Mr. Farhan Noor Mohammed Roshan and Anr. - Suit St. No. 314/2020VsRoyal Realtors and Ors.

Date: 22-01-2020
Business: Advocate Mr. M. A. Khan for Plaintiff present
Advocate Aditya Khanna for Defendant no.2 present
Advocate Ballal Zatakia for Defendant no.3 present and filed vakalatnama for Defendant no.3, t.o.r.
Court is busy in hearing Hon\''ble High Court time bound Notice of Motions in suit no.627/13 case is adjourned to 23/01/2020.
Next Purpose: NOTICE OF MOTION
Next Hearing Date: 23-01-2020

Date: 23-01-2020
Business: Advocate Mr. M. A. Khan for Plaintiff present and filed registered Notice of Motion no.295/2020 with affidavit in support, t.o.r.  He also filed rejoinder to Notice of Motion no.295/2020, t.o.r.
Advocate Mr. Aditya Khanna for Defendant no.2 present and filed vakalatnama, t.o.r. and marked as Exh.3  He also filed reply to Notice of Motion no.295/2020, t.o.r.
Advocate Mr. Nadim Malik for Defendant no.3 filed reply to Notice of Motion no.295/2020, t.o.r.
Heard Plaintiff\''s advocate who has referred agreement executed by Defendant no.1 in favour of Plaintiff which is at page no.53 of plaint.  He also referred agreement executed by Defendant no.2 in favour of Defendant no.3.  It is contended that Plaintiff has paid all consideration of suit flat however Defendant no.2 has executed agreement in favour of Defendant no.3 in respect of the suit premises and thereby Defendant no.2 has decided to handover possession of suit flat to Defendant no.3 by discarding Plaintiff\''s right which are created on the basis of agreement executed by Defendant no.1 developer.  It is submitted that suit flat was the flat kept for sale by the builder and not for the alternate accommodation of the tenants. Plaintiff advocate also referred the list contending it to be the list issued by MHADA under RTI Act in which the name of Defendant no.3 is appearing at serial no.5 and it is mentioned in said list that room no.1 from 6th floor was proposed to be allotted to Defendant no.3.  On perusal of alleged list, it is noticed by the court that there is nothing to believe that said list is issued by MHADA under RTI Act, because Plaintiff has not filed any document to show that he has filed any application under RTI Act with MHADA and in response to it, MHADA has issued the alleged list.   Plaintiff is directed to satisfy the court as to how the list can be considered by the court as the list issued by MHADA under RTI Act for that purpose Plaintiff will have to file copy of application filed by Plaintiff under RTI Act and the letter with which alleged list was given by MHADA to Plaintiff under RTI Act.  Further, on perusal of the plaint, court has noticed that Plaintiff has prayed for declaration that agreement between Defendant nos.2 and 3 is null and void and Plaintiff has also prayed for decree of possession of suit flat against Defendant no.1.  However, after giving serious considering to the submissions made by Plaintiff, court is of the opinion that unless Plaintiff claims relief of specific performance of the alleged agreement executed by Defendant no.1 in favour of Plaintiff, no such relief for possession of suit flat can be claimed by Plaintiff.  It is made clear that if Plaintiff desires, Plaintiff may amend the plaint for claiming relief of specific performance of agreement between Plaintiff and Defendant no.1.  According to Plaintiff\''s advocate Notice of Motion is necessary to be made absolute at least in terms of prayer clause (b) of the Notice of Motion.
No one present for Defendant no.1.
Advocate for Defendant no.2 who has referred page no.118 of plaint i.e. clause 20 of the agreement between Defendant no.2 and Defendant no.1.  Advocate for Defendant no.2 also referred para no.6 of the plaint and para no.18 of the plaint. It is submitted that Plaintiff is claiming the rights from Defendant no.1 on the basis of agreement between Defendant nos.1 and 2 however, Plaintiff has contended in para no.6 that Defendant no.1 has not disclosed the fact that Defendant no.1 has redeveloped said building by demolishing the old structure occupied by 50 tenants. Advocate for Defendant no.2 further, submitted that agreement between Plaintiff and Defendant no.1 is showing the fact that building has disclosed t he fact that he has redeveloped the property by demolishing old building.  Admittedly, Plaintiff has contended that he has paid Rs.64 lacs as consideration of suit flat however Plaintiff has valued his suit for recovery of possession of said flat to Rs.45,90,800/-. Thus according to advocate for Defendant no.2 Plaintiff has undervalued his claim. Lastly advocate for Defendant no.2 submitted that that Plaintiff is not executant of the agreement between Defendant nos.1 and 2 hence Plaintiff can not pray for cancellation of said agreement and Plaintiff only can claim that said agreement is not binding upon him, however Plaintiff has not made any such prayer, on this ground also the prayer as paid in Notice of Motion can not be granted.
Advocate for Defendant no.3 referred para no.7 of the plaint and he has also referred the supplementary agreement executed between Defendant nos.1 and 2 which is annexed to the reply of Defendant no.2.  He referred page nos.25 to 31 of the reply of Defendant no.2 and pointed out that name of Plaintiff is not mentioned by developer Defendant no.1 as the purchaser of any flat from the building developed by the developer.  Adv for Defendant no.3 also referred the  letter of allotment issued by Defendant no.1 in favour of Defendant no.3, said letter is allegedly dated 08/02/2013 and according to advocate for Defendant no.3 by said letter flat no.1 from 10th floor of newly constructed building is agreed to be allotted to Defendant no.3. On perusal of letter dated 08/02/2013 it is noticed by the court that the xerox copy of the fresh document and not of the old document which was prepared before 7 years.  Hence, Defendant no.3 is directed to produce before the court the copy of alleged letter dated 08/02/2013 given by Defendant no.12 to Defendant no.3.   Adv for Defendant no.3 referred the alleged list of MHADA which is produced by Plaintiff along with affidavit of rejoinder. Adv  for Defendant no.3 pointed out that name of Smt. Saeeda daughter of Naziruddin is shown at serial no.19 of said list and said list further shows that flat no.1 from 10th floor was proposed to be allotted to said lady.  It is submitted that said flat no.1 from 10th floor is the suit property, hence according to Adv  for Defendant no.3 Plaintiff can not have the reliefs as prayed in Notice of Motion on the basis of list produced by Plaintiff himself.
After hearing the arguments, it is noticed by me that Plaintiff has sought declaration that the agreement between Defendant nos.2 and 3 is null and void however Plaintiff has not challenged supplementary agreement executed between Defendant nos.1 and 2 on 27/08/2019. Plaintiff\''s advocate submitted that said agreement is brought to the notice of Plaintiff yesterday when Defendant no.2 filed reply to the Notice of Motion.  Any how, as on today Plaintiff is having knowledge about said agreement hence to establish Plaintiffs rights properly Plaintiff will have to seek declaration that said agreement is not binding upon Plaintiff. From the document filed by Plaintiff itself it becomes clear that lady namely Smt. Saeeda daughter of Naziruddin was supposed to get allotment of room no.1 from 10th floor of suit building hence Plaintiff will have to take necessary steps to add said lady in this suit as Defendant and unless Plaintiff takes any such steps no orders in the matter can be passed because if such orders will be passed they will affect the right of Smt.Saeeda daughter of Naziruddin.  As such arguments heard.
Case is adjourned to 24/01/2020 for Order on Notice of Motion no.295/20.
Next Purpose: NOTICE OF MOTION
Next Hearing Date: 24-01-2020

Date: 24-01-2020
Business: Advocate Mr. M. A. Khan for Plaintiff present
Advocate Mr. Aditya Khanna for Defendant no.2 present
Advocate Mr. Malhar  for Defendant no.3
F.R.S.R. following order has passed-
                                     ORDER
Notice of Motion no.295 of 2020 stands disposed off/dismissed.
Parties act upon authenticated copy of this roznama.
Case is adjourned to 15/04/2020 for service of writ of summons/Written Statement.
Nature Of Disposal: DISMISSED
Disposal Date: 24-01-2020

Filing Number: 100786/2020
Filing Date: 17-01-2020
First Hearing Date: 22nd January 2020
Decision Date: 24th January 2020
Court Number And Judge: 9-COURT 09 ADDL SESSIONS JUDGE