Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS no. 391-19 in L.C.SUIT no.3969-10
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
CHAMBER SUMMONS NO. 391 OF 2019
(CNR no. MHCC010020562019)
IN
LONG CAUSE SUIT NO. 3969 OF 2010
(CNR no. MHCC010044752010)
(HIGH COURT SUIT NO.1717 OF 2010)
Shri Raj Rajeshwari Chs Ltd. ]
a registered cooperative housing society Limited ]
situated at Narayan Nagar, L.B.S Marg, ]
Ghatkopar (West), Mumbai 400086. ]....Plaintiff
V/s
1. Kalavati Nandlal Nakrani ]
2. Uttam Nandlal Nakrani ]
3. Sujal Nandlal Nakrani ]
All of Mumbai, having their office address ]
at Nandlal Narayan Nakrani, Flat No. D9, ]
2nd floor, Shri Raj Rajeshwari Apartments, ]
Narayan Nagar Marg, Ghatkopar (West) ]
Mumbai 400 086. ]
4. M/s. Shree Raj Rajeshwari & Company ]
A partnership firm having its office at ]
Narayan Nagar Marg, Ghatkopar (West), ]
Mumbai 400 086. ]
5. D. N. Corporation ]
A registered partnership firm having its office ]
at 10, NitinNiwas, 3rd floor, M. G. Road, ]
Vile Parle (East), Mumbai 400 039. ]
6. M/s. Integrated Spaces Limited ]
a Public Limited Company having its office ]
at 43, Deccan Court, S. V. Road, Bandra (West), ]
Mumbai 400 050. ]
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2 CS no. 391-19 in L.C.SUIT no.3969-10
7. Municipal Corporation of Greater Mumbai ]
having offices at Mahapalika Marg, ]
C.S.T., Mumbai 400 001. ]....Defendants
Appearances:
Ld. Advocate Mr. Nakul Jain with Ld. Advocate Ms. Kavita Sharma for
the Plaintiff.
Ld. Advocate Mr. Bipin Joshi for defendant no.6.
Ld. Advocate Mrs. Patil for defendant/MCGM.
None for defendants no. 1 to 5.
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 8)
DATED : 2ND November, 2019
O R A L O R D E R
1. By way of instant Chamber Summons, the plaintiff Society prays
to allow it to amend the plaint to add subsequent developments in
respect of the subject matter and the same are narrated in the schedule
for amendment of plaint. The said schedule narrates that the defendant
no. 6 developer tendered amended plans for the new building by way of
an amendment to the previous building plan sanctioned by defendant
no. 7/MCGM on 27.01.2015, the I.O.D. was issued on 01.06.2017 and
full C.C. was delivered on 09.06.2017. According to Ld. Advocate for
the plaintiff, if this chamber summons will not be allowed the
subsequent permissions by defendant no.7 will remain valid and the
suit will become infructuous. He has further alleged that the defendant
no.6 developer is usurping F.S.I. of the plaintiff Society by adding floors
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3 CS no. 391-19 in L.C.SUIT no.3969-10
and he has cited judgments of Hon'ble Apex Court and Hon'ble Bombay
High Court wherein principles of allowing amendments are explained.
However, in this suit the plaintiff earlier sought amendment to the
plaint by way of notice of motion no.1724 of 2010. The observations
made by Hon'ble High Court in the said notice of motion in paragraph
no.4 are of vital importance and therefore, said paragraph no.4 is
reproduced as under:
"In view of the above, plaintiffs have not been able to make
out a primafacie case that they are entitled to plot B also. If
this be so, the defendants cannot be restrained from
constructing on plot B. Whatever construction which is
carried out by defendants on plot B shall be subject to the
result of the suit. It will be open for the plaintiffs to register
lispendens notice in regard to the present suit. The interest
of the plaintiffs in my view is adequately protected on the
basis of the statement made by the defendant no.6 that the
FSI admeasuring 3666.47 sq. meters pertaining to plot A
shall not be utilized for construction to be carried out on
plot B. It is clarified that the main DP road keeping plot A
on one hand and plot B on the other, shall be maintained
and shall be available for the benefit of plot A and plot B
equally.
From the above observations, it is crystal clear that whatever
construction is being carried out by defendants on plot B is subject to
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4 CS no. 391-19 in L.C.SUIT no.3969-10
the result of the suit. Therefore, even if, the defendant no.6 amended
the building plans subsequently, that does not absolve the defendants
from the liabilities and consequences in case of adverse result of the
suit. Therefore, the proposed amendment is not necessary for the
purpose for determining the real question in controversy between the
parties. As such the principles in the citations of the plaintiff are not
applicable to the aforementioned facts of this case. Hence, following
order:
ORDER
1. Chamber Summons No.1283 of 2018 is rejected.
2. Costs in cause.
(C. V. Marathe)
Judge,
Date : 02.11.2019 City Civil Court, Gr. Mumbai.
Dictated on : 02.11.2019
Transcribed on : 02.11.2019
Signed by HHJ on : 04.11.2019
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5 CS no. 391-19 in L.C.SUIT no.3969-10
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 04.11.2019 at 4.46 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
02/11/2019
JUDGMENT/ORDER signed by
P.O. on
04/11/2019
JUDGMENT/ORDER uploaded
on
04/11/2019
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