Final Order 1

Order Details: Notice of Motion
Pdf Text: NM 48118 in SU 368713 : 1 : Dt. : 02.04.2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO. 481 OF 2018
IN
S.C. SUIT NO. 3687 OF 2013
Smt. Nilisha wd/o Nandkishor Vasant Pathre ...Plaintiff
Versus
1. Satish Mahadeo Tembulkar
2. Kunda Satish Tembulkar
3. I.B. Khatri
4. Lodha Home Developers Pvt. Ltd. ...Defendants
Adv. Mr. Vyas for Plaintiff present.
Adv. Mr. Rajesh Dixit for Defendant no. 3 present.
Adv. Mr. Dalal for applicant / Defendant no. 4 present.
CORAM : HER HONOUR JUDGE
DR (SMT.) SRISHTY NEELKANTH
(C.R. NO.02)
DATED : 2nd APRIL, 2018.
ORDER
This Notice of Motion has been filed by the applicant /
original defendant no. 4 for modification of order dated 01.10.2013.
2. The learned advocate of the defendant no. 4 submitted that
the defendant no. 4 had acquired the rights of the suit premises from
defendant no. 3 by a registered Deed of Conveyance. The defendant
no. 4 wished to go for redevelopment of the premises and had obtained
the No Objection Certificate (NOC) and Intimation of Disapproval
(I.O.D) from MHADA and BMC respectively. He submitted that because
of the institution of this suit wherein plaintiff was claiming to be the
owner of the suit premises, the redevelopment of the premises had been
stopped. Further, as per the list of occupants issued by MHADA, the
defendant no. 1's name was appearing as an occupant. He submitted
-- 1 of 4 --
NM 48118 in SU 368713 : 2 : Dt. : 02.04.2018
that the defendant no. 4 was ready to hand over the suit premises,
subject to the outcome of the suit. He thus prayed that if the Notice of
Motion is not allowed, the defendant no. 4 would suffer irreparable
loss.
3. No reply was filed by the plaintiff and defendant nos. 1 and
2 but the Notice of Motion was argued by their respective advocates.
4. The learned advocate of defendant nos. 1 and 2 submitted
that defendant nos. 1 and 2 were ready to cooperate with defendant
no. 4 provided, they were given temporary accommodation or rent, as
the case may be, in case they have to vacate the suit premises. The
defendant nos. 1 and 2 were in possession of the suit premises since
2004 and were ready to give the possession to the defendant no. 4
keeping the rights of the parties open.
5. The learned advocate of the plaintiff submitted that the
plaintiff had been declared as a tenant in the Court of Small Causes,
Mumbai. The plaintiff did not object to the demolition of the premises
by defendant no. 4. Defendant no. 4 could not enter into any
agreement with defendant no. 1 and 2. After the outcome the suit, the
defendant no. 4 should make an application in the Court for handing
over the possession of the suit premises to its valid owner. He further
submitted that rent could be deposited in the Court itself.
6. Heard both sides. Perused the roznama and documents on
record.
-- 2 of 4 --
NM 48118 in SU 368713 : 3 : Dt. : 02.04.2018
7. It is observed that both the plaintiff and defendant nos. 1
and 2 had not objected to the redevelopment process being carried out
by the defendant no. 4. The dispute is with respect to who should be
given the possession of the premises after the redevelopment.
Considering the fact that presently premises are with defendant nos. 1
and 2 who are ready to vacate the premises and hand over the same to
the defendant no. 4, the rent for alternate accommodation should go to
the defendant nos. 1 and 2. Further, admittedly the redevelopment
process should not be stopped because of the dispute between the
plaintiff and defendant nos. 1 and 2. It is open for the parties to contest
for the arrears of the rent, if required, at a later stage.
8. Thus considering the submissions of the advocate of
defendant nos. 1 and 2, the defendant nos. 1 and 2 should hand over
vacant and peaceful possession of the premises to the defendant no. 4.
The defendant no. 4 should make an application to the Court when the
redevelopment process is over, for handing over the suit premises to its
rightful owner. For the just decision of Notice of Motion, the Order
dated 01.10.2013 needs to be modified as under :
“Defendant no. 1 to 4 shall not create any third party
interest in respect of suit premises.”
(Dr. Srishty Neelkanth)
Judge
City Civil Court,
Date : 02.04.2018. Gr. Bombay.
Dictated on : 02.04.2018.
Transcribed on : 11.04.2018.
Signed on : 12.04.2018.
-- 3 of 4 --
NM 48118 in SU 368713 : 4 : Dt. : 02.04.2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
12.04.2018 at 02.00 p.m. (Y.M. SAKHARKAR)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court room
no.)
DR(SMT) SRISHTY NEELKANTH
(C.R. No.02)
Date of Pronouncement of
JUDGMENT/ ORDER
02.04.2018
JUDGMENT/ORDER signed by P.O. on 12.04.2018
JUDGMENT/ORDER uploaded on 12.04.2018
-- 4 of 4 --