Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M NO.793/20
MHCC010021732020
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 793 OF 2020
IN
S.C. SUIT No. 487 OF 2020
1. Sharad Tukaram Teli and Ors. … Plaintiffs.
VERSUS
1. Smt. Suhasini Krishnakant Teli and Anr. … Defendants.
Appearance
Learned Advocates P.G. Parkar & J.H.Sawant for the plaintiffs.
None for the defendants.
CORAM : HHJ SHRI. R.A. SASNE
(C.R.NO.62)
Date : 6th April, 2023
O R D E R
This notice of motion has been taken out by the plaintiffs
requesting for interim relief restraining defendant No.2 from handing
over the possession of new flat in lieu of old room No.19 to defendant
No.1 without the plaintiffs consent. They also sought relief restraining
defendant No.1 from entering into new premises or creating third party
interest or parting with the possession thereon.
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In brief the plaintiffs' case is as under:
2. Plaintiff Nos.1 to 3 are real brothers. Defendant No.1 is the
wife of plaintiffs' deceased brother Krishnakant Tukaram Teli.
Krishnakant had expired on 26.09.2004 leaving behind his wife
defendant No.1, his son Suraj and daughter Suvarna. Defendant No.2 is
the developer who is in redevelopment process as per Rule 33 (7) of
Development Control Regulations Rule, of Janardhan Gopal Vakil
Chawl, Senapati Bapat Marg, Lower Parel, Mumai13. The plaintiffs and
defendant No.1 were staying together in room No.19, Janardhan Gopal
Vakil Chawl, Senapati Bapat Marg, Lower Parel, Mumbai13 (the said
room is referred as “suit premises”). The suit premises was initially
alloted to the plaintiffs' grandfather Ladshet Teli on tenancy basis by
Municipal Corporation of Bombay. After his demise, the tenancy of suit
premises was transferred in the name of his wife Gangubai Ladshet and
Gangubai had three sons 1) Dattaram Ladshet Teli, 2) Anant Ladshet
Teli and 3) Tukaram Ladshet Teli. During her life time Gangubai gave
share in the suit premises to her two sons Dattaram Ladshet Teli and
Anant Ladshet Teli and requested Mumbai Municipal Corporation to
transfer tenancy of the suit premises in the name of Tukaram Ladshet
Teli. During life time of Gangubai, suit premises was transferred in the
name of the plaintiffs' fatherTukarm Teli. Tukaram Teli, has expired
on 03.06.1985. After his death, the tenancy of the suit premises
transferred in the name of Sitabai wife of Tukaram Teli.
3. There were 20 tenants in the Janardhan Gopal Vakil
Chawl. The said chawl was old and in dilapidated condition. Tenant
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came together and decided to redevelop the said chawl with the
permission of landlordMumbai Municipal Corporation. The said 20
tenants have formed Cooperative Housing Society and decided to take
advantage of Development Control Regulations Rules to develop the
chawl and to provide permanent alternate accommodation to all eligible
tenants. The General Body Meeting of said society have appointed
defendant No.2 to redevelop the property. Defendant No.2 has entered
into an agreement with the plaintiffs' mother Sitabai as benefited
occupant of the suit premises. The said agreement has been registered
with the Assistant Registrar. In the meantime, the plaintiffs' mother
Sitabai has expired on 23.09.2012. The plaintiffs and defendant No.1
are the legal heirs and representative in respect of the suit premises.
The plaintiffs and defendant No.1 have equal share in the suit premises
and the proposed permanent alternate accommodation. As per the
agreement with the developer (defendant No.2), cheques were issued
for the rent and compensation in respect of temporary alternate
accommodation. After the death of plaintiffs' mother, the plaintiffs
requested defendant No.2 to issue cheque in the name of plaintiff No.1
and plaintiff No.1 agreed to distribute the amount equally amongst the
plaintiffs and defendant No.1. Same was informed to defendant No.1
through the letter dated 20.08.2013. It was also informed to the
Society and defendant No.2. Defendant No.2 accordingly, issued a
cheque for compensation in favour of plaintiff No.1. Plaintiff No.1
distributed the amount amongst the plaintiffs and sent letter to
defendant No.1. In spite of receipt of said letter, defendant No.1 has not
deposited the cheque. The plaintiffs therefore, wrote a letter to
defendant No.1 and requested her to accept the amount. The plaintiffs
also requested defendant No.1 to give bank details so that they can
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deposit compensation by RTGS/NEFT but defendant No.1 has not
replied to the same. The amount is still lying in the account of plaintiff
No.1. The plaintiffs are ready and willing to pay the amount of first
defendant share. The developer has almost completed the redeveloped
project and he is likely to give possession of the alternate
accommodation which is to be acquired in lieu of old premises. The
plaintiffs alone or defendant alone is not entitled for exclusive
ownership or possession of the suit property, all have equal right and
equal share therein. Defendant No.1 has refused to take the amount of
her share of compensation. She has threatened that she would stay in
the alternate accommodation and would not allow the plaintiffs to enter
therein. The plaintiffs apprehend that defendant No.1 may approach to
defendant No.2 and force them to handover the possession of new flat
to her. Hence, to restrain her, the plaintiffs have prayed for aforesaid
relief.
4. In view of order dated 10.03.2021 notice of motion is
proceeded exparte against the defendants.
5. Heard learned Advocate for the plaintiffs and no argument
of defendants. Points for consideration alongwith my findings thereon
with reasons are as follows :
POINTS FINDINGS
(1) Whether the plaintiffs have prima facie case ? Yes
(2) Whether the balance of convenience lies in
favour of the plaintiffs ?
Yes
(3) Whether the plaintiffs would suffer
irreparable loss, if injunction is not granted ?
Yes
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(4) What order ? Notice of motion is
allowed.
R E A S O N S
AS TO POINT Nos.1 to 3 :
6. All these points are interlinked with each other hence, to
avoid repetition of findings they are taken together for consideration.
7. It is admitted by the plaintiffs that defendant No.2 has
entered into an agreement with the plaintiffs' mother Sitabai for
permanent alternate accommodation. The plaintiffs also admit that
defendant No.1 has also right in respect of the suit premises. It is stated
by the plaintiff that the amount received as a rent of transit
accommodation was equally distributed and cheque of the amount of
share of defendant No.1 was sent to defendant No.1 but she has not
deposited it. Therefore, the plaintiffs admit the right of defendant No.1
in respect of suit premises. It is their contention that the developer has
completed redevelopment project and he is likely to give possession of
the suit premises. The plaintiffs also admit that neither the plaintiff
alone nor the defendant alone is entitled for exclusive ownership or
possession of the suit premises. They have equal right and equal share
therein. These plaintiffs apprehend that defendant No.1 would acquire
the possession of newly constructed suit premises from the builder and
would not allow the plaintiffs to enter therein. Admittedly, the
agreement has been executed by defendant No.2 in favour of Sitabai the
mother of the plaintiffs. Being heirs all the plaintiffs and defendant
No.1 have equal right, share and interest in the suit premises. Neither
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the plaintiffs nor the defendant alone is entitled to acquire possession of
the suit premises independently. The plaintiffs have prayed for interim
injunction to restrain defendant No.2 from handing over the possession
of the suit premises to defendant No.1 without consent and permission
of the plaintiff. It is not even case of defendant No.2 that defendant
No.2 is attempting to do so. All the heirs of Sitabai are entitled for the
possession of the suit premises hence, defendant No.1 is not entitled to
acquire the possession of the suit premises without consent of the
plaintiffs and the plaintiffs are also not entitled to acquire the
possession without consent of defendant No.1. Neither of the parties
(plaintiffs and defendant No.1) are entitled to create third party interest
in the suit premises or to part with the possession thereof to any third
party. The present suit is for decree of injunction. The plaintiffs and
defendant No.1 are entitled for joint possession of the suit premises.
They are not entitled for exclusive possession of the suit premises.
Hence, there is substance in the plaintiffs' contention that defendant
No.1 not entitled to obtain the possession of the suit premises
exclusively and without consent of the plaintiffs. Therefore, there is
prima facie case in favour of the plaintiff.
8. If defendant No.1 is not restrained from taking possession
of the suit premises exclusively from defendant No.2 there will be
irreparable loss to the plaintiffs. As all the plaintiffs and defendant
No.1 have equal rights in the suit premises therefore, the balance of
convenience lies in favour of the plaintiffs. If injunction is not granted
there will be irreparable loss to the plaintiffs hence, I answer point
Nos.1 to 3 in favour of the plaintiffs.
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AS TO POINT No. 4 :
9. In view of aforesaid findings, notice of motion is liable to
be allowed. Costs shall follow the event. In the result in answer to point
No.4, I pass the following order.
ORDER
1. Notice of Motion No.793 of 2020 is allowed as
follows.
(a) By the order of interim injunction, till disposal of the
suit, defendant No.1 is temporarily restrained from
taking the exclusive possession of the suit premises from
defendant No.2 without consent of the plaintiffs.
(b) Till final disposal of the suit by an order of injunction
defendant No.1 is restrained from creating third party
interest in the suit premises or parting with the
possession thereof.
2. Costs shall follow the event.
3. Notice of motion No.793 of 2020 is disposed of
accordingly.
Date : 06.04.2023
(Rajesh A. Sasne)
Judge
City Civil Court,
Mumbai
Dictated on : 06/04/2023.
transcribed on : 11/04/2023.
Signed on : 11/04/2023.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
11.04.2023 at 5.40 p.m. Mr. S.S. Bathe
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR
No.)
HHJ SHRI. R.A. SASNE
(C.R.No.62)
Date of pronouncement of Order 06/04/2023
Order signed by P.O. on 11/04/2023
Order uploaded on 11/04/2023
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