Interim Order 1

Order Details: Notice of Motion
Pdf Text: Draft NM. : 1 : L.C.Suit .No.611/2018
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
DRAFT NOTICE OF MOTION
IN
L.C.SUIT NO. 611 OF 2018.
1. Mr.Kamlesh Kishormal Jain & Ors.. } .. Plaintiff.
Versus.
The Municipal Corporation of
Gr. Mumbai.... } .. Defendants.
Ld. Advocate Mr. Kudalkar for the Plaintiff.
Ld. Advocate Mr. Kumawat for Defendant /BMC.
CORAM : HIS HONOUR JUDGE
SHRI. G.B.GURAO
DATE : 13 TH MARCH, 2018.
(Court Room No.06)
O R D E R
1. Plaintiffs have taken out this draft notice of motion to restrain
the defendant/Corporation from taking any action on the basis of
notice dated 01/11/2017 and order dated 06/08/2018.
2. According to the plaintiffs, plaintiffs have purchased the Flat No.
502, AWing, Nikki Apartment, C.H.S. Ltd., Khed Galli, Sayani road,
Dadar (West), Prabhadevi, Mumbai400 025.
3. The said flat is having wooden door admeasuring about 0.9 m x
2.10 m. and 2 windows each admeasuring 1.5 m. x 12 m. facing
towards the terrace of 4th floor (hereinafter the said are referred as
the "suit door and windows")
4. Plaintiffs have not made any alteration in the suit premises. after
acquisition of the flat, plaintiffs approached to the Nikki Apartment Co
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op. Housing Society Ltd. with request to transfer the membership of the
said society from the old member. However, the office bearers of the
society demanded huge amount under various heads including
donation to the plaintiff. Plaintiffs were ready to pay the transfer
charges of Rs. 25,600/. However, defendant society refused to the
same. Therefore, plaintiffs approached to the Dy. Registrar, Co
operative Society for including them as member of the society. Thus,
the members of the Cooperative society have demanded illegal amount
from the plaintiff. Plaintiff refused to the said. Therefore, they filed the
complaint to the defendant/Corporation.
5. Defendant/Corporation did not verify the fact and issued false
notice to the plaintiff. Plaintiffs gave reply through their advocate.
However, defendant/Corporation passed the impugned order.
6. Plaintiff further avers that plaintiffs had filed Suit No. 2637 of
2017. However, this Court had directed the defendant to pass an order
after giving opportunity to plaintiff. However, defendants hurriedly
passed the order. Thus,the notice and order are illegal. Hence, prayed
to grant interim protection.
7. Notice is served to defendant/Corporation.
Defendant/Corporation filed affidavit of it's officer Machhindra
Namdeo Tandale and produced documents. According to defendants,
the plaintiffs have made alteration in the flat. Plaintiffs are
unauthorizedly made the construction and using the terrace of adjacent
apartment. The notice and order are legal.
8. Shri. Kudalkar, advocate for plaintiff has invited my attention
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towards documents. According to him, plaintiffs have purchased the
flat as where is and as it is. Plaintiffs have not made any alteration in
the said flat. Concerned society demanded huge amount to the
plaintiffs. Plaintiffs refused the same. Plaintiffs approached to the Co
operative Court. Hence, the society made false complaint to the
defendant. He further submitted that there is dispute between
plaintiffs and society in respect of the membership. In the present suit,
there is a triable issue. Hence, he prayed to grant adinterimrelief.
9. Shri. Kumawat, advocate for defendant has submitted that the
proper inspection done. Plaintiffs made changes in the flat. Hence, he
supports the impugned notice and order.
10. I have perused the documents. It is to be noted that
defendant/Corporation has taken action on the basis of letter issued by
the concerned housing society. It is to be noted that plaintiffs have
purchased the flat in the year 2016. There is a dispute between
plaintiffs and the society in respect of the membership. The contention
of the defendant is that plaintiff made unauthorized construction of
door and windows. However, defendant/Corporation has also not
filed any document (plan) to show that the construction is
unauthorized one. Therefore, considering the dispute between plaintiff
and society and also between defendant/Corporation, I find that there
are triable issues. Hence, it is necessary to maintain the status of the
suit property as on today. Hence, plaintiff is entitled for adinterim
relief. Therefore, following order is passed :
O r d e r
1. The defendant, its agent, servant or anybody
on behalf of it are hereby temporarily restrained
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from taking any action on the basis of impugned
notice and order till next date.
2. Draft Notice of motion be registered.
Date : 13.03.2018. (G.B.Gurao)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 13.03.2018.
Typed on : 13.03.2018.
Signed by HHJ. : 13.03.2018.
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“ CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER.”
13.03.2018. /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
13.03.2018.
JUDGEMENT/ORDER signed
by P.O. on
13.03.2018.
JUDGEMENT/ORDER
uploaded on
13.03.2018.
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