Order 2

Order Details: Notice of Motion
Pdf Text: Order below Exh.1 and N/m No. 4030/23 and [ 1 ] Common Order.
N/m No. 459/24 in S.C.Suit No. 1102/2020.
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
ORDER BELOW EXHIBIT 1
AND
MHCC010116172023
Presented on : 03-11-2023
Registered on : 03-11-2023
Decided on : 10-02-2025
Duration : 1 years, 3 months, 7 days
NOTICE OF MOTION NO. 4030 OF 2023
Drishti Hospitality Company Private Limited )...Plaintiff
Versus
Orbit Lifescience Pvt. Ltd. and another )...Defendants
AND
MHCC010011882024
Presented on : 01-02-2024
Registered on : 01-02-2024
Decided on : 10-02-2025
Duration : 1 years, 0 months, 9 days
NOTICE OF MOTION NO. 459 OF 2024
IN
S. C. SUIT NO. 1102 OF 2020
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Order below Exh.1 and N/m No. 4030/23 and [ 2 ] Common Order.
N/m No. 459/24 in S.C.Suit No. 1102/2020.
Drishti Hospitality Company Private Limited )...Plaintiff
Versus
Orbit Lifescience Private Ltd. and another )...Defendants
Shri Niranjan Bhadang alongwith Archi Gala, Advocate for the plaintiff.
Shri Bipin Joshi alongwith Sakshi Agarwal, Advocate for the defendant
no.1.
Smt. Harsha Shah i/b Shri Yatin R. Shah, Advocate for the defendant
no.2.
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 10th FEBRUARY, 2025.
COMMON ORDER
Vide Notice of Motion No. 4030/2023 the plaintiff requests
to pass the decree on admission and to restrain defendant no.1 from
creating third party interest over suit flat whereas vide Notice of Motion
No. 459/2024 defendant no.1 requests to reject the plaint or in
alternative stay the proceedings of the suit.
2. Vide Notice of Motion No. 4030/2023 the plaintiff contends
that it is registered company incorporated under the Companies Act,
1956. Its office situated on Top Floor of Drishti House (previously
known as Mehta Mahal). It is owner of land and building known as
Drishi House sitauted on land Survey No. 1501 of Girgaum Division in
District of Greater Mumbai [In short, 'said property']. Defendant no.1 is
present owner of office premises admeasuring 5557.03 sq.ft. on 7th
floor [In short, 'office premises']. Defendant no.2 i.e. Rosy Blue (India)
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Order below Exh.1 and N/m No. 4030/23 and [ 3 ] Common Order.
N/m No. 459/24 in S.C.Suit No. 1102/2020.
Private Limited is the company in which one Tinsel Properties Private
Limited is amalgamated. Vide Deed of Conveyance dated 21/08/2014
the plaintiff has acquired all rights and interest of the said property.
3. The plaintiff specifically submitted that under the Tenancy
Agreement dated 10/09/1998 the plaintiff’s predecessor in title namely
Mehta Charity Trust leased entire 7th Floor of the said building
alongwith three car parking spaces to defendant no.2. Mehta Charity
Trust had filed an application before Charity Commissioner seeking
permission to sell various premises including office premises. The
Charity Commissioner vide its order dated 09/01/2002 sanctioned
transfer. Accordingly vide Deed of Conveyance dated 15/02/2002
Mehta Charity Trust conveyed office premises to defendant no.2.
Though vide Deed of Conveyance dated 15/02/2002 the incidental
right to use car parking space and common area applicable to the office
premises had been transferred to defendant no.2, no right, title or
interest was transferred in respect of parking or common area facilities
to tenants of defendant no.2. Therefore defendant no.1 who claims
right and interest over office premises vide Deed of Transfer dated
23/09/2014 has no right or interest over the office premises. The
plaintiff after knowing execution of Deed of Transfer dated 23/09/2014
had brought to the notice of defendant no.2 that no right and interest
was transferred in favour of defendant no.2 vide Deed of Conveyance
dated 15/02/2002. Accordingly Deed of Rectification was exchanged
between plaintiff’s predecessor in title and defendant no.1.
4. Said Deed of Rectification was executed and notarized but
it was never registered which is filed alongwith plaint at Exh.G. The
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Order below Exh.1 and N/m No. 4030/23 and [ 4 ] Common Order.
N/m No. 459/24 in S.C.Suit No. 1102/2020.
execution of Rectification Deed itself suggests that defendant no.2 has
no right and interest over office premises vide Deed of Conveyance
dated 15/02/2002. It amounts to admission as to rights and interest of
plaintiff over office premises. Hence decree be drawn accordingly.
Hence the notice of motion.
5. In reply, defendant no.1 has filed affidavit in reply and also
moved Notice of Motion No. 459/2024. Similarly defendant no.2 has
also filed affidavit in reply to notice of motion moved by plaintiff vide
Notice of Motion No. 4030/2023. It is specific contention of defendant
no.1 that the suit of the plaintiff is not maintainable in view of the
provisions of Specific Relief Act [In short, ‘the Act’]. The plaintiff has
suppressed material facts. There are various proceedings pending before
the Honourable High Court relating to subject matter of the suit. This
fact is suppressed by the plaintiff. The plaintiff has no locus standi to
challenge Transfer Deed dated 23/09/2014 as it is not executed by the
plaintiff. The plaintiff cannot seek relief of cancellation of said Deed of
Transfer in part or in full. Therefore relief sought by the plaintiff vide
the plaint cannot be granted.
6. It is further specific contention of defendant no.1 that
plaintiff being promoter is under obligation to convey the entire
property in favour of co-operative society or any incorporate body in
accordance with the provisions of Maharashtra Ownership of Flats Act
[In short, ‘the MOFA Act’]. The plaintiff failed to comply the mandatory
requirement of MOFA Act. There are various Misc. Applications, for
example, Writ Petition No. 943/2021, Contempt Petition No.
7481/2022 and Suit (L) No. 7162/2020 at the instance of the society
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Order below Exh.1 and N/m No. 4030/23 and [ 5 ] Common Order.
N/m No. 459/24 in S.C.Suit No. 1102/2020.
and some of the purchasers of the Drishti building. Hence prayed to
reject the plaint and notice of motion moved by the plaintiff.
7. The plaintiff has come with case that transfer of rights in
respect of car parking spaces by defendant no.2 in favour of defendant
no.1 is void. To substantiate his contention the plaintiff relied upon
Rectification Deed. Though Rectification Deed prima facie show that
Transfer Deed in favour of defendant no.1 by defendant no.2 is silent as
to transfer of car parking space, it cannot be a ground to say that
defendants have admitted the case of the plaintiff unequivocally. What
will be legal effect of said Deed of Rectification is matter of trial and
enquiry. The plaintiff also sought relief to cancel the portion in bold
clauses mentioned in Deed of Transfer dated 23/09/2014. The plaintiff
admits its execution. However in view of given facts of the case, it is just
to hear both parties on merit.
8. Before part with the order, it is necessary to note that
though the plaintiff has submitted all copies of Deed of Transfer, none of
them contains the copies of Property Cards or 7/12 extract pertaining to
the subject matter of the suit. Therefore it is just and proper to direct
the plaintiff to submit Property Card of land Survey No.1501. In the
result, following order is passed :
- ORDER -
1. Both notice of motions stand rejected.
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Order below Exh.1 and N/m No. 4030/23 and [ 6 ] Common Order.
N/m No. 459/24 in S.C.Suit No. 1102/2020.
2. The plaintiff to submit Property Card of land Survey No.1501 on
next date.
(U.C.DESHMUKH)
Judge,
City Civil Court,
(Court Room No.66)
Date : 10/02/2025. Mumbai.
1. Dictated on : 10/02/2025.
2. Transcribed on : 24/02/2025.
3. Placed for correction on : 24/02/2025.
4. Checked on : 25/02/2025.
5. Correction carried on : 27/02/2025.
6. Signed on : 27/02/2025.
7. 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
28/02/2025. 3.02 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri U.C.Deshmukh.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 10/02/2025.
Judgment/Order signed by P.O. on 27/02/2025.
Judgment/Order uploaded on 28/02/25
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