Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Order in NM 543/2020 in Suit 3237/2008
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 543 OF 2020
IN
LONG CAUSE SUIT NO. 3237 OF 2008
(HIGH COURT SUIT NO. 288 OF 2008)
CNR NO. : MHCC01-001436-2020
Meena Abidullah Khan
Since deceased through her Legal Heir/
Representative Malika Khan … Plaintiff
Vs.
1) Mr. Matiullah A. Khan
2) The Secretary
Aghadi Nagar Co-operative Housing
Society Ltd. ...Defendants
Appearance:
Advocate Tanu Khattri for the Plaintiff.
Advocate Suraj Kudalkar for the Defendant no. 1.
Advocate Jitendra Tiwari for the Defendant No. 2.
CORAM : SMT. S.S. NAGUR,
JUDGE, (C.R.NO.20)
DATE : 24/02/2021
ORDER
The Notice of Motion is filed by the plaintiff to restrain defendant
no. 2 from auctioning the property as described in auction letter dated
07.11.2019 till final disposal of the suit. The plaintiff has also sought
relief to direct defendant no. 1 to deposit Rs. 9,58,976/- to the Society
and appoint her as the agent of the suit property on terms and
conditions.
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2. The Notice of Motion is supported by affidavit of Malika Khan.
She on oath stated that when she visited the suit premises on
31.01.2020, she came to know that defendant no. 1 not paid
maintenance charges to the Society. The Society has issued recovery
notice dated 07.11.2019. She enquired from the Chairman about the
Society dues and was shocked to know that the total due is
Rs.9,58,976/-. The plaintiff got xerox copy of letter dated 07.11.2019
and came to know that notice is for auction of the suit property from
the recovery department and Society received it on 28.01.2019.
3. The plaintiff has apprehension that the suit property will be
auctioned and it will cause irreparable loss to her and the ultimate
result of the suit will be infructuous. Hence, prayed to allow the notice
of motion.
4. The defendant no. 1 filed reply and denied the contents of
allegations of the Notice of Motion through affidavit of Matiullah A.
Khan. The present Notice of Motion is filed to change the nature of the
suit. The suit property belongs to his deceased father and was
purchased during his lifetime. He being his legal heir is entitled for
possession and occupation of the suit premises and prayed to reject the
Notice of Motion.
5. The defendant no. 2 filed reply to the Notice of Motion through
the affidavit of Mr. Abdul Subhan S. Khan. The contents of the Notice of
Motion is denied. The defendant no. 2 stated that the Notice of Motion
is filed in collusion with defendant no. 1 to avoid recovery of the society
charges. Against the order u/s 101 of Registrar of Co-operative Society
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under Maharashtra Co-operative Societies Act, the remedy is to appeal
before the Competent Authority. Therefore, the Notice of Motion is not
tenable. Section 154(2A) of Maharashtra Co-operative Societies Act
provides that,
“No application for revision shall be entertained against
the recovery certificate issued by the Registrar under
Section 101 unless the applicant deposits with the
concerned society, fifty per cent amount of the total
amount of recoverable dues”.
6. The owner of the suit premises was Abidullah Khan. Neither the
plaintiff nor defendant paid society maintenance since long. Therefore,
the society initiated proceeding u/s. 101 of Maharashtra Co-operative
Societies Act for recovery of the amount. The recovery certificate is
issued on 21.05.2015, that too plaintiff and defendant failed to pay the
amount. Therefore, the Recovery Officer has attached the suit flat on
20.06.2018 and has given 30 days time to deposit the amount. The
plaintiff is well aware about the payment of society charges, that too
not paid the amount, hence prayed to reject the Notice of Motion.
7. Heard Advocate Tanu Khattri for the Plaintiff, Advocate Suraj
Kudalkar for the Defendant no. 1 and Advocate Jitendra Tiwari for the
Defendant No. 2. Perused contents of Notice of Motion and reply filed
by both the defendants supported by affidavit. I have also gone through
the documents relied by the parties.
8. The plaintiff has filed the suit to direct the defendant no. 1 to
hand over the possession of the suit flat and direction to defendant no.
2 to transfer the Share Certificate of the suit flat in the name of the
plaintiff. The plaintiff is claiming to be owner of the suit flat. The
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plaintiff has relied on the letter issued by Recovery Officer to the
Secretary of defendant no. 2 Society directing to make valuation of
attached suit flat to recover the amount; the order dated 20.06.2018 of
Special Recovery Officer of Co-operative Society attaching the suit flat
to recover the amount. On the other hand, the defendant has relied on
the receipts issued by defendant no. 2 Society dated 26.12.2020,
11.01.2021 and 10.01.2021 towards the payment of maintenance
charges of Rs.50,000/- thereby has shown his willingness to pay the
maintenance amount to the Society.
9. On perusal of the proceeding, the suit is for cross examination of
the plaintiff’s witness. Plaintiff is claiming to be the owner of the suit
property. In the Notice of Motion No. 413 of 2008 filed by plaintiff
before Hon’ble High Court in the suit, the Hon’ble High Court by order
dated 01.04.2011 observed in para 3 that,
“The defendant who is the son of the first wife of the husband
of the plaintiff claims that the flat belonged to his father and
on his father’s death he has inherited the flat and is in
possession thereof. The defendant no. 1 has not produced on
record any document to show that his father had purchased
the flat. Even if it is assumed that the father had contributed
towards the purchase price, the defendant no. 1 alone is not
heir of his father. Plaintiff would also be an heir under the
applicable law. In the circumstances, the defendant no. 1
cannot be allowed to alienate the suit flat during the
pendency of the suit.”
10. In the above order, the defendant no. 1 is restrained from
alienating the suit property till final disposal of the suit. The defendant
no. 2 Society initiated recovery of maintenance charges of the suit flat.
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The plaintiff claims to be the owner of the suit property, but is seeking
direction to defendant no. 1 to deposit the amount of society charges.
At the same time, the suit is filed by the plaintiff to claim vacant
possession of the suit property. It is nothing but to avoid the payment of
maintenance of the society charges.
11. The defendant no. 1 has shown his willingness to pay his amount
of the maintenance charges to the Society and has paid Rs.50,000/-.
Therefore, the Notice of Motion is not maintainable in view of the above
facts on record and pass following order :-
ORDER
1. Notice of Motion is rejected.
2. No order as to cost.
3 Accordingly, Notice of Motion is disposed of.
(SMT. S.S.NAGUR )
Judge
Dt.: 24/02/2021 City Civil Court,
Gr. Mumbai
Dictated on : 24.02.2021
Typed on : 24.02.2021
Signed on : 24.02.2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
24/02/2021 5.20 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.20)
Date of Pronouncement of
Judgment/Order.
24/02/2021
Judgment/order signed by P.O on 24/02/2021
Judgment/order uploaded on 24/02/2021
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