Order 1

Order Details: Notice of Motion
Pdf Text: : 1 : Notice of Motion No.520 of 2018
CNR No.MHCC010020262018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.520 OF 2018
IN
SUIT NO.9687 OF 1999
Khanderao L. Pedgaonkar and anr. .. Plaintiffs
Versus
Jaisinh B. Gohil .. Defendant
And
Revelation Realty Pvt. Ltd. and anr. .. Respondents
Ld. Advocate Joshi for plaintiffs.
Ld. Advocate Vyas for defendant.
Ld. Advocate Sonali Salaskar for respondents.
CORAM : HIS HONOUR JUDGE
SHRI ANAND L. YAWALKAR
(COURT ROOM NO. 31)
DATED : 03.11.2018
: ORDER :
This Notice of Motion is taken out by plaintiff for directing the
respondent no. 1 to handover possession of newly constructed
Permanent Alternate Accommodation to them.
2. Plaintiff submitted that the respondent no. 1 is the
builder/developer and respondent no. 2 is Cooperative Housing
Society. On 20.01.2012 she was approached by the respondents for
vacating the flat for the purpose of redevelopment. She was in
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ownership and was having exclusive possession over the suit flat. On
20.03.2013 she handedover the possession to respondent no. 1 by
executing declarationcumIndemnity bond. She was provided with
Temporary Alternate Accommodation where she is residing presently.
She was paid monthly rent from December, 2012 to December, 2014.
From January, 2015 no rent amount was paid her by the respondent no.
1 and now she is paying the rent amount. She had also taken out the
Notice of Motion No. 4400/16 against the defendant and respondent for
directing them to pay amount of Rs. 7,65,320/. As per the order of the
court the amount was not deposited by respondent no. 1. Defendants
had filed eviction suit bearing Suit No. 159/191 of 1989 before Small
Causes Court. It was alleged that plaintiff is the licensees of the
defendant. The suit was decreed. Appeal was also dismissed. Writ
Petition No. 8711/2014 was disposed of on 12.02.2016. Plaintiff is also
relying on the observation made in the said writ petition. Defendant
had filed Execution Application before the Small Causes Court along
with misc. application for directing the plaintiff to pay Rs. 6,80,000/. It
was further contended that the suit flat is almost complete and hence,
after redevelopment she be handedover the possession of suit flat.
3. Defendant appeared and submitted that the notice of motion
is not maintainable. Judgment is passed against the plaintiff by Small
Causes Court. Its appeal was dismissed and also the writ petition filed
against the said appeal was dismissed by the Hon'ble High Court. They
had filed Execution Application and also misc. application to recovery
Rs. 6,80,000/ from the plaintiff. This notice of motion is taken out by
the plaintiff with malafide intention to defeat the process of execution
by obtaining conflicting orders. They denied any rights of the plaintiff
over the flat No. 173 and they prayed to reject the motion.
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4. Respondent no. 1 appeared and submitted that they had
undertaken the redevelopment of respondent no. 2 building. As per
annexure flat No. 173 stands in the name of defendant. They admitted
that they had received possession of flat No. 173 from plaintiff no. 2.
After completing the rehabilitation of building they are required to
handover 112 flats to the respondent no. 2 society. They further
submitted that they are not aware of the litigation in between plaintiff
and defendant. Accommodation in lieu of old tenement is already
complete and they are ready to handover the flat in newly constructed
building to plaintiff or defendant subject to the orders of this court.
5. Heard both parties. Perused the material on record.
6. Upon considering the hearing it is apparent that the
plaintiff was staying in suit flat No. 173. Possession was taken by the
respondent no. 1 promoter/builder from the plaintiff. Earlier when the
suit was before the Hon'ble High Court plaintiff had taken out Notice of
Motion No. 1569/2000. It was allowed on 15.10.2001 and the
possession of the plaintiff was protected till the disposal of the suit or
till relief granted by City Civil Court on 11.06.1988 are continued. Thus,
it is apparent that the plaintiff has been granted interim protection since
1988 and thereafter confirmed on 15.10.2001.Thus the interim rights of
the plaintiff are protected till the disposal of the suit.
7. A suit was filed by the defendant for eviction of plaintiff.
Admittedly, the eviction decree was passed by the Small Causes Court,
which was conformed in appeal. Writ Petition was filed challenging the
order of Appellate court was also dismissed by the Hon'ble High Court.
Thus, the order of Small Causes Court had attained the finality. It is
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also evident that after the order of eviction was passed against the
plaintiff and in favour of the defendant by Small Causes Court the
defendant had filed execution application which is also pending. He had
also filed misc. application for recovery of Rs. 6,80,000/ from plaintiff.
8. On the other hand, the present suit is filed by the plaintiff
herein seeking relief of declaration of ownership. The issue of
declaration and ownership i.e. involved before this court is a question of
civil right that has to be adjudicated by this court and is far more
important. Further, there are observation of the Hon'ble High Court
made by their Lordship while disposing Writ Petition No. 8711/2014 on
12.02.2016 wherein was observed that “...In so far as the last
contention is concerned, since the Petitioner has already filed the suit
claiming title and since injunction is running in favour of the Petitioner,
it is for the Petitioner to prosecute the said suit and take up such
contentions including the efficacy of the present adjudication on the
adjudication of the said suit...”
9. The main contention of the defendant was that the property is
given for redevelopment by the plaintiff. The possession was handed
over to the builder and the court was not informed. But this issue
alongwith the issue of rent has been dealt by my Ld. Predecessor in
Notice of Motion No. 4400/2016. Thus, it cannot be said that the court
was totally unaware. Though this court agrees to the contention of the
defendant that the court was not informed prior to vacating the
possession and signing of Indemnity bond.
10. The court is of opinion that as the possession of the plaintiff
was protected and on its strength she was in possession of the property
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and had handedover the possession to the developer. Also taking in
consideration the suit filed by the plaintiff before this court for
declaration of ownership and observations of the Hon'ble High Court
the possession can be handedover to the plaintiff of the suit flat subject
to outcome of this suit. Hence, considering this accordingly, I pass the
following order.
: ORDER :
Notice of Motion No.520 of 2018 is allowed in terms of prayer
clause (a)
Anand.L.Yawalkar
Judge,
City Civil & Sessions Court,
Date: 03.11.2018 Gr. Mumbai
Dictated on : 03.11.2018
Transcribed on : 03.11.2018
Signed on : 03.11.2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
On 03.11.2018 at 05.15 p.m.
UPLOAD DATE AND TIME Mrs. P.R.Vengurlekar
NAME OF STENOGRAPHER
Name of the Judge
(With Court Room No.)
H.H.J. Anand.L.Yawalkar
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
03.11.2018
JUDGMENT/ORDER signed by P.O. on 03.11.2018
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JUDGMENT/ORDER uploaded on 03.11.2018
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