Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 620-18 in L.C.SUIT no.103-14
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 620 OF 2018
(CNR no. MHCC010023802018)
IN
L.C. SUIT NO.103 OF 2014
(CNR no. MHCC010124102013)
Sanyam Realtors Pvt. Ltd. ]... Plaintiff
Versus
1. Shyamji Bhagirathi Yadav and 2 ors. ]... Defendants
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 14th March, 2019.
Mr. Dalal i/b Mr. Bipin Joshi, advocate for plaintiff.
Ms. Prachi Khandge with Ms. Pamela Dalal I/b M. P. Vashi & Co.,
advocates for defendant nos. 1(a) to 1(d).
Mr. Akhilesh Yadav, advocate for def. no. 3(b).
None for remaining defendants.
ORDER
1. The plaintiff has taken out this motion seeking
appointment of the Court Receiver High Court Bombay with direction to
take forcible possession of suit premises from the defendant with a
further direction to demolish the suit premises for the purpose of
implementing redevelopment project. The plaintiff is also seeking a
direction to the defendants to shift to transit accommodation in the
same vicinity to be provided by the plaintiff on leave and license, till
completion of the project subject to out come of the suit.
2. The learned advocate for the plaintiff submitted that on
30.12.2002, the plaintiff purchased the entire property for the purpose
-- 1 of 6 --
2 NM no. 620-18 in L.C.SUIT no.103-14
of development and shifted about 90 families. The defendant nos. 2 and
3 are occupying the suit premises. According to him, the defendant nos.
2 and 3 have executed agreement and deed for surrendering their
tenancy rights in the suit premises in favour of the plaintiff. The
defendant no. 1 was witness to the execution of the said deed.
However, thereafter, he committed trespass in the suit premises and
instituted a suit for protection of his possession, in which it was directed
to follow due process of law for recovery of possession. The learned
advocate for the plaintiff submitted that accordingly the plaintiff by
filing this suit has adopted due process of law.
3. He further submitted that certain other litigations are
pending before the Small Cause Court in the form of suit for declaration
and injunction. According to him, the Municipal Corporation of Greater
Mumbai has permitted the plaintiff to construct on the suit property by
issuing I.O.D., commencement certificate and sanctioning building
plans. He submitted that the plaintiff is registered under RERA and
therefore, if the development activity is not started within stipulated
time, severe penalty will be imposed on the plaintiff. Lastly, he
submitted that if the defendants succeed in the matter the plaintiff will
reserve a flat for them in the new building.
4. On the other hand, the learned advocate for the defendant
no. 1 submitted that Mr. Mathura Das the grand father of the defendant
no. 1 was the original tenant in the suit premises, which is an
undisputed fact. However, the plaintiff in order to frustrate the rights of
the defendant no. 1 in the suit premises entered into agreement with
defendant nos. 2 and 3 who in fact have no rights in the property.
-- 2 of 6 --
3 NM no. 620-18 in L.C.SUIT no.103-14
According to her, suit for declaration is pending before the Small Cause
Court pertaining to the tenancy rights of the defendant no. 1.
5. According to her, due process of law means the suit should
be heard on merits, otherwise if the defendant is evicted from the suit
premises for the purpose of development, his rights will not be
protected and he will be on streets. She further submitted that the
plaintiff is seeking a relief in the form of final relief which it has sought
in the suit and the same can not be allowed in the motion at an interim
stage. According to her, the agreement between the plaintiff and
defendant nos. 2 and 3 is not binding on the defendant no. 1 and
therefore, there is no question of leaving the premises as per the
requirement of the plaintiff.
6. The earlier litigations inter se the parties and the copies of
orders passed therein which are placed on record are prima facie
undisputed.
7. So far as, the relief for appointment of the Court Receiver
High Court Bombay is concerned, the Hon'ble High Court of Bombay
(Coram : A. S. Oka J.) by a judgment dated 11.09.2009 passed in
the writ petition no. 2527 of 2009 (Girish M. Joshi vs. Jagat
Manubhai Parikh and others) by relying on the judgment of the
Division Bench dated 23.01.2001, has held that there is no provision
either in the Original Side Rules or in the Rules framed under the City
Civil Court Act which empowers the City Civil Court to appoint the
Court Receiver High Court Bombay as a receiver in the suits and
proceedings filed in the City Civil Court at Bombay. It was observed that
-- 3 of 6 --
4 NM no. 620-18 in L.C.SUIT no.103-14
the Court Receiver High Court Bombay being an employee of the High
Court is subject to administrative control of the Hon'ble the Chief
Justice, High Court Bombay, and that there is no provision of law under
which any Court subordinate to the High Court Bombay can appoint
the Court Receiver High Court Bombay as a receiver. In view of the
same the prayer clause (a) of the motion can not be granted.
8. Even the Court can appoint a receiver by invoking the
provisions of Order XL of the Code of Civil Procedure (C.P.C.) in
suitable cases. However, considering the relief claimed by the plaintiff
in prayer clause (a) for appointment of Court Receiver to take forcible
possession of the suit premises for the purpose of demolition in order to
implement the redevelopment project of the plaintiff, with sole
intention to absolve the plaintiff from apprehended imposition of
penalty by the authorities under RERA would neither be a “just and
convenient” reason for appointment of the receiver, nor it would be a
due process of law and therefore, the plaintiff has not made out a case
for appointment of receiver under Order XL Rule 1 of the C.P.C. even.
9. So far as, the second relief under prayer clause (b) is
concerned, it would also be in the form of granting final relief at interim
stage because the plaintiff in the suit is seeking the same relief for
recovery of possession from the defendant. The plaintiff has instituted a
suit for specific performance of agreements dated 26.10.2005 and
09.03.2006 against the defendant nos. 2 and 3 and the defendant no. 1
to join such agreement. The plaintiff in addition to or in the alternative
of this relief is seeking a declaration that the defendant no. 1 is a
trespasser and further for a relief to recover possession of the suit
-- 4 of 6 --
5 NM no. 620-18 in L.C.SUIT no.103-14
premises and also for mesne profits and for consequential relief of
interim injunctions. The Hon'ble Supreme Court time and again
deprecated granting final relief at interim stage as held in the case of
Assistant Collector vs. Dunlop India reported in A.I.R. 1985
Supreme Court 230. The Supreme Court also made exception to the
rule with a direction to consider the public interest, balance of
convenience or a host of other considerations while granting or
rejecting a final relief at interim stage. In the present suit merely, in
order to absolve the plaintiff from apprehended imposition of severe
penalty, the defendant no. 1 can not be removed from the suit premises,
and that too, when it has been directed to adopt due process of law
against him. Therefore, either the plaintiff should go for hearing the
matter on merits for establishment of the status of defendant no. 1 as a
trespasser and recovery of possession or may adopt other modes
permissible under law, especially under Section 89 of the C.P.C. At the
most hearing of the suit can be expedited.
10. Therefore, the notice of motion deserves to be dismissed
with costs. Thus, the following order is passed:
ORDER
1. The Notice of Motion no. 620 of 2018 is dismissed with costs.
2. Hearing of the suit is expedited.
Sd/
(Dr. M. S. Deshpande)
Judge,
Date : 14.03.2019 City Civil Court, Mumbai.
Directly dictated & typed on dias computer : 14.03.2019
Checked by HHJ on : 15.03.2019
Signed by HHJ on : 15.03.2019
-- 5 of 6 --
6 NM no. 620-18 in L.C.SUIT no.103-14
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 15.03.2019 at 3.40 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
14/03/2019
JUDGMENT/ORDER signed by
P.O. on
15/03/2019
JUDGMENT/ORDER uploaded
on
15/03/2019
-- 6 of 6 --