Final Order 1

Order Details: Chamber summons
Pdf Text: 1 CS 666-2019 in S.C. Suit No.2979-2015
MHCC010033672019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO. 666 OF 2019
IN
S.C. SUIT NO.2979 OF 2015
Vijay Co-op. Housing Society (Proposed) ] ...Plaintiff.
Versus
MHADA & Others ]…Defendants.
And
Balkrishna Maruti Trimbake & Another ]...Applicants
Appearance:
Ld. Advocate Karande for Plaintiff.
Ld. Advocate Mangal Kadam for Defendant Nos.1 and 2/MHADA.
Ld. Advocate Siddhi Desai h/f. Advocate Neeta Gaikwad for Defendant
Nos.7 to 12 and 15 to 17.
Ld. Advocate N.A. Ghatte for Defendant Nos. 18 to 20.
CORAM : V.G. RAGHUWANSHI
JUDGE, (C.R.NO.08)
DATE : 04/08/2023.
ORAL ORDER
1. This application is to carry out amendment to Small Cause Suit
No.2979/15 as per schedule annexed to the chamber summons.
The schedule attached to the chamber summons shows that
Purushottam Shinde who was chief promoter of the plaintiff/
proposed co-operative housing society passed away and in place
of his name plaintiff desires to substitute names of Balkrishna
Maruti Trimbake and Murtuza Baddrudin Kanchwala. Plaintiff
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also desire to add pleading about death of chief promoter of
proposed co-operative housing society and selection of these two
persons as chief promoters of proposed Vijay Co-operative
Housing Society. Defendant No.3 to 17 (legal representatives of
erstwhile owners) and defendant No.18 to 22
(purchasers/builders) opposed this application. MHADA/
defendant No.1 and 2 did not file their say but advanced their
arguments to oppose this chamber summons. Ld. Counsel of
plaintiff submitted that the tenants residing in the suit premises
approached MHADA for acquisition deposited 30% of the total
cost decided by MHADA. Thereafter, there was acquisition
proceedings and it was accepted. The suit property is now vested
in MHADA. Erstwhile owners sold suit property to defendant
No.18 to 22. Therefore, three suits are filed 2978/15, 2979/15,
2980/15 as there were three subsequent agreements and three
different purchasers. Thereafter, the plaintiff approached Hon’ble
High Court in writ petition but they were directed to file civil
suit. Therefore, they are before this court. In the meanwhile chief
promoter Purushottam Shinde left for his heavenly abode on
01/02/2019 and thereafter this application is filed on
18/03/2019. The society has passed resolution to make two
persons chief promoter on 10/03/2019 (Ex.B to the affidavit in
support of chamber summons). The plaintiffs prayed for
permitting them to amend the suit and add new chief promoters
and pleadings on record.
2. Shri. Thatte, Ld. Counsel for subsequent purchasers/builders
vehemently opposed this application. He submitted that the
members of proposed co-operative housing society paid 30% of
the total cost of the suit property. Thereafter, they were called
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upon to deposit 70% of the total cost but the proposed co-
operative housing society failed to pay 70% of the cost. They
backed out from the proposed scheme. Therefore, the society is
still unregistered and it cannot file the suit and therefore, there
cannot be substitution also. As constitution validity of Chapter 8A
is still pending before Hon’ble Apex Court. MHADA was directed
not to pass final order. Plaintiffs/tenants of the suit premises
backed out in 1986 and order was passed by Hon’ble Apex Court
in 1996. The title vested in erstwhile owner at that time. In other
words tenants backed out when the land was owned by erstwhile
owners. Defendant No.11 to 22 purchased suit property in 2013
and filed 13 eviction suits in 2015 and thereafter plaintiff came
with this suit. Plaintiffs have no locus standi to file this suit. He
prayed for rejecting this chamber summons to bring legal
representatives on record.
3. Ld. Advocate Gaikwad representing legal representatives of
erstwhile owners opposed this application/chamber summons.
Smt. Mangal Kadam, Ld. Counsel of MHADA also vehemently
opposed this application. She drew my attention towards the fact
that members of co-operative housing society wrote letters to
MHADA backing out from the scheme and therefore they could
not have been called for paying remaining amount and
registering the co-operative housing society. She also drew my
attention towards the copy of resolution passed by proposed co-
operative housing society making Balkrishna Trimbake and
Murtuza Baddrudin Kanchwala chief promoters and submitted
that plaintiffs did not file original resolution on record.
Therefore, it is not clear how many members from the proposed
co-operative housing society support them.
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4. I have given thoughtful consideration to submissions of both the
sides. Ld. Counsel for plaintiff drew my attention towards
judgment passed by Hon’ble High Court in Appeal Order
No.112/16 dated 15/02/2016. He submitted that these all
arguments were advanced before Hon’ble High Court also and
Hon’ble High Court turned down all these arguments. At this
stage this court is concerned with substitution only. The proposed
co-operative housing society is inter meddling/dealing with suit
property and they claim rights in the suit property. Therefore, at
this stage without brushing aside the arguments and grounds
raised by Ld. Counsel of subsequent purchaser and MHADA I will
allow this application, but it should not be interepreted that
arguments advanced by Ld. Counsel of MHADA and subsequent
purchasers are turned down by this court. These grounds are to
be raised on proper stage. With these observations I proceed to
pass following order:-
ORDER
1. Chamber Summons No.666 of 2019 is allowed.
2. Plaintiff to carryout necessary amendment within two weeks from
today.
3. Chamber Summons No.666 of 2019 is disposed off accordingly.
Date : 04/08/2023 (Shri. V. G. RAGHUWANSHI)
Judge
City Civil Court,
Gr. Mumbai.
Dictated on :04/08/2023.
Transcribed on :05/08/2023.
Signed on :19/08/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
21/08/2023 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI V.G. Raghuvanshi (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
04/08/2023
JUDGMENT/ORDER signed by P.O. on 19/08/2023
JUDGMENT/ORDER uploaded on 21/08/2023
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