Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR No.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.881 OF 2018
IN
S.C. SUIT NO.2847 OF 2010
Maruti Dhulaji Thakur … Plaintiff
V/s.
M/s. Partha Developers & Ors. … Defendants
Appearances :
Ld. Adv. Desai for plaintiff.
Ld. Adv. Ashok Jain for defendant no.1.
Ld. Adv. Bhopatkar for defendant no.2.
Ld. Adv. Pawar for defendant no.3 and 4.
CORAM : HIS HONOUR JUDGE
SHRI MILIND V. KURTADIKAR
(C.R. No.20)
DATED : 11th NOVEMBER, 2019
ORDER
Defendant no.4 Mrs. Vandana Vijaykumar Dalvi has taken
out this notice of motion against the order passed by Court Receiver
dated 09.02.2018 fixing royalty of Rs.38,000/ per month in respect of
suit flat.
2. It is argued on behalf of applicant/defendant no.4 that
plaintiff Maruti Thakur has filed this suit against her seeking declaration
that her possession to suit flat is of a tresspasser and for recovery of
possession. In fact plaintiff has no concern with the suit flat bearing no.
D51, 5 th floor, Indrayani Complex Cooperative Housing Society Ltd.,
J.K. Sawant Marg, Dadar. Therefore neither plaintiff is entitled to ask
MHCC010030342018
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for declaration against the status of applicant/defendant no.4 nor can
ask for relief of recovery of possession. In fact defendant no.2 Rajendra
Mokal was the owner of suit flat and member of said society. By an
agreement dated 14.03.2016 applicant/defendant no.4 has purchased
suit flat from defendant no.2 Rajendra Mokal for valuable consideration
and also paid transfer charges of Rs.25,000/ to the society. As such
applicant/defendant no.4 is in possession of suit flat as its lawful owner.
The society has also issued share certificate in favour of
applicant/defendant no.4. As such he is the bonafide member of said
society. He is regularly paying maintenance and outgoing charges of
suit flat to the society.
3. It is further argued that plaintiff has no concern with the
suit flat. However in collusion with the administrative of society he has
obtained affidavit that some tresspassers are in possession of suit flat
and thereby seek the order of appointment of Court Receiver. Initially
Court Receiver has fixed the royalty of suit flat at Rs.20,000/ per
month and by impugned order it was finally fixed at Rs.38,000/ per
month. As applicant/defendant no.4 is bonafide member of said society
it was not incumbent on the part of Court Receiver to fix royalty. In
fact the purpose would have been solved by directing her to pay the
outgoing and maintenance charges. On this grounds
applicant/defendant no.4 challenged the impugned order of Court
Receiver fixing royalty at Rs.38,000/ per month.
4. Plaintiff Maruti Thakur has contested said application by
filing reply. It is submitted that defendant no.2 was not the owner of
suit flat nor member of society. He was mere occupant of suit flat on
rental basis. In collusion with then office bearers share certificate is
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issued in favour of defendant no.2. Now applicant/defendant no.4 is
claiming title and possession to the suit flat by virtue of transfer deed by
defendant no.2 in his favour. As defendant no.2 was not the bonafide
member of society no valid title is transferred in favour of defendant
no.4. As such defendant no.4 is the tresspassers of the suit flat. So
also in contravention of Court order defendant no.1 has let out the suit
flat. For so many years she was paying non occupancy charges. It goes
to show that she has parted with possession of suit flat in contravention
of Court order. The Court Receiver has fixed the royalty by considering
then market value, the location and other factors. Defendant no.4 has
not challenged original order of appointment of Court Receiver. In
absence of it present application for challenging the quantum of royalty
is not maintainable.
5. Here, applicant/defendant no.4 has challenged the
quantum of royalty fixed by Court Receiver on the ground that, she is
bonafide member of said society and validly in possession of the suit
flat. As against this plaintiff came with the case that defendant no.4 is
not bonafide member of society nor has valid title of the suit flat. In
fact the Predecessor in title of defendant no.4 i.e. defendant no.2
Rajendra Mokal was mere occupant of the suit flat and therefore he has
no right to transfer the suit flat in favour of applicant/defendant no.4.
6. In order to establish that applicant/defendant no.4 is
bonafide member of said society the Ld. Counsel has relied on initial
membership certificate of earlier owner Rajendra Mokal, the alleged
transfer/reconveyance deed and membership issued by society in
favour of applicant/defendant no.4. There is share certificate issued by
Indrayani Complex Cooperative Housing Society in favour of earlier
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owner defendant no.2 Rajendra Mokal. So also there is sale deed dated
14.03.2006 executed by owner Rajendra Mokal in favour of Defendant
no.4. The Ld. Counsel for applicant/defendant no.4 also relied on no
objection certificate issued by society for proposed transfer of suit flat
by owner Rajendra Mokal in favour of applicant/defendant no.4.
Applicant/defendant no.4 also placed the copy of share certificate on
record issued by said society in her favour regarding suit flat. So above
documentary evidence primafacie shows that plaintiff is member of
said society by virtue of sale deed by earlier owner in her favour.
7. However while considering above material on record we
cannot ignore the observations and remarks passed by Hon'ble High
Court while deciding the application for appointment of Court Receiver.
In the order dated 24.03.2017 the Hon'ble High Court has categorically
observed that “primafacie it cannot be said that the appellant i.e.
defendant no.4 is bonafide purchaser for valuable consideration and
without notice of any encumbrances. The appellant's husband was
chair person of the society. The respondent no.3 at least primafacie
cannot be said to have any title or authority to effect such transfers.
The applicant/defendant no.4 on the basis of such transfer, at least
primafacie cannot claim any impeccable title to the suit flat”. It is
further observed that despite restraint order against transfer of suit flat,
defendant no.4 has parted with possession of suit flat. It is also
observed that the manner in which appellant has acquired alleged rights
or possession of the suit flat is itself primafacie quite questionable.
8. Above observations clearly shows that the title and
possession of the applicant/defendant no.4 is observed to be
questionable and doubtful by the Hon'ble High Court. In the light of
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these observations the defence of applicant/defendant no.4 that she is
bonafide member of society and is in possession of suit flat will not
sustain. As such as observed the possession of applicant/defendant no.4
to suit flat it questionable and cannot be treated as valid.
9. Considering above discussion I am of the opinion that the
Court Receiver has rightly fixed the royalty. I have gone through the
impugned order. He has considered the valuation report submitted by
the valuer, valuation of flat and the location area and fair market value
of the flat. As such there is no any impropriety in impugned order
fixing royalty of Rs.38,000/ per month.
10. To conclude there is no force in the application taken out
by applicant/defendant no.4. It liable to be rejected. According the
order.
ORDER
1. NM No.881/18 in SU No.2847/10 is hereby rejected.
( MILIND V. KURTADIKAR )
Judge, (C.R. No.20)
Dt.: 11/11/2019 City Civil Court, Gr. Mumbai
Dictated on : 11.11.2019
Transcribed on : 14.11.2019
Signed on : 16.11.2019
sbk/
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
18.11.2019 01.59 p.m. Sanjay Baliram Kaskar
(Stenographer Higher Grade)
Name of the Judge HHJ Shri M.V. Kurtadikar
(CR No.20)
Date of Pronouncement of
Judgement/Order.
11.11.2019.
Judgement/order signed by P.O on 16.11.2019.
Judgement/order uploaded on 18.11.2019.
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