Final Order 1

Order Details: Notice of Motion
Pdf Text: 340-2019 1
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.848 OF 2019
CNR NO.MHCCO10022342019
IN
S.C. SUIT NO.340 OF 2019
Mr.Datta Baburao Dhanavade ..Plaintiff
V/s
1. M/s.A.R.Constructions and ors ..Defendants
Ld. advocate Surbhi Gujar for the plaintiff
Ld. advocate Desai for the defendants
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 28/08/2019
ORAL ORDER
1. This notice of motion is tendered by the plaintiff
claiming various reliefs including the relief of
payment of monthly compensation from the month
of January 2019 towards arrangement of temporary
accommodation, till the date the defendants hand
over the vacant and peaceful possession of the new
premises.
2. Heard.
3. In short the contentions of the plaintiff is that, the
plaintiff was the lawful tenant of room no.1, shed
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no.8/S, Bhajiwala chawl, Jivaba Atmaram Rawool
Marg, Sayani Road, Prabhadevi, Mumbai400 025.
The defendants are the owners of the old Bhajiwala
chawl and decided to redevelop the said chawl,
wherein the above said tenanted premises was
situated. By demolishing the old building and
constructing new building thereon, the defendants
agreed to allot new premises in the newly
constructed building by way of permanent
accommodation on ownership basis free of costs to
the existing tenants. The defendants have executed
registered agreement for permanent alternate
accommodation dated 22/11/2012 with the plaintiff
for allotment of a new premises admeasuring 300 sq.
feet carpet area on ownership basis. The plaintiff has
vacated the old premises and handed over possession
to the defendants for redevelopment. At that time,
the defendants paid a sum of Rs.1.56 lacs including
brokerage charges of Rs.12,000/ as and by way of
charges of temporary accommodation for the period
of 12 months from 01/06/2011 to 31/05/2012.
Subsequently, time and again the defendants agreed
to pay the charges with increase of 10% every year
and the same was confirmed from various letters.
Since 01/04/2016, the defendants stopped the
payment for further compensation of temporary
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alternate accommodation. The plaintiff personally
contacted defendant no.3 who assured that they will
make the payment of further amount of
compensation within short period. But inspite of
repeated requests, they failed to make the payment.
By letter dated 19/10/2016, the plaintiff requested
the defendants to make the payment of
compensation within seven days from the receipt of
the said letter. The defendants replied the said letter
by giving irrelevant reasons. The plaintiff, by his
letter dated 15/11/2016, has given clarification on
the issues raised by the defendants. The plaintiff
again issued letter dated 13/12/2016. The
defendants thereafter have returned back original
documents to the plaintiff but failed to pay the
further amount of compensation from 01/04/2016.
By letter dated 02/01/2017, the plaintiff requested
the defendants to pay the amount of temporary
accommodation which they refused. The plaintiff is
unable to pay the rent out of his meager income.
The construction of the building was completed and
somewhere in the month of August 2016, the
defendants have handed over the possession of new
premises to other tenants but failed to hand over to
the plaintiff. The defendants have shown flat
no.1604 to the plaintiff , but they have allotted and
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handed over the same to the third party. Hence, the
plaintiff has filed this suit with accompanying notice
of motion.
4. The stand of the defendants is that one Pandhari
Motilal Yadav has set up his claim over the old
tenanted premises. The said fact was brought to the
notice of the plaintiff by letter dated 25/10/2016.
The said Yadav had instituted RAD suit no.129 of
2015 in the Small Causes Court, Mumbai claiming to
be the tenant of the old premises i.e. room no.1, shed
no. 8/S, Bhajiwala chawl, Jivaba Atmaram Rawool
Marg, Sayani Road, Prabhadevi, Mumbai400 025.
He is disputing the tenancy and possession of the
plaintiff as well as his predecessor Sneha Sadanand
Kate to the said old premises. The plaintiff has not
joined the said Yadav as party defendant to the suit.
Even the stand of the defendant is that the plaintiff
has not complied with the terms of clause (8) and
(25) of the agreement. Some tenants/occupants did
not come forward to take possession of new premises
including plaintiff and Smt.Ghone on account of
disputes or claims concerning their respective old
premises which was brought to their notice. They
prayed for dismissal of the notice of motion.
5. On the rival submissions of the parties, following
points arise for my determination and findings to it
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are recorded for the reasons stated hereinafter:
POINTS
(i) Whether the plaintiff has made out a prima
facie case?
(ii) Whether the needle of balance of convenience
tilt in favour of plaintiff?
(iii) To whom the irreparable loss would be
caused?
(iv) What order?
FINDINGS
(i) In the negative.
(ii) In the negative.
(iii) To the defendants.
(iv) As per final order
REASONS
Point Nos. 1 to 3
6. At the outset, there is no dispute between the parties
that there was agreement dated 22/11/2012 for
permanent alternate accommodation between
plaintiff and defendants. From the pleadings, one
thing is reflected that the construction of the entire
rehabilitated building A wing was completed in
August2017 and MCGM issued occupation
certificate for the rehabilitated building A wing on
23/08/2017. The defendants appear to have handed
over possession of new flats to about 90 out of 96
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tenants after getting the occupation certificate. So,
apparently it appears that the building i.e. A wing
has been constructed and completed in all respect.
7. It is the contention of the plaintiff that three flats are
vacant and in possession of the defendants and the
same may be handed over to the Court Receiver and
further direction to hand over the vacant and
physical possession of flat nos.1801 or 1802 or 1803
to the plaintiff and appoint the plaintiff as an agent
of Court receiver without royalty and security. The
rights of the parties are flowing from the agreement
of permanent alternate accommodation dated
22/11/2012. By virtue of the said agreement the
defendants were under obligation for paying plaintiff
temporary accommodation charges. It is the case of
the plaintiff that till 31/03/2016, the charges
towards the temporary accommodation were paid by
the defendants. Since 01/04/2016, the defendants
stopped the payment. After a period of six months,
the plaintiff issued letter dated 19/10/2016 and
demanded the charges of temporary accommodation
since April2016. The defendants responded the said
letter vide reply dated 25/10/2016 and informed
that one Pandhari Motilal Yadav has filed Court
proceedings and copies of those documents were
supplied to the plaintiff some what in February 2016.
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By this letter, it was also informed to the plaintiff
that said Yadav is claiming tenancy rights of room
no.1, Shed no.8 S, Bhajiwala chawl and further
plaintiff was called upon to inquire and act as per
clause (25) of the agreement. By the said reply it
was conveyed to the plaintiff that plaintiff should
promptly act in respect of the case pending therein
and also that large amount of expenses have to be
incurred in the said matter and the compensation to
be received by the plaintiff have to be adjusted for
the same. The plaintiff subsequently responded by
the letter dated 15/11/2016 and informed the
defendants that the suit is between the defendants
and said Yadav and the defendants cannot withhold
the compensation amount towards the temporary
accommodation of the plaintiff. He further
demanded the defendants to pay the electricity
charges as the room was handed over to the
defendants. Again the defendants were issued with
the reminder on 13/12/2016 and further letter for
the payment of the compensation and temporary
accommodation. Thereafter letter was issued by the
advocate for the plaintiff demanding the
compensation. In all the letter, it was represented
that the suit filed by Shri. Yadav in the City Civil
Court was dismissed vide judgment dated
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20/01/2014 and the appeal preferred also came to
be dismissed and the SLP filed by Yadav before the
Hon'ble Supreme Court was also came to be
dismissed. Therefore, the claim of said Pandhari
Yadav was rejected and the defendants were called
upon to make good the payment of compensation to
the plaintiff. Plaintiff also wrote letters to the Chief
Executive officer of MHADA and thereby requested
the concerned officer to direct defendants to make
payment of compensation to the plaintiff.
8. On examination of the agreement prima facie, more
particularly, clause (25), it reflects that tenant has
given an undertaking i.e. plaintiff that in the event of
any claim or legal action against the owners, or their
successors and assigns in respect of the tenanted
premise or the new premises to be allotted in the
proposed new building to the tenant or in the event
of any person coming forward to claim any right
through the tenant/occupant, such a claim shall be
settled by the tenant at his/her own costs and if the
owners i.e. defendants have to incur any expenditure
towards such Court proceedings, the same shall be
made good by the tenant and shall be paid by the
tenant to the owners within 30 days of notice of
demand for the same. Further, the tenant i.e.
plaintiff had give undertaking to indemnify the
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owners in respect of all the actions, proceedings loss,
damages, and expenses in the event of any third
person claiming any right in respect of the tenanted
premises or new premises to be allotted to him, or
any demand to be made by the tenant in respect of
the tenanted premises. Here in the case, one
Pandhari Yadav has filed the proceedings before the
Small Causes Court vide RAD Suit No.129/2015
seeking declaration of his tenancy rights. At the
instance of the defendants, the plaintiff is also made
party defendant. In that case, the tenancy rights of
the parties are required to be decided. The said fact
is not incorporated in the plaint i.e. about the
pendency of the suit before the Small Causes Court.
Prima facie, it appears that there are rival claims in
respect of the suit premises. No doubt there is a
privity of contract between plaintiff and defendants
in respect of the tenanted premises. Apart from that
the agreement speaks about the undertaking given by
the plaintiff for bearing the expenses for such
litigation. The plaintiff has also given undertaking to
indemnify the defendants in respect of any claim by
any third party in respect of the litigation of new
premises. So, at this juncture, the plaintiff is not
coming with the stand that he is ready to bear all the
expenses incurred by the defendants for prosecuting
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the said litigation. The rights of the defendants for
claiming such expenditure flows from clause (25) of
the said agreement. Admittedly, it appears that since
01/04/2016, the defendants stopped making
payment of compensation for temporary
accommodation. It appears that for the first time,
the plaintiff issued letter dated 19/10/2016 and
thereafter there was exchange of letters. The last
letter was issued on 15/03/2017. Since then the
plaintiff has not taken any action and subsequently
filed the suit after almost a gap of two years and the
same cannot be ignored. Even the plaintiff, since the
issuance of occupancy certificate and allotment of the
flats by defendants to the other tenants, kept mum
for a considerable period.
9. The Ld. Counsel for the defendants argued that at the
time of interim stage, the Court should not grant
relief of final nature. He placed reliance upon the
judgment of Hon'ble Supreme Court in the case of
Vishnu Babu Tambe V/s Apurva Vishnu Tambe,
(2017)2 Supreme Court Cases 454, wherein the
Hon'ble Supreme Court held that,
“Having heard the learned counsel on both the sides,
we are of the view that the High Court have
restrained from passing a final order on the issue at
the interlocutory stage. All available contentions are
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to be raised by the parties at the stage of final
disposal of the appeal.”
10. In view of the law laid down by the Hon'ble
Supreme Court in the above cited judgment, it is
clear that Court should retrain from passing any
final order at interlocutory stage. No such exigency
is pointed out which warrants the Court to pass an
order which is of final order. If the premises is
allotted to the plaintiff and the balance compensation
towards the temporary accommodation is also paid
to him, it would amount to grant final relief. As
pointed above, the plaintiff did not knock the door of
the Court of law when the payment towards the
compensation for temporary accommodation was
stopped by the defendants since 01/04/2016 and by
the reply of the defendants dated 25/10/2016, they
made aware the plaintiff that compensations were
appropriated for the expenses incurred towards
prosecuting the suit filed by Pandhari Yadav. The
inaction of the plaintiff since long period also is
sufficient prima facie, for not extending the relief of
interim relief which is almost of final nature.
11. The issue as regard the claim of tenancy right
is subject matter of adjudication by the Court of
Competent jurisdiction. In that event if one of the
flat is handed over to the plaintiff, it would give rise
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to multiplicity of proceedings and further
complications. In that event, the plaintiff would not
suffer any irreparable loss as there is rival claim, but
defendant would would suffer irreparable loss. Thus,
the plaintiff has not made out prima facie case and
the needle of balance of convenience does not tilt in
favour of the plaintiff. Hence, I answer point nos.1
to 3 in the negative.
POINT NO.4
12. In view of the above discussion and findings to
point nos.1 to 3, the notice of motion needs no
consideration. Hence, it is expedient to pass
following order:
ORDER
1.Notice of Motion No.848/2019 stands rejected.
2.Costs in the cause.
3.Notice of motion is disposed of accordingly.
28/08/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 28/08/2019
Transcribed on : 04/09/2019
Signed on : 25/09/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
25/09/19 at 1.15 pm.
MRS.T.C.KAMBLE
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Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
28/08/2019
Judgment and order signed by P.O. 25/09/2019
Judgment/order uploaded on 25/09/2019
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