Final Order 2

Order Details: Chamber summons
Pdf Text: 1 C/H No.844/2019 in L.C.Suit No.1404/2017
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
CHAMBER SUMMONS NO. 844 OF 2019
(C.N.R.No. MHCC010042772019)
IN
SHORT CAUSE SUIT NO. 1404 OF 2017
(C.N.R.No. MHCC010060562017)
Mr. Shashikant Tukaram Salvi and ]
Ors. ]..Plaintiffs.
V/s.
Mr. Mohammadali Yusuf Bagdadi ]
and Orders ]..Defendants.
And
M/s Aakaar Nirman Properties and ors. ]..Respondent
Advocate Mr. L. K. Tripathi for Plaintiff.
Advocate Mr. Madhur Surana with Parag Shah for Defendant nos. 7
to 17.
None present for Defendant no. 1 to 6.
Adv. Trivedi for SRA/Defendant nos. 20 and 22.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.12)
DATE : 5th SEPTEMBER, 2019
ORAL ORDER
This Chamber summons has been taken out by the plaintiffs
for allowing the plaintiffs to carry out amendment in the plaint, as per
the schedule annexed to the Chamber Summons.
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2 In support of Chamber Summons plaintiff No. 1 has filed
affidavit. It is averred that the present suit is filed to claim title since the
plaintiffs are claiming through the owners of the suit land, described in
the schedule annexed to the Chamber Summons. The subject land was
purchased by the Plaintiff on 06.10.1990 vide sale deed and despite the
same, Defendant no.7 claims title to the said land vide Conveyance
Registration dated 01.10.2010. Defendant no. 7 intends to submit the
land for development of the said property and Mutation Entry no. 963
has been mutated in the name of Defendant no. 7. Defendant no. 7 to
17 have fraudulently and illegally entered into the said Conveyance
under the guise of Slum Rehabilitation. As a part of said scheme,
Defendant no. 7 has executed Release Deed dated 10.07.2012. The said
Release Deed has been suppressed from the Court and it is not the valid
document, as it is post dated the alleged Sale Deed of 01.10.2010.
Further, second is Equitable Mortgage Deed dated 24.12.2018 executed
by Defendant no. 7, as part of scheme for development.
3 It is further averred that Defendant no. 7 to 17 have
violated the provisions of Slum Act by executing the said Mortgage
Deed and creating charge over the subject land and have taken loan
facility for Rs. 20 Crores. The subject property was mortgaged by M/s
Maverick Realtor, who is not connected with Aakarnirman Property Pvt.
Ltd. Therefore, the stranger has executed the document without any
entitlement. Therefore, all the documents are forged, fabricated and not
binding on the plaintiffs under which Defendant no. 7 cannot claim any
rights. The said documents have required to be brought on record in the
suit since the plaintiffs are claiming for the same property. Further,
Lokayukta (Public commissioner) and Slum Rehabilitation Authority
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informed vide letter dated 11.12.2015 that the document ExhibitD is
forged and fabricated. Hence, prayed for allowing proposed
amendment, as per schedule annexed to the Chamber Summons.
4 Defendant nos. 7 to 17 filed their affidavit in reply by filing
affidavit of Tushar Kuvadia, Defendant no.7. It is contended that the
present amendment cannot be considered, as the said events are not
consequential events. The present Chamber Summons has been taken
out by the plaintiffs with an intention to delay the crossexamination of
witnesses of the Plaintiffs. This Chamber Summons filed by the Plaintiff
is nothing, but an abuse of Court procedure only and to make sure that
Order dated 28.07.2017 passed by the Hon'ble Supreme Court of India
in SLP (C) Diary No. 19448 of 2017 is not followed in verbatim.
5 It is further contended that this Chamber Summons is taken
out by the plaintiffs to bring on record Release Deed signed and
executed by the sisters of Defendant nos. 1 to 6 in favour of Defendant
nos. 1 to 17. The present slum scheme is under construction and
Defendant no. 7 is owner of the suit property admeasuring 9365 sq.mts.
Defendant no. 7 has created Equitable Mortgage in respect of suit
property as per Deed of Conveyance in his favour executed by
Defendant nos. 1 to 6. There is no bar under the Slum Act that
developer or owner of the suit property cannot execute Equitable
Mortgage for obtaining construction loan under Slum scheme. The said
documents are not required for proper determination of title. For proper
determination of title in respect of Suit property CTS No. 237, the
documents required are already before the Court, including alleged Sale
Deed executed in favour of the Plaintiffs, which is registered in the year
2016 and registered Conveyance Deed dated 01.10.2010 executed by
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Defendant nos. 1 to 6 in favour of Defendant no. 7, which is registered
on 17.01.2011. Thereafter, sisters of Defendant no. 1 to 6 executed
Release Deed in favour of Defendant nos. 1 to 17, thereby relinquishing
all their rights, title and interest in respect of suit property in favour of
Defendant nos. 1 to 17, if any and it was executed and registered in the
year 2012. The Plaintiffs have filed the suit in the year 2017. Thus, the
said documents were executed prior to filing of the suit. Hence,
Chamber Summons deserves to be dismissed.
6 It is further contended that Survey No. 105 admeasuring 3
Acres, 57 gunths alongwith adjoining property is occupied by several
slum dwellers and vide an order dated 16.09.1976, Survey No. 105
alngwith adjoining property has been declared as “Slum Improvement
Area.”u/s 4A of the Slum Act. CTS No. 237 is part of survey no. 105 and
same was owned by Defendant no. 1 to 6. Defendant nos. 1 to 6 sold
CTS No. 237 of village Kanjur admeasruing 9365.5sq.mts in favour of
Defendant no. 7, vide Sale Deed dated 1.10.2010 for valuable
consideration and said conveyance is registered on 17.01.2010. Slum
dwellers residing on larger property alongwith adjoining Nala land
formed Sukhakarta, SRA CHS and requested Defendant no. 7 to
implement Slum Rehabilitation Scheme. More than 70% occupants have
given their irrevocable consent to Defendant no. 7, including Plaintiff
no. 3 and the necessary documents have been executed in favour of
Defendant no. 7. Further after verifying documents of which occupants,
Deputy Collector has issued AnnexureII and certified that there are
total 269 occupants, out of which 226 are eligible. Thereafter, again
issued revised AnnexureII. Defendant no. 7 has complied with
necessary conditions and therefore, Slum Rehabilitation Authority has
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approved Slum Rehabilitation Scheme of defendant no.7 and issued
Letter of Intent on 16.01.2014.
7 It is further contended that on 15.07.2014, CoOperative
Housing Society and Assistant Registrar have also registered it as Co
operative Housing Soceity, in view of an application made by Sukhkarta
SRA CHS. Defendant no. 7 has submitted proposal of approval of
building plan of rehab building and Slum Rehabilitation Authority
approved the same and issued intimation of approval on 18.12.2014.
Further, Defendant no. 7 has paid rent/ compensation to near about
145 occupants and near about 126 occupants had vacated their
structures. Defendant no. 7 was ready to pay rent to 70 occupants, but
they were not vacating the structure and therefore, Defendant no. 7 was
constraint to make an application to the Deputy Collector (E/R) Mulund
for taking an action against 70 occupants. The said 70 occupants filed
Appeal no. 23 of 2016 against the Order dated 02.06.2016 passed by
deputy Collector. The said appeal has been dismissed. Neither the
Plaintiffs, nor remaining 67 occupants challenged the said order.
Sukhakarma SRA CHS filed Writ Petition No. 723 of 2016 and sought
directions for implementing order dated 2.06.2016 passed by Deputy
Collector (E/R), Mulund and order dated 4.07.2016 passed in Appeal
No. 23 of 2016. In the said Writ Petition, directions were given to
Defendant nos. 18 to 21 on 19.01.207 to demolish all 70 structures,
including structures occupied by the plaintiffs.
8 It is further contended that being dissatisfied with the said
order, some of the occupants filed SLP(C) No. 6261/17 in the Hon'ble
Supreme Court of India and Hon'ble Supreme Court of India has
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granted 4 weeks time to vacate the structures and directed Defendant
no. 7 to pay rent/compensation of transit tenement to 79 occupants.
9 It is further contended that Some of the occupants made
grievance that Defendant no. 7 has not paid proper rent and theretofore
file I. A. No. 23 and 24 of 2017 and Hon'ble Supreme Court by an order
dated 10.04.2017, directed to Defendant no. 7 to pay rent and
dismissed I. A. No. 23 and 24 of 2017. Occupants/ slum Dwellers filed
Misc application 15.06.2017 before the Hon'ble Supreme Court for
recalling the order dated 10.02.2017 and 10.04.2017. Further
commissioner appointed by the Hon'ble High Court in Writ Petition No.
723 of 2016 submitted report on 4.07.2017 and 5.07.2017, whereby
stated that certain number of structure, which are not demolished are
occupied by slum Dwellers. On the basis of said report, on 3.08.2017,
the Hon'ble High Court confirmed the demolition of all structures, as
required and also allowed Defendant no. 7 to put up fencing and
compound wall on plot after taking this protection.
10 It is further contended that slum dwellers did not vacate
their structures and suit plot and therefore, Defendant no. 7 filed
Contempt Petition No. 1508/17 in SLP No. 6261/17, wherein as per
directions Contemnors were personally present before Hon'ble Supreme
Court and gave assurance that they will religiously abide by orders and
shall not create any obstruction in future. Again thereafter, slum
dwellers took possession of another huts and committed breach of
Orders and therefore, Defendant no. 7 filed another Contempt Petition
no. 1327 of 2018, wherein it was directed to handover possession of
their structures by 29.09.2018, failing which Deputy Commissioner of
Police be directed to evict them and hand over possession to Defendant
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no. 7. In this background, deponent has denied averments against them
in affidavit in support of Chamber Summons and prayed for dismissal of
Chamber Summons.
11 Plaintiff3 has filed her affidavit in rejoinder and denied
contention of Defendant nos. 7 to 17. It is denied that slums scheme is
on the basis of slum land submitted by society and SRA has sanctioned
9365sq.mts. The Plaintiffs are owners of the suit property and question
of entering their names in Annexure II does not arise at all. Hence,
prayed for allowing Chamber Summons.
12 Heard Learned Advocate for the Plaintiff and Learned
Advocate for Defendant nos. 7 to 17. Admittedly, in this suit, issues are
framed on 07.07.2018. The Plaintiffs have filed evidence of PW1 by
filing affidavit of examination in chief vide exh. 6 on 21.07.2018. It is
urged by Learned Advocate for the Plaintiffs that this Chamber
Summons has been tendered before completion of crossexamination.
13 The Plaintiffs have filed this suit in the year 2017 and
prayed for relief of declaration that on execution of the Deed of Sale
dated 6.10.1990, the Plaintiffs have become joint/ coowner of the suit
property and Sale Deed is valid and binding upon Defendant nos. 1 to
17. Further the Plaintiffs have prayed for relief of declaration that on
execution of Deed of Sale dated 6.10.1990, Defendant nos. 1 to 6 did
not have any right, title, interest in the suit property to execute alleged
Conveyance dated 1.10.2010 in favour of Defendant nos. 7 to 17 to the
extent of suit property and prayed for declaration that conveyance
dated 1.10.2010 to the extent of the suit property is forged and
fabricated. Further the Plaintiffs have prayed for relief of mandatory
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injunction by directing Defendant nos. 7 to 17 to maintain the suit
property in its original position and for declaration that development
plan/ sanctioned plan / IOD to the extent of suit property is cancelled
and set aside. Further the Plaintiff has prayed for relief of permanent
injunction against Defendant nos. 7 to 17 in respect of redevelopment
of the suit property and selling the suit property for creating any third
party rights over the suit property.
14 It is urged by Learned Advocate for the Plaintiffs,
Defendant nos. 7 to 17 have fraudulently and illegally entered into the
Conveyance under the guise of Slum Rehabilitation. The Plaintiffs have
received the copy of Letter dated 18.02.2016 under the RTI Act on
13.03.2019 and the said letter discloses that SRA scheme is based on
fraudulent documents. Further it is argued by Learned Advocate for the
Plaintiffs that the Plaintiffs came to know about the said forged
documents on 11.02.2019. Hence, the present Chamber Summons,
being subsequent events came to the knowledge of the Plaintiffs.
15 On the other hand, it is argued by Learned Advocate for
Defendant nos. 7 to 17 that page no. 75 to the Plaint is the indexII
extract, in respect of Sale Deed dated 6.10.1990 and it discloses that it
is registered on 21.12.2016. Perused proposed amendment and already
claimed reliefs. It appears that by way of proposed amendment, the
Plaintiffs want to make pleadings in respect of the Letter dated
18.02.2016, Release Deed dated 10.07.2012 and execution of Mortgage
deed dated 24.12.2018 and want to bring on record pleadings in
respect of Sale Deed of Defendant nos. 7 to 17 dated 1.10.2010. By way
of proposed amendment, as per schedule annexed to the Chamber
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Summons, it appears that the plaintiffs are not asking any reliefs
specifically by making amendment in the relief clause of the suit plaint.
16 In this background, it is argued by Learned Advocate for
Defendant nos. 7 to 17 that the present Chamber Summons is nothing,
but an intention to cause delay in crossexamination of witnesses of the
Plaintiff. Further he has drawn my attention toward O6 R17 of the
Code of Civil Procedure and urged that no application for amendment
shall be allowed after the trial has commenced, unless the court come to
the conclusion that inspite of the due diligence, the parties could not
raised the matter before the commencement of the trial. Further he has
pointed out order passed by the Hon'ble Supreme Court of India on
28.07.2017 is in SLP (C) diary No. 1948 of 2017.
17 It seems that the Plaintiffs are claiming themselves co
owners of the suit property on the basis of Sale Deed dated 6.10.1990
and they have challenged Conveyance Deed dated 1.10.2010 executed
by Defendant nos. 1 to 6 in favour of Defendant no. 7 to 17. Exhibit A
to the plaint i.e the structure known as Yusuf Bagdadi Chawl no. 1 as
Siddhivinayak CHS admeasuring 1050sq.yards situated at Survey no.
105, CTS no. 237, village Kanjur, Taluka Kurla is the suit property. For
determination of the title in respect of the suit property, already the
Plaintiffs have tendered the documents. According to the Defendants,
defendant nos. 1 to 6 have executed Sale Deed on 1.10.2010 and it was
registered on 17.01.2011. From page no. 75 to the plaint, it appears
that Sale Deed of the Plaintiffs is dated 6.10.1990 and it has been
registered on 21.12.2016. Thus, it seems that on the basis of Sale
Deeds, title in respect of the suit property is to be decided on merits. In
this background, further documents executed by Defendant no. 7 are
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not required for determination of title of the suit property. Even it
appears that sister of Defendant nos. 1 to 6 have executed Release Deed
in the year 2012. The decision in respect of the title of the suit property
is binding on further transactions.
18 Further, it appears that after purchasing the suit property
from Defendant nos. 1 to 6, in view of request from Sukhkarata SRA
CHS and in view of consent of more than 70% occupants including
consent of Plaintiff no. 3, Defendant no. 7 has submitted the proposal of
Slum Rehabilitation authority, even AnnexureII and revised Annexure
II have been prepared and slum Rehabilitation Authority has approved
the scheme of Defendant no. 7 and even issued letter of intent on
16.01.2014. Further even, Defendant no. 7 acted further in view of
Letter of Intent dated 16.01.2014. Further it reveals that in view of
further part of the scheme, eviction order has been passed on
2.06.2016, including structures of the Plaintiffs and the Plaintiffs filed
Slum Appeal 23 of 2016 under section 35 of the Slum Act and it has
been dismissed on 4.07.2016. As the Plaintiffs alongwith other
occupants have not vacated the structures, Sukhkara HRA CHS filed
Writ Petition for implementation of Orders dated 2.04.2016 and
7.04.2016 wherein, on 19.01.2017 directions were given to demolish 70
structures including the Plaintiffs structure. Then there was SLP (C) No.
6271/17 before the Hon'ble Supreme Court of India and it was disposed
of with specific directions on 10.02.2017 and even there were further
orders in Writ Petition No. 723/16. Even there was Misc. application
before the Hon'ble Supreme Court of India for recalling the orders and
it is still pending. Further there are directions for deciding the suit
within a period of one year. Even, the commissioner was appointed by
the Hon'ble High Court in Writ Petition No. 723 of 2016 and in view of
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report dated 4.07.2017 and 5.07.2017, confirmed the demolition of all
structures and allowed Defendant no. 7 to put fencing. Even there are
contempt petitions.
19 In the above background, it seems that the Plaintiffs have
not pleaded, the facts which were known to them prior to filing of the
suit in respect of the suit property and now by way of proposed
amendment, the Plaintiffs are trying to bring on record pleadings in
respect of the said Mortgage Deed, which is not relevant in the present
suit and also trying to bring on record pleadings in respect of Release
Deed dated 10.07.2012 i.e the deed prior to the filing of the suit. The
Plaintiffs have not claimed even further reliefs by way of proposed
amendment.
20 Learned Advocate for Defendant nos. 7 to 17 has placed his
reliance in Mashyak Grihnirman Sahakari Sanstha Maryadit V/s
Usman Habib Dhuka and Ors. Reported in 2014 (1) Mh.L.J., 597,
with respects principle held in the authority cited is the applicable to
the present set of facts. Thus, proposed amendment at this stage, i.e
when the suit is posted for crossexamination is not just and proper to
allow.
21 It appears that the Plaintiffs have suppressed various
material facts from the court and even the sisters of Defendant nos. 1 to
6, who have executed release deed in the year 2012 are not the party to
the suit. Thus, proposed amendment cannot be granted and proposed
amendment even not necessary to decide reliefs claimed in the present
suit. Thus, proposed amendment cannot be granted and proposed
amendment even not necessary to decide reliefs claimed in the present
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suit. Hence, Chamber Summons is to be dismissed. With this I proceed
to pass the following order.
ORDER
Chamber Summons No. 844 of 2019 is hereby dismissed
with costs.
2 Chamber Summons No.844 of 2019 stands disposed of
accordingly.
(S. P. PONKSHE)
Judge,
Date: 05/09/2019. City Civil Court,
Gr. Bombay.
Dictated on : 05/09/2019
Transcribed on : 05/09/2019
Signed on : 19/09/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20/09/2019 At 11.30 p.m. MRS. VARSHA D. PAHURKAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
05/09/2019
Judgment/Order signed by P.O. on 19/09/2019
Judgment/Order uploaded on 20/09/2019
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