Final Order 1

Order Details: Notice of Motion
Pdf Text: N/M No.4480/2014 ..1.. Suit No.3218/2014
CNR No.MHCC010123582014
IN THE BOMBAY CITY CIVIL COURT FOR GREATER BOMBAY
NOTICE OF MOTION NO.4480 OF 2014
IN
SUIT NO.3218 OF 2014
M/s. Manratna Developers .. Plaintiffs
Versus
Suresh Revashankar Desai and another .. Defendants
Mr. E. K. Sasidharan, advocate for plaintiffs
Ms. Sheena C. Patil, advocate for defendants
CORAM : M. T. ASIM, J
COURT ROOM NO.02
DATED : 23rd August, 2019
ORAL ORDER
Notice of motion is taken out by plaintiffs for order of temporary
injunction restraining defendants, their agents, servants and/or any
person claiming through them from parting with possession or
inducting any third party or creating any encumbrances in suit premises
viz Flat No.501, situated on 5th floor of the building known as Megh
Ratan situated at Junction of Tilak Road and Derasar Lane, Ghatkopar
(East), Mumbai 400077 and directing defendants to deposit before this
Court sum of Rs.18,00,000/ towards arrears of damages/
compensation for unlawful use and occupation of suit premises and to
continue to deposit sum of Rs.50,000/ per months towards
compensation/damages from the date of filing of the suit till defendants
hand over vacant and peaceful possession of suit premises to them with
liberty to plaintiffs to withdraw the same.
By this notice of motion plaintiffs also prayed for appointment of
Court Receiver in respect of suit premises.
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2. It is the contention of plaintiffs that they are lawful owner of
suit premises. Presently, defendants are in unlawful use and occupation
of suit premises. Defendant No.2 is sister of defendant No.1. Plaintiffs
had purchased the property being land admeasuring 2874.80 square
meters known as “Lalji Punshi Wadi” with structures standing thereon
situated at junction of Tilak Road and Derasar Lane, Ghatkopar (East)
Mumbai vide registered conveyance deed dated 26th June, 2006 from
M/s. Rishabh Rikhav Enterprises who were developers of the said
property. At that time development of one of the said properties was
completed and in the said development building known as Megh Ratan
has been constructed thereon. Said building was constructed by vendor
of plaintiffs by demolishing some old structures standing on the said
property which were occupied by tenants. Several premises in Megh
Ratan building were allotted to tenants of old structures by way of
permanent alternate accommodation. Vendor of the plaintiffs has
disposed off all the flats in Megh Ratan building except three flats being
Flat Nos.101 and 102 on the first floor and flat No.501 on fifth floor.
Vendor of the plaintiffs had retained possession of those three flats with
them. Allotment of those three flats was kept in abeyance as per the
condition of the part occupation certificate of phaseI issued by MCGM
so as to provide alternate accommodation in lieu of three tenements in
old and dilapidated structure standing on South east corner of the said
property. Defendants and their family members were in possession of
one of the said tenements being Room No.6 admeasuring 300 square
feet in the said old and dilapidated structure. Defendants refused to
shift from said old room to alternate accommodation offered by
previous developer in said Megh Ratan building by raising unlawful and
unreasonable demands. Plaintiffs had to purchase those three flats in
Megh Ratan building under separate agreement for consideration from
M/s. Rishabh Rikhav Enterprises to comply with the terms of part
occupation certificate issued by MCGM. On 26th April, 2007 said M/s.
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Rishabh Rikhav Enterprises had issued letter of possession confirming
that they have handed over possession of said three flats including suit
premises to the plaintiffs. On 27.10.2008 M/s. Rishabh Rikhav
Enterprises executed an agreement thereby transferring and assigning
suit premises in favour of plaintiffs which was duly registered on
13.02.2009.
3. It is further contended that occupants of other two tenements
vacated their respective premises in old structure. However, defendants
and their family member continued to occupy Room No.6 in old
structure. Despite issuance of several notices by MCGM directing the
defendants to vacate room No.6, they continued to occupy said
tenement. On the contrary, they challenged notice issued by MCGM
vide Suit No.2059 of 2004. Plaintiffs were subsequently impleaded as
party defendants in the said suit. Said suit is still pending. On
30.05.2013 entire old structure including room No.6 occupied by
defendants and their family members was demolished by MCGM by
following due process of law. At that time, defendants and their family
members were shifted by plaintiffs to Flat No.101 admeasuring about
330 square feet situated on first floor of Megh Ratan building.
Presently defendants and their family members are residing in said flat
No.101 which was allotted in lieu of demolished tenement.
4. It is further contended that plaintiffs have taken vacant
possession of suit premises on 26th April, 2007 and thereafter it
remained in their possession. Their servant used to open the lock of suit
premises regularly for the purpose of cleaning and day to day
maintenance. On 5th July, 2007 defendants along with their sister
Ranjan since deceased broke open the lock and attempted to dump their
articles and forcibly entered and occupied suit premises. Plaintiffs
lodged complaint with Pant Nagar police station and on the basis of
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same, police moved application under section 145 of Cr.P.C before the
Court of Metropolitan Magistrate, Vikhroli, Mumbai vide C.C.
No.98/N/2007. Suit premises was attached in view of order dated
04.08.2007 of Metropolitan Magistrate Court in said proceeding.
Accordingly, it was locked and sealed by Pant Nagar police. Said
proceeding was dismissed for default and taking advantage of same
defendants once again broke open the seal and forcibly occupied suit
premises. Subsequently said proceeding was restored and it was finally
disposed off vide order dated 29th April, 2014 and it came to be
rejected.
5. It is further contended that defendants have no right, title or
interest in suit premises which they have trespassed into and forcibly
occupied on 5th July, 2007. They are not entitled to use, possess and
occupy suit premises as they have no right, title or interest therein.
Plaintiffs are lawful owner of suit premises. It is contended that
plaintiffs will suffer irreparable loss if reliefs as sought are not granted
and also prayed to grant notice of motion to prevent miscarriage of
justice. Balance of convenience also lies in their favour and no prejudice
would be caused to defendants if reliefs sought are granted.
Accordingly, plaintiffs made prayer in above terms.
6. Defendants did not file reply to notice of motion but filed pursis
that written statement be treated as reply to notice of motion. It is
contended that their mother late Smt. Champaben Desai was protected
licensee and deemed tenant of Room No.6 of old structure (in short,
'Room premises'). Original owners of said premises want to develop
the entire property by demolishing existing structures. The entire
structure including room premises was sold by said predecessor to M/s.
Rushabh Rikhav Enterprises (In short, said Enterprises) to develop the
property. Said Enterprises was negotiating with these defendants with
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a view to take possession of room premises for developing the property
after demolishing the same. But the settlement between them did not
materialize and they failed to dispossess defendants from room
premises. Said Enterprises developed Phase– I by constructing building
namely Megh Ratan. Except defendants, other tenants were allotted flat
in said Megh Ratan building as permanent alternate accommodation.
Except three flats bearing Nos.101,102 and 501 were allotted to
existing tenants and said Enterprises have retained possession of
abovesaid three flats with them. No alternate accommodation was given
to these defendants. Aforesaid three flats were kept in their custody as
per undertaking given to Mumbai Municipal Corporation to the effect to
provide alternate accommodation to remaining tenants in old structure
standing in the said property. At that time, defendants and one more
tenant were remained to get alternate accommodation in the developed
building. There were offers of two flats to be allotted to defendants but
till date no permanent alternate accommodation is given to these
defendants. Their mother Late Smt. Champaben Desai filed RAD Suit
No.3664 of 1986 before Small Causes Court against original owners
including M/s Rishabh Rikhav Enterprises for injunction and
declaration that these defendants are protected licensee and deemed
tenants in respect of room premises. In that suit, there is interim
injunction order restraining defendants (in that suit) from dispossessing
these defendants (present) from room premises or interfering with their
possession in respect of room premises without following due process of
law. Said suit is still pending and therefore, said interim protection is
binding upon the defendants in that suit.
7. It is further contended that said Enterprises have given
registered undertaking dated 29th July, 1988 to MCGM that they will
retain three flats bearing Nos.101, 201 and 501 of Megh Ratan building
until and unless they settle the matter of permanent alternate
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accommodation with defendants. In pursuance of said undertaking,
MCGM had issued letter dated 22nd September 1988 contending that
without prior permission of MCGM they cannot sell out those three
flats. In the year 2008, these plaintiffs became owner of said property
for the purpose of further development of Phase – II. They purchased
above three flats from said Enterprises.
8. It is further contended that in the year 2007, when defendants
approached to said Enterprises for settling their right in respect of old
room No.6 by giving them appropriate permanent alternate
accommodation, they informed that as orally agreed by them two flats
are retained with them in order to allot the same. But due to pendency
of suit before Small Causes Court they retained those flats in their
custody. It is further contended that when defendants told to Piyush
Shah, partner of said Enterprises that it is very difficult to live in old
structure during monsoon, he permitted them to use flat No.501 in
Megh Ratan Building and also assured to execute necessary documents
as per settlement. Accordingly, these defendants took possession of suit
premises in part performance towards permanent alternate
accommodation. However, on 5th July, 2007 plaintiffs made an attempt
to dispossess defendants from suit premises forcibly to which they
objected. Therefore, plaintiffs lodged false report against them to Pant
Nagar police station. A case under section 145 of Cr.P.C was registered
in the Court of Metropolitan Magistrate. Said matter was disposed off
for want of prosecution on 31.03.2010. Old premises was demolished
by BMC on 31.03.2010. Proceeding under section 145 of Cr.P.C was
restored in view of order of Sessions Court, Mumbai and it was finally
rejected by Metropolitan Magistrate. In light of these contentions
defendants prayed for dismissal of notice of motion.
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9. Plaintiffs have filed affidavit in rejoinder and denied the
contention of defendants. They reiterated facts in plaint and prayed to
grant notice of motion.
10. Perused notice of motion, affidavit in support of it, pleadings of
the parties, rejoinder of plaintiffs and documents filed on record. Heard
respective counsel for parties. They advanced their arguments in
accordance with respective contention of parties.
11. 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:
POINTS FINDINGS
1. Whether plaintiff has got prima facie case? ...Yes for relief in
prayer clause (b)
2. Whether balance of convenience lies in
favour of plaintiff?
...Yes for relief in
prayer clause (b)
3. Whether plaintiff will suffer irreparable loss if
relief sought is refused?
...Yes for relief in
prayer clause (b)
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:
12. It is not in dispute that plaintiffs have purchased suit premises
from M/s. Rishabh Rikhav Enterprises. From copy of agreement dated
27.10.2008, it is clear that plaintiffs have purchased suit premises from
the said Enterprises. Thus, it is clear that plaintiffs have right, title and
interest in the said suit premises. It is also not in dispute that M/s.
Rishabh Rikhav Enterprises have given undertaking to MCGM regarding
flats No.101 and 102 on first floor and flat No.501 on fifth floor of
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Megh Ratan building that they will not dispose off aforesaid flats.
Plaintiffs have also not disputed that allotment of those flats were kept
in abeyance as per condition of part occupation certificate of Phase–I
issued by MCGM to provide alternate accommodation in lieu of three
tenements in the old and dilapidated structure standing on South East
Corner of said property and defendants were occupants of Room No.6
of the said old and dilapidated structure. Thus, it is clear that prima
facie defendants are entitled for permanent alternate accommodation in
lieu of old room No.6 which was standing on the aforesaid property.
Dispute is, as to of which dimension of alternate accommodation
defendants are entitled. In above factual position, I consider present
notice of motion filed.
13. As per plaintiffs, they allotted flat No.101 in said Megh Ratan
building to defendants in lieu of demolished tenements on 30.05.2013.
Defendants denied the said fact. Plaintiffs have placed on record copy of
letter dated 30.05.2013 issued by them to Assistant Engineer, 'N' Ward,
Municipal Office, Jawahar Road, Ghatkopar (East), Mumbai to show
that they intimated that as per the instruction of Assistant Engineer
belongings of defendants have been shifted to permanent alternate
accommodation on first floor of Megh Ratan Building and accordingly,
they allowed Assistant Engineer to put the belongings of defendants in
said flat No.101. Plaintiffs have also relied upon their letter dated
18.06.2013 to Assistant Engineer, N Ward, BMC, Vikhroli, Mumbai that
they have allowed defendants to occupy permanent alternate
accommodation which is flat No.101 of Megh Ratan building. Said fact
is again reiterated by the plaintiffs in their letter dated 29.06.2013
addressed to Assistant Engineer, N Ward of Ghatkopar – East. But they
have not filed any document from MCGM showing that belongings
which were found in room No.6 of said dilapidated structure have been
shifted to flat no.101 of Megh Ratan Building. Defendants denied that
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flat No.101 was allotted to them by plaintiffs as permanent alternate
accommodation. When as per plaintiffs, defendants have taken
possession of suit premises i.e. flat No.501 on 5th July, 2007 and again
after proceeding under section 145 of Cr.P.C. was dismissed in default
then it is million dollar question as to how plaintiffs permitted
defendants to occupy Flat No.101 of Megh Ratan building as alternate
accommodation although they are occupying suit premises. Plaintiffs
have not produced any document executed by defendants showing that
they received possession of Flat No.101 of Megh Ratan building as
permanent alternate accommodation. At this stage there is serious
controversy about the allotment and delivery of possession flat No.101
to defendants in lieu of old room No.6 as alternate accommodation.
May it be so, considering that plaintiffs are lawful owners of suit
premises, they have got prima facie case in relation to prayer clause (b)
of notice of motion. Certainly, if third party rights are created by the
defendants in relation to suit premises then it will cause multiplicity of
proceedings. Balance of convenience also tilts in their favour
considering the facts they are owners of the suit premises and
defendants have not shown any documentary proof that suit premises
has been given in possession in lieu of old tenement. If relief sought in
terms of prayer clause (b) is not granted then plaintiffs will suffer
irreparable loss. Therefore, plaintiffs have got prima facie case, balance
of convenience also lies in their favour in relation to prayer clause (b)
and they will suffer irreparable loss if relief in terms of prayer clause (b)
is refused. Hence, I answer point Nos.1 to 3 accordingly.
14. Plaintiffs have prayed for appointment of court receiver in
relation to suit premises as per prayer clause (a). 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
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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. Nothing is placed on record by
plaintiffs to show that defendants have caused any waste or damage to
the suit premises or they have dissipated suit premises. They have not
brought any material to show that there is urgency to appoint receiver
as the suit premises is being in danger. Therefore, I am not inclined to
grant relief in terms of prayer clause (a) of notice of motion.
15. So far as relief in terms of prayer clause (c) is concerned;
plaintiffs have not brought any material on record prima facie to assess
compensation. It needs to be adjudicated after fullfledged trial. More
so, serious controversy has been raised about allotment of permanent
alternate accommodation in lieu of old room in favour of defendants
which has to be decided on the basis of evidence adduced by the
parties. So, at this stage, it is not appropriate to direct defendants to
deposit compensation as prayed by the plaintiffs. Hence, I am not
inclined to grant relief in terms of prayer clause (c). In light of
discussions made above, notice of motion deserves to be partly allowed.
Hence, pass following order.
ORDER
1. Notice of Motion No.4480 of 2014 is partly allowed and made
absolute in terms of prayer clause (b) only.
2. Accordingly, notice of motion is disposed off.
(M. T. Asim)
Judge
Date : 23.08.2019 Gr. Bombay
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
27.08.2019, 4.30 p.m.
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
23.08.2019
JUDGMENT/ORDER signed by P.O.
on
26.08.2019
JUDGMENT/ORDER uploaded on 27.08.2019
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