Interim Order 1

Order Details: Notice of Motion
Pdf Text: Draft NM. : 1 : L.C.Suit .No.531/2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
DRAFT NOTICE OF MOTION
IN
L.C.SUIT NO. 531 OF 2018.
Mr.Simranjit Singh Inderjit Singh } .. Plaintiff.
Versus.
1. Designated Officer }
Asst. Engineer (B & F) }
"F/N" Ward Municipal Office, }
96, Babu Daji Road, F/N Ward }
Office, Mumbai 400019 & Anr.. } .. Defendants.
Ld. Advocate Mrs. Indira B. Jalgaonkar for the Plaintiff.
Ld. Advocate Mrs.Chvan for Defendant /BMC.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 21 TH FEBRUARY, 2018.
(Court Room No.06)
O R D E R
1.
Plaintiff has taken out this draft notice of motion to restrain the
defendant/Corporation from taking any action on the basis of order
dated 10/02/2018.
2. According to the plaintiff, plaintiff is the owner of shop premises
No. U1, situate at Sewa Samiti Cooperative Housing Society Limited,
Plot No. 368, Commrade Harbanslal Marg, (Flank Road, S.S2. Nagar,
G.T.B Nagar, SionKoliwada (East), Mumbai 400037 having area
admeasuring about 1638 Sq.Ft. (BuiltUp) area (i.e. 838 Sq.ft. on
Ground Floor + 800 Sq.ft. area on Loft (mala)(hereinafter same is
referred to as the suit premises.) Plaintiff has purchased the suit
property from the earlier owner for lawful consideration. The earlier
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owner was running Restaurant in the suit premises known as
"TIKKAA"S". The Corporation i.e. defendant has approved the plan.
The construction is prior to datum line. However, defendant issued
notice to the plaintiff and contended that the plaintiff has constructed
first floor on the suit premises and the same is illegal. Plaintiff had
duly replied the notice. However, defendant did not consider the
documents produced by plaintiff and passed the impugned order.
Plaintiff has prima facie case, balance of convenience lies in favour of
plaintiff. Therefore, prayed to grant adinteriminjunction.
3. Notice is served on the defendant/ Corporation.
Defendant/Corporation filed affidavit of one Raju Wadile and the
documents.
4. I have heard both the sides.
5. Mrs. Indira Jalgaonkar, advocate for plaintiff has invited my
attention towards the documents. According to her, all the documents
do show that the suit property is having loft. Thus, plaintiff has not
made any construction. She further submitted that plaintiff has
purchased the suit property as is where is. Defendant had earlier
issued a notice U/sec.351 of the MMC Act to the earlier owner.
However, after considering the reply of the earlier owner, the notice is
dropped. Therefore, she prayed for interim protection.
6. As against this, Smt. Chavan Ld. Counsel for defendant has
submitted that the construction is illegal. The inspection report is on
record. Therefore, she prayed to reject the application.
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7. I have considered the submissions of both the sides. From the
perusal of documents, it reveals that plaintiff has purchased the suit
property from one Mrs. Kamlesh Sitaram Dhupad. In the schedule of
the agreement for Sale, it has specifically mentioned that the suit
property consist of ground floor and loft and total area is shown 1638
Sq.ft. It is pertinent to note that the certificate issued by the society
depicts the area of the suit property 1638 Sq.ft. and the year of
construction is shown as 196162 i.e. prior to datum line. It is
pertinent to note that, earlier the Corporation had issued a notice to the
earlier owner U/sec.351 of the MMC Act in respect of the said loft.
However, after considering the reply, the notice is dropped. Thus, from
the documents on record, it is ample clear that the construction is prior
to datum line and the same is loft (Potmala). Therefore, at this initial
stage, plaintiff is entitled for adinterim protection. Hence, the
following order :
O r d e r
1. The defendant, their agent, servant or anybody
on behalf of them are hereby restrained from
taking any action on the basis of impugned notice
and order till next date.
2. Draft Notice of motion be registered.
Date : 21.02.2018. (G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 21.02.2018
Typed on : 21.02.2018
Signed by HHJ. : 21.02.2018
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
21.02.2018 /4.30 p.m. Mr. S.D.Nalawade
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
(H.G.)
Name of the Judge (with
Court Room No.)
Shri. G.B.Gurao
(CR.No.06)
Date of Pronouncement of
JUDGEMENT/ORDER
21.02.2018
JUDGEMENT/ORDER signed
by P.O. on
21.02.2018
JUDGEMENT/ORDER
uploaded on
21.02.2018 .
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