Order 1

Order Details: Other
Pdf Text: :1: Execution Application No.37/2018
MHCC010019682018
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
EXECUTION APPLICATION NO.37 OF 2018
IN
DISPUTE NO. 458 OF 2000
Mr. Mohd. Munaf Barmare ...Plaintiff
Verses
Rom-lui Apts. Co-op. Hsg. Society and others ...Defendants
Appearances:-
Advocate Mr. Birajdar for the plaintiff.
Defendant No.2 in-person.
CORAM : HER HONOUR JUDGE
SONALI P. AGARWAL
(C.R.NO. 14)
DATED : 4th MARCH, 2020.
ORAL ORDER
Respondents have stated that they have produced letter issued
by Municipal Corporation of Greater Mumbai to the Secretary of the
Society by which Municipal Corporation has given no objection to
install movable porta toilet to the Society dated 26.09.2019. They have
further stated that the owner of the Shop No.4 submitted copies of more
judgments which indicates that there was no toilet behind shop No.4
and therefore, the issue of restoring the toilet gets eliminated.
Respondents have further stated that as per the Order of 3rd Co-
-- 1 of 5 --
:2: Execution Application No.37/2018
Operative Court dated 10.10.2016, the opponent society has to provide
common amenities of urinal, lavatory and toilet to shop owners
including the disputant as per law. They have further stated that it does
not mention any specific location of the toilet. They have further stated
that the toilet can be constructed only after MCGM grants permission.
2. Decree holder has stated that BMC by Notice dated 19.07.1999
gave direction to re-store common toilet behind shop No.4. Decree
holder has further stated that 3rd Co-operative Court, at Mumbai by its
Order dated 10.10.2016 directed the respondents to restore the
Common toilet/ W.C. behind shop No.4. Applicant has stated that by not
restoring common toilet behind shop No.4, respondents are guilty of
disobeying the order passed by the 3rd Co-operative Court, Mumbai.
Considering such contentions, it will be proper to reproduce final Order
passed by 3rd Co-operative Court, at Mumbai in Dispute
CC/III/No.458/2000 states as under :-
1. The dispute is allowed with cost.
2. It is declared that the disputant is not liable to pay the amount as per
letter dt. 10.04.2000 ie at Exh. “C”.
3. The opponents should provide common amenities of urinal, lavatory
and toilet to the shop owners including the disputant as per law.
4. The award be drawn up accordingly.
The order directs respondent society to provide common
amenities of urinal, lavatory and toilet to the shop owners as per law.
The order is nowhere stating that the amenities has to be provided
behind shop No.4. Therefore, respondents cannot be directed to provide
such amenities at the particular behind shop No.4 only. Therefore,
contention of Decree Holder that respondents be directed to reconstruct
-- 2 of 5 --
:3: Execution Application No.37/2018
the toilet behind shop No.4 cannot be allowed. Respondents have stated
that they got permission for movable porta toilet from MCGM and
society has accepted the same. Defendant Society has stated that they
have procured, installed and operationalised the toilet facilities for the
shop owners. They have submitted photographs of the same. It appears
they have complied order of providing common amenities of urinal,
lavatory and toilet. Hence, on the ground that such facilities is not
provided, respondents cannot be sent behind the bar.
3. It appears, as per the order passed by the 3rd Co-operative Court,
Mumbai it is stated that the disputant is not liable to pay the amount as
per letter dated 10.04.2000 i.e. Exh. “C”. The executing Court cannot go
beyond the decree. It appears in the judgment in para 30 it is stated
that, “the opponent society failed to prove the liability of Rs.46,746/-
and Rs.68,619/- against the disputant.” This Court cannot look into all
other charges or dispute between the parties, but can only execute the
order and decree of the Court that the disputant is not liable to pay the
amount as per letter dated 10.04.2000 i.e. Exh.“C”. Therefore, this
Court only look into matter whether the amount of Rs.46,746.64 and
Rs.68,619.30 are refunded back to applicant. This Court cannot beyond
the decree to decide whether the applicant is entitled to get any other
amount from respondents or not. This executing court cannot decide
the issue as to whether respondent’s society charging any charges
legally further from 2000 and disputes between the parties to that
effect.
4. Respondent society has stated that as per letter dated
10.04.2000 i.e. Exh. “C” mentioned in the order and the interest levied
thereon has been reversed from the arrears of the applicant in the bill
-- 3 of 5 --
:4: Execution Application No.37/2018
for the period July to September, 2018. But 3rd Co-operative Court,
Mumbai which has not passed the order to reverse the entry from the
arrears of the bill. Therefore, such act of respondents cannot be called
compliance of the order of the Co-operative Court. The respondent has
to refund the amount collected by them as per letter dated 10.04.2000
i.e. Exh. “C” of Rs.46,746.64 and Rs.68,619.30. Therefore, it will be
proper to direct the respondent Society to comply the order of
refunding such amount to applicant immediate. Hence, following order:
ORDER
Respondent Society is directed to refund the amount collected by it of
Rs.46,746.64 and Rs.68,619.30 as per the Notice dated 10.04.2000
(Exh.C) from applicant.
(SONALI P. AGARWAL)
Judge,
Date: 04.03.2020. City Civil Court,
Gr. Bombay.
Dictated on : 04.03.2020
Transcribed on : 04.03.2020
Signed on : 04.03.2020
-- 4 of 5 --
:5: Execution Application No.37/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
09.03.2020 At 05:25 p.m. Mr. Subhash Sukhdeo Poul
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ SONALI P. Agarwal
(C.R.NO.14)
Date of pronouncement of
Judgment/Order
04.03.2020
Judgment/Order signed by P.O. on 04.03.2020
Judgment/Order uploaded on 09.03.2020
-- 5 of 5 --