Final Order 1

Order Details: Notice of Motion
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MHCC010027972018
Presented on : 23-02-2018
Registered on : 23-02-2018
Decided on : 09-03-2023
Duration : 5 years, 14 days
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.755 OF 2018
IN
S.C. SUIT NO.984 OF 2017
Nehru Nagar Shanti Bhuvan CHS Ltd.
A registered society represented through
its Chairman Shri. Maruti Jadhav
having its registered address at
Building No.88, Mother Dairy Road,
Nehru Nagar, Kurla(East),
Mumbai-400 024 and also at
Flat No.9, A wing, Building No.3,
Siddheshwar Society, Kamgar Nagar,
Kurla(East), Mumbai-400 024. ..Applicant
IN THE MATTER OF:
Rakhi Kamal Thakur nee Rakhi Hiralal
Rohra, Aged 44 years, Occupation-Service
C/o. Indra H.Rohra, residing at 26/685,
Yashodeep Co-operative Housing Society Ltd.,
Nehru Nagar, Kurla East, Mumbai-24 ..Plaintiff
VERSUS
1. M/s. Rebuilt, a registered partnership
firm represented through its partners
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1a.Milind Purshottam Narkhede
An adult, occupation: business,
residing at A/5, Vikram society,
Hari Om Nagar, Kopri,
Thane(East)-400 603 and
having his office at Shop No.107,
Maitri Shopping Centre,
V.N.Purav Marg, Sion,
Chunabhatii, Mumbai-400 022.
1b. Sandeep Vinay Godbole
An adult, occupation: business,
residing at A/13, Amarjyoti Apartments
Gulmohar Lane, V.N.Purav Marg, Sion,
Chunabhatii, Mumbai-400 022.
having his office at Shop No.107,
Maitri Shopping Centre,
V.N.Purav Marg, Sion,
Chunabhatii, Mumbai-400 022.
2. Nehru Nagar Shanti Bhuvan CHS Ltd.
A registered society represented through
its Chairman Shri. Maruti Jadhav
having its registered address at
Building No.88, Mother Dairy Road,
Nehru Nagar, Kurla(East),
Mumbai-400 024 and also at
Flat No.9, A wing, Building No.3,
Siddheshwar Society, Kamgar Nagar,
Kurla(East), Mumbai-400 024.
3. M/s. Navkar Life Space Pvt.Ltd.,
office No.1, Building No.2, Ground Floor,
Devidas Lane, Opp. St. Lawrence School,
Borivali(West), Mumbai-400 092.
4. Ruparel Estates India Pvt.Ltd
duly registered under the provisions of
Indian Companies Act, through its
4(a) Mahendra Ruparel
Chairman
4(b) Amit Ruparel
Managing Director
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having their address at Ruparel Iris,
L1 and L2, Senapati Bapat Marg,
Next to Magnet Mall,
Mahim, Mumbai 400 016. ..Defendants
Appearance :
Adv. Prashant G.Karande for plaintiff.
Adv Gayatri Sharma for defendant No.1a
Adv. Oza Kadam for defendant No.1b
Adv. Vasant Dhawan for defendant No.2
None for defendant No.3
Adv. Shrey Sancheti for defendant Nos.4a and 4b
Adv. Ishani Khanvilkar for defendant No.5
CORAM : HIS HONOUR JUDGE
R.R.Patare
COURT NO.2
DATED : 9th March, 2023.
ORAL ORDER
1. This notice of motion is taken out by defendant No.2 for
rejection of plaint under order 7 Rule 11 of C.P.C., on the ground that
plaintiff has no cause of action against defendant No.2. It is stated that
there is no privity of contract between the plaintiff and defendant No.2.
According to defendant development agreement between defendant
No.1 and defendant No.2 dated 09/12/2010 came to be cancelled by a
registered deed dated 12/01/2015. The plaintiff claims right on the
basis of agreement alleged to have been executed with defendant No.1.
Defendant No.1 is not the developer of defendant No.2. The plaintiff
cannot seek any relief on the basis of confirmation letter dated
12/02/2011. The right of defendant No.1 regarding redevelopment of
society building has came to an end. Therefore, plaintiff is not having
cause of action for filing a suit against defendant No.2.
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2. The plaintiff opposed the notice of motion by filing
reply. It is contended that averments made in the plaint discloses
cause of action. It is alleged that the notice of motion is not
maintainable. The plaintiff has denied all the adverse allegations
made in the notice of motion and requested for rejection of notice
of motion.
3. Perused averments, documents and heard both the
advocates.
4. Order 7 Rule 11 of C.P.C.,deals with rejection of
plaint. It is settled that plaint cannot be rejected on the basis of
the allegations made by the defendant in his written statement or
in an application made for rejection of the plaint. The Court has
to read entire plaint as a whole to find out whether there is
ground for rejection of plaint. The present notice of motion is
taken out for rejection of plaint on the ground that plaintiff has
no cause of action for filing suit against the defendant. Essentially,
whether the plaint discloses a cause of action is a question of fact
which has to be gathered on the basis of the averments made in
the plaint. With this it is necessary to go through the plaint to find
out whether plaint discloses cause of action for filing suit against
the defendant.
5. The plaintiff's suit is for performance of statutory
obligations under MOFA Act. According to the plaintiff defendant No.1,
builder and defendant No.2, co-operative housing society entered into
development agreement dated 09/12/2010 for re-development of
building of defendant No.2. The plaintiff claims that defendant No.1
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executed agreement for sale of flat No.905 situated at 9th floor of
proposed building. The plaintiff also paid entire consideration amount
to the defendant. It is further stated that defendant No.3 has taken over
the project for redevelopment work under Memorandum of
Understanding executed in the month of February-2015. It is further
stated that project for re-development was again taken over by
defendant No.4 and 5 respectively. The plaintiff has not produced
documents executed between defendant No.2 and other defendants for
re-development of the project.
6. The plaintiff has specifically disclosed as to on which date
cause of action arose for filing the suit. Specific pleadings to that effect
is made in para No.15 of the plaint. So long as plaint discloses some
cause of action which requires determination by the Court, the mere
fact that plaintiff may not succeed cannot be a ground for rejection of
the plaint. Requirement is that the plaint shall disclose cause of action.
The entitlement of the plaintiff and disclosure of cause of action are two
different things. The plaintiff has disclosed the cause of action for filing
suit against the defendant. There is no merit in the notice of motion.
Hence, following order is passed:-
ORDER
1.Notice of motion No.755 of 2018 is rejected.
2.No order as to costs.
(R.R.Patare)
Judge
City Civil Court, Gr.Mumbai
Date : 09.03.2023
Typed on : 09.03.2023
HHJ signed on : 09.03.2023
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 09/03/2023 AT 5.23 PM
UPLOAD DATE AND TIME Mrs. T.C.Kamble
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. R.R.Patare
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
09.03.2023
JUDGMENT/ORDER signed by P.O.
on
09.03.2023
JUDGMENT/ORDER uploaded on 09.03.2023
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