Final Order 2

Order Details: Copy of Judgment
Pdf Text: CS No. 759 / 2021
Felcy Vs. Rockford Judgment (Exh.20) 1 of 10
Suit Lodged on : 12.02.2019
Suit Admitted on : 24.06.2019
Suit Decided on : 11.12.2025
Duration : 06 Years, 09 Months 29 Days
MHCC010016552019
City Civil and Sessions Court, Mazgaon, Greater Mumbai
Court Room No. 31 – Commercial Court
Commercial Suit No. 759 / 2021
Exhibit No. 20
1. Mrs. Felcy Coutinho
Age 77 years, Indian Inhabitant,
Occupation : Retired,
R/at Room No. 806, 8th Floor,
Mahalaxmi SRA Co-operative Housing
Society Ltd., Dadabhai Chamarbag Lane,
Parel (East), Mumbai 400 012.
2. Mr. Shelton Coutinho
Age : 42 years, Indian Inhabitant,
Occupation : Service,
R/at A-2, Pearl Co-operative
Housing Society Ltd.,
205, Dr. Ambedkar Road,
Dadar (East), Mumbai 400 014. … Plaintiffs
V/s.
Rockford Structures Private Limited
a Company incorporated under the
Companies Act, 1956, having its
registered address at 209, Konark
Shram Building, 2nd Floor, Plot No.
156, Raja Bahadur Mill Compound,
Tardeo Road, Mumbai 400 034,
Maharashtra. … Defendant
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Appearances :
Plaintiff : Adv. Mahesh Menon
Defendant : Adv. Ms. Yasmin Tavaria
Adv. Ashok Bhatia
CORAM : PRASAD P. KULKARNI
COURT ROOM NO.31.
DATE : 11.12.2025
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JUDGMENT
(Delivered on this 11th day of December, 2025)
Suit for declaration, specific performance, recovery of an amount and
perpetual injunction.
1. Plaintiffs sued defendant for a relief of declaration that
Permanent Alternate Accommodation Agreement Dt. 20.12.2013
(henceforth referred as PAAA) is legal and valid. Plaintiffs also claimed
for specific performance of contract based on Clause Nos. 1 and 3 of
PAAA. Plaintiffs seek to recover an amount of Rs.8,32,000/- with an
additional prayer to direct defendant to reserve 390 sq.ft. area in the
proposed construction.
Facts giving rise to the dispute are summarized as under :
2. Plaintiffs are individuals and they are tenant of Room No. 17
admeasuring 169 square feet located on 1st floor of building namely
Sheriar Tawoosian situated in City Survey No. 50 on Saint Pauls Street,
Dadar. 400014 (hereinafter referred as suit property). Defendant is a
developer. Defendant proposed to develop the property in which
plaintiffs occupy a small premises as referred above. So, PAAA was
executed between the parties on 20.12.2013. It was agreed between
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plaintiffs and defendant that in lieu of handing over possession of
plaintiffs’ rented premises, defendant would pay them transit
compensation Rs.15,000/- per month.
3. For first 24 months, amount payable by defendant was Rs.
3,60,000/- and there was additional 10% increase. It was agreed that
when new building is constructed, defendant would allot plaintiffs flat
no. 702 admeasuring 390 square feet. Relying on PAAA, plaintiffs
vacated suit property in September 2014. However, defendant made a
default in making payment of transit rent. On 03.10.2014, defendant
issued a cheque of Rs.1,90,000/- having no. 056280 in favour of
plaintiffs. But that cheque was dishonoured as payment was stopped by
defendant.
4. Plaintiffs issued notice on 19.10.2015 and 08.08.2016 calling
upon defendant to pay Rs.3,60,000/-, but defendant did not pay.
Plaintiffs filed a Company Petition No. 885/2016 under Section 433 (e),
434 of the Companies Act, 1956 for winding up of defendant’s
company. Said Petition was filed in Hon’ble Bombay High Court. During
pendency of that proceeding, Insolvency And Bankruptcy Code, 2016
came into force. So, plaintiff’s Petition was transferred to National
Company Law Tribunal (NCLT), Mumbai and registered as Petition No.
949/2017.
5. However, that Petition was dismissed on 15.10.2018 on
ground that amount claimed under PAAA does not fall under definition
of operation debt under the Bankruptcy Code. However, plaintiffs were
permitted to explore other remedies. Hence, this suit is filed wherein
plaintiffs claimed all the reliefs, which are mentioned in introductory
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paragraph of this Judgment.
6. In response to Writ of Summons, defendant appeared and
filed Written Statement. Gist of Written Statement is that defendant is
ready and willing to perform his part of contract as per PAAA. However,
it is contended that, suit is not maintainable. Defendant admitted
execution of PAAA and his promise to pay transit rent. Defendant
submits that vacating the suit premises was sine qua non for defendant
to comply his part of contract. However, plaintiffs not vacated the suit
premises till this date. So, cheque which was given in good faith was
not expected to be presented to bank for encashment.
7. As plaintiffs not vacated the suit property, so it become
difficult for defendant to develop the same. Except plaintiffs, remaining
all tenants had handed over possession of suit property to defendant.
Thus, denying entire claim, defendant prayed for dismissal of suit.
8. The then Presiding Officer framed issues vide Exh. 10 on
15.11.2022. Plaintiffs examined one witness i.e. plaintiff no. 2
Mr. Shelton Coutinho and mainly relied on PAAA Exh.15 and original
cheque Exh.16. Defendant not examined any witness on their behalf nor
tendered documentary evidence.
9. In view of issues vide Exh.10, I have recorded my findings for
the reasons discussed as follows:
Sr.
No.
Issues Findings
1 Whether plaintiffs proves that as per the
terms and conditions of Permanent Alternate
In the Affirmative.
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Accommodation (PAA) agreement and in
consideration of the plaintiff’s handing over
vacant possession in respect of existing
premises defendant had agreed to give
plaintiff in lieu of existing premises a new
premises i.e. flat no. 702 admeasuring
carpet area of 390 sq. feet on 7th floor in
proposed building known as Silver Crest?
2 Whether plaintiffs proves that as per Clause
No. 3 of PAA agreement defendant agreed to
pay to plaintiff transit compensation
aggregating to Rs.3,60,000/- for first 24
months and then for subsequent period with
10% additional increase after 2 years?
In the Affirmative.
3 Whether plaintiffs proves that an amount of
Rs.8,32,000/- is due from defendant?
In the Affirmative.
4. Whether plaintiffs proves that defendant has
failed and neglected to pay transit
compensation as per PAA agreement from
01.10.2014 along with transportation
charges?
In the Affirmative.
5. Whether plaintiffs proves that PAA
agreement Dt. 20.12.2013 is valid and
subsisting and binding upon plaintiff and
defendant?
In the Affirmative.
6. Whether suit is maintainable? In the Affirmative.
7. Whether plaintiffs are entitled to claim relief
of declaration against defendant?
In the Affirmative.
8. Whether plaintiffs are entitled to claim relief
of specific performance of PAA agreement?
In the Affirmative.
9. Whether plaintiffs are entitled to claim
decree against defendant directing
defendant to hand over to plaintiff vacant
and physical possession of suit premise flat
no. 702?
In the Affirmative.
10. Whether plaintiffs are entitled to recover an
amount of Rs.8,32,000/- from defendant? If
yes, at what rate of interest?
In the Affirmative.
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11. What order and decree? Suit is decreed
with cost.
R E A S O N S
As to issue nos. 1 to 6
10. In order to prove his case, plaintiff no. 2 Mr. Shelton Coutinho
examined himself at Exh.12 wherein he categorically narrated about
capacity of plaintiff as a tenant of room no. 17 admeasuring 169 square
feet. He deposed in respect of PAAA which is at Exh.15. It is contention
of plaintiff that, in lieu of handing over possession of suit property,
defendant agreed to pay transit compensation and agreed to allot
plaintiff flat no. 702 of 390 square feet in a building, which was
proposed to be constructed as redevelopment.
11. I have gone through PAAA Dt. 20.12.2013 and its Clauses 1
and 3. Its a matter of record that in lieu of suit premises, defendant
agreed not only to pay transit rent but also to allot flat no. 702 to
plaintiff in the same premises. As deposed by plaintiff, cheque issued by
defendant as a payment of transit rent got dishonoured. Original cheque
is placed on record vide Exh.16.
12. Defendant in Written Statement admitted execution of PAAA
and also admitted that he had given a cheque to plaintiff. It is stand of
defendant that cheque was given in good faith and plaintiff was not
supposed to tender it for encashment as plaintiff not vacated suit
premises. It is contention of defendant that though all tenants handed
over possession of their respective property to defendant, but plaintiff is
the only tenant, who refused to hand it over.
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13. On backdrop of above, plaintiff deposed that, possession of
suit property was handed over in September 2014. In Written
Statement defendant had spoken about inconsistent pleas raised by
plaintiff. Here, it is pertinent to note that, on 01.04.2019 the then
Presiding Officer turned down Notice of Motion No. 707/2019 filed by
plaintiff for interim reliefs. One of the reason was that there is
inconsistency in stand taken by plaintiff about date of handing over
possession to defendant.
14. However, order on Notice of Motion was passed at interim
stage when evidence was not recorded. At that stage, Court was not
supposed to appreciate evidence to the hilt. Plaintiff relied on oral and
documentary evidence but defendant neither conducted cross
examination of plaintiff nor stepped into witness box to prove his own
case. So unchallenged oral and documentary evidence of plaintiff can
very well be believed on every count including handing over possession
of suit property to defendant.
15. Thus, there is no reason to discard credible oral and
documentary evidence of plaintiff. Defendant admitted quantum of
transit rent. There is no evidence tendered by defendant to show full or
part payment of transit rent to plaintiff. Had defendant was ready and
willing to perform its part of contract, it would have paid regular transit
rent / compensation to plaintiff. However, no such evidence is tendered
by defendant. Hence, it is proved that defendant failed to perform its
part of contract.
16. In such circumstances, plaintiff is entitled to declaration that
PAAA Exh.15 is valid and subsisting document between the parties.
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Plaintiff is entitled to get Rs.8,32,000/- as outstanding amount of transit
rent. At the same time, plaintiff is entitled to decree for specific
performance of contract along with direction to defendant to pay Rs.
16,500/- from 01.02.2019 to plaintiff till plaintiffs are put in possession
of flat no. 702.
17. Only because Petition filed by plaintiff in NCLT was turned
down, that cannot be a reason to prevent plaintiff from availing civil
remedy. Hence, suit is tenable as it stands. Hence, I answer issue nos. 1
to 6 in affirmative.
As to issue nos. 7 to 10
18. In view of discussion of issue nos. 1 to 6, needless to say
finding of issue nos. 7 to 10 is in affirmative. Resultantly, suit deserves
to be decreed. As answer to issue no. 11, following order is passed :
ORDER
1. Commercial Suit No. 759/2021 is decreed with cost.
2. It is declared that PAA Agreement Dt. 20.12.2013 executed
between plaintiff and defendant is valid, subsisting and
enforceable document between plaintiff and defendant.
3. Defendant is directed to hand over vacant possession of flat
no. 702 admeasuring 390 square feet to plaintiff as per prayer
clause (b) of plaint.
4. Plaintiff is entitled to get Rs.8,32,000/- from defendant.
Defendant shall pay said amount to plaintiff within three
months from the date of this Judgment.
5. Plaintiff is entitled to get 9% interest per annum on above
referred amount from the date of suit till its actual realization.
6. Plaintiff is entitled to get transit rent / compensation of Rs.
16,500/- with effect from 01.02.2019 till plaintiffs are put in
possession of flat no. 702 admeasuring 390 square feet.
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7. Decree be drawn up accordingly.
8. Judgment is dictated and pronounced in open Court.
9. After compliance and period of Appeal, Sheristedar and AS to
consign Record of the suit, to Record Room.
Mumbai
Dated : 11.12.2025
(Prasad P. Kulkarni)
Judge, City Civil & Sessions Court,
Court Room No.31 - Commercial Court,
Mazgaon, Greater Mumbai
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
11.12.2025 4.15 p.m. Prachi Y. Potdar
Stenographer - Grade I
Name of the Judge HHJ Shri. Prasad. P. Kulkarni
(C.R.NO. 31)
Date of Pronouncement of
Judgment/Order.
11.12.2025
Judgment/order signed by P.O on 11.12.2025
Judgment/order uploaded on 11.12.2025
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