Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF
COURT 1 ADDL SESSIONS JUDGE AT Mumbai,Mumbai
Presided Over by HHJ SHRI. M. S. AZMI
NOTICE OF MOTION NO.1329 OF 2020
AND
NOTICE OF MOTION NO.1409 OF 2020
IN
SUIT ST. NO.4101 OF 2020
1. Majestic Construction &
Developers, a sole proprietary
Concern
2. Mr.Lalit Setia,
Sole proprietor of Plaintiff no.1
Both having their address at
401, Atharva Building, V.B.
Phadke Marg, Mulund(E),
Mumbai 400 081. ..Plaintiffs
Versus
3. M/s. DKP Designers and
Creators Pvt.Ltd.
501, Kailas Plaza, V.B.Lane,
Ghatkopar East, Mumbai
400 077.
4. Mr.Bhogin Danabhai Patel,
Director and Authorized
Representative
M/s. DKP Designers and
Creators Pvt.Ltd.
501, Kailas Plaza, V.B.Lane,
Ghatkopar East, Mumbai
400 077.
5. Mr.Manoj Kanjibhai Patel
Director and Authorized
Representative
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6. M/s. DKP Designers and
Creators Pvt.Ltd.
501, Kailas Plaza, V.B.Lane,
Ghatkopar East, Mumbai
400 077.
7. Mr.Kishore Danabhai Patel,
Director and Authorized
Representative
M/s. DKP Designers and
Creators Pvt.Ltd.
501, Kailas Plaza, V.B.Lane,
Ghatkopar East, Mumbai
400 077.
8. Mrs.Anjali Kishore Patel,
Director and Authorized
Representative
M/s. DKP Designers and
Creators Pvt.Ltd.
501, Kailas Plaza, V.B.Lane,
Ghatkopar East, Mumbai
400 077.
9. M/s. Shreeshay Engineers Ltd.,
501, Kailas Plaza, V.B.Lane,
Ghatkopar East, Mumbai
400 077
10. Mr.Kishore Danabhai Patel,
Director and Authorized
Representative
M/s. Shreeshay Engineers Ltd.,
501, Kailas Plaza, V.B.Lane,
Ghatkopar East, Mumbai
400 077
11. Mr.Bhogin Danabhai Patel,
Director and Authorized
Representative
M/s. Shreeshay Engineers Ltd.,
501, Kailas Plaza, V.B.Lane,
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Ghatkopar East, Mumbai
400 077
12. Mrs.Nisha Bhogin Patel,
Director and Authorized
Representative
M/s. Shreeshay Engineers Ltd.,
501, Kailas Plaza, V.B.Lane,
Ghatkopar East, Mumbai
400 077
13. Mr.Harish Vrajlal Adhia
Director and Authorized
Representative
M/s. Shreeshay Engineers Ltd.,
501, Kailas Plaza, V.B.Lane,
Ghatkopar East, Mumbai
400 077
14. Mr.Jayantilal Jagshi Gala
Director and Authorized
Representative
M/s. Shreeshay Engineers Ltd.,
501, Kailas Plaza, V.B.Lane,
Ghatkopar East, Mumbai
400 077 ..Defendants
Ld. Advocate Mr.Giriraj for the plaintiffs
Ld. Advocate Mr.Sachin Punde for defendant no.1
Ld. Advocate Mr.Omkar Warange for defendant nos.2 to 11
COMMON ORDER DATED 12/11/2020
1. Notice of motion no.1409 of 2020 is filed by the plaintiffs
seeking the relief of temporary injunction restraining the defendants,
their servants, agents, officers, person and/or persons claiming through
or under them from any manner, using, alienating, encumbering,
parting with or any manner interfering with all materials, equipment,
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papers, goods and all other articles belonging to the plaintiffs,
restraining the defendant and their servants, agents, officers, person
and/or persons claiming through or under them from carrying out any
work of construction or otherwise at the suit property and also
restraining them from any manner interfering or obstructing with the
free ingress and egress of the plaintiffs, their labours, employees, agents
and any person claiming through the plaintiff from entering or
remaining upon and ingress and egress from the suit property.
2. Notice of motion no.1329 of 2020 was also tendered by the
plaintiffs for appointment of Court Commissioner/receiver/Private
receiver to take possession of the machinery, with direction to prepare
an inventory of all the machinery and equipment at the suit property
and to conduct a measurement of the constructed area on the suit
property, to direct the defendants to forthwith return all the machinery
of the plaintiffs and pending hearing of the final disposal of the suit to
pass an order permitting the plaintiffs to affix CCTV camera on the suit
property.
3. The suit property is under construction site known as Kailas
Nagar, situated at MG Road, Ghatkopar(East), Mumbai 400 077.
4. At the outset it is necessary to mention here that matter was
placed before my Brother Judge C.R.No.7 and in notice of motion
no.1329 of 2020, he passed order for appointment of Court
Commissioner in terms of prayer clause (b) and therefore it would not
be proper to deal with the said issue again.
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5. In short, the case of the plaintiffs is that after negotiations, the
plaintiffs were given the work order by defendant no.1 dated
25/04/2017 to undertake the construction of building at the suit
property comprising of two basements plus ground plus five parking
floors with E deck plus 8 Residential floors. The plaintiffs have carried
out work to the satisfaction of defendant no.1 with maintaining quality
and promptness of the work. The plaintiffs have narrated the high
handed acts of the defendants during the continuation of the work. It is
also the stand of the plaintiffs that during two years there were changes
in several PMCs by the defendants. There were many instances wherein
the Ready Mix concrete and other materials were not available for
which delay was caused for non compliance of obligations of the
defendants as per work order. The due amounts were not paid to the
plaintiffs. On 16/03/2020, lockdown was introduced and construction
activities were stopped. The plaintiffs informed the defendants about
the same by their correspondences dated 30/03/2020 and 31/03/2020
and requested the defendants to clear the dues. On 03/04/2020,
07/04/2020, 10/04/2020, and 16/04/2020 correspondences were
made and plaintiffs requested the defendants to clear the dues. The
defendants by their e-mail dated 23/04/2020 stated that the PMC’s
supervisor had visited the site and the labourers at the site forcibly held
up the supervisor demanding for payments. The plaintiffs stated that
they were unaware about the said incident. The plaintiffs again
requested them to make the payment by their e-mails 02/05/2020,
05/05/2020, 10/05/2020, 18/05/2020, 23/05/2020 and 27/05/2020.
The defendants by their e-mail dated 28/05/2020 informed the
plaintiffs that they are terminating the contract dated 25/04/2017 on
account of the plaintiffs not carrying out the work. The plaintiffs
immediately responded to the said letter. The plaintiffs have completed
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90% of the work and ready to complete the entire work. The materials
of plaintiffs are lying at the spot. The plaintiffs and defendants are
negotiating from June-2020 and July-2020. The termination is illegal.
Hence, the plaintiffs have filed this suit alongwith accompanying notice
of motions.
6. The defendants responded to the notice of motions by filing the
reply. It is the contentions of the defendants that the suit is not
maintainable. The additional affidavit shows that the value of the
material for Rs.1,64,90,350/- which exceeds the jurisdiction of this
Court. In the entire plaint, the plaintiff has not described the suit
property. The reliefs claimed in the plaint and notice of motion are
identical and therefore granting any interim or ad-interim relief would
amount to granting a decree without trial to the plaintiffs. The
defendants have paid Rs.3,45,54,786/- to the plaintiffs. The plaintiffs
failed in following the schedule and therefore the defendants were
constrained to engage another labour force to complete the 13th floor
slab on 12/03/2020. On 17/03/2020, the Project Management
Consultant issued a payment certificate certifying an amount of
Rs.25,38,972/- to the plaintiffs. The plaintiffs have taken an amount of
Rs.52,02,425/- from the defendants towards payment of GST, but the
same is not paid to the GST authority. Several allegations are made by
the defendants against the plaintiffs. The defendants prayed for
dismissal of the suit and notice of motions.
7. On the rival submissions of the parties, following points arise for
my determination and findings to it are recorded for the reasons stated
hereinafter:-
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POINTS
1. Whether the plaintiffs have made out prima facie case?
2. Whether the needle of balance of convenience tilt in favour of the
plaintiffs?
3. To whom the irreparable loss would be caused?
4. Whether the plaintiffs have made out any case for appointment of
Court Receiver/private receiver to take possession of the
machinery?
5. Whether the plaintiffs have made out case for return of the
machineries/equipments?
6. Whether the plaintiffs have made out case for installation of
CCTV camera at the suit site?
7. What order?
FINDINGS
1.In the negative
2.In the negative
3.To the defendants
4.In the negative
5.In the negative
6.In the negative
7.As per final order.
REASONS
As to Point nos.1 to 6
8. The allegations are made by the parties against each
other. Ld. Counsel for defendant no.1 pointed out the letter dated
29/01/2020 of the plaintiffs to the defendants wherein the
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plaintiffs admitted delay of work from their side and for which
defendant no.1 has suffered losses. He also pointed out letter
dated 20/03/2020 whereby the plaintiffs requested for the
payment to the supplier and plaintiffs assured for carrying out the
work within stipulated time and defendant no.1 has made
payment as requested by the plaintiffs. At this juncture, it would
not be relevant to consider the previous commitments of the
plaintiffs and delay in completion of the work by the plaintiffs.
The other limb of objection which is taken by defendant no.1 is
that the defendants engaged the services of the plaintiffs for
arranging the labours. But the said argument is not worth as the
work order dated 25/04/2017 shows that various works are to be
carried out by the plaintiffs. Ld. Counsel for the plaintiffs argued
that the act of the defendants terminating the contract is
deliberate and illegal even when the plaintiffs have completed
90% of the work. The plaintiffs are required to recover huge
amount and therefore at the fag end of the project, the
defendants mischievously terminated the contract to avoid
payment of legitimate dues of the plaintiffs. Due to lockdown
the work at the site was stand still. By communication dated
31/03/2020, the plaintiffs demanded money in order to pay to
the labours. Similar requests were made on 03/04/2020,
07/04/2020, 10/04/2020, 16/04/2020 but the defendants did
not buge to the request of the plaintiffs. Ld. Counsel for the
plaintiffs pointed out the communications dated 23/04/2020 of
the defendants wherein they informed that when the supervisor
of the consultant had been to the site on 22/04/2020 for
payment to the labours, after receiving cash, some of labours of
the plaintiffs held up the said supervisor demanding their alleged
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outstanding dues which were payable by the plaintiffs. The
labours also went to Pant Nagar police station. The defendants
have paid amount of Rs.4.50 lacs during the period of pandemic.
Inspite of that complaints were tried to be lodged against them.
The plaintiffs responded to the communication of the defendants
and informed that defendants have given Rs.2,000/- per head to
the labours only. Thus, as per the latest schedule submitted 50%
of the column work and for that the defendants are liable to pay
Rs.2.5 lacs and the total amount payable to the plaintiffs is Rs.8
lacs. Thereafter the communication was made on 30/04/2020,
wherein the plaintiffs again demanded the amount of Rs.2.15
crores from the defendants. Similarly, on 02/05/2020, the
request for at least Rs.50 lacs was made. By letter dated
05/05/2020, the plaintiffs pointed out that the defendants are
supposed to pay Rs.10 lacs. Again the request for Rs.2.15 crores
was made. Similar request was made on 10/05/2020 and
18/05/2020. It was represented to the defendants that by
communication dated 23/05/2020, the plaintiffs are ready to
carry out the work. Further it was requested by letter dated
27/05/2020 that inspite of the requests of the plaintiffs the
defendants could not arrange the pass for the supervisors and
engineers of the defendants. Ld. Counsel for the plaintiffs argued
that on 28/05/2020, the defendants arbitrarily terminated the
contract.
9. Ld. Counsel for the defendants argued that the
defendants have responded to the communications of the
plaintiffs but the plaintiffs have suppressed these facts. He
argued that by the communication dated 21/05/2020, it was
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made clear to the plaintiffs that a sum of Rs.52,02425/- towards
the GST to be paid to the Government for the financial year
2017-2018, 2018-2019 and 2019-2020. The plaintiffs failed to
deposit the said amount although it was collected. Even it was
asserted by the defendants that the plaintiffs are demanding the
amount of the work which they have not done and they are
delaying the work. The plaintiffs responded to the letter of the
defendants. The claim of the plaintiffs is false and that the
defendants failed to arrange passes. The Ld. Counsel for the
defendants pointed out the copies of passes arranged by them
which are annexed with the documents filed. Inspite of the same,
plaintiffs failed to resume work at the site. The defendants left
with no alternative but to terminate the contract. The plaintiffs
responded the termination letter by letter dated 29/05/2020 and
showed his readiness to resume the work. Ld. Counsel for the
plaintiffs pointed out letter dated 02/06/2020 of the defendants
wherein the defendants called upon the plaintiffs to remove all
the loose scaffolding, plates, bamboos, installations, equipment,
materials etc from the site due to alert of cyclone in Mumbai on
03/06/2020. The plaintiffs responded to the said communication
and made clear that the site is under the control of the
defendants and therefore it is their responsibility to keep it.
10. At this interim stage, it would not be proper to go into the
details of the communications between the parties. It would not
be proper to form any opinion and to reach to the conclusion that
the termination was proper or not. In the case in hand, the
plaintiffs have not challenged the termination and even have not
claimed the performance of the remaining contract or damages
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for it. This is a simplicitor suit for injunction wherein the reliefs
as pointed above are claimed. It would be out of box to grant
interim relief to the plaintiffs thereby restraining the defendants
from carrying out further construction in absence of claim for
specific performance of contract or damages. During the course
of arguments, Ld. Counsel for the plaintiffs fairly submitted that
they are not interested for the said relief. Ld. Counsel for the
plaintiffs insisted that the direction be given to the defendants to
return their materials, articles, equipment etc. The plaintiffs have
filed notice of motion no.1329 of 2020 to that effect. Ld. Counsel
for the defendants seriously objected the said relief. His
arguments was that there is no relief claimed in the suit and
therefore Court cannot grant it. He pointed out the description of
the movable property which plaintiffs claimed is not in the plaint.
During the course of proceedings, the plaintiffs have filed
additional affidavit and by way of additional affidavit have given
the list of articles numbering 66. Ld. Counsel for the defendants
disputed about the same. At this juncture, before considering the
submissions of the parties, it would be appropriate to consider
certain facts. The plaintiffs by letter dated 11/06/2020 asked the
defendants not to use their materials at site. No doubt the Ld.
Counsel for the defendants pointed out communication dated
29/01/2020 wherein the plaintiffs authorized the defendants to
use their materials and tools at the site. But, at this juncture the
plaintiffs are not permitting the defendants to use by their
express communication dated 11/06/2020, so, the defendants
cannot take advantage of the earlier communication of the
plaintiffs permitting to use the material, equipment etc. The
question remains of identification of the materials. At this
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juncture, the reliance is heavily placed upon the additional
affidavit dated 17/08/2020. The list of the movable properties is
annexed with the said affidavit. The affidavit can at the most
used in the evidence but without foundation of movable
properties in the pleadings, the affidavit cannot be relied upon.
Even there is no claim for recovery of the property. Ld. Counsel
for the plaintiffs argued that Court is vested with the power to
grant relief of mandatory nature even at the interim stage. He
placed reliance upon the judgment of Amit Sinha V/s Sumit
Mittal and others of Hon’ble Delhi High Court in FAO(OS)570 of
2010 dated 03/02/2011.
11. I have given conscious consideration to the law laid down
in the above cited judgment. Here in this case the suit is not for
recovery of the movable property and there is no description of
the movable property in the plaint. Ld. Counsel for the plaintiffs
argued that there is no requirement of description of movable
property in the plaint as per The Civil Procedure Code. The said
argument is not acceptable. The subject matter is movable
property of which the plaintiffs are claiming recovery of it at the
interim stage without giving its detail description or value. Here
in this case, the description of the property or to say the claim of
recovery of the movable property is not made. The interim relief
is in aid to the main relief. In the absence of reliefs claimed in
the suit the interim relief that too of mandatory nature cannot be
granted. The exceptional and extra ordinary case is not made out
for grant of such reliefs of mandatory nature. Even strong prima
facie case is not made out. Therefore, the above cited judgment
with greatest of respect is not applicable in the case in hand.
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12. The argument of the Ld. Counsel for the defendants
appears to be acceptable that in the additional affidavit, the value
of the movable property is Rs.1.64 crores which exceed the
pecuniary jurisdiction of this Court and in that background also
the claim of the plaintiffs for return of the property at this interim
stage cannot be accepted. Even the plaintiffs have given the list
with the additional affidavit but in their communication dated
02/05/2020 and 05/05/2020 claims that material worth Rs.1.50
crores lying at the site. The defendants in their communication
stated to the plaintiffs immediately to carry out the site inspection
and to remove the materials. The plaintiffs in his communication
to the defendants before the termination of the contract has not
claimed that the material mentioned in the list attached with the
additional affidavit is lying at the spot. This creates some
confusion at this stage to exhaust the jurisdiction of this Court for
grant of interim relief of mandatory nature. Ld. Counsel for the
plaintiffs placed much reliance upon the Commissioner’s report.
The said report cannot be used as evidence. The Commissioner’s
report shows the inventory of the material lying at the site. The
Ld. Counsel for plaintiffs argued that the plaintiffs have given the
bills and other documents of equipment to show their ownership
over it. The Commissioner was not entrusted to ascertain the
title of equipment. Even at this interim stage merely on the basis
of bills it is difficult to hold that the equipment, machinery etc.
belongs to plaintiffs unless those are put to strict proof. It cannot
be said that the material belongs to the plaintiffs in the absence
of non description of any machinery, equipment etc. in the plaint.
Thus, the plaintiffs have not made out any prima facie case, the
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needle of balance of convenience does not tilt in favour of the
plaintiffs.
13. The plaintiffs also prayed for appointment of Court
Receiver or any third person to take charge of the property. The
said relief is out of the ambit of the main relief. The serious
question is of the identification of the property based upon it’s
non disclosure in the plaint. The appointment of Court receiver is
only in the exigency when there is well founded apprehension
that the property will be dissipated or other irreparable mischief
may be done. But, in the case in hand there is no exigency and
most important question is identification of the property.
14. The other relief of installation of CCTV camera at the suit
site. In the notice of motion for exercising extra ordinary power
of the Court for granting relief to install CCTV camera, no
substantial ground is pleaded. Ld. Counsel for the plaintiffs
argued that it would be for the purpose to monitor whether the
defendants are using the material or equipment of the plaintiffs
for the construction at the site. As pointed above, there is
nothing about the description of the property and in the absence
of the description of the property of the plaintiffs,said relief
cannot be granted. Even otherwise the privacy of the parties
cannot be disturbed when the dispute is basically on the basis of
contract and civil rights of the parties are involved.
15. In view of the above discussion, it is apparent that there
is no irreparable loss to be caused to the plaintiffs. The plaintiffs
have not made any case for grant of these notice of motions,
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Hence, I answer point nos.1 to 6 in the negative.
POINT NO.7
16. In view of the above discussion, notice of motion needs
no consideration. Hence, it is expedient to pass following order:-
ORDER
1. N/M No.1329/2020 and N/M No.1409/2020 stands
rejected.
2. Costs in the cause.
12/11/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 12/11/2020
Transcribed on : 23/11/2020
Signed on : 24/11/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”.
24/11/2020 at 2.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
12/11/2020
Judgment and order signed by P.O. 24/11/2020
Judgment/order uploaded on 24/11/2020
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