Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 998/2019 in S.C.Suit 8489/1993
NOTICE OF MOTION NO. 998 OF 2019
IN
S.C. SUIT NO. 8489 OF 1993
(HIGH COURT SUIT NO. 1 OF 1993)
CNR NO. : MHCC010025932019
Fulwantibai Chhaganraj Rathod & Ors. … Plaintiffs
Versus
M/s. M.K. Enterprises & Ors. ...Defendants
Appearance:
Adv. S.B.Gore for Defendant no. 4.
Adv. Mr. D.A.Thorat for Plaintiffs.
CORAM : SMT. S.S. NAGUR
JUDGE, (C.R.NO.4)
DATE : 04/10/2021
ORDER
The Notice of Motion is filed by the defendant no. 4 to direct the
plaintiffs to submit valuation of 10 flats as per amendment carried out
in the plaint for specific performance of the Settlement Agreement
dated 29.11.1994; to submit valuation of three flats bearing no. G3,
G4 and B203 as per amended plaint; to direct the plaintiffs to value
half portion of land bearing survey no. 461, Hissa No. 1A admeasuring
1293.5 i.e. 646.75 sq.mtrs and half building 'B' as per amended plaint;
to direct the plaintiffs to submit total amount of Municipal charges and
property taxes and interest if any in respect of 10 flats, which are
occupied by the plaintiffs since 19951996 till the amendment carried
out on 12.12.2008; to order whether the valuation of the present suit
is beyond the pecuniary jurisdiction of the Court and retransfer the
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suit to the Hon’ble High Court, if the valuation is beyond the
jurisdiction of the Court; to dismiss the suit as plaintiff failed to value
the suit and not paid court fees.
2. The Notice of Motion is supported by Affidavit of Sekhar Naidu,
the Secretary and authorized representative of the Defendant no. 4
Society. The defendant no. 4 stated that during the hearing of the
Notice of Motion No. 2153 of 2017 to reject the plaint under the
provisions of Order VII Rule 11 of the Civil Procedure Code, 1908 and
for other reliefs, the plaintiffs did not submit the valuation of property
and prayed reliefs in the amended plaint. Initially, the suit was filed
before the Hon’ble High Court to declare that defendant no. 1 are
trespasser upon the suit land and have no right, title, interest or
benefits under suit agreements dated 25.03.1987 and Supplemental
Agreement dated 19.09.1991. The plaintiffs also claimed vacant
possession of the suit property and loss and damages for wrongful
breach of contract.
3. The defendant stated that during the pendency of the suit, the
settlement arrived at between the plaintiffs and the defendant no. 1 to
3. The dispute was settled amicably by executing settlement agreement
dated 29.11.1994. In November, 1996 the plaintiffs filed Chamber
Summons to carry out amendment in the plaint as per said settlement
agreement. The defendant no. 1 to 3 had no objection. Therefore, the
said Chamber Summons was allowed. The defendant no. 4 has given
the calculation of valuation of 10 flats as Rs. 76,01,983/. The
plaintiffs filed second Chamber Summons No. 961 of 2008 to amend
the plaint, to hand over vacant possession of three flats being flat no.
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3, 4 and 203. The plaintiffs didn’t value the said three flats. The
defendant has stated the valuation of said three flats as Rs.
36,19,754/ and the construction of walls at the places indicated in the
plan to ensure separate and exclusive access to Rathod Niketan to the
plaintiffs. The amount of valuation stated in the Notice of Motion is Rs.
2,48,09,871/. The defendant has stated the valuation of the
registration of 13 flats to Rs. 11,95,149/ and maintenance including
interest of Rs. 14,33,125/ since 1995 till 2008. The above valuation
shows that the relief claimed by the plaintiffs is beyond pecuniary
jurisdiction of the Court. Hence, prayed to allow the Notice of Motion.
4. The plaintiffs filed reply through Affidavit of Shri. Pravin
Chhaganraj Rathod, the plaintiff no. 5. The plaintiffs have denied the
contents of Notice of Motion in respect of valuation of the property.
The plaintiffs stated that the defendants have filed the Notice of
Motion No. 2153 of 2017, at that time the defendant not raised the
issues stated in the present Notice of Motion. The defendant no. 4 was
arguing in relation to the reliefs which are not claimed in the Notice of
Motion and on pointing out the said fact, the defendant took time to
take out the present Notice of Motion. This shows that defendant no. 4
is deliberately delaying the proceedings.
5. The plaintiffs stated that in para no. 22 of the plaint, the reliefs
claimed are valued at Rs. 84,39,000/ on the date of presentation of
the suit i.e. 30.12.1992. Under the provisions of Bombay Court Fee Act
as prevailing in the year 1992, the concession in payment of court fee
was given to the women and taking into consideration the said
provision, the court fee is paid by the plaintiffs. None of the defendants
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in the Written Statement have made any averment that the suit reliefs
are under valued by the plaintiffs. The valuation of the plaintiffs to file
the suit on 30.12.1992 is correct, as the amendment will relate back to
the filling of the suit. The plaintiffs have denied the contents of Notice
of Motion in toto and prayed to reject the Notice of Motion.
6. The defendant no. 4 filed rejoinder affidavit to the reply filed by
the plaintiffs and has denied the contents of reply in toto. The
defendant no. 4 stated that it is the plaintiff who has delayed the
proceedings.
7. The defendants were absent, even after opportunity was given.
Hence, argument of defendants not heard. Heard Advocate
Shri.Thorat for the plaintiffs. Perused the contents of Notice of Motion,
reply and rejoinder affidavit to reply.
8. Initially, the plaintiffs filed the suit seeking relief to declare that
the defendant no. 1 are trespassers and to handover the possession, as
they do not have any right, title, interest or benefits under the Suit
Agreement dated 25.03.1987 and Modified agreement dated
19.09.1991; to vacate the said land described in Exhibit ‘A’ and the
construction thereon and hand over quiet and peaceful possession to
the plaintiffs; to restrain the defendants by permanent injunction from
entering or remaining upon said land described in Exhibit ‘A’ or
construction thereon or to carry on or continue with any construction
or other activities; to pay damages of Rs. 54,000/ for wrongful use or
occupation of the said land and/or construction thereon and claimed
loss and damages for wrongful breach of contract of Rs. 84,00,000/.
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9. The plaintiff has amended the plaint and has incorporated the
reliefs as per the settlement arrived between the parties during the
pendency of the suit wherein, on the basis of the said settlement, the
plaintiffs have sought reliefs to declare that by virtue of writing dated
29.11.1994 the parties amicably settled the dispute and the settlement
between the parties are stated therein. The injunction/restraining
order is prayed for during the pendency of the suit. The plaintiffs have
also claimed relief to hand over peaceful possession of three remaining
flats in Rathod Niketan being no. G3, G4 and 203; and other
consequential reliefs in respect of the said flats. The plaintiff in the
plaint para no. 21 stated that for the purposes of court fee and
jurisdiction the plaintiffs have valued the suit claim at Rs. 84,39,000/
and paid court fees of Rs. 15,000/.
10. The settlement has been arrived between the parties during the
pendency of the suit. The nature of relief as per the settlement is
modified in terms of the separate building as agreed to the flats in the
constructed building. Though the amendment relates back on the date
the suit is filed, then too it is necessary to value the reliefs claimed in
the suit. Considering the nature of the reliefs in the amended plaint
sought by the plaintiffs, the plaintiffs are required to value the suit and
file the valuation and thereafter the further reliefs in respect of
jurisdiction/payment of court fee will be decided. Hence, pass
following order :
ORDER
1. The plaintiffs to value the suit as per the
amendment carried out by them and reliefs
sought.
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2. The Notice of Motion is kept pending for further
orders, after the valuation is filed by the plaintiffs.
(SMT. S.S.NAGUR )
Judge
Dt.: 04/10/2021 City Civil Court,
Gr. Mumbai
Declared on : 04/10/2021
Dictated on : 04/10/2021
Typed on : 04/10/2021
Checked & Signed on : 04/10/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
07/10/2021 12.25 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.4)
Date of Pronouncement of
Judgment/Order.
04/10/2021
Judgment/order signed by P.O on 04/10/2021
Judgment/order uploaded on 07/10/2021
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