Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 160219 IN SUIT 65319
MHCC010043462019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 1602 OF 2019
IN
SUIT NO. 653 OF 2019
Dhruv Kumar Shriram Malah alias Sahani ] ...Plaintiff.
Versus
M/s. Komal Developers and Others ]…Defendants.
Appearance:
Ld Advocate S.R. Gupta for the plaintiff.
CORAM : K.P. KSHIRSAGAR
JUDGE, (C.R.NO.08)
DATE : 13/7/2022
ORAL ORDER
1) Plaintiff has taken out present Notice of Motion for grant
of interim relief of temporary injunction restraining defendant No.1 to
5 from creating any third party right in the original tenanted premises
i.e. room No.5 and in the permanent alternate accommodation which
is to be provided in lieu of the tenanted premises, for appointment of
court receiver and for directing defendant No.1 and 2 to deposit in
this court the arrears of the compensation and to pay the hardship
compensation every month.
2) Perused the notice of motion, affidavit in support of
notice of motion, plaint and documents annexed with the plaint and
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affidavit in reply of defendant No.6 and 7. From the record it appears
that suit is proceeded exparte against defendant No.1 and 2 and
without reply of defendant No.3 to 5 to present notice of motion.
Heard arguments of Ld Advocate for plaintiff. As the defendants and
their advocates were absent they could not be heard.
3) Ld Advocate for plaintiff argued that plaintiff's father
Shriram Kashi Malah was the tenant of tenanted premises i.e. room
No.5 and plaintiff resided there alongwith his father. Name of
plaintiff's father was reflected in the certified list of tenants/occupants
i.e. Annexure II of the suit building prepared by defendant No.3, 4 and
5. The defendant No.1 is the landlord, owner and developer of the
building wherein the tenanted premises was situated. Defendant No.1
and 2 had entered into an agreement dtd.28/1/14 for providing
permanent alternate accommodation with the father of plaintiff.
Father of plaintiff expired on 30/10/15. Plaintiff and defendant No.6
and 7 are the only heirs and legal representatives of Shriram Kashi
Malah. Defendant No.6 and 7 has executed a declaration and given no
objection for transfer of tenancy right of the tenanted premises and
handing over possession of permanent alternate accommodation in
favour of plaintiff. Moreover, the tenancy right of the tenanted
premises devolved upon plaintiff. Therefore, plaintiff is entitled for the
benefits of the redevelopment of the tenanted premises including the
permanent alternate accommodation and compensation in lieu of
transit accommodation. The plaintiff already filed application before
defendant No.3 and 4 to amend the Annexure II and said application
is pending before defendant No.3 and 4. The defendant No.1 and 2
have failed to handover the possession of the permanent alternate
accommodation to the plaintiff and failed to pay compensation to
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plaintiff in lieu of transit accommodation. Therefore, prima facie case
and balance of convenience lies in favour of plaintiff and plaintiff will
suffer irreparable loss if the notice of motion is not made absolute.
4) From the reply and written statement of defendant No.6
and 7 it appears that they have supported the claim of the plaintiff.
5) Following points arise for determination and court has
recorded its decision thereon for the reasons stated there under:
Points Decision
(i) Whether prima facie case lies in favour of plaintiff ? No.
(ii) Whether balance of convenience lies in favour of
plaintiff ?
No.
(iii) Whether plaintiff will suffer irreparable loss if
Notice of Motion is not allowed ?
No.
(iv) Whether plaintiff is entitled for the relief of
appointment of court receiver?
No.
(v) Whether plaintiff is entitled for the relief of
compensation as prayed?
No.
(vi) What Order? As per final
order.
REASONS
As to Point No.1 to 3:
6) As point No.1 to 3 are interconnected with each other
they are decided simultaneously in order to avoid repetition of facts.
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7) In the present case from the matter on record it appears
that plaintiff's father was the tenant/occupant of the tenanted
premises and his name was reflected in the certified list of
tenants/occupants i.e. Annexure II in respect of tenanted premises.
From the document at Exh.B to the plaint it appears that defendant
No.1 executed agreement for providing permanent alternate
accommodation to the father of plaintiff in lieu of the tenanted
premises and to pay amount of Rs.20,000/ per month towards rent of
temporary alternate accommodation etc. From the matter on record it
appears that father of the plaintiff expired on 30/10/15 and plaintiff
and defendant No.6 and 7 are the heirs and legal representatives of
the original tenant of tenanted premises i.e. Shriram Kashi Malah
Admittedly, it appears that the name of the plaintiff or defendant No.6
and 7 is not reflected in the certified list of tenants/occupants of the
building in which tenanted premises was situated in respect of the
tenanted premises. From the pleading of the plaintiff it appears that
plaintiff has applied to defendant No.3 and 4 to amend the certified
list of tenant/occupant in respect of tenanted premises and said
application is pending. Therefore, prima facie it is necessary for
plaintiff to get his name substituted in place of name of his father in
certified list of tenant/occupant i.e. Annexure II in respect of the
tenanted premises for claiming the reliefs pertaining the benefits of
redevelopment of the tenanted premises. As such till the name of
plaintiff is not certified by the Authority in respect of tenanted
premises in certified list of tenants/occupants i.e. Annexure II and
other office record till then plaintiff prima facie does not appear to be
entitled for claiming any relief regarding benefits of development in
respect of the tenanted premises. Therefore, from the matter on record
court came to the conclusion that plaintiff prima facie failed to show
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that he is entitled for claiming benefits of redevelopment in respect of
tenanted premises in place of his father.
8) From the matter on record prima facie it appears that
jurisdiction to decide the eligibility of tenants/occupants for
redevelopment benefits is vested with the Authority. Moreover,
plaintiff will be entitled for benefits of redevelopment in lieu of
tenanted premises if the Authority held that plaintiff is entitled for
same in place of his father. Defendant No. 1 to 5 are bound by law to
provide benefits of redevelopment to the tenant/occupant whose
name is reflected in certified list of tenants/occupants i.e. Annexure II.
Therefore, prima facie no irreparable loss will be cased to the
plaintiffs.
9) From the matter on record there appear no serious
bonafide question which requires adjudication in the present matter.
Equally efficious remedy is also available for claiming relief of
entitlement of benefits of the redevelopment in respect of tenanted
premises. Moreover, prima facie there appear delay and latches on the
part of plaintiff. Considering the matter on record and above
discussion court hold that prima facie case and balance of convenience
do not lie in favour of plaintiff and no irreparable loss will be caused
to the plaintiff if the interim relief as prayed is not granted. Therefore,
point No.1 to 3 are answered in negative.
As to point No.4:
10) The plaintiff has prayed for relief of appointment of court
receiver in respect of tenanted premises and permanent alternate
accommodation which is to be provided in lieu of tenanted premises.
As per plaintiff's claim the redevelopment of the suit building is
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completed in year 2016 and original tenanted premises is not in
existence, therefore, there arise no question for appointment of court
receiver for the tenanted premises. Moreover, as per law the
defendant No.1 and defendant No.3,4 and 5 are bound to provide
benefits of redevelopment to the tenant/occupant whose name is
reflected in the certified list of tenant/occupier i.e. Annexure II.
Therefore, there appear no any just and convenient cause for
appointment of court receiver in respect of tenanted premises and
permanent alternate accommodation as prayed. Therefore, from the
matter on record court find that plaintiff is not entitled for relief of
appointment of court receiver as prayed. Hence, point No.4 is
answered in negative.
As to point No.5:
11) Plaintiff has prayed for interim relief of directing
defendant No.2 to deposit arrears and pay compensation/rent every
month. In the present matter admittedly it appears that name of the
plaintiff is not reflected in the certified list of tenants/occupants in suit
building in respect of tenanted premises. As such till the name of the
plaintiff is not certified by the Authority in respect of tenanted
premises in certified list of tenants/occupants i.e. Annexure II and on
other record, till then plaintiff prima facie do not appear entitled for
any claim regarding benefits of redevelopment in respect of tenanted
premises. Moreover, plaintiff will be entitled for the benefits of
redevelopment in respect of tenanted premises only after the
Authority held that plaintiff is entitled for the same in place of his
father. Moreover, prima facie jurisdiction to decide eligibility of
tenant/occupant for the redevelopment benefits is vested with the
Authority. As such considering the matter on record and above
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discussion at this stage prima facie plaintiff is not entitled for claim of
relief of benefits of redevelopment and compensation/rent.
Considering the matter on record and above discussion court hold that
plaintiff is not entitled for the relief of compensation as prayed at this
stage. Hence, point No.5 is answered in negative.
As to point No.6:
12) In view of negative findings to point No.1 to 5 present
notice of motion is liable to be dismissed. Hence, court proceeds to
pass the following order:
ORDER
1) Notice of motion No.1602 of 2019 is dismissed.
2) Notice of motion No.1602 of 2019 is disposed off accordingly.
Date : 13/7/2022
(Shri. K.P. Kshirsagar)
Judge
City Civil Court,
Gr. Mumbai.
Dictated & typed on : 13/7/2022.
Checked on :14/7/2022.
Signed on :18/7/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
18/7/2022 Mrs. S.A. Shekade.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
13/7/2022
JUDGMENT/ORDER signed by P.O.
on
18/7/2022
JUDGMENT/ORDER uploaded on 18/7/2022
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