Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1.. NM NO. 759/2020
MHCC010020702020
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 759 OF 2020
IN
S.C. SUIT NO. 2483 OF 2011
M/s. Vinayak Ashish Co-operative Housing Society Ltd. …Plaintiff
Versus
M/s. Essar Enterprises and others … Defendants.
Appearance
Adv. Thorat for the plaintiff.
Adv. Tanna for defendant No.1
Adv. Mungale for defendant nos. 2 to 5
Adv. Kadam for defendant nos. 6 to 8
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 21st October, 2021.
ORAL ORDER
Heard advocates for all the parties on notice of motion moved
on behalf of the plaintiff for grant of temporary injunction to restrain
defendant no. 2 to 5 or anybody on their behalf from creating third
party interest in approved and sanctioned society office premises along
with adjoining open space known as entrance foyer situated at Ground
Floor of 'A' Wing of the suit premises i.e. building consisting of A and B
Wings known as Vinayak Ashish Buildings on a plot of land ad-
measuring 1295.45 sq.mts. bearing CTS No. 551/3 Part bearing sub-plot
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No. 11B of Village-Nahur, and situated at Madan Mohan Malviya Marg,
Mulund (West), Mumbai – 400 080 as shown in Exh. 'C' to the plaint.
2. Defendant No.1 and 2 to 5 who are the contesting defendants
filed their reply to the Notice of Motion. Advocate for the plaintiff filed
rejoinder to reply of Defendant No.1 and 2 to 5. Perused the record.
3. Plaintiff's case, in short, is that M/s. Minerva Dealers Pvt. Ltd.
were the owners of plot of land ad-measuring 5665.66 sq.yards
=4737.22 sq.mts. bearing CTS No. 551/3 corresponding to Survey No.
94(part) and 119(part) of Village - Nahur. M/s. Minerva Dealers Pvt.
Ltd. sold said plot of land to M/s. Nahur Udyog Premises Housing
Society Ltd., by Deed of Conveyance dated 29.06.1972. Said society got
approved a building plan for construction of two industrial buildings on
a portion of larger plot of land by obtaining approval on 29.06.1972
and accordingly constructed one industrial building on the portion of
said larger plot of land. Said society entered into an Agreement dated
24.10.1988 and Supplementary Agreement dated 07.02.2001 with
defendant no.1 thereby transferring Plot No.11B with the balance FSI of
Plot No.11A and also executed Power of Attorney dated 18.12.1988 and
07.02.2001 in favour of defendant no.1 thereby permitting and
authorizing defendant no.1 to load outside TDR on the said plot of land.
4. Defendant No.1 after Order dated 05.09.1994 from the Office of
Collector, Mumbai Sub-urban District divided larger plot of land being
Plot No.11 into two parts i.e. Plot No.11A and 11B. Under said sub-
division, area of Plot No.11A is 3441.75 sq.mts. which is an Industrial
Zone and of which the entire FSI is consumed by M/s. Nahur Udyog
Premises Housing Society Ltd. and area of plot of land being sub-plot
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ORDER ..3.. NM NO. 759/2020
no.11B is 1295.45 sq.mts. which is in Residential Zone.
5. Defendant No.1 obtained permission dated 27.01.1993 from the
Competent Authority under the provisions of Urban Land Ceiling Act,
1976 and permission dated 05.01.2000 for construction of residential
building from Mumbai Municipal Corporation. Defendant No.1 got the
building plans approved on 20.06.2000 alongwith IOD for construction
of a building to be known as Vinayak Ashish Building consisting of 'A'
Wing with Ground plus 7 upper floors and 'B' wing with Ground plus 6
upper floors with part of 7th floors i.e. on the 7th floor, 2 flats each of 1
bedroom, kitchen and hall with open terrace in between them.
Accordingly, Commencement Certificate was issued to defendant No.1
on 18.07.2000.
6. Defendant No.1 constructed 'A' Wing with Ground plus 7 upper
floors and 'B' Wing building with Ground plus 6 upper floors with part
of 7th floors having 2 Flats each of one bedroom on both corners of said
building with open terrace in between the said 2 Flats bearing Flat
No.701 sold to Jaya Ramani and Flat No.702 sold to Shri. Hariram K.
Ramani. Thereafter Occupation Certificate for 'A' Wing was granted on
31.07.2002 and for 'B' Wing on 18.03.2005.
7. Defendant no.1 sold flats in 'A' and 'B' Wing since the year 2001
onwards by way of registered Agreement of Sale. Under clause-2 of said
agreements, defendant no.1 agreed and assured that in case of any
variation or modification of the building plan in future, defendant no.1
shall obtain written consent of flat purchasers. Under clause-3,
defendant no.1 agreed to construct the building in pursuance of
building plan approved and sanctioned on 18.07.2000. Under clause-14
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of recitals and Term No. 15, defendant no.1 mentioned that agreements
are covered under the Maharashtra Ownership Flats Act, 1963 (MOFA).
Under clause-17, defendant no.1 agreed to form and get registered Co-
operative Housing Society of flat purchasers and under clause-20
agreed to convey the suit property to the registered society.
8. Contention of the plaintiff is that Clause-20 empowering
defendant no.1 to carry out any additional constructions after execution
of agreements is not a consent as contemplated under section 7 of the
MOFA. Defendant no.1 failed to perform its obligation. Hence flat
purchasers formed and registered the plaintiff society on 15.04.2008.
Registration of the plaintiff society was challenged by defendant no.1.
9. Defendant no.1 submitted amended building plan to the
Mumbai Municipal Corporation for construction of two additional
rooms in the space i.e., terrace between two flats i.e., Flat No.701 and
702 on the 7th floor of 'B' Wing for covering said space without
knowledge and consent of the plaintiff society. Though there are no
garages in the suit building or abutting thereto, defendant no.1 without
consent of plaintiff got approval on 03.04.2008 for construction of three
garages in compulsory open space towards western side of 'B' Wing
numbered as 1, 2 and 3 as shown on the said plan. Defendant no.1 also
got sanction and approval to the said additional construction on
08.08.2008.
10. Defendant no.1 illegally agreed to sell said three garages to
defendant no.6 to 8 by entering into agreement of sale dated
03.04.2008 though said garages are not in existence and stilt not
constructed. Defendant no.1 started construction work of filling gap
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ORDER ..5.. NM NO. 759/2020
between two flats on 7th floor of 'B' Wing in pursuance of building plan
dated 03.08.2008. Plaintiff filed suit no.2763/2008 against defendant
no.1 and Mumbai Municipal Corporation for declaration and execution
of Deed of Conveyance. Said suit is pending.
11. Defendant no.1 illegally sold two open stilts on the ground floor
of 'B' Wing to defendant no.9 along with Office No.B-9 by Agreement of
Sale dated 05.12.2003. Defendant no.1 also sold Society office as
shown in the sanctioned plan to one Mr. L.S. Jain and others who in
turn illegally sold to defendant no.2 to 5 along with entrance foyer by
enclosing it although it was required to be kept open and same belongs
to the plaintiff society.
12. In view of above facts, plaintiff filed the present suit for
declaration that defendants are not entitled to sell the open parking
spaces/proposed garages either by putting constructions of garages
thereon or otherwise and also the open stilts parking as well as
approved society office on the ground floor of the suit building
consisting of 'A' and 'B' Wings in the plaintiff society. Plaintiff also
claimed declaration that sale of proposed garages to defendant no.6 to
8 and open stilt parking to defendant no.9 and Society office to
defendant no.2 to 5 by defendant no.1 is null and void. Plaintiff also
claimed possession of the society office from defendant no.2 to 5.
13. Facts leading to the filing of present notice of motion are that
defendant no.2 to 5 are illegally trying to sell the office premises in
their possession. Plaintiff came to know this fact from a broker who
approached the plaintiff society on 28.01.2020 stating that defendant
no.2 to 5 have decided to sell the office premises and adjoining space
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and whether plaintiff's society has any objection for the same. When the
plaintiff society refused, the said broker went away by saying that in
that event, defendant no.2 to 5 would take no objection certificate of
defendant no.1 and sale the said offices. Hence plaintiff's society given
Public Notice in 'Free Press General' and 'Navshakti' News Papers dated
07.02.2020 stating that no third party should dare to purchase the said
society office and adjoining open space known as entrance foyer
without written consent of the plaintiff society.
14. Contention of advocate for the plaintiff is that defendant no.2 to
5 are bent upon in taking law in hand and thereby to frustrate relief of
possession as asked by the plaintiff against defendants. Hence he prayed
for grant of temporary injunction to restrain defendant no.2 to 5 from
creating third party interest in the office premises in their possession
and passage in between shop no. A-01 to 07 situated in 'A' Wing of the
plaintiff society.
15. Defendant no.1 who is a builder and developer is supporting
defendant no.2 to 5. Advocate for defendant no.1 and 2 to 5 denied the
contents of notice of motion. They submitted that present notice of
motion is abuse of process of law and filed after 10 years only to
misguide the Court. Cross-examination of PW-1 was going on. PW-1
categorically admitted that society office is not shown in the sanctioned
plan of the year 2000 and amended plan of the year 2008. Defendant
no.2 to 5 are admitted as members of the plaintiff society and share
certificates were issued to them but the same has been withheld by the
plaintiff society. Defendant no.2 to 5 are bonafide purchasers of their
respective premises. Plaintiff has not came before the Court with clean
hands. Hence they prayed for dismissal of notice of motion.
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ORDER ..7.. NM NO. 759/2020
16. In reply, advocate for the plaintiff submitted that if apprehension
of the plaintiff as alleged in affidavit in support of notice of motion
would have been false, defendant no.2 to 5 would have made bold
statement that they are not going to part with possession of the
premises of which possession is sought by the plaintiff.
17. After perusing proceedings of the case and hearing arguments of
advocate for both parties, it is evident that defendant no.2 to 5 are in
possession of shop no.1 to 7. Plaintiff also given public notice in 'Free
Press General' and 'Navshakti' News Papers dated 07.02.2020 stating
that no third party should try to purchase the said office and passage in
between shop no.A-01 to 07 and office premises situated at 'A' Wing
without no objection certificate of the plaintiff society as the Suit
No.2483/2011 is pending before the City Civil Court. This very fact
suggest that apprehension of the plaintiff society regarding alienation as
shown by the plaintiff at the hands of defendant no.2 to 5 is reasonable
and bonafide. Further advocate for defendant no.2 to 5 did not say that
defendant no.2 to 5 has no intention to transfer or alienate the office
and passage in between shop no. A-01 to 07 and office premises
situated at 'A' Wing of the plaintiff society.
18. According to Order 39 Rule 1 (a) of the Civil Procedure Code
(CPC), where in any suit it is proved by affidavit or otherwise that any
property in dispute is in danger of being alienated by any party to the
suit, the Court may by order grant a temporary injunction to restrain
such act of alienation or sale until disposal of the suit or until further
order. Plaintiff proved by filing on record copy of News Papers in which
public notice were given regarding apprehension of alienation of the
property in dispute. Suit is for declaration and possession of the
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ORDER ..8.. NM NO. 759/2020
premises in possession of defendants. Hence property in dispute needs
to be protected till decision of the suit. Under the facts, circumstances
and documentary evidence on the record in the nature of public notice
supporting to the present notice of motion, plaintiff made out a prima
facie case for grant of temporary injunction under Order 39, Rule 1 (a)
of the C.P.C.. In the result, notice of motion is liable to be allowed in
terms of prayer clause (a). Hence this Court proceeds to pass following
order.
ORDER
(1) Notice of motion no. 759 of 2020 is allowed and made absolute
in terms of prayer clause (a).
(2) Notice of motion no. 759 of 2020 is disposed of.
(Sunil T. Soor)
Judge
City Civil Court, Gr.Mumbai
Date : 21.10.2021
Typed on : 21.10.2021
HHJ signed on : 21.10.2021
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ORDER ..9.. NM NO. 759/2020
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 21.10.2021, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
21.10.2021
JUDGMENT/ORDER signed by P.O.
on
21.10.2021
JUDGMENT/ORDER uploaded on 21.10.2021
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