Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.1324 OF 2020
IN
STAMP NO. 4321 of 2020
Mr. Bobby Simpson Kunder and Anr. ].. Plaintiffs
V/s
1. Mrs. Shalini Samson Edward ]
and seven others. ].. Defendants.
Advocate Mr. B.R. Dalal for the plaintiffs.
Advocate Mr. Omprakash with Advocate Ms. Aarti Suvarna for
defendant Nos.1 and 2.
Advocate Mr. Redekar for defendant No.3.
Advocate Mr. Harish Pawar for defendant No.5.
Advocate Ms. Chandra More for defendant Nos.6 to 8.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 16th SEPTEMBER, 2020
ORAL ORDER
1. The plaintiffs have taken out this Notice of Motion against
the defendant No. 5 to 8 restraining them from demolishing the
building in which the suit premises is situated and directing them to
take steps to execute the development agreement with them for
providing transit accommodation and permanent alternative
accommodation after re-development of the said building in
suppression of the development agreement executed with the defendant
No.1 on 10.08.2020.
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2. The plaintiffs are the husband and wife. The defendant
No.1 and 2 are the elder sisters of the plaintiff No.1. The dispute
involved in the suit is substantially between the plaintiffs and the
defendant No.1. The defendant No.2 is in support of the defendant
No.1. The subject matter of the dispute is Flat No.1510 on 1st Floor of
Ganesh Sadan Building No.47, situated at Tagore Nagar, Ramakant
Deshmukh Marg, Vikroli, Mumbai-400083 (hereinafter called as ‘the
suit premises’).
3. In nutshell, the case of the plaintiff is that the defendant
No. 1 married in the year 1987 and at that time, the plaintiff, the
defendant No.1 and 2 and their parents were residing at B-26, Kaysons
CHS Ltd. 4th Floor, behind St. Josheph Church, Vikroli (W), Mumbai-
400079 (hereinafter called as ‘the old premises’). Because of frequent
quarrel with in-laws of the defendant No.1, she decided to leave the
matrimonial home with her husband. However, the defendant No.1 and
her husband were not in such financial condition to afford any other
premises even on rent. The parents of the plaintiff therefore, allowed
the defendant No.1 and her husband to reside with them in the old
premises. The plaintiff, after completing his B.E.(Electrical) in 1988,
joined the electrical business of his father by name “M/s. Alpha
Electrical” as a partner.
4. The father of the plaintiff, purchased the suit premises from
his own income in the year 1989 in the name of the defendant No.1
with clear understanding that the same shall belong to the plaintiff
No.1. The father of the plaintiff gave oral consent to the defendant No.1
to occupy the suit premises. However, she did not find the suit premises
suitable for residence and therefore, she again returned back to the old
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premises to reside thereat in 1990 and resided there with her husband
and son till 1996. Due to shortage of space in the old premises, it
became inconvenient to accommodate the defendant No. 1 and her
husband. The plaintiff No.1 was not married at that time and therefore,
the plaintiff No.1 started residing in the suit premises but cooking and
eating food continued in the old premises. The plaintiff No.1 continued
to reside in the suit premises even after his marriage in the year 1995
with the plaintiff No.2. The plaintiff No.2 was a Dentist by profession
and she started Dental Clinic in the suit premises in 1996 and since
then, she is running the same till date.
5. The plaintiff No. 1 was having another premises of his own
at Charkop, Kandivali (W), Mumbai. He sold out the said premises for
Rs.3,50,000/-. With that amount, the plaintiff No.1, along with his
father’s contribution, purchased a new Flat No.1 of 2BHK on the 1st
floor in Sheffer Apartment at Vikroli, Mumbai in the joint name of him
and his father.
6. As per family arrangement and mutual agreement between
the plaintiff No.1 and his father, The suit premises was given to the
share of the plaintiff No.1 and newly purchased Flat in Sheffer
Apartment was given to the share of the defendant No.2. However, The
defendant No.1 was allowed to reside in the new Flat at Sheffer
Apartment even though she had contributed nothing to purchase the
said Flat. By this way, according to the plaintiff No.1, he has acquired
exclusive title and possession over the suit premises. He is paying the
maintenance charges to the defendant No.3-Society. The electricity
connection in the suit premises is still standing in the name of erstwhile
owner but the plaintiff No.1 is paying the electricity bills. He has ample
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documents, such as bank passbook, mobile bills, LIC premium receipts,
purchase bills of dental equipment, patients cards to prove his title and
possession over the suit premises.
7. The father of the plaintiff No.1 died on 13.05.2012 and his
mother died on 13.05.2017. Before death, the father informed the
plaintiff No.1 that he has executed a Will bequeathing all his properties,
joint and separate, to the plaintiff No.1 and the defendant No.1 and 2.
The said Will is not in custody of the plaintiff.
8. Now, according to the plaintiffs, the defendant No.1 has
entered into the development agreement dated 11.08.2020 with the
defendant No.5-Developer along with rest of 31 Flat holders to develop
the property by demolishing the old structure and constructing a new
building thereon. The dispute arose between the plaintiffs and the
defendant No.1 as both were claiming their exclusive title and
possession over the suit premises. The notices were exchanged between
them and police complaints were filed against each other. The
defendant No.5-Developer obtained necessary permissions and started
demolition of the building.
9. The plaintiffs are now apprehending that under the garb of
development agreement with the defendant No.1, the Developer is
likely to oust the plaintiffs from the suit premises and to demolish it.
Though the defendant No.4/MHADA is the owner of the building and
the land beneath it, the plaintiffs are the owners and lawful occupiers of
the suit premises within the meaning of Sec.103 of MHADA Act. The
Developer therefore, cannot evict the plaintiffs from the suit premises
without entering into development agreement with them and without
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making provision of their transit accommodation and permanent
alternate accommodation as per the guidelines of the Hon’ble Bombay
High Court laid down in Writ Petition (L) No. 1135 of 2014 between
MCGM v/s State of Maharashtra. According to the Developer, the order
passed in the Writ Petition (L) No. 1135 of 2014 was interim order and
the said Writ Petition has been finally decided. Therefore, interim order
is merged in the final order. Neither the plaintiffs nor the developer
have produced on record a copy of the interim or final order in Writ
Petition (L) No. 1135 of 2014 for consideration by this Court.
10. The defendant No.1 and 2 sisters are unanimous in their
contentions. The defendant No.1 has resisted this Notice of Motion by
filing reply
inter alia contending therein that the suit premises is
purchased by her and it is her absolute property. The plaintiffs have no
right title or interest in the suit premises and they have come with
absolutely false case of having their right over the suit premises. Besides
the objections on the point of law, such as, the suit is not maintainable,
the Court has no jurisdiction, suit is timebarred, suit is undervalued, she
has come with specific case as follows;
1. that the sale deed is admittedly stands in her name.
2. that she is the member of the defendant No.3-Society.
3. that the share certificate of the Society stands in her name.
4. that the suit premises stands in her name since 1989.
5. that she is a party to the development agreement dated
10.08.2020 along with 31 other members of the Society.
6. that she has handed over possession of the suit premises to the
defendant No.5-Developer on 21.08.2020.
7. that there is no proof about family arrangement or execution
of Will as alleged by the plaintiffs.
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8. that the documents produced by the plaintiffs are not
sufficient or relevant to prove their lawful possession over
the suit premises.
9. that the plaintiffs neither reside nor carry Dental Clinic in
the suit premises.
10. That the motive behind filing this suit is to stall the re-
development and extract money from the Developer.
11. The plaintiffs were only allowed to keep some medical
equipment in the suit premises as the plaintiff No.2 was a
Dentist and they had cordial relations with the defendant
No.1.
11. The defendant No.3-Society has come with full support to
the defendant No.1 and 2. In its reply, its Secretary has contended that
in notice dated 13.08.2020 the plaintiffs have claimed the proportionate
share in the suit premises calling it to be joint but in the plaint, they
claim their exclusive ownership over the suit premises based on oral
understanding. They also claim to be lawful occupier under Sec.103 of
MHADA Act. Thus, the plaintiffs are not certain about their rights over
the suit premises and they go on to make self-serving statements
contrary to each other. They have not come before the Court with clean
hands. Because of an unfair attempt by the plaintiffs to stall the re-
development of the building, 32 Flat holders are made to suffer by this
untenable suit.
12. He has further contended that the defendant No. 1 is the
member of the Society and is holding 5 shares of Rs.50 issued on
21.05.1994. The plaintiffs were aware of it but they have not raised any
objection in that regard since last 26 years. According to him, the
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building was in dilapidated condition and therefore, the Society
resolved on 15.01.2006 with consent of 70% members to re-construct
it. The first re-development agreement was made with M/s. Kumar
Builders on 06.02.2007. However, the said builder could not undertake
the re-development of his own and proposed to redevelop jointly with
M/s. Hariyana Developers. Accordingly, by resolution dated 12.07.2015,
the Society executed a Triaparte Confirmation Agreement dated
12.02.2016. Even then also, there was no progress in re-development
and therefore, the Society terminated Triaparte Agreement by notice
dated 09.02.2019. Subsequently, the Society has entered into
development agreement with the defendant No.5 which is duly
registered on 18.04.2019. Pursuant thereto, the defendant No.5 has
undertaken the re-development work by getting necessary permissions/
approvals. There is no just ground to stall the said work and the same
would ultimately result in delay and financial loss both to the members
and the developer besides great inconvenience. The plaintiffs have
neither the
prima facie case nor the balance of convenience lies in their
favour. No irreparable loss would be caused to them in rejection the
prayers of interim injunction but if injunction is granted as prayed, it
would cause irreparable loss to the members of the defendant No.3-
Society.
13. The defendant No.5-Developer has replied this Notice of
Motion by making contentions similar to the contentions of the
defendant No.3-Society. All the documents concerning re-development
of the suit building are produced on record. As admitted by the
defendant No.3-Society, there are 32 members and the Developer has
paid Rs. 3,00,000/- each to those members as the first installment of
1/3 Corpus Fund of 9,00,000/-. Besides this the Developer has paid
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Rs.27,000/- each per month towards monthly rent to secure temporary
accommodation, Rs.27,000/- each as one time Brokerage and
Rs.20,000/- each towards shifting charges to all the members.
14. Under such circumstance, according to the Developer, if the
work is not completed within agreed period, he will suffer great
financial loss. The Developer is least concerned with the family dispute
between the plaintiffs and the defendant No.1 and 2. Like other
members of the defendant no.3-Society, the defendant No.1 being
owner of the suit premises was a party to the development agreement
and he has paid the aforesaid amount to her. There is no question of
entering into development agreement with two persons for the same
premises. The agreed premises is to be handed over to the defendant
no.1 after re-development and if plaintiffs succeed to prove their claim,
they would be entitled to recover possession of it from the defendant
No.1. So, there would be no loss to the plaintiffs in completing the re-
development project. Thus, the plaintiffs have neither the
prima facie
case nor balance of convenience to get the temporary relief as prayed in
their favour. On the contrary, granting such relief would cause
irreparable loss to the Developer but there would be no such loss if such
relief is refused.
15. The plaintiffs have filed rejoinder to the reply of the
defendants again disputing their contentions on the same ground as
raised in the plaint.
16. In view of rival contentions of the parties and the
submissions made on their behalf, the following points arise for my
determination with my findings thereon for the reasons recorded
thereunder;
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Sr.
No.
POINTS FINDINGS
1 Do the plaintiff prove the
prima-facie case ? In the
Negative
2 Whether balance of convenience lies in their
favour ?
In the
Negative
3 Whether irreparable loss would be caused to the
plaintiff, if this application is rejected ?
In the
Negative
4 What Order and decree ? As per Final Order.
R E A S O N S
17. At the outset, it shall be noted that the plaintiff have not
asked for interim injunction restraining the defendant No.5/developer
to carry out the development project. It is their only claim that the
development agreement pertaining to the suit premises shall be
executed with them as they being the owners and in lawful possession
of the suit premises in suppression of the Development Agreement
executed with the defendant No.1. Till then the Developer shall not
demolish the suit premises.
18. To prove the ownership of the plaintiffs, nothing has been
produced on record. The copies of the bank passbook cannot be taken
as the documents of proof of title. The receipt issued by the defendant
No.3-Society for maintenance charges stand in the name of the
defendant No.1. The electricity bill stands in the name of erstwhile
owner of the suit premises. The photographs of the dental clinic of the
plaintiff No.2 do not prove that it is being carrying on in the suit
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premises. There is no proof of permission to change the user of the suit
premises as a dental clinic either granted by the Society or by the
defendant No.6/MCGM. The patients’ cards do bear the address of the
suit premises. The LIC policies also bear the address of the suit
premises.
19. Mr. B.R. Dalal, the learned advocate for the plaintiffs
submits that on the basis of aforesaid documents, the plaintiffs are able
to establish their
prima-facie possession over the suit premises. They
can at least to be termed as the lawful occupants of the suit premises.
Thus, it was incumbent upon the developer to enter into the
development agreement with the plaintiffs and the temporary transit
accommodation and permanent alternate accommodation after
construction of the building has to be provided to the plaintiffs. The
Developer has not taken any steps and therefore, he cannot evict the
plaintiffs from the suit premises and demolish it by taking high handed
action.
20. Mr. Harish Pawar, the learned advocate for the defendant
No.5-Developer draws my attention to the documents pertaining to the
redevelopment of the building. The suit premises was standing in the
name of the defendant No.1 and she was the owner thereof. Therefore,
the Development Agreement has been duly executed with her and the
requisite payment has been already made to all the occupiers of the
building including the defendant No.1. The substantive part of the
building has been demolished. The plaintiffs, at such belated stage,
have come with completely false case claiming title to the suit property
and are asking redevelopment agreement with them with ulterior
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motive to stall the development project and to bring the developer on
compromise table.
21. The defendant No.1 has produced on record the
maintenance bills, membership agreement, ration card etc. The
plaintiffs do not dispute the fact that the sale deed of the suit premises
stands in the name of the defendant No.1. The copies of the Index-II
and the possession receipt are also produced on record showing that the
possession of the suit premises has been delivered to the Developer.
The case of the defendant No.1 claiming her title to the suit premises
has been admitted by other defendants including the Society and the
Developer.
22. Under such circumstance, the question whether the suit
premises was allotted to the share of the plaintiffs by the father of the
plaintiff No.1 by family arrangement is question of fact that can be
decided on the basis of the evidence that would be led by the parties in
the suit. The plaintiffs are not able to
prima-facie established their
absolute title to the suit premises. Even though some of the documents
on record show that the plaintiffs are in possession of the suit premises,
such possession can be termed as the permissive possession in absence
of proof of the title.
23. Secondly, the action for redevelopment of the suit building
was being taken by the defendant No.3-Society since the year 2006
through different developers. When the plaintiffs were residing or were
carrying on dental clinic in the suit premises, it was quiet obvious that
they had knowledge of the same. There is nothing on record to show
that the plaintiffs had claimed their exclusive title to the suit premises
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before any of the developers earlier. Inaction on their part suggests that
they were not claiming title to the suit premises.
24. The pre-suit notice of the plaintiffs dated 13.08.2020
discloses that the plaintiffs have claimed in that notice that the suit
premises has been purchased by the father of the plaintiff No.1 with his
own income and the defendant No.1 was allowed to occupy the suit
premises for temporary period of 3-4 years. The plaintiffs are in
continuous possession of the suit premises since 1996 and therefore, the
defendant No.1 was not competent to enter into the Development
Agreement dated 10.08.2020 with the defendant No.1 alone. The
plaintiffs are entitled for proportionate right title and interest. Thus,
having claimed only proportionate right in the suit premises, the
plaintiffs have come with improved case of exclusive title to the suit
premises by another notice dated 20.08.2020.
25. Thus, the issue of the title to the suit premises is the subject
matter of the suit. However, the question falls for determination at this
stage is as to whether the developer is required to execute the
Development Agreement with the plaintiffs in suppression the
Development Agreement dated 10.08.2020 with the defendant No.1.
According to me, the developer has proceeded to enter into the
development agreement with all 32 occupiers including the defendant
No.1 on the basis of their titles as approved by the defendant No.3-
Society. He has nothing to do with the title dispute between the
plaintiffs and the defendant No.1. The documents on record show that
the developer has invested huge amount for transit accommodations for
all the occupiers and he has to complete the development project within
agreed period.
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26. As already stated the plaintiffs have no
prima-facie
evidence to prove their exclusive title to the suit premises. Therefore, at
this stage, they cannot claim better title than the defendant No.1 and
ask the developer to execute development agreement with them. Such
claim would be premature. Thus, I do not find
prima-facie case in
favour of the plaintiffs.
27. Insofar as, the balance of convenience is concerned, if the
Developer continues with the development project, he has to allot the
premises to the defendant No.1 as agreed in the development
agreement. Thus, the old dilapidated premises will be replaced by new
one. If the plaintiffs succeed to prove their title to the suit premises,
they would be entitled to get the new premises. Insofar as transit
accommodation is concerned, admittedly, the plaintiffs do not reside in
the suit premises. The dental clinic alleged to be carrying on in the suit
premises is concerned, there is no proof regarding permission for such
change of user. Thus, the plaintiffs will not be entitled to claim alternate
temporary premises for their dental clinic. On proof, if it is found that
the plaintiffs were entitled to get transit accommodation, they would
claim measne profits from the defendant No.1. Thus, the balance of
convenience does not lie in favour of the plaintiffs.
28. As already stated, refusing the interim injunction will not
cause irreparable loss to the plaintiffs, but if such interim relief is
granted, it will certainly cause irreparable loss not only to the defendant
No.1, but also to other occupiers in the building and the Developer as
well. In view of these reasons, I hold that this Notice of Motion is
devoid of merit and it is liable to be dismissed. In the result, I have
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recorded my findings on point Nos.1 to 3 accordingly, and pass the
following order:-
O R D E R
1. The Notice of Motion No.1324 of 2020 is hereby dismissed
with cost.
2. Ad-interim relief granted, if any, shall stands vacated.
3. The Notice of Motion No. 1324 of 2020 shall stands
disposed of accordingly.
(SHIVAJI. R. SALUNKHE)
Judge
City Civil Court,
Date: 16/09/2020. Gr. Bombay.
Dictated on : 16/09/2020
Transcribed on : 16/09/2020
Signed on : 16/09/2020.
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
16/09/2020 At 12.20 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
16/09/2020
Judgment/Order signed by P.O. on 16/09/2020
Judgment/Order uploaded on 16/09/2020
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