Interim Order 1

Order Details: Notice of Motion
Pdf Text: Draft NM....2018 : 1 : SU.No.146/2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
DRAFT NOTICE OF MOTION....2018.
IN
L.C. SUIT NO. 146 OF 2018
MATUSHREE DAMYANTIBEN DEVI SANGOI
(KUTCHKAPAYAWALA) CHARITAABLE TRUST.. .. Plaintiff.
Versus.
1. Asst. Engineer (B & Factories)
"F/S" Ward & Ors..
.. Defendants.
Ld. Advocate Mr. P.D.Gandhi for the Plaintiff.
Ld. Advocate Mrs. Chavan for the Defendant/BMC.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 19th JANUARY, 2018.
(Court Room No.06)
O R D E R
1. Plaintiff has taken out this notice of motion restraining the
defendants their servants, agents, representative or any persons on
behalf of them, taking any action pursuant to the notice U/sec.351 of
MMC Act bearing No. FS/DO2FS/204/351MMC ACT/FS249NO1
dated 08/12/2017 and the order bearing Ref. No.49240 dated
06/01/2018.
2. According to the plaintiff, plaintiff has acquired the property.
There are tenants in the property and there is a dispute with one of the
tenants but the said tenant has filed the complaint against the plaintiff
and therefore, the false notice is issued to the plaintiff.
3. The 1st floor is mezzanine floor and approved by the Municipal
Corporation. The 1st floor is in existence since the datum line i.e. prior
to 1960. Hence, the notice is illegal and prayed to grant adinterim
injunction.
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4. Defendant appeared and filed affidavit of Shri. Nihkil V. Borse,
Jr. Engineer and also the documents.
5. I have heard Mr. P.D.Gandhy, advocate for plaintiff and Mrs.
Chavan, advocate for defendant.
6. Mr. P.D.Gandhy, advocate for plaintiff has submitted that the
said mezzanine floor is in existence prior to 1960. All the documents
i.e. layout plan and the other documents do show that there is
mezzanine floor. Defendants without making any enquiry have
initiated action. therefore, at this stage it is necessary to protect the suit
property.
7. Mrs. Chavan, advocate for defendants has submitted that plaintiff
fails to produce the document. Plaintiff may regularize the construction
if any.
8. I have perused documents on record. From perusal of layout
plan, it reveals that there is mezzanine floor. The other documents also
to show that the mezzanine floor is in existence. It is to be noted that
in the year 1963 Architect D.K. Mistry and Associates has proposed the
repairing of the said existing structure and accordingly, in the year
1964 the Municipal Corporation granted permission to the plaintiff to
carry out repair including this mezzanine floor. Thus, from the
arguments, it appears that mezzanine floor is already in existence.
Plaintiff has prima facie case. Balance of convenience is lies in favour of
plaintiff and if interim relief as prayed is not granted, irreparable loss
will be caused to plaintiff. Accordingly, I pass the following order :
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Draft NM....2018 : 3 : SU.No.146/2018
O r d e r
1. Adinterimrelief is granted.
2. Defendants and their servants are hereby restrained
from taking action on the basis of notice U/sec.351
of MMC Act bearing No. FS/DO2FS/204/351MMC
ACT/FS249NO1 dated 08/12/2017 and the order
bearing Ref. No.49240 dated 06/01/2018.
2. Leave is granted to register the Notice of
Motion.
(G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 19.01.2018
Typed on : 19.01.2018
Signed by HHJ. : 19.01.2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
19.01.2018 /04.30 p.m. Mr. S.D.Nalawade
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with
Court Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
19.01.2018
JUDGEMENT/ORDER signed
by P.O. on
19.01.2018
JUDGEMENT/ORDER
uploaded on
19.01.2018
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