Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 640 OF 2019
IN
S.C. SUIT NO. 2445 OF 2019
Mrs. Sharda Balraj Sirisilla ].. Plaintiff.
V/s.
Mr. Nitesh Shivaji Chiplunkar ]
and others. ]..Defendants.
Advocate Mr. Rajbhar for the plaintiff.
Advocate Mr. Redekar for defendant No.1.
Advocate Mr. Trivedi for defendant No.2.
Advocate Mr. Kudalkar for defendant Nos.3 and 4.
CORAM : HIS HONOUR JUDGE
SHRI VIDYADHAR B. KAKATKAR
(C.R.No.09).
DATE : 14th FEBRUARY, 2022
ORDER
The suit is instituted for the relief of declaration to the
effect that Defendant No.2 has no right, title, interest, share and claim
in the suit property. Plaintiff has further prayed for temporary
injunction that Defendant No.1 may be restrained from parting with or
creating any third party interest or hand over to Project Affected Person
or from doing any act causing loss and damage to the suit premises in
any manner whatsoever.
2. The suit property is a room allotted against the old
premises/hut structure occupied by Shivaji Balu Chiplunkar situated at
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C. S. No. 912 and 286 (P), Kamgar Nagar No.1, Lower Parel Division,
New Prabhadevi Road, Prabhadevi, Mumbai–400 025 which is now
converted into rehabilitation building known as Sahana Co-operative
Housing Society Ltd., Building No.5, Rooms No.406, Gomata Nagar,
G.K.Marg, Lower Parel, Mumbai-400 013.
3. It is the case of Plaintiff that Shivaji Balu Chiplunkar and
his family members purchased and occupied residential premises that is
hutment situated in C. S. No.912 and 286 (P), Kamgar Nagar No. 1
Lower Parel Division, New Prabhadevi Road, Prabhadevi, Mumbai–
400025. The name of Shivaji that is deceased father of Defendant No. 1
was shown in the Annexture II at serial No. 328. Father of Defendant
No. 1 has sold the same to Plaintiff on 18/10/2010 by an agreement for
sale, general Power of Attorney and affidavit with Notary registration
entry No. 1064.
4. Plaintiff has further stated that Defendant No.1 who is legal
heir of deceased Shivaji intentionally filed a complaint to get money
from the Plaintiff and pursued the matter before Defendant No. 4.
Defendant No.1 successfully obtained an order of eviction from
Defendant No. 4 from the room situated at Sahana Co-operative
Housing Society Ltd, Building No.5, Rooms No.406, Gomata Nagar,
G.K.Marg, Lower Parel, Mumbai. Defendant Nos. 5 and 6 are the
society formed by the slum dwellers. Defendant No. 7 is the developer
and builder who proposed to develop the plot which is declared as a
slum.
5. Plaintiff has further stated that she has paid the amount of
Rs.3,00,000/- by cheque in favour of Shivaji at the time of transaction.
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Rest of the amount was released in the form of cash. The total amount
of consideration was Rs. 22,50,000/–. As per Annexture-II, Room No.
406 has been allotted to Shivaji.
6. Plaintiff has further stated that Defendant No. 1 is aware of
all these facts. Defendant Nos. 5 to 7 are also aware of the transaction.
Therefore, Plaintiff signed the possession letter on 02/05/2013 in the
presence of Shivaji and witnesses. It is further stated that the Plaintiff is
in exclusive use, occupation and possession of the said room. The
documents like voters identity card and Aadhar card are issued in
favour of Plaintiff on the address of the said room. The name of Shivaji
is noted in Annexture-II at serial No.328 and he is held eligible.
Defendant No.1 has no right, title or interest in the said room. However,
Defendant No.1 is trying to take possession of the suit room. Plaintiff
has further stated that Defendant No.1 should return the amount of Rs.
2,250,000/– which was paid by her to Defendant No.1 in the year 2010.
7. Plaintiff has further stated that she sent a legal notice to
Defendant Nos. 1 to 5 and 7 on 10/11/2018. Plaintiff has stated that
she has no other alternative than to approach this court for seeking
necessary direction that Defendant Nos. 2 to 4 may be directed to open
the sealed room and hand over the vacant and peaceful possession of
the suit property to Plaintiff. Though the Plaintiff has mentioned relief
of declaration against Defendant No. 1, in the prayer clause, there is no
such mention at all.
8. Plaintiff has filed Notice of Motion with the prayers of
declaration that Defendant No. 1 has no right, title, interest, share and
claim in the suit property and that Defendant No. 2 should hand over
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the possession of the suit property to Plaintiff. It is further prayed that
Defendant Nos. 1 and 2 may be restrained from parting with the
possession or creating any third party interest or handing over to Project
Affected Person or from doing any act causing loss and damage to the
suit property in any manner whatsoever.
9. Defendant No. 1 has filed written statement and has denied
all the contentions in the plaint. It is stated that the suit is not
maintainable. Plaintiff has suppressed material facts and has not come
with clean hands before the Court. Plaintiff has undervalued the suit
and has not paid proper Court fee stamp and hence the plaint is liable
to be rejected. There is no cause of action to the suit.
10. Defendant No. 1 has further stated that the Plaintiff has no
right of any accommodation in SRA scheme. She was having no right,
title or interest in the old premises. Plaintiff has not challenged the
order passed by the Deputy Collector on 02/12/2016, which is
Competent Authority directing for eviction of Plaintiff from the suit
property. The said order cannot be challenged before this court. The
Plaintiff has got equally efficacious remedy and hence the suit is not
maintainable before this Court. This Court has no jurisdiction to try
and decide the suit in view of section 42 of the Maharashtra Slum Areas
(Improvement, Clearance And Redevelopment) Act, 1971 (hereinafter
referred as ‘The Slum Act’ for the sake of convenience).
11. Defendant No.1 has further stated that Plaintiff was held as
unauthorized occupant in the suit property by order dated 02/12/2016.
The Competent Authority has taken the possession of the suit property
legally. It is further stated that Plaintiff has not issued statutory notices
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to the Defendants prior to institution of the present suit. Plaintiff has
fabricated and manipulated false documents to grab the suit property.
12. Defendant No. 1 has further stated that his father Shivaji
was held entitled for permanent alternative accommodation in
Annexture-II at serial No. 328. His father died on 03/09/2014 and
Defendant No. 1 is one of his legal heirs. The other legal heirs have
given no objection to Defendant No. 1 for getting permanent alternative
accommodation. The property is situated at Rooms No. 406, Building
No. 5 Gomata Janata Colony, Gomata Nagar, G.K.Marg, Lower Parel,
Mumbai–400 013 was allotted to Shivaji as permanent alternative
accommodation but the possession of the said premises was never
physically handed over to Shivaji. The possession letter is signed by
someone else and on behalf of Shivaji.
13. Defendant No. 1 has further stated that Plaintiff was in
unauthorized use, occupation and possession of the said Room No. 406
which has been allotted to the father of Defendant No.1. Therefore,
Defendant No. 1 lodged a complaint to SRA to remove the said
unauthorized occupant. Accordingly, the Deputy Collector who is a
Competent Authority initiated action against unauthorized occupant.
The notices were issued to the parties and personal hearing was given.
The Plaintiff appeared and filed the reply and stated that she purchased
the said Room No. 406 from Shivaji. She produced documents to that
effect. There is a bar under The Slum Act for selling such a premises for
the period of 10 years from the date of allotment and any transaction
contrary to this provision is void and illegal. The documents produced
by Plaintiff were false, bogus and fabricated. The signature of mother
of Defendant No. 1 was forged on that document. His father never sold
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the property to Plaintiff and did not receive the amount of consideration
as mentioned in the document. Therefore, the Competent Authority
came to the conclusion that Plaintiff is in unauthorized, occupation and
possession of the suit property and passed order dated 02/12/2016.
14. Defendant No. 1 has further stated that as Plaintiff did not
vacate the suit premises as per the order of the Competent Authority,
the Defendant again asked The Deputy Collector to take steps in the
matter for implementing the order. As The Deputy Collector delayed
the implementation of the order, Plaintiff filed a Writ Petition No. 1120
of 2018 for the direction before the Hon’ble High Court. The Hon’ble
High Court directed to take action within a period of 3 months.
Thereafter, the Competent Authority evicted the Plaintiff from the suit
property and sealed it on 30/10/2018. Plaintiff has filed appeal before
the Additional Collector bearing No. 1712 of 2018. She has accepted
the said order of eviction and not challenged at the same and she has
applied only for removal of her belongings from the suit premises. The
Appellate Authority considered the said request of Plaintiff of removal
of articles and not entertained the appeal.
15. Defendant No. 1 has further stated that the Defendant No.
1 will suffer irreparable loss if the relief is granted in favour of Plaintiff
and Plaintiff has failed to prove prima facie case. Therefore, as per the
case of Defendant No. 1 the suit is liable to be dismissed with costs.
Defendant No. 1 has further stated that the document that is alleged
agreement for sale is not properly stamped and needs to be impounded.
16. Defendant No. 1 has denied all the contentions in the plaint
and has prayed for dismissal of the suit. Defendant No. 1 has filed reply
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to the Notice of Motion. He has reiterated all the contents of the
written statement in the reply. He has prayed for dismissal of the Notice
of Motion.
17. Considering the pleadings, Notice of Motion, reply,
documents on record and submissions of both learned advocates,
following points arise for my determination and my findings to them
are as stated below for the following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether Plaintiff has proved her prima
facie case?
In the
Negative
2 Whether Plaintiff has proved that she will
suffer irreparable loss if the notice of
motion is dismissed ?
In the
Negative
3 In whose favour does the balance of
convenience lie?
In favour of the
Defendants
4 What order? As per final order
R E A S O N S
AS TO POINT No.1 :
18. It is the case of Plaintiff that the suit property was allotted
to the father of Defendant No. 1 Shivaji in lieu of the old premises as
permanent alternative accommodation. Shivaji executed an agreement
for the said room in favour of Plaintiff on 14/09/2010 and sold the said
room to Plaintiff for consideration of Rs.22,50,000/–. The said
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document is produced on record. The receipt of amount of
Rs.7,00,000/- is attached to it. It is pertinent to note that the said
document is not registered or notarized. Plaintiff has further produced
on record a copy of General Power of Attorney executed by Shivaji in
favour of Plaintiff on 18/10/2010 in the presence of the notary.
Plaintiff has further produced on record and affidavit of Shivaji dated
18/10/2010 affirmed in the presence of Notary. These three documents
prima facie show that Shivaji agreed to sell the suit property to Plaintiff
for consideration of Rs. 22,50,000/–. Plaintiff has produced one more
document that is the affidavit of Shubhangi Chiplunkar dated
16/12/2010, whereby she indemnified the Government authorities for
transferring the suit property in the name of present Plaintiff.
19. In reply to these pleadings and documents, it is the case of
Defendant No. 1 that the Agreement to Sale is not properly stamped or
registered. The permanent alternative accommodation allotted to any
beneficiary cannot be transferred within the period of 10 years from the
allotment. Any document executed in a breach of this condition is void
and illegal.
Sec. 3E of the Slum Act states that,
3E. Restrictions on transfer of tenements
The tenements allotted to the persons under the Slum
Rehabilitation Scheme shall not be transferred by the allotted
thereof by way of sale, gift, exchange, lease or otherwise for a
period of first ten years commencing from the date of
allotment of the tenement. After the expiry of the said period
of ten years, the allotted may, with the permission of the Slum
Rehabilitation Authority, transfer such tenement in
accordance with the prescribed procedure.
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20. Plaintiff has filed compilation of documents in which a copy
of the certificate issued by the co-operative society to the Deputy
Collector is produced. It is mentioned in the said certificate that the hut
belonging to Shivaji was sold to present Plaintiff on 18/10/2010 and
the permanent tenement was allotted as per lottery system on
30/11/2012. The possession of the said property was handed over to
present Plaintiff on 02/05/2013. This document clearly and
prima-
facie shows that the property which was at serial No. 328 of the
Annexture II was sold to present Plaintiff even before handing over the
actual possession.
Prima facie this appears to be a clear violation of
Section 3E Of the Slum Act. Therefore, the transaction of sale between
present Plaintiff and Shivaji is
prima facie illegal and void.
21. Plaintiff has produced on record a copy of possession
receipt dated 02/05/2013. It appears that the property was handed
over to Shivaji. But Plaintiff had signed in the place of signature of the
slum dweller.
22. Defendant No. 1 has produced an order of the Deputy
Collector dated 02/12/2016. It states that the possession of Plaintiff in
the suit property is
prima facie illegal. Present Plaintiff was directed to
vacate the same within seven days. Defendant No. 1 has produced on
record a copy of the order of the Hon’ble Bombay High Court in Writ
Petition No. 1120 of 2018 dated 02/07/2018. The Hon’ble High Court
was pleased to direct the respondent Nos. 2, 3 and 4 therein to take
appropriate action regarding the order dated 02/12/2016 within 3
months from the date of receipt of that order.
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23. Defendant No. 1 has produced on record a copy of the
order in Appeal passed by the Additional Collector on 20/11/2018. It
states that the possession was taken away from Plaintiff of the suit
property on 30/10/2018 pursuant to the order dated 02/12/2016. It
appears that the said appeal was filed by present Plaintiff on her getting
the possession of personal articles kept in the sealed suit property.
Accordingly, The Additional Collector directed the concerned officials to
hand over the household articled in the sealed suit property to the
Plaintiff.
24. Defendant No. 1 has produced on record a possession
receipt dated 03/12/2021. It
prima-facie shows that the key of the suit
property was handed over to the mother of present Defendant No. 1
that is wife of Shivaji on 10/12/2021. Therefore,
prima facie it appears
that the suit property is at present in the possession of wife of Shivaji.
25. Learned advocate for Plaintiff relied upon judgment in the
case of State of Maharashtra Vs Madhavdas S/O Jankidasji Mohta
reported in 2004 (4) MhLJ 853. In the matter before Hon’ble Lordship,
the notice under Section 80 of the Civil Procedure Code was issued to
all the Defendants and hence, it was held that there was no reason to
issue separate notice under the Maharashtra Co-operative Societies Act.
In the present matter, Plaintiff has produced a copy of a notice issued to
Defendants including the present Defendant No. 5 under Sec. 80 of the
Code of Civil Procedure on 10/11/2018. However, it does not appear
that the notice was issued to Defendant No. 6. Therefore, I have come
to the conclusion that the notice under Sec. 80 of the Code of Civil
Procedure was not issued to all the Defendants. Hence, with all respect
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to above ratio, I state that it is not applicable to the present matter as
the facts are different.
26. Plaintiff has produced on record a copy of order passed by
Hon’ble Bombay High Court in Writ Petition (L) No. 638 of 2019. This
is an interim order allowing the petitioner to implead respondent Nos.
6, 7 and 8. Further the respondent No. 6 was directed to file an
affidavit setting out the reasons as to why he has not taken steps for
implementation of the order dated 08/02/2018. Learned advocate for
Plaintiff in the present matter appears to be petitioner in the matter
before Hon’ble Lordships.
27. Learned advocate relied upon judgment Hon’ble Supreme
Court of India in the case of Makers Development Services Private
Limited Vs M. Visvesvaraya Industrial Research and Development
Centre in Civil Appeal No. 9709 of 2011. It is held that;
“It is settled law that while passing an interim order of
injunction under Order XXXIX Rules 1 and 2 of the Code
of Civil Procedure, 1908, the Court is required to
consider 3 basic principles, namely, (a)
prima facie case,
(b) balance of convenience and inconvenience and (c)
irreparable loss and injury.”
As observed by Hon’ble Lordships these three points are the main points
for consideration in the present matter.
28. The judgment in the case of Mr. Ashok B. Nigudkar vs Mr.
Sudhadra P. Nirgudkar and Ors. in Appeal from Order No. 137 of 2012
is relied upon. The Hon’ble Lordship has discussed the scheme of the
Slum Act so far as challenge to the order of the competent authority is
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concerned and it is held that all such matters which are exclusively
within the jurisdiction of the Appellate Authority, Competent Authority
and Grievance Redressal Authority cannot be entertained by the Civil
Court and the Civil Court has no jurisdiction to entertain any dispute in
respect of the aforesaid all matters. In the present matter, at this stage
of the proceeding Plaintiff has not even proved
prima facie case so far
as her right to the suit property is concerned. She has failed to prove
her possession over the suit property. Whether this Court has
jurisdiction to try and decide the matter in view of section 42 of the
Slum Act and in view of observations of his Hon’ble Lordship in the
present matter is a separate question for determination under Order VII
Rule 11 of the Code of Civil Procedure.
29. Plaintiff has not produced anything on record to show that
the order directing the Plaintiff to vacate the suit premises passed by the
Deputy Collector was challenged by her before the competent authority.
The order of Additional Collector produced by Defendants on record
show that the challenge was only in respect of getting back the
household articles in the sealed suit property which were belonging to
Plaintiff. The Plaintiff is evicted by the Competent Authority. It appears
that the order was enforced after the present Defendant No. 1 filed a
writ petition for the Hon’ble High Court. In the circumstances, we have
to see the prayers of Plaintiff in the Notice of Motion.
30. Plaintiff has prayed for direction to the Defendant No. 2 to
hand over the possession of the property to Plaintiff and has also prayed
for declaration that Defendant No. 1 has no, right, title, interest, share
and claim in the suit property. As
prima facie, it is appearing that the
possession of Plaintiff over the suit property was taken away by the
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Competent Authority by following due process of law, the question of
directing the Competent Authority to restore the possession of Plaintiff
does not arise at the interim stage. The relief of declaration also cannot
be granted at ad-interim stage. If both these reliefs are granted to the
Plaintiff at this stage of the proceeding, it will amount to granting of
final relief at the interim stage which is not permissible. I have come to
the conclusion that Plaintiff has failed to prove the
prima facie case so
far as the her possession over the suit property is concerned.
31. Plaintiff has further prayed for directing the Defendant Nos.
1 and 2 from parting with the possession of the suit property or creating
any third party interest therein or handing over to the Project Affected
Person (PAP) or from doing any act causing loss or damage to the suit
premises in any manner whatsoever. As I have earlier observed, Plaintiff
has
prima facie failed to prove that she purchased the suit property
from Shivaji by a valid transaction. Whatever transaction relied upon
by the Plaintiff is against the provisions of the Slum Act and hence
prima facie void. Therefore,
prima facie it appears that Plaintiff has no
right to claim the suit property. Hence, Plaintiff is not entitled to the
relief of injunction also. I answer point No. 1 in the negative.
AS TO POINT NOS.2 AND 3:-
32. As Plaintiff has failed to prove her
prima facie right over
the suit property and her prima facie possession over the suit property,
she will not suffer any irreparable loss, if the Notice of Motion is
dismissed. On the other hand, it appears that Defendant No.1 is in
possession of the suit property.
33. It is necessary to note here that the suit was instituted on
05/12/2018. The possession receipt produced by Defendant No. 1
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shows that the possession was handed over to Defendant No. 1 during
the pendency of the suit. However, the order of the competent authority
shows that the order dated 02/12/2016 of vacating the suit property by
Plaintiff was implemented by the competent authority on 30/10/2018
that is prior to the institution of the suit. This makes it clear that
Plaintiff lost possession over the suit room even prior to the institution
of the suit and on the date of institution of the suit, Plaintiff was not in
possession of the suit property.
34. In view of all above discussion, I have come to the
conclusion that the plaintiff will not suffer any irreparable loss, if the
Notice of Motion is rejected. The balance of convenience lies in favour
of Defendants. Accordingly, I answer point Nos. 2 and 3 in the negative
and proceed to pass following order.
O R D E R
1. Notice of Motion No.640 of 2019 is dismissed with costs.
2. Notice of Motion No.640 of 2019 is disposed off
accordingly.
(VIDYADHAR B. KAKATKAR)
Judge,
City Civil Court,
Date: 14.02.2022 Gr.Mumbai.
Dictated on: 14.02.2022
Typed on : 14.02.2022
Signed on : 16.02.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
16.02.2022 AT 5.30 P.M. MRS. SUPRIYA S. PAWAR
Name of the Judge (with Court Room
No.)
HHJ SHRI VIDYADHAR B.
KAKATKAR (C.R. No.09)
Date of Pronouncement of Judgment/
Order
14.02.2022
Judgment/Order signed by P.O. on 16.02.2022
Judgment/Order uploaded on 16.02.2022
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