Final Order 2

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.682 OF 2020
IN
SUIT NO.384 OF 2020
(CNR NO.MHCC01-00175820-2020)
M/s. N. R. Corporation ).. Plaintiff.
V/s.
Shubham CHSL and Ors. ).. Defendants.
Appearances :-
Ld. Adv. Mr. Mahesh Dhuri for plaintiff.
Ld. Adv. Ms.Mansi Jain for defendant No.1.
Ld. Adv. Mr. Krishna Yadav h/f. Adv. Kapse for defendant No.5.
CORAM : HIS HONOUR JUDGE V. V. PATIL
COURT ROOM NO.09
DATE : 29th February, 2024.
ORDER
Plaintiff has taken out this Notice of Motion for restraining
defendant NO.1 from acting on the order dated 11.12.2019 passed by
defendant No.1 from executing the Deemed Conveyance in their favour
and/or selling, and/or disposing and/or creating any third party right,
interest in respect of the suit property.
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2. In short, it is contention of the plaintiff that plaintiff is a
partnership firm who has purchased suit property alongwith the old
structure from defendant No.4. Defendant Nos.2 and 3 are the original
occupants of defendant No.4 as the tenants of the original landlords i.e.
defendant No.4. Plaintiff has purchased the land admeasuring 3951.60
sq. mtrs. together with all the building and structures standing thereon
situate, lying and being at Rajawadi Road No.1, Ghatkopar (E), Mumbai
beairng C.T.S. No.4625 to 4646 bearing Old survey No.78/3. Defendant
No.1 approached before defendant No.5 Authority and made an
application for obtaining the Deemed Conveyance under Section 11 of
MOFA Act wherein defendant No.1 has submitted the schedule of the
property for an area admeasuring 2071.20 sq. mtrs. and without
making defendant Nos.2 to 4 as party of proceedings. The defendant
No.5 passed the impugned order dated 11.12.2019 in respect of the
Deemed Conveyance in favour of defendant No.1. The case of
defendant No.1 in respect of Deemed Conveyance before defendant
No.5 is based on the Architect’s Certificate dated 17.06.2019 wherein it
is submitted that defendant No.1 is entitled to get the Deemed
Conveyance in their favour in respect of area about admeasuring
2071.20 sq. mtrs. However, as per the certificate issued by architect of
plaintiff dated 01.07.2019, the defendant is only entitled to get the
piece of plot to be conveyed around admeasuring 766.96 sq. mtrs.
3. It is contended that the buildings of defendant NO.2 to 4
alongwith defendant No.1 are situated on the same plot of land
including admeasuring area of 3878.10 sq. mtrs. The building of
defendant No.1 has been constructed on the area of 766.94 sq. mtrs.
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out of total plot area of 3878.10 sq. mtrs. Defendant No.5 Authority
passed order dated 11.12.2019 in respect of Deemed Conveyance in
favour of defendant No.1 for the area around admeasuring 2071.20 sq.
mtrs. However, defendant No.5 has not taken into consideration the
area of plot occupied by the building of defendant Nos.2 to 4 on the
same piece of plot. The same also required to go in for redevelopment
as the structures are very old. Therefore, if the order of defendant No.5
is implemented, then the redevelopment work of defendant Nos. 2 to 4
can not be possible and their life become miserable because of the order
dated 11.12.2019 passed by defendant No.5. It is contended that
plaintiff has purchased the above plot alongwith old building structure
from defendant No.4 on the ownership basis by way of executing Deed
of Conveyance dated 28.01.2005, wherein some of the families are
residing on tenant basis of the original owners residing in the building
No.2 Chetan ‘C’ wing and have also obtained the Lease Deed in their
favour for a piece of land of around 123.48 sq. mtrs. Thereafter, plaintiff
got the approval of the sanction plan from the Competent Authority on
the plot admeasuring area 766.96 sq. mtrs. The plaintiff has purchased
the TDR from market and the said TDR alongwith FSI of the plot
admeasuring area 766.96 sq. mtrs. is included for structure of the
building of defendant No.1.
4. After obtaining occupancy certificate for defendant No.1
Society, they had approached to the plaintiffs for the conveyance of
piece of plot, however, the piece of plot has not been divided among the
all other buildings of the tenants and landlord. Therefore, plaintiff did
not come forward to execute the conveyance in favour of defendant
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No.1 Society. It is contended that there is common road given for all the
buildings. The compound wall is also common. Further, there is
common car parking to all the occupants. The building structures are
also situated on the same piece of land where the building of defendant
No.1 has been constructed and because of non-availability of FSI and
TDR, the defendant Nos.2 to 4 cannot proceed for redevelopment.
Defendant No.5, without considering all these aspects have passed
order which is under challenge in the suit. Plaintiff have great
apprehension that on the basis of order of Deemed Conveyance, the
defendant No.1 will be get transfer the area admeasuring 2071.20 sq.
mtrs. in their favour and if, such thing is happened, then there will
great loss to the defendant Nos.2 to 4 including plaintiff which can not
be compensated in terms of money. Hence, plaintiff prayed for passing
ad-interim relief in terms of prayer clause (a) of Notice of Motion.
5. Defendant No.1 filed an Affidavit-in-Reply to the Notice of
Motion and strongly opposed the same. It is submitted that plaintiff has
filed present suit challenging order dated 11.12.2019 passed by
defendant NO.5 thereby granting Deemed Conveyance under Section 11
of Maharashtra Ownership Flats (Regulation of the Promotion of
Construction, Sale, Management and Transfer) Act, 1963 (MOFA) in
favour of defendant No.1. Said order can not be challenged by filing the
suit and hence, suit is not maintainable and deserves to be dismissed.
Defendant No.5 Competent Authority is appointed under Section 5A of
the MOFA for the purpose of exercising the powers and performing the
duties under Sections 5, 10, 11 of the MOFA. Therefore, the order dated
11.12.2019 passed by defendant No.5 Competent Authority can not be
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challenged by filing the present suit.
6. It is further submitted that plaintiff has constructed
defendant No.1 building having ground floor on stilts and 13 upper
floors. Plaintiff has sold out flats of defendant No.1 building to the
respective flat purchasers by executing a registered Agreement for Sale
under Section 4 of MOFA. After obtaining occupation certificate, the
plaintiff handed over possession to the respective flats purchasers. The
plaintiff did not perform its statutory duties under Section 10 of MOFA
to form and register the co-operative housing society and it was only in
2014 after persistence follow up from the respect flats purchasers of the
defendant No.1 building, the plaintiff registered defendant No.1 as
Co-operative Housing Society under the provisions of Maharashtra Co-
operative Housing Societies Act, 1960. The plaintiff further failed,
neglected and avoided to perform its statutory duty as provided under
Section 11 of MOFA to convey the property in favour of the defendant
No.1. Defendant No.1 in the circumstances filed an application under
Section 11 of MOFA for Deemed Conveyance of the property in its
favour. After hearing the plaintiff, the defendant No.5 passed the
Deemed Conveyance order dated 11.12.2019. It is denied that
defendant No.1 is entitled only for area admeasuring 776.96 sq. mtrs.
and that the area which is common to all the tenants as well as building
of the landlord is also part and parcel of the order dated 11.12.2019 in
respect of Deemed Conveyance as alleged. It is denied that defendant
No.2 to 4 are situated on the same plot including admeasuring area of
3878.10 sq. mtrs. The building of the defendant No.1 is constructed as
per the plan sanctioned by the Municipal Corporation. It is submitted
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that defendant No.2 to 4 are not the persons under the law which could
be impleaded as party and by the Deemed Conveyance in favour of the
defendant No.1 in no way their alleged right were affected. Hence, they
are rightly not impleaded as party to the Deemed Conveyance
application. Defendant No.5 has granted Deemed Conveyance in favour
of defendant No.1 of the area of which the defendant No.1 is entitled.
The Notice of Motion taken out by defendant is devoid of merits and it
be dismissed with cost.
7. Defendant No.3 filed reply to the Notice of Motion and
supported the plaintiff. It is submitted that defendant No.1 has obtained
order of Deemed Conveyance from defendant No.5 without making
defendant Nos. 2 to 4 parties to the application. Defendant Nos. 2 to 4
are buildings in dilapidated condition and same are constructed prior to
50 years and in future it required to go for redevelopment of the said
building but there is no division of the plot among defendant Nos.1 to 4
and if the Deemed Conveyance order is executed then great harm and
prejudice will be caused to the plaintiff and defendant Nos.2 to 4
because buildings of defendants No.2 to 4 are already standing on the
same plot area admeasuring 2626 sq. mtrs. and same area is a part and
parcel of the order of the Deemed Conveyance and therefore, the area
of the all the defendants is not ascertained till that movement, it is very
difficult to decide the area of plot of each defendant’s building.
Therefore, there is a disputed question of plot and therefore, same
should be tried and decided by this Hon’ble Court. Defendant No.4
exercised his power without considering the right of defendant Nos.2 to
4 and if, the said order is carried out then the great harm and prejudice
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will be caused to defendant Nos. 2 to 4. Hence, it is prayed that Notice
of Motion be allowed.
8. Perused the Notice of Motion & Affidavit in support of
Notice of Motion. Also perused Affidavit-in-Reply filed by defendants.
The following points arise for my determination and I have recorded my
findings to them for the reasons stated below :-
Sr. No. POINTS FINDINGS
1. Whether the plaintiff has made out
prima facie case in his favour ? In the Negative.
2. Whether balance of convenience lies in
favour of plaintiff ?
In the Negative.
3. Whether irreparable loss will be caused
to the plaintiff, if present Notice of
Motion is not allowed ?
In the Negative.
4. What order? As per the final order
R E A S O N S
AS TO POINT NO.1 TO 3 :
9. As point No.1 to 3 are interrelated with each other, in order
to avoid repetition of discussion, I am discussing them together.
10. Heard Ld. Advocate for both sides at length. It is argued on
behalf of plaintiff that plaintiff has filed suit challenging order of
defendant No.5 dated 11.12.2019 of Deemed Conveyance in favour of
defendant No.1 Defendant No.1 approached defendant No.5 for
obtaining Deemed Conveyance for the area admeasuring 2071.20 sq.
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mtrs. out of area admeasuring 3951.60 sq. mtrs of plot. However, in
fact, plaintiff is entitled to only 776.96 sq. mtrs. of land. The plaintiff
has purchased the TDR from market and the said TDR alongwith FSI of
the plot admeasuring area 766.96 sq. mtrs. is included for structure of
the building of defendant No.1. What area to be given is a matter of
evidence till then execution of agreement be stayed.
11. In support of his contention, the advocate for the plaintiff
has relied upon the following authorities.
i. Marathon Next Gen Realty Limited and Anr. vs. Competent
Authority and Ors, 2015 DGLS (Bom.) 3.
ii. Mazda Construction Company & Ors. vs. Sultanabad
Darshan CHS Ltd. & Ors., 2012 BCI 550
iii. Ganga Bhaskar Builder & Ors. vs. Competent Authority &
District Deputy Registrar & Anr., 2015 (3) Bom. C. R. 636
iv. Allarkha Ismail vs. State of Maharashtra and Ors.,
2023 DGLS (Bom.) 3145
v. Sukruti Apartment Co-operative Housing Society Limited
vs. Tirumala Developers and Ors. 2022 DGLs (Bom.) 412.
vi. M/s. Mahanagar Housing Partnership Firm and Ors. vs.
District Deputy Registrar of Co-operative Societies (Pune
City), Pune and Ors., in Writ Petition (ST) No.31966 of
2018.
vii. Akshay Girikunj-3 Co-operative Housing Society Litd. vs.
State of Maharashtra, in Writ Petition (L) No.603 of 2023.
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12. As against this, it is argued by advocate for defendant No.1
that defendant No.5, the District Deputy Registrar is statutory body
appointed under the MOFA under Section 11 to perform duties and as
per Section 5A of the Act, it is for Competent Authority to convey
property and title to defendant No.1/Society. When promoter fails to
perform his duty under Section 11, Competent Authority comes into
play and perform the duty. Since plaintiff failed to execute Conveyance
Deed, defendant No.1 approached to defendant No.5 who rightly
passed order on Deemed Conveyance. No appeal is provided under the
MOFA to challenged the order passed by Competent Authority.
Therefore, order of Competent Authority is final. This Court has no
jurisdiction to try the suit and the order of Competent Authority can not
be challenge before this Court as this Court is not acting as Appellate
Authority. Therefore, the only remedy available to the plaintiff is to file
the Writ in Hon’ble High Court. Therefore, Notice of Motion is liable to
be dismissed.
13. In support of her contention, the advocate for the plaintiff
has relied upon the following authorities.
i. Mazda Construction Company & Ors. vs. Sultanabad
Darshan CHS Ltd. & Ors., 2012 BCI 550
ii. Ratna Rupal Co-operative Hsg. Society Ltd. vs. Rupal
Builder & Ors. 2011 (5) Bom. C.R.561.
iii. Madhuvihar Co-operative Housing Society vs. Jayantilal
Investments & Ors., 2010 (6) Bom. C.R.517
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14. From the rival pleadings, it can be gathered that, plaintiff
relied upon certificate issued by the architect Deole Bros. Dated
01.07.2019 wherein the land area to be conveyed to defendant No.2
Society has been worked out as 776.96 sq. mtrs. Whereas the defendant
No.1 relied upon his architects certificate dated 17.06.2019 wherein it
is mentioned that defendant No.1 is entitled to get Deemed Conveyance
in their favour in respect of the area about admeasuring 2071.20 sq.
mtrs. Thus, there are two different certificates of two different
architects relied upon by both the parties. Further, according to plaintiff,
the piece of plot of defendant No.1 has not been divided among all the
other buildings i.e. building Nos.2 to 4. All the building structures are
situated on the same piece of plot. There is common road for all the
buildings, compound wall is also common and there is common car
parking to all the occupants. Whereas, defendant No.1 has denied that
defendant Nos. 2 to 4 buildings are situated on the same plot including
admeasuring area of 3878.10 sq. mtrs. Defendant No.1 has also denied
that there is common compound wall and common car parking area for
all the buildings. According to plaintiff, there is a compound wall in
between defendant No.1 building and other buildings and the car
parking for all the buildings is also separate. Defendant No.1 has placed
on record some colour photographs showing the position of compound
wall and car parking which fortifies his contention. Defendant No.1 has
also relied upon Exh.’C’ i.e. copy of sanction plot in respect of building
of defendant No.1. It is submitted that considering the sanction plan
and all the relevant documents, defendant No.5 has rightly passed the
order.
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15. From the documents produced on record, it can be
gathered that, plaintiff is promoter of defendant No.1 building. As per
provisions of Section 11 of MOFA it is the duty of plaintiff to convey
property to the society. Admittedly, plaintiff did not execute the
Conveyance in favour of defendant No.1/Society and did not convey the
property. Hence, defendant No.1 approached before defendant No.5
authority for obtaining Deemed Conveyance. Defendant No.5 after
hearing the plaintiff and defendant No.1 vide order dated 11.12.2019
directed Deemed Conveyance. Though plaintiff has contended that
order passed by defendant No.5 is illegal, it appears that, after taking
into consideration the sanction plan and other documents, defendant
No.5 has passed the order. Plaintiff failed to show how the order of
defendant No.5 is illegal. Plaintiff has prayed for restraining defendant
No.1 from acting on the order dated 11.12.2019 passed by defendant
No.5. However, plaintiff has failed to make out prima facie case in his
favour for grant of interim relief as prayed. Balance of conveyance also
does not tilt in favour of plaintiff. In such circumstances, no irreparable
loss will be caused to the plaintiff, if prayers in Notice of Motion are not
allowed. Hence, I answer point Nos. 1 to 3 in negative.
As to point No.4 :
16. As point Nos.1 to 3 are answered in the negative, I hold that the
Notice of Motion is devoid of merits and is liable to be dismissed. In the
result, I proceed to pass the following order :-
ORDER
1. Notice Motion No.682/2020 in Suit No.384/2020 is hereby
dismissed.
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2. Notice of Motion stands disposed off accordingly.
(Order dictated & pronounced in open Court)
(V. V. PATIL)
Judge, City Civil Court,
Dated : 29.02.2024 C.R. No.09, Gr. Mumbai
Dictated on : 29.02.2024
Transcribed on : 29.02.2024
Signed on : 29.02.2024
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“Certified to be true and correct copy of the original signed order”.
01.03.2024
at about 16.30 p.m.
(Manisha D. Hirole)
Stenographer (Grade-I.)
Court Room No.09, Gr. Mumbai.
Name of the Hon'ble Judge : HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Order : 29.02.2024
Order signed by Hon'ble Judge on : 01.03.2024
Order uploaded on : 01.03.2024
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