Order 1

Order Details: Notice of Motion
Pdf Text: NM 1476/18 in SU 2588/18 .. 1 .. Order
CNR No. MHCC010046312018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1476 OF 2018
IN
SUIT NO. 2588 OF 2018
Mr. Umesh Kantilal Parikh & Ors. ...Plaintiff.
V/s.
Neo Builders and Developers & Ors. ...Defendants.
Appearances:
Ld. Adv. Mr. Vinamra Kopariha for plaintiffs.
Ld. Adv. Mr. Barot for defendants No.1,2 and 3.
CORAM : HIS HONOUR JUDGE
SHRI SADRUDDIN A. QUAZI
(C.R.No.04)
DATED : 30th October, 2018.
: ORAL ORDER :
1. The plaintiffs No.1 to 4 have taken out this Notice of Motion.
They have requested to grant interim relief pending the hearing and
disposal of the suit. The interim relief asked for are described in prayer
clause (i),(ii) and in alternate as prayed in prayer clause (iv) in respect
of the appointment of Court Receiver and has prayed in prayer clause
(v) of the Notice of Motion to direct the defendants to deposit rent
amounting to Rs.20,61,272/ towards the temporary alternate
accommodation as per agreement dated 08.07.2010. The interim relief
in prayer clause (iii) has not been pressed by the learned Advocate of
the plaintiffs as they pertained to defendants No.4 to 6, who have not
been served with the Notice of Motion. Therefore, the prayer clause (i),
(ii), (iv) and (v) are only prayed in this Notice of Motion. Prayer clause
(i) is in respect of the temporary injunction restraining the defendants
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No.1,2 and 3 from allotting flats/units in the newly constructed
building, until the plaintiffs are allotted flats/units as per their
agreement for permanent alternate accommodation dated 08.07.2010.
Prayer clause (ii) is for giving direction to defendants No.1,2 and 3 for
disclosing information of various aspects described in clause No.(1) to
(8) of prayer clause (ii). Prayer clause (iv) is for appointing Court
Receiver for taking possession of the newly constructed building and
documents thereof etc. as described in clauses No.1,2 and 3 of prayer
clause (iv). The prayer clause (v) of the Notice of Motion is for direction
to the defendants No.1,2 and 3 to deposit the due principal amount of
compensation towards temporary alternate accommodation as per
agreement dated 08.07.2010 between plaintiffs and defendants No.1
and 2 i.e. amount of Rs.20,61,272/.
2. The plaintiff's case as is found in the plaint as well as in the
affidavit in support of the Notice of Motion, may be stated as under :
The plaintiffs No.1,2 and 3 were occupying four rooms in the old
building called Moni Bhuwan as protected tenants. The defendant No.1
is a company registered under the Companies Act. The defendant No.2
is its Director. The Defendant No.3 is another company of which
defendant No.2 is Director. The plaintiffs and the defendant No.1 and 2
entered into a permanent alternate accommodation agreement in the
year 2000. As per the terms of the said agreement, the plaintiffs agreed
to hand over possession of the old premises to the defendants No.1 and
2 and in return, the defendants No.1 and 2 agreed that they shall
redevelop the said property and after redevelopment, the defendants
shall give permanent alternate accommodation to the plaintiffs
equivalent to the area of which they were having the premises in the old
building. The parties had also agreed that the defendants No.1 and 2
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shall provide temporary alternate accommodation to the plaintiffs till
the permanent alternate accommodation in the new building is
provided. In clause (3), the compensation towards temporary alternate
accommodation was determined as Rs.65 per square feet for residence
up to 27 months and then, at Rs.75 per square feet for next 12 months
and thereafter, at Rs.130 per square feet till possession of the
permanent alternate accommodation in the new building is given.
According to the plaintiffs, on the basis of such agreement, they have
given possession of their old premises. The defendants No.1 and 2 paid
compensation for temporary alternate accommodation for some period,
but thereafter, stopped it from April 2016. According to the plaintiffs,
the defendants have obtained no objection from the defendant No.4
which is board under the MHADA Act and also from the defendant No.5
(MHADA) authority and also from the Municipal Corporation under the
Mumbai Municipal Corporation Act etc. It is submitted that no objection
for construction was given by the defendants No.4 and 5 under the
condition that the defendants No.1 and 2 shall provide permanent
alternate accommodation to the occupants of the old building equal to
the area of their old premises. It is submitted that as per the survey of
defendants No.4 and 5 authorities, the plaintiffs No.1 to 4 had a old
premises totally admeasuring 97.97 square meters. Therefore, the
plaintiffs are entitled to permanent alternate accommodation to the
extent of this much area. According to the plaintiffs, the defendant No.2
is the promoter of the said scheme. He is Director of defendants No.1
and 3 companies. The plaintiffs were not made aware of the fact that
the defendants No.1 and 2 have involved the defendant No.3 also in the
said project in respect of the construction and earning the profits there
from. Therefore, the defendant No.3 is also impleaded in the instant
suit.
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According to the plaintiffs, the defendants No.1 to 3 have
constructed the new building, but they are not offering the flats in the
new building equivalent to their old premises area. The defendants are
also not providing information to the plaintiffs as to which premises are
being allotted to the plaintiffs in lieu of their old premises. The
defendants have committed various malpractices in exploiting the FSI
attached to the property without giving benefit thereof to the occupants
including the plaintiffs. Therefore, the plaintiffs have got cause of action
to file the instant suit for various reliefs including the direction to the
defendants No.1 to 3 to provide permanent alternate accommodation as
per their entitlement under the provisions of the agreement between
the plaintiffs and them and also under the provisions of the permissions
sanctioned by the defendants No.4 to 6 for the construction of the said
project. In the Notice of Motion, plaintiffs have asked for the interim
relief as described herein earlier.
3. The defendants No.1,2 and 3 have filed their written statement as
well as affidavit in reply to oppose the Notice of Motion. The defendants
have admitted that the agreement was entered into between the
plaintiffs and the defendants No.1 and 2 in respect of the giving
permanent alternate accommodation to the plaintiffs, on plaintiffs
vacating their old premises. According to the defendants No.1 to 3, the
defendant No.3 has no concern with the cause in the suit and it has
been unnecessarily impleaded in the instant suit. According to them, the
defendant No.2 is proprietor of the defendant No.1. They have paid the
transit compensation to the plaintiffs. In all, the defendants have paid
Rs.28,34,249/ to the plaintiffs towards the transit compensation. It is
submitted that the new building has been constructed and the
defendants have offered flats in the new building to the plaintiffs, but
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plaintiffs have refused to accept the same and, therefore, the allegations
of the plaintiffs that the defendants have stopped paying the transit
compensation are false. The defendants have produced extract of
account to show that the compensation has been paid. It is denied that
the plaintiffs are protected tenants. The defendants have denied that
they are liable to pay any rent to the plaintiffs towards the temporary
alternate accommodation from April 2016.
According to the defendants, the plaintiffs are not entitled for the
reliefs asked for in the plaint. They have not taken any benefit of
fungible FSI of tenanted premises of Municipal Corporation. They have
already discharged their obligation under the agreement in question
and also under the provisions of Maharashtra Rent Control Act. This
suit is not tenable under the Rent Act, as this Court has no jurisdiction.
The defendants have also denied that the plaintiffs have been
continuously residing in the tenanted premises as allotted by them. The
defendants have denied that as per the agreement, the plaintiffs are
entitled to receive the sum towards the temporary alternate
accommodation at the rate of Rs.65 per square feet and, thereafter,
Rs.75 per square feet and the, Rs.130 per square feet as alleged by the
plaintiffs. As the project has been completed in time, the defendants are
not liable to pay the aforesaid compensation towards temporary
alternate accommodation. Defendants have denied that they have
illegally allotted the flats to other tenants. The plaintiffs are not entitled
to make any enquiry about the FSI and, therefore, the plaintiffs are not
entitled for asking the information and record about it and also about
the profits etc. of the defendants.
For the aforesaid reasons, the defendants have submitted that the
suit as well as the Notice of Motion are liable to be dismissed.
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4. I have heard the arguments advanced by the parties. They have
referred to their pleadings. The learned Advocate of the plaintiffs has
submitted that in the aforesaid circumstances, the interim reliefs asked
for should be granted. The learned Advocate of the defendants have
submitted that as the plaintiffs have suppressed the fact that the
defendants had offered the permanent alternate accommodation in new
building to them, the plaintiffs are not entitled for any relief. According
to the learned Advocate of the defendants, the defendants have not
committed any illegality and the plaintiffs are not entitled for any relief.
5. I have examined the submissions of the parties. Following points
arise for determination on which I record my findings as under for the
reasons to follow :
POINTS FINDINGS
1. Whether the plaintiff has made out
prima facie case for granting the
interim relief as requested in the
instant Notice of Motion ?
In the Affirmative
2. Whether the plaintiff has balance of
convenience in his favour ?
In the Affirmative
3. Whether the plaintiff would suffer
irreparable loss, if temporary
injunction is not granted ?
In the Affirmative
4 Whether Court Receiver is required
to be appointed ?
In the Negative
5 What order? The Notice of Motion is
allowed in terms of the
operative order being
passed herein below.
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: R E A S O N S :
AS TO POINT NO.1 TO 5 :
6. I have noted herein earlier the pleadings of the parties to
emphasize their respective cases and to find out the controversy
between them. What appears is that it is admitted fact that the
agreement of permanent alternate accommodation was entered into
between the plaintiffs on one part and defendants No.1 and 2 on the
other part. As per this agreement, the plaintiffs were to hand over
possession of the old premises and in return, the defendants No.1 and 2
promised and agreed to provide permanent alternate accommodation to
the plaintiffs equivalent to the area of their old premises. The area of
old premises of the plaintiffs is noted by the authorities of defendant
No.4 as 97.97 square meters. Admittedly, the new building has been
constructed. It appears from the contentions of the defendants in the
pleading read with the documents produced by them in the written
statement that the defendants No.1 to 3 had offered flats to the
plaintiffs in the new building. The defendants have produced copy of
the plaintiff's application given to the Executive Engineer, City Building
Proposal of Municipal Corporation. This application/letter is dated
24.07.2017. In that letter, the plaintiff No.3 has mentioned that the
defendants have offered the flat No.3 and 4 on 6th floor and flat No.3 on
13th floor. It is also mentioned in this letter that developer is giving
premises of lesser area than their entitlement in contravention of NOC
of MHADA. Therefore, in this letter, the plaintiff No.3 has asked the
Municipal Corporation to take necessary action and to redress the
grievance of the plaintiffs. From this letter, it appears that prior to
24.07.2017, the aforesaid 3 flats were offered by the defendants. No
doubt, these aspects have not been pleaded by the plaintiffs in the
plaint. However, it does not mean that because of not mentioning of
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these facts about offering of 3 flats, it can be said that the plaintiffs have
suppressed material facts, so as to make them disentitled for any reliefs
in the light of the admitted fact that the defendants have never
informed to the plaintiffs that the defendants are allotting the new
premises having the area equal to the area of the old premises of the
plaintiffs. In the letter dated 04.12.2017 produced by the defendants, it
appears that the defendants No.1 had informed to the Executive
Engineer of defendant No.4 and the Assistant Engineer of defendant
No.6 Corporation that the defendants are ready to change the allotment
of the aforesaid offered flats. In this letter, the defendants have
mentioned that each of the flat No.3 on 13th floor and flat No.4 on the
4th floor and flats No.3 and 4 on the 6th floor shall be admeasuring 20.4
square meters. This area of these four flats collectively is not into equal
of 97.97 square meters and it is lesser than 97.97 square meters.
Plaintiffs are entitled to 97.97 square meters. Thus, it is clear from the
aforesaid material on record that the defendants are not offering the
plaintiffs this much area in the new building. As per the terms of the
agreement and as per the NOC given by the defendant No.4 for the
construction of the new building, the defendants No.1 and 2 are bound
to give the premises of which total area is equivalent to 97.97 square
meters. This obligation is not being discharged by the defendants and,
therefore, I find that the plaintiffs have made out prima facie case. The
plaintiffs have also got balance of convenience in their favour in the
aforesaid circumstances. As the plaintiffs prima facie appear to be
entitled for the premises in the new building equivalent to 97.97 square
meters and as it appears that defendants are allotting the premises in
the new building to various other parties, it is necessary to protect the
interest of the plaintiffs in respect of getting the premises admeasuring
97.97 square meters. Therefore, I find that the plaintiffs are entitled for
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the interim relief of temporary injunction restraining the defendants
from transferring or allotting or parting with possession of at least 5
flats in the new building aggregate area of which should be 97.97
square meters or more, in the new building, to any third party. It is also
necessary to direct the defendants No.1 and 2 to deposit compensation
towards the temporary alternate accommodation at the rate of Rs.130
per square feet from date of filing of the suit i.e. April 2018 onwards till
possession of the permanent alternate accommodation is given to the
plaintiffs or till further orders of the Court pending the hearing and
disposal of the suit. If, such reliefs are granted, the interest of the
plaintiffs would be protected and if, such reliefs are not granted, the
plaintiffs would suffer irreparable loss. For rest of the prayers in the
Notice of Motion, I do not think that it is necessary to be granted at this
stage, if the reliefs in the aforesaid terms are granted. Accordingly, I
have answered point No.1 to 3 in affirmative and in respect of point
No.4, I have recorded negative findings. About point No.5, I hold that
the Notice of Motion deserves to be allowed in the aforesaid terms and
accordingly, I have answered point No.5. Hence, I proceed to pass the
following order.
: O R D E R :
1. The Notice of Motion No.1476 of 2018 is hereby allowed in
following terms.
(i) By way of temporary injunction, pending the hearing and
disposal of the suit, the defendants No.1 to 3 are restrained from
alienating or transferring or parting with possession of at least 5 flats in
the new building, the aggregate area of which should be equal to 97.97
sq. mtr. or more, to any any third party.
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(ii) The defendants No.1 and 2 shall deposit in Court the sum
towards temporary alternate accommodation as per clause (3) of the
Permanent Alternate Accommodation dated 08.07.2010 at the rate of
Rs.130 per square feet from the month of April 2018 onwards, pending
the hearing and disposal of the suit or till possession of the permanent
alternate accommodation is handed over to the plaintiffs or till further
orders of the Court, whichever occurs first.
(iii) Rest of the prayers in the Notice of Motion shall stand
rejected.
(iv) The Notice of Motion stands dismissed as against
defendants No.4,5 and 6.
(v) In these terms, the Notice of Motion stands disposed
of accordingly.
(SADRUDDIN A. QUAZI)
Judge, (C.R.No.4)
Date : 30.10.2018. City Civil Court, Gr. Mumbai
Dictated on : 30.10.2018.
Transcribed on : 31.10.2018.
Signed on : 02.11.2018.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT.”
02.11.2018, at 4.32 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri S. A. Quazi
Court Room No.4
Date of Pronouncement of Judgment/order 30.10.2018.
Judgment/order signed by P.O. on 02.11.2018.
Judgment/order uploaded on 02.11.2018.
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