Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 988/19 in Suit No. 7728/98. 1 Order.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 988 OF 2019
(CNR NO. MHCC010025862019)
IN
EXECUTION APPLICATION NO. 456 OF 2018
(CNR NO. MHCC010120712018)
IN
SUIT NO. 7728 OF 1998
(CNR NO. MHCC010015751998)
(HIGH COURT SUIT NO. 830 OF 1998)
Chogledham Cooperative Housing Society Ltd. ...Plaintiff
Versus
Dr. Hemchandra Govind Samant and Others ...Defendants
CORAM : HIS HONOUR JUDGE
SHRI G.G.BHANSALI.
(C.R.NO.31).
DATE : 30th JULY, 2019.
Mr. Nikunj Mehta, Advocate for Plaintiff.
Mr. P.G.Lad, Advocate for Defendant no.1, 2(a) and 2(b).
ORAL ORDER
This is a motion submitted by defendant no.2(a) namely
Trupti Samant to clarify the exact meaning of operative part para (e) of
the judgment in Suit No. 7728/1998 dated 30/11/2017. For sake of
convenience, it is reproduced as follows :
“e) Defendant Nos.1, 2A and 2B are directed to make the
payment of Rs.1,098/ per month from the date of suit with
enhancement in taxes and permitted increases hereinafter
-- 1 of 7 --
N/m No. 988/19 in Suit No. 7728/98. 2 Order.
regularly towards maintenance.”
2. It is contended in the motion that defendants have
deposited the amount of Rs.4,00,000/ (Rupees Four Lakhs Only) in the
Hon'ble High Court as per order dated 12/01/2000 and Rs.2,000/
(Rupees Two Thousand Only) per quarter regularly deposited with
plaintiff society. On 21/04/2003 defendant has deposited
Rs.1,00,000/ (Rupees One Lakh Only) by pay order. On 24/04/2003,
on 22/07/2003 the amount deposited by the defendant are mentioned
in para 7 of the motion. However plaintiff has concealed aforesaid facts
and levied the false recovery of Rs.14,17,010/ (Rupees Fourteen Lakhs
Seventeen Thousand Ten Only). Hence this motion is filed to struck
down the recovery as mentioned by the plaintiff / D.H. in execution
petition.
3. Perused reply filed by plaintiff / D.H. It is mentioned that
plaintiff has insisted for Deed of Conveyance in favour of plaintiff
society as per operative order (c) in the judgment. There is no dispute
in respect of para no.(b) of the judgment i.e. recovery of Rs.34,044/
(Rupees Thirtyfour Thousand Fortyfour Only) with interest @ 10%
p.a. The plaintiff has calculated the charges of maintenance as
chargeable to other members of the society. To the extent of amount
deposited by the defendants, plaintiff is always ready and willing to give
credit to the defendants. It is requested to reject the motion.
4. Perused rejoinder filed by defendant no.2(a).
5. In para 5 of the rejoinder it is mentioned that the plaintiff
is permitted to charge only “the enhanced municipal taxes and
-- 2 of 7 --
N/m No. 988/19 in Suit No. 7728/98. 3 Order.
permitted increase after 05/02/1998.” Therefore, defendant is ready
and willing to pay the charges at the rate of Rs.1,098/ per month.
6. Ld. Advocate Lad for defendant no.1, 2(a) and 2(b)
submits that the operative order of this Court dated 30/11/2017, which
is in question before this Court is clear in respect of maintenance
charges to be paid by the defendant no.1 and 2(a) and 2(b) is at the
rate of Rs.1,098/ with enhancement in taxes and permitted increase.
Defendant has inherited the property from his father Balkrishna
Chougule. It is added that the executing Court cannot go beyond or
behind the decree nor it can interpret the decree which may change the
scope of the decree. It is submitted that defendants do not know in
respect of how much charges are paid by the other members of the
society and on what rate plaintiff society is recovering the maintenance
charges from other members. It is requested to impose the charges @
Rs.1,098/ per month.
7. Ld. Advocate Nikunj Mehta for the plaintiff submits that the
builder has sold the property to the society. It is made clear that to the
extent of operative order in the judgment dated 30/11/2007, no issue is
raised by the defendant in respect of para (c) of the judgment i.e. of
conveyance of property in favour of the society. As per calculation
given by the D.H. on page no.10 and 11, it is mentioned that how the
amount is to be recovered from the defendants. Some receipts of other
members are annexed. The table of charges recovered from other
members are also annexed. It is submitted that the plaintiff has no
objection to deduct the amount which has been deposited by the
defendant in the Court and any charges already paid by the defendants.
It is requested to reject the motion.
-- 3 of 7 --
N/m No. 988/19 in Suit No. 7728/98. 4 Order.
8. I have perused the judgment and operative order of this
Court pronounced by my ld. Predecessor on 30/11/2017. At this
juncture, it is to note that defendants are members of the plaintiff
society and they have to be treated at par with other members. Before
interpretation of the order of maintenance charges of Rs.1,098/ as per
operative order para (e), following material points are important to
note :
a) Whether defendants are enjoying all the facilities i.e. water,
electricity, staircase, open space etc. at par with other
members ?
b) Is there increase in the charges of electricity, salary of
watchman, municipal taxes, water taxes, etc. in comparison
to 1998 onwards upto 2018 ?
c) Why defendants want a special provision to fix the
charges to Rs.1,098/ and not at par with other members of
the society ?
9. It is made clear that there is no objection of defendants /
J.D. in respect of clause no.(c) of the judgment i.e. “(c) Defendant
Nos.1 to 6 are directed to execute Deed of Conveyance in favour of
plaintiff society.”
10. Therefore, if there is no express order of stay from the
Hon'ble Appellate Court, D.H. to proceed with the decree against J.D.
and another for completion to execute the Deed of Conveyance in
favour of plaintiff society. It is settled principle of law that executing
Court has no jurisdiction to go behind the decree or has no right to
narrate the terms of decree however erroneous it may be the executing
proceeding. According to ld. Advocate for defendants / J.D. the word
-- 4 of 7 --
N/m No. 988/19 in Suit No. 7728/98. 5 Order.
“enhancement in taxes and permitted increases hereinafter regularly
towards maintenance” means “to the extent of enhancement in
municipal taxes only.”
11. In view of such averments in para 5 of the rejoinder filed by
defendants, abovementioned points (a), (b), (c) are specifically arose in
the mind of the Court, wherein permitted increases includes merely
municipal taxes. Ld. Advocate for defendant has exclusively filed
affidavit to reply on the clause that whether defendants are enjoying all
facilities at par alongwith other members of the society. On the
contrary, he replied that Mr. Balkrishna Chougule and defendants has
inherited the property as the defendants. Therefore defendants are not
entitled to pay the charges at par alongwith other members. If it is so,
when defendants were under obligation to pay the mere charges of
Rs.1,098/ per month, the order of this Court in operative part (e)
would have been as follows i.e. “Defendant Nos. 1, 2A and 2B are
directed to make the payment of Rs.1,098/ per month from the date of
suit regularly towards maintenance.”
12. However the operative order para (e) has specifically
covered “enhancement in taxes and permitted increases hereinafter
regularly towards maintenance.”
13. On perusal of calculations filed by D.H. on page no.10 and
11, the charges of Rs.1,098/ were from 05/02/1998 to 30/09/1998.
In the year 1998 to 2001 it was Rs.1,599/. From 2004 to 2008 it was
Rs.2,949/ per month. In the year 2008 to 2011 it was Rs.3,392/.
From 2011 to 2018 it was Rs.6,894/ per month. Accordingly in view of
Exh.A and B at page no.10 and 11 arrears of the maintenance are
-- 5 of 7 --
N/m No. 988/19 in Suit No. 7728/98. 6 Order.
narrated in tabulation form by the D.H. The amount of Rs.1,22,000/
deposited by J.D. was deducted by the D.H.
14. The exact charges of each and every year are not calculated
by the Court when delivering the judgment because it was not the issue
before the Court in respect to fixing of the amount nor Court was
knowing in respect of exact charges of maintenance fixed by the society
to be recovered from the members. The part of calculation was left by
the Court with D.H. The judgment delivered by the Court was in
respect of substantive right and obligation of another party.
15. As observed in Trimurti Exports and Ors. V/s. Modelama
Exports Limited and Ors. (2016(5) Bom C.R. 636), the Hon'ble High
Court of Bombay observed that it is easier to obtain a Decree than to get
it executed. The present petition is best example of observations of the
Hon'ble Bombay High Court.
16. In result of aforesaid discussion, it is made clear that the
word “enhancement in taxes and permitted increases hereinafter
regularly towards maintenance” includes “charges at par paid by other
members of the society to the plaintiff society.” It is according to the
calculation submitted by the D.H. / plaintiff at Exh.A and B Page No.10
and 11 of the reply filed by D.H. In short, there is no substance in
motion. It deserves to be rejected. Hence the order :
ORDER
1. Notice of Motion No. 988/2019 filed by J.D. / defendant
no.2(a) stands rejected.
2. N/m No. 988/19 is disposed of accordingly.
-- 6 of 7 --
N/m No. 988/19 in Suit No. 7728/98. 7 Order.
3. Execution Petition be send to Registrar for further orders.
Parties to appear before the Registrar in EA on
30/08/2019.
(G.G.BHANSALI)
Judge,
City Civil & Sessions Court,
Date : 30/07/2019. Mumbai.
1. Dictated on : 30/07/2019.
2. Transcribed on : 03 & 08/08/2019.
3. Signed on : 19/08/2019.
4. Delivered to Certified :
Copy Section on
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
19/08/2019. 1.46 p.m. Miss M.A.Kulkarni
Name of the Judge (with Court Room no.) HHJ Shri G.G.Bhansali.
(Court Room No.31).
Date of Pronouncement of Judgment/Order 30/07/2019.
Judgment/Order signed by P.O. on 19/08/2019.
Judgment/Order uploaded on 19/08/2019.
-- 7 of 7 --