Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM NO.8402019 IN S C SUIT 10922020
MHCC010022242019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.840 OF 2019
IN
S C SUIT NO. 1092 OF 2020
Mr. Rupchand Raghoji Bhujbal ] ...Plaintiff.
Versus
M/s. Mahtaney Estates & Properties ]…Defendants.
Appearance:
Ld Advocate Anil kharatmol for Plaintiff.
Ld. Advocate Shenoy for Defendant No.2.
Ld. Advocate Trivedi for Defendant No.4.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 9/6/2022
ORAL ORDER
1) Plaintiff has taken out present Notice of Motion for grant of
interim relief of temporary mandatory injunction directing the present
committee members of defendant No.2 society to appoint plaintiff as
Chairman and for temporary prohibitory injunction restraining
defendants from giving any permission to the defendant No.1 to carry
out any construction work in respect of SRA project.
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2) Perused the notice of motion, affidavit in support of notice
of motion, plaint and documents annexed with the plaint, affidavit in
reply of defendant No.2 and 4 and documents annexed therewith. Heard
Ld. Advocate for plaintiff and Ld. Advocate for defendant No.2 and 4.
3) Ld. Advocate for plaintiff argued that defendant No.2 is the
proposed society and he is former Chief Promoter of defendant No.2.
Plaintiff is member of society i.e. defendant No.2. In year 2006 he was
Chief Promoter of the defendant No.2. Plaintiff is having keen interest in
the development of SRA project for the welfare of members of defendant
No.2. Large number of members of defendant No.2 society are with the
plaintiff and they want plaintiff to be Chairman/Chief Promoter of the
defendant No.2 for carrying out further development activity. However,
behind back of plaintiff and without knowledge to the plaintiff one Mr.
Ramesh Adhav was appointed as Chairman of defendant No.2.
Defendant No.2 in collusion with defendant No.1 started carrying out
illegal activities of illegal construction. Therefore, plaintiff is entitled for
the reliefs prayed in the suit. Prima facie case and balance of
convenience lies in favour of plaintiff. Therefore, Ld Advocate for
plaintiff prayed that notice of motion be made absolute.
4) On the other hand Ld Advocate for defendant No.2 argued
that plaintiff is praying for the final relief claimed in the suit in prayer
clause (b) and (c) at this interim stage. Final reliefs cannot be granted at
this interim stage. Plaintiff has no right to be appointed as
Chairman/Chief Promoter of the defendant No.2 without the consent of
the majority of the members of the defendant No.2 society. Plaintiff has
resigned from the post of Chief Promoter in year 2007 and Mr. Ramesh
Adhav was appointed as Chief Promoter in the year 2007 itself.
Therefore, there are delay and latches on the part of plaintiff in filing
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present suit. Defendant No.1 was sole proprietary firm and proprietor
thereof expired in year 2014. Therefore, on the date of filing of the suit
defendant No.1 was not in existence. The present owner and developer
is not party to the present suit. After registration of the society plaintiff
can contest the election for Chairman. Therefore, prima facie case and
balance of convenience does not lie in favour of plaintiff. Hence, Ld
Advocate for defendant No.1 submitted that notice of motion be
dismissed.
5) Ld Advocate for defendant No.4 argued that the plaintiff or
any person has no inherent right to be appointed as Chairman or Chief
Promoter of the proposed society. There are delay and latches on the
part of plaintiff. Grant of Interim relief as sought will amount as grant of
final relief which will deprive the members of defendant No.2 society to
appoint any member as Chief Promoter/Chairman of defendant No.2. As
defendant No.1 proprietary firm was not in existence on the date of
institution of suit, the suit is not tenable. Therefore, Ld Advocate for
defendant No.4 submitted that notice of motion be dismissed.
6) Following points arise for determination and court has
recorded its decision thereon for the reasons stated there under:
Points Decision
(i) Whether prima facie case lies in favour of
plaintiff ?
No.
(ii) Whether balance of convenience lies in favour of
plaintiff ?
No.
(iii) Whether plaintiff will suffer irreparable loss if
Notice of Motion is not allowed ?
No.
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(iv) What Order ? As per final
order.
REASONS
As to Point Nos.1 to 3:
7) As all these points are interconnected with each other they
are decided simultaneously in order to avoid repetition of facts.
8) In the present matter plaintiff has prayed for the relief of
mandatory injunction directing present committee members of
defendant No.2 to appoint plaintiff as Chairman by taking resignation of
present Chairman of defendant No.2 after following due process of law
and relief of permanent injunction restraining defendant No.3 and 4
from giving permission to the defendant No.1 to carryout any illegal
construction work in respect of SRA project. In the present notice of
motion the plaintiff has prayed for the same relief during pendency of
the suit. Admittedly the plaintiff was the former Chief Promoter of the
defendant No.2 proposed society. From the document at Exh.4A to the
reply of defendant No.2 it appears that plaintiff had resigned from the
post of Chief Promoter of defendant No.2 proposed society in year 2007
itself. Admittedly, plaintiff is member of defendant No.2. However, no
member of proposed society is having any inherent right to be appointed
as Chief Promoter or Chairman as per his wish against the wishes of
majority members of the proposed society. As such prima facie plaintiff
is not having any legal right to get appointed as Chief Promoter/
Chairman. As such there exist no obligation on the part of defendant
No.2 in favour of plaintiff to appoint plaintiff as Chief Promoter or
Chairman of the defendant No.2. As such there is no question of breach
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of obligation by the defendant No.2. Therefore, prima facie case does
not lie in favour of plaintiff. The question whether plaintiff is entitled for
the mandatory injunction directing present committee members of
defendant No.2 to appoint plaintiff as Chairman also does not appear to
be bonafide question which requires adjudication. Moreover, plaintiff is
having equally efficious remedy for getting himself appointed as
Chairman of the defendant No.2 proposed society. Moreover, from the
material on record there appear delay and latches on the part of plaintiff
to approach the court. Conduct of plaintiff is also such that he is not
entitled for any equitable interim relief. The development of the
property is in the interest of members of the defendant No.2 and public
at large. Withholding development of the property is likely to affect the
interest of beneficiaries of the development of the project. Moreover,
plaintiff prima facie does not appear to have any legal right to be
appointed as Chairman/Chief Promoter of the defendant No.2.
Therefore, prima facie case does not lie in favour of plaintiff and balance
of convenience also does not lie in favour of plaintiff. Considering the
nature of relief prayed irreparable loss is not likely to be caused to
plaintiff if notice of motion is not made absolute.
9) Considering the matter on record and above discussion this
court find that prima facie case and balance of convenience does not lie
in favour of plaintiff and plaintiff is not likely to suffer any irreparable
loss if notice of motion is not allowed. Therefore, point No. 1 to 3 are
answered in negative.
As to point No.4:
10) In view of negative findings as to point No.1 to 3, present
Notice of Motion is liable to be dismissed. Hence, court proceeds to pass
the following order:
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ORDER
1) Notice of Motion No.840 of 2019 is dismissed.
2) Notice of Motion No.840 of 2019 is disposed of accordingly.
Date : 9/6/2022
(K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated & typed on :9/6/2022.
Checked on :9/6/2022.
Corrected & signed on :10/6/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10/6/2022 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
9/6/2022
JUDGMENT/ORDER signed by P.O.
on
10/6/2022
JUDGMENT/ORDER uploaded on 10/6/2022
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