Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment in Suit
No.1318 of 2019 1
MHCC010041792019
Presented on : 08-04-2019
Registered on : 06-06-2019
Decided on : 01.10.2024.
Duration : 05 Y.05M 22 D.
Exh. 08.
IN THE CITY CIVIL COURT FOR GR. BOMBAY AT MUMBAI
SHORT CAUSE SUIT NO. 1318 OF 2019.
1. Mrs. Dilshad Mohammed Afzal. ]
Age : 40 years., Occu. Business, ]
2. Mrs. Firdous Mohammed Aftab. ]
Age: 36 years, Occu. Business. ]
3. Mrs. Memuna Usman Gani. ]
Age.: 50 years, Occu.:Business, ]
4. Mr. Mohammed Asif M. Aslam ]
Age.: 35 years, Occu.: Business, ]
5. Mr Salim Ebrahim. ]
Age.: 50 years, Occu: Business. ]
6. Mr. Mohammed Sameer A. Sattar. ]
Age.: 46 years, Occu.: Business. ]
All the plaintiffs having office at 2nd Floor, ]
Orient Palace, 16A M.S. Road, ]
Grant Road, Mumbai – 400 007. ] .... Plaintiffs.
V/s
Ramesh Kumar Jain. ]
Adult, Occu.: Business. ]
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No.1318 of 2019 2
Room No.301, 3rd Floor, Niloufer House, ]
(Heera Bldg) 44/52, Chamsey Bhimji ]
Road, Anjir Baug (A), Mazgoan, ]
Mumbai – 400 010. ] ….Defendant.
Appearance:
Adv. R.S.Khatib for plaintiff, for the plaintiff.
Defendant- Exparte.
SUIT FOR RECOVERY FOR AN AMOUNT.
Coram : Smt. Ashwini V. Kasture
CR No. : 59.
Date :01st October, 2024.
JUDGMENT
This is the suit for recovery of an amount of Rs.1,67,603/-
(Rs. One Lakh Sixty Seven Thousand Six Hundred Three Only) along
with interest at the rate of 18% p.a.
Brief facts of the plaintiff’s case are as under ;
2. The plaintiffs are the co-owner of the building known as
Niloufer House situated at 44/52, Chamesy Bhimji Road, Anjir Baug,
Mazgaon, Mumbai – 400 010. The building Niloufer House (Hereinafter
referred to as “Suit Building”) consists of ground plus three upper
floors. The ground, first and second floor is occupied by plaintiff’s
tenants while the third floor is occupied by 17 occupants claiming to be
the allege owner of their respective premises allegedly having
purchased on ownership basis.
3. According to the plaintiff, the suit was purchased by the
plaintiffs from its previous owner M/s. A.P. S. Enterprise on 30.06.1998
under a Registered Deed of Assignment dated 20.06.1998. The suit
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building was constructed in the year 1950 by one Shivdas Chapsi
consisting of ground plus two floors. The ground floor premises was let
out to tenants on rent and taxes as commercial premises and 1st and 2nd
floor was let out as residence. The suit building was assessed
accordingly by the Mumbai Municipal Corporation E/Ward,Byculla,
Mumbai. The suit building had change hands from time to time from
one to another to lessor, lessee and sub-lessee etc.
4. It is further contention of the Ld. advocate for the plaintiff
that the additional 3rd floor was constructed by one of the owner
Ramchandra Shivdas Thakkar after obtaining due sanction from
Mumbai Municipal Corporation E/Ward. The said Thakkar and his wife
then assigned their rights to M/s. A.P. S. Enterprise. The Heera Finance
and Developers Pvt. Ltd were admitted as partners. The construction of
3rd was completed by them somewhere in the year 1992. Thereafter,
the said 3rd floor premises was sold by A.P. S. Enterprise to the existing
occupants on ownership basis as alleged.
5. The suit building was taken over by MHADA in the year
1976-77 for repairs and the repairs were duly completed in the year
1977. The suit building which is presently known as Niloufer House
was earlier known as Heera Building, Mazgoan, Mumbai – 400 010
bearing CS No. 467 (Part) of Mazgoan Division admeasuring about
899.48 sq. mts or thereabouts assessed by the Mumbai Municipal
Corporation at Ward No. E-4845(3A) having account No.E-13-0060-00-
0. The suit building is assessed by Mumbai Municipal Corporation
E/Ward and one composited assessment bill, Property Tax is issued by
the Mumbai Municipal Corporation E/Ward for above said
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property/building. The Mumbai Municipal Corporation is also raising
one composite bill for Repairs cess. The plaintiffs from time to time
paying the Assessment taxes as well as Repair cess to the Mumbai
Municipal Corporation E/Ward regularly. The plaintiff further states
that the plaintiff’s ground, first and second floor tenants are paying
their respective share of property tax and repair cess along with the rent
and water charge. The occupants of the 3rd are not paying their
respective share of property tax and repair cess though repeated request
and demands have been made from time to time by the plaintiffs. The
plaintiffs states that since the 3rd floor occupant is neither paying the
amount of property taxes and cess to the plaintiff nor to the Mumbai
Municipal Corporation, the plaintiff requested the Corporation vide the
letter dated 02-07-1998 to collet the taxes and cess directly from the
occupants of 3rd floor premises. The Mumbai Municipal Corporation
had informed/replied the plaintiffs that they are not concerned about
the internal dispute/arrangement and keep sending continuously one
composite Bills for Assessment and Repair cess however, clarified that
the 3rd floor though on ownership, charges of arrears of Repair cess is to
be collected and recovered from the ownership flats holder respectively
and they are become liable to pay the same.
6. According to the plaintiff, the defendant is holder/
occupant of flat No.301 on the 3rd floor of the building on alleged
ownership. The defendant was from time to time called upon to submit
the relevant documents showing his ownership in respect of the said flat
but till date he did not submit any documents in that regard. Due to
Warrant of Attachment dated 16.01.2001, the plaintiff paid entire
amount along with penalty (The defendant was also called up to pay
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the arrears of dues Repair cess, which initially he paid in lumpsum
amount of Rs.7,500/- by cheque No.648016 dated 23.04.2004)
alongwith others flat holders. The defendant and others thereafter,
stopped paying their respective share towards property taxes, repair
cess and taxes. The plaintiff from time to time called upon the
defendant to pay his respective share towards the property taxes and
repair cess but he has failed and neglected to comply the same. The
plaintiff even thereafter, continuously till date have been paying the
assessment tax and Repair cess to the Mumbai Municipal Corporation to
avoid penalty, attachment and auction from the Mumbai Municipal
Corporation. The plaintiff from time to time paying taxes and cess and
the respective shares of the 3rd floor occupants. The plaintiff by their
advocate’s letter dated 11-09-2017 called upon the defendant to pay the
arrear of property taxes from October 2004 to March 2017 amounting
to Rs.46,800/- and 1,20,803/- towards repair cess for the period of
April 2003 to March 2017 totaling amount of Rs.1,67,603/- plus 18%
interest thereon. The defendant failed and neglected to pay any amount
or part thereof as demanded. The said letter was not replied by the
defendant and as such the defendant is liable to pay the sum of
Rs.1,67,603/-.
7. The plaintiff further contended that the above suit was
required to be filed by them as Mumbai Municipal Corporation E/Ward
has been assessing the property tax and issuing the composite
assessment bill and Repair cess to the plaintiff’s in respect of the suit
building as a whole. The plaintiffs are paying the entire amount of
taxes and repair cess including 3rd floor occupied by the defendant on
alleged ownership of which the defendant is liable to pay to the
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plaintiffs. The plaintiff further states that as per clause 9 of their own
agreement flat purchaser shall pay his/her proportionate share towards
all outgoing i.e. property tax, Repair Tax and other charges etc. The
plaintiffs further submit that no registered society is formed or made till
date but property tax/ Repair cess and other charges are collecting from
3rd floor alleged ownership holders (i.e. Receipts) Heera Building but
deliberately not paying to plaintiffs. The plaintiffs further submit that
A.P. S. Enterprises AND BMC recording the 3rd floor occupants are not
paying their shares BMC requesting for action against them vide letter
dated 18-5-1996 dated 24.02.1998.
8. The plaintiffs further submit that on account of non
payment by entire 3rd floor flats holder entire building was attached by
BMC/E Ward vide Attachment Order dated 16.01.2001. In the above
circumstances, the plaintiffs are entitled to recover from the defendant
his respective share of property taxes and repair cess which accordingly
BMC (MCGM) E/Ward Assessment Department is worked out as more
particularly mentioned in the statement of taxes and repair cess payable
by the defendants of the 3rd floor in respect of their respective flat,
payable and paid by the plaintiff to the Mumbai Municipal Corporation.
The plaintiff are therefore, entitled to recover from the defendant the
sum of Rs.1,67,603/- (Rs.One Lakh Sixty Seven Thousand Six Hundred
Three only) towards his respective share of assessment tax and repair
cess in respect of of his suit/room 301 on 3rd floor of the suit building,
which the defendant is liable to pay. Hence, the present suit.
9. The Ld. advocate for the defendant appeared in the matter
and failed to file written statement on record. Therefore, the suit
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proceeded without written statement of the defendant as per order dt.
20.09.2021.
10. The Plaintiff No.4 i.e. Shri Mohd. Asif Mohammed Aslam
examined himself as a witness by filing his affidavit-in-lieu of
examination-in-chief at Exh.6. They have also filed documents along
with list documents at Exh.7. The documents which are annexed with
Exh. 7 are follows:
Sr.
No.
Documents. Exh.Nos.
1. Copy of Letter dated 29.09.1998 issued
by the B.M.C to the plaintiff.
Exh.7/1
2. Copy of Warrant of Attachment dated
16.01.2001.
Exh.7/2.
3. The copy of Bills of Municipal
Corporation
Exh.7/3.
4. Copy of Plaintiff’s Advocate’s letter
dated 11-09-2017
Exh.7/4.
5. Copy of Tabulated Statement of Tax of
building.
Exh.7/5.
11. The plaintiff closed its evidence by filling pursis vide Exh.8.
It is the submission of Ld. Advocate for the plaintiff that oral and
documentary evidence supports the case of the plaintiff. Hence, prayed
to decree the suit.
12. Considering the facts, evidence and law applicable to the
case, following points arise for determination:
Sr. No. POINTS FINDINGS
1. Does the plaintiff prove that it
is entitled to recover the bal-
ance amount of Rs. 1,67,603/-
..In the negative..
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with interest as claimed?
2. What order and decree? As per final order.
:REASONS:
As to point No. 1 & 2:
13. It is needless to say that as suit proceeded exparte, hence,
the pleading and evidence of plaintiffs has remained unchallenged.
14. The plaintiffs are relying on xerox copy of letter dated
29.09.1998 issued by the B.M.C. to the plaintiff at Exh.7/1, the xerox
copy of Warrant of Attachment dated 16.01.2001 at Exh.7/2, the xerox
copy of bill of Municipal Corporation at Exh. 7/3, the xerox copy of
plaintiff’s advocate letter dated 11.09.2017 at Exh. 7/4, and the xerox
copy of tabulated statement of tax of building at Exh. 7/5.
15. According to the plaintiffs they have purchased the suit
building from its previous owner M/s. APS Enterprises on 30.06.1998
under a registered Deed of Assignment. However, the plaintiffs have not
filed said registered Deed of Assignment to show that they have
purchased the suit building.
16. According to the plaintiffs, the defendant being the
owner/occupier of 3rd floor of the suit building have failed to pay taxes
and repair cess. Therefore, they were constrained to pay taxes and
repair cess to the Municipal Corporation as it was informed by the
Corporation that separate taxes and cess cannot be assessed. The
plaintiff have filed xerox copy of letter dated 29.09.1998 issued by the
BMC to that effect. The plaintiffs have also filed the xerox copy of
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Municipal Corporation paid by Dilshad Mohameed Afzal i.e. plaintiff
NO.1. However, the said bill and the above said letter issued by BMC are
the xerox copies.
17. The plaintiffs moreover, failed to show that the defendant is the
owner/occupant at 3rd floor of suit building. The plaintiffs have stated
that they from time to time called upon the defendant to submit
relevant documents showing his ownership in respect of the flat No.301
at 3rd floor of the suit building. But the plaintiffs have not filed any
documentary proof to that effect. Thus, the plaintiffs failed to show that
the defendant is liable to pay the tax amount and repair cess which is
paid by plaintiff No.1. Hence, I answered point No. 1 in negative and to
answer point No. 2, I passed the following order :
ORDER
1. The suit No. 1318 of 2019 is dismissed.
2. The decree be drawn up accordingly.
3. The Suit No. 1318 of 2019 is disposed of.
(Dictated and Pronounced in Open Court).
(Ashwini V. Kasture)
Judge,
City Civil and Sessions Court
Date.:01.10.2024 Greater Bombay (CR 59).
Declared on : 01.10.2024
Direct Typed on : 01.10.2024
Checked on : 01.10.2024
Signed on :08.10.2024
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
08.10.2024 at 4.15 -p.m. Mrs. P.R.Wagh
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (with Court
Room No.)
HHJ Smt. A. V. Kasture(C.R.No.59)
Judge.,City Civil & Sessions Court,
Date of pronouncement of /Order 01.10.2024
Order signed by P.O. on 03.10.2024
order uploaded on 08.10.2024
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