Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M No.1111/2018 ..1.. Suit No.787/2018
CNR No.MHCC010035692018
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.1111 OF 2018
IN
SUIT NO.787 OF 2018
The Nowroji Mansion Cooperative Housing
Society Limited .. Applicant
In the matter between
The Nowroji Mansion Cooperative Housing
Society Limited .. Plaintiff
Versus
Mrs. Kanta Ruben Narshia & Another .. Defendants
Mr. Nimay Dave, advocate for plaintiff
Mr. V. C. Singh, advocate for defendants
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 17th September, 2019
ORAL ORDER
Notice of motion is taken out by plaintiff for temporary
injunction restraining defendant No.1, her servants, agents, assigns, or
any person claiming through her or by her authority from selling,
dealing with, alienating, disposing of, encumbering, creating third party
right, title or interest in respect of suit premises i.e. room admeasuring
100 square feet approximately on the ground floor of the building
known as “Nowroji Mansion” (in short 'said building'), situate at 31,
Nathalal Parikh Marg, Wodehouse road, Mumbai – 400 001 more
particularly described in Exh. A to the plaint and further prayed for
appointment of Court Receiver in respect of suit premises.
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2. It is the contention of plaintiff that it is Cooperative Housing
society and was formed in or around the year 1967 and is the owner of
said building. Mr. Ruben Narshia (now deceased) during his life time
was employed by plaintiff as a liftman in the said building. In view of
letter dated 23rd September 1966 addressed by plaintiff to M/s. Prestige
Builders Private Limited, Ruben Narshia was permitted to occupy and
reside in suit premises at free of costs and without payment of water
and electricity charges till termination of his service or resignation.
Defendant No.1 is wife and defendant No.2 is daughter of said Ruben
Narshia. Pursuant to letter dated 23rd September, 1966, Ruben Narshia
started residing in suit premises along with defendant No.1 and their
five daughters. Ruben Narshia expired on 11th August 1991. At that
time of his demise, defendant Nos.1 and 2 were residing in suit
premises. Now, defendant No.2 vacated suit premises.
3. It is further contended that due to demise of Ruben Narshia, his
services with plaintiff came to an end and consequently authority under
which he and defendants were residing in the suit premises also came
to an end. However, defendants requested plaintiff to permit them to
stay in suit premises till they will secure an alternate accommodation;
to which plaintiff conceded for the same at free of costs and without
payment of water and electricity charges. Said arrangement between
them was strictly interim arrangement. Defendants assured plaintiff of
vacating suit premises and handing over its vacant and peaceful
possession to plaintiff as soon as they find alternate accommodation.
However, defendants did not vacate the suit premises and continued to
reside therein for a considerable amount of time. Therefore, plaintiff
asked defendants to vacate the suit premises and hand over its peaceful
and vacant possession to them. But defendants ignored the request of
plaintiff and continued to illegally squat in suit premises without any
consideration, compensation including water and electricity charges for
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same. Even despite various request and reminders of plaintiff;
defendants continued to illegally squat and trespass in suit premises.
Therefore, plaintiff through its advocate letter dated 25th April 1997
called upon defendants to remove themselves along with family
members and belongings from suit premises. However, defendants
instead of complying with requisition contained in said letter; they sent
a letter dated 6th June, 1997 to plaintiff claiming that they are as good
as legitimate owners of the room and should be admitted as fullfledged
members of plaintiff society. They also objected to the installation of
certain machinery in front of suit premises. To exert pressure on
plaintiff; defendants also approached to Bombay Tenant's Association.
Said Association by its letter dated 12th June 1997 requested to plaintiff
to admit defendants as members of plaintiff. Plaintiff by its letter dated
30th June 1997 denied the contention of said Association. Defendants
through their advocate letter dated 7th July, 1997 sent an interim rely to
plaintiff to the notice dated 25th April 1997 but neglected to send
further reply and were continued to illegally occupy suit premises.
4. It is further contended that plaintiff filed dispute case under
section 91 of the Cooperative Societies Act bearing Dispute
No.CC/I/433 of 1997 before First CoOperative Court for eviction of
defendants along with their belongings. In said dispute matter,
defendant No.1 filed written statement interalia contending that Co
operative Court has no jurisdiction to entertain the said dispute. She
further contended that she had become entitled to suit premises by way
of adverse possession and was residing in it as the owner thereof. After
completing fullfledged trial; the Cooperative Court by its judgment
and award dated 23rd February, 2010 rejected defence of defendant
No.1 that she was owner of suit premises by adverse possession and
held that, defendant Nos.1 and 2 have no right, title and interest to be
in occupation of suit premises and their occupation was illegal and they
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cannot be admitted as members of plaintiff. Defendants were also
directed to remove themselves along with their family members and
belongings from suit premises and hand over vacant and peaceful
possession of suit premises to plaintiff. Against said judgment,
defendant No.1 filed Appeal No.65 of 2010 before the Maharashtra
State Cooperative Appellate Court, Mumbai which was allowed by
judgment and order dated 07.03.2012. Plaintiff against said judgment
and order filed Writ Petition No.178 of 2013 before Hon'ble High Court
which came to be dismissed as per order dated 22.04.2013. Plaintiff
filed Special Leave Petition (Civil) No.33683 of 2013 before Hon'ble
Supreme Court of India which came to be dismissed as per order dated
28.02.2017. It is contention of plaintiff that abovementioned
proceedings were dismissed only on the limited ground that Co
operative Court lacked jurisdiction to entertain present matter, despite
the plaintiff prosecuting the same in good faith and therefore, plaintiff
filed suit before this Court wherein they have taken out present notice
of motion. Accordingly, plaintiff urged in above terms.
5. Defendants filed their reply and contended that suit filed by
plaintiff is illegal, bad in law and liable to be dismissed on the ground of
suppression of true and correct facts. It is also barred by limitation in
view of the fact that alleged trespass occurred on death of Ruben
Narshia on 11th August, 1991 and even from the date of first legal
notice dated 25th April, 1997 on the basis of which dispute was filed
before Cooperative Court for eviction of defendants.
6. It is further contended that since 1958, Ruben Narshia along
with defendant No.1 and their five daughters resided in two rooms
constructed by him in Nowroji Mansion compound with permission of
then Landlord Mr. Homi Guzder's. Then landlord employed Ruben
Narshia as liftman in said building. M/s. Prestige Builders (in short
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“said builders”) purchased land and Nowroji Mansion Building from
then landlord. At that time, two rooms of Ruben Narshia were in
existence. Said Builders commenced development of said property and
as two rooms of Ruben Narshia were obstructing said development, said
builders offered to Ruben Narshia an alternate accommodation of one
room on the ground floor in newly constructed building. Ruben Narshia
along with his family was shifted by said builders to said room
admeasuring 100 square feet. As said room was insufficient for large
family of Ruben Narshia; said builders allowed them to use open space
in front of said room.
7. It is further contended that main dispute started in the month of
AprilMay, 1991 when Ruben Narshia and his family were out of
Mumbai, plaintiff encroached open space in front of their room by
installing water storage tank. Ruben Narshia protested the same but
plaintiff refused to remove installation of said tank. Ruben Narshia
expired on 11.08.1991. Defendant No.1 and her family continued to
reside in said room.
8. It is further contended that in the year 1997, plaintiff entered
into an Agreement with M/s. Max Touch Cellular Phone Services and
agreed to give them space for installation of their Aluminum Shutter
Computer Tele Communication Equipment. Plaintiff wanted M/s. Max
Services to construct a room in front of residence of defendant No.1 and
to deprive her of air, light and free passage to the road. Defendant No.1
and her family members requested plaintiff not to block light and air.
Even M/s Max Phone Services were ready for construction of room in
other place in the compound of plaintiff but plaintiff were not ready to
cooperate them only with intention to grab premises of defendant No.1
which is her only shelter.
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9. It is further contended that plaintiff issued legal notice dated
25.04.1997 to her which she replied vide her letter dated 12.06.1997
and also addressed letter to plaintiff through said Association.
Defendant No.1 further contended about letter dated 30.06.1997,
07.07.1997 and also contended about proceeding filed in respect of suit
premises. It is further contended that defendant No.2 is not residing in
suit premises however defendant No.2 used to visit suit premises as like
of her other daughters to take care of defendant No.1 as she is over 80
years of age. Thus, by denying contentions of plaintiff as mentioned in
written statement defendants prayed for dismissal of notice of motion.
10. Plaintiff by filing affidavit in rejoinder contended that suit is
filed in time and within the period when plaintiff's right to sue accrued.
Plaintiff have reiterated the facts stated in plaint and denied the
statements of defendants and prayed to allow notice of motion.
11. Perused notice of motion, affidavit in support of it, reply of
defendants, rejoinder of plaintiff, pleadings of parties and documents
filed on record.
12. Heard respective counsel for parties. They advanced their
arguments in accordance with respective contention of parties. Learned
advocate for plaintiff placed reliance upon authority in the case of
Vinay s/o. Ambadas Kaikini and another Vs. Court Receiver, High
Court of Judicature at Bombay, 2010(6) Mh.L.J. 407 in support of his
submission.
13. In view of rival contentions of parties following points arise for
my determination and I have recorded my findings to the same with
reasons to follow as under :
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POINTS FINDINGS
1. Whether plaintiff has got prima facie case? …No.
2. Whether plaintiff will suffer irreparable loss if
temporary injunction as sought is not granted?
…No.
3. Whether balance of convenience lies in favour of
plaintiff?
…No.
4. Whether plaintiff proves that it is just and
convenient to appoint Court Receiver in relation to
suit premises?
…No.
5. What order? As per final
order
REASONS
As to Point Nos.1 to 4 :
14. Plaintiffs have prayed for appointment of Court Receiver in
relation to suit premises. Before dealing with said prayer I would like to
mention that it is settled law that, it is for the Court to consider whether
it is just and convenient to appoint a receiver. The appointment of
receiver is conceived for the purpose of management of a property and
saving it from being wasted or dissipated, protecting the interest of the
respective parties. If it is necessary for the purpose of protecting the
interest of the respective parties, if there are materials before the Court
to come to the conclusion that it is just and convenient, the Court has
every right to appoint a receiver. Keeping in view above legal position
now, I consider prayer of plaintiffs for appointment of receiver. It is not
in dispute that suit premises was being occupied by husband of
defendant No.1 and father of defendant No.2 till his death i.e. on 11th
August, 1991. Thereafter, defendant Nos.1 and 2 continued to occupy
suit premises and now, defendant No.1 alone is occupying suit
premises. Nothing is placed on record to show that defendants have
caused any waste or damage to suit premises or they have dissipated
suit premises. Plaintiff have not brought any material to show that there
is urgency to appoint receiver as suit premises is being in danger. From
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discussion made above it is clear that plaintiff have failed to show that
it is just and convenient to appoint Court Receiver in relation to suit
premises. Hence, I answer point No.4 in negative.
15. Now, I deal with prayer clause (a) in present notice of motion
which relate to temporary injunction sought against defendant No.1
from selling, dealing with, alienating, disposing of, encumbering,
creating third party right, title or interest in respect of suit premises. It
is pertinent to note that present matter has a checkered history. Earlier
round of litigation for evicting defendants from suit premises was filed
before Cooperative Court in the form of dispute vide Case No.CC/I/433
of 1997 which was allowed vide judgment dated 23.02.2010. In appeal
filed by present defendant No.1 bearing No.65 of 2010 aforesaid
judgment and award was set aside by President, Maharashtra State Co
operative Appellate Court, Mumbai vide judgment dated 07.03.2012.
Present plaintiff challenged the order of Appellate Court in Writ Petition
No.178 of 2013 which was dismissed by Hon'ble High Court vide order
dated 22.04.2013. Special Leave petition preferred by plaintiff vide SPL
to Appeal No.33683 of 2013 arising out of said judgment was dismissed
by Hon'ble Apex Court vide order dated 28.02.2017. Thereafter present
suit has been filed by the plaintiff for same relief claiming eviction of
defendant No.1 from suit premises and also for other reliefs. Nothing is
placed on record to show prima facie that during all these years
defendant No.1 has ever made any attempt to create third party interest
in relation to suit premises. More so, it is not the case of plaintiff that
recently defendant No.1 made any attempt to create third party interest
in relation to suit premises. In plaint para 8 plaintiff has contended that
they have reasonable apprehension that during pendency of present
suit, defendant may unauthorizedly further induct her family members
and/or any one or more of them and/or third parties in suit premises
and/or so create and/or otherwise seek to create illegal claims/
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interest/right in suit premises and further deny the plaintiff from use
and possession of suit premises. Alleged apprehension of plaintiff does
not appear to be bona fide. Further, Section 52 of Transfer of Property
Act is available to take care of rights, if any, of plaintiff in relation to
transfer of immovable property which will take place during the
pendency of present suit. I have not considered the status of possession
of defendant No.1 at this stage as same needs to be decided on the basis
of evidence adduced by parties during trial. That being so authority
cited supra is not of assistance to plaintiff while deciding present notice
of motion. I do not find that plaintiff have brought prima facie material
to show that there is urgency to grant relief in terms of prayer clause
(a). In the facts of matter plaintiff have failed to prove that they have
got prima facie case, balance of convenience lies in their favour and
that, they will suffer irreparable loss if relief sought is refused. Hence, I
answer point Nos.1 to 3 in negative.
In the light of above discussion notice of motion is liable to be
dismissed. Hence, pass following order:
ORDER
Notice of Motion No.1111 of 2018 stands dismissed and disposed off
accordingly.
(M. T. Asim)
Judge
Date : 17.09.2019 Gr. Bombay
Typed on : 17.09.2019
HHJ signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18.09.2019, 5.40 pm
UPLOAD DATE AND TIME Mrs. S. P. Pawar
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. M. T. Asim
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
17.09.2019
JUDGMENT/ORDER signed by P.O.
on
18.09.2019
JUDGMENT/ORDER uploaded on 18.09.2019
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