 years. It is settled
position of law that no one can sell better title than he holds. However,
a vague injunction cannot be granted that no flat owner is entitled to
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N/m No. 256/19 in Suit No. 1078/17. 5 Order.
alienate the property which was purchased by a registered sale deed. It
appear that no required details are given by plaintiff nor any executory
order can be passed by the Court. There is no prima facie case in favour
of plaintiff.
14. Considering aforesaid discussion, the question of tenability
of the suit in view of Section 91 of the Cooperative Societies Act is kept
open for consideration. The balance of convenience do not lie in favour
of plaintiff. No blanket injunction can be granted. Therefore, it will
cause irreparable loss to the defendant, if injunction granted as prayed.
In result, motion deserves to be dismissed. Hence the order :
ORDER
1. Notice of Motion No. 256/2019 stands dismissed.
2. N/m No. 256/19 is disposed off accordingly.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 04/11/2019. Mumbai.
1. Dictated on : 04/11/2019.
2. Transcribed on : 06/11/2019.
3. Signed on : 07/11/2019.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 256/19 in Suit No. 1078/17. 6 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
07/11/2019. 3.08 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 04/11/2019.
Judgment/Order signed by P.O. on 07/11/2019.
Judgment/Order uploaded on 07/11/2019.
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