Interim Order 1

Order Details: Ex-parte Judgement
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MHCC010045752018 Presented on : 06-04-2018
Registered on : 04-06-2018
Decided on : 02-12-2021
Duration : Y M D
03 07 25
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by Sunil U. Hake)
COMMERCIAL SUIT NO.378 OF 2021
SUMMARY SUIT NO.555 OF 2018
Ex.06
1. Mrs.Razia Abbas Hetavkar,
aged 74 years, occupationhousewife
2. Mr.Mubin Abbas Hetavkar,
aged 48 years, occupationbusiness
3. Mr.Sajid Abbas Hetavkar,
aged 45 years, occupationdoctor
all residing at 503A, Yash Residency,
Dockyard Rd. Mazgaon, Mumbai400 010. ..Plaintiffs
Versus
1. M/s.Neminath Realty, a registered
partnership firm, having address at
B/101, Ramji House 30 Jamulwadi,
Kalbadevi Road, Mumbai400 002.
2. Mr.Nemichand P.Jain
aged 55 years, occupationbusiness
3. Mr.Sankesh Jugraj Jain
aged 30 years, occupationbusiness
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4. Mr.Munaf K.Vadgama
aged 49 years, occupationbusiness
5. Mrs.Sajida M.Vadgama
aged unknown, occupationhousewife
Defendants 2 to 5 having their
respective and collective business
address at B/101, Ramji House,
30 Jamulwadi, Kalbadevi Road,
Mumbai400 002.
6. Aamir Azim Khatkhatay,
aged 48 years, occupationbusiness
7. Imran Azim Khatkhatay,
aged 45 years, occupationservice
Defendants 6 to 7 having their
respective and common residential
address at C17, Sector7, Vashi,
Navi Mumbai. ..Defendants
__________________________________________________________
Ld. Advocate Rajeev Matkar for plaintiffs.
Defendants Exparte._______________________________________
JUDGMENT
(Dated this 2nd day of December, 2021)
1. Suit is for recovery of money.
2. Briefly stated, plaintiffs' case, is as under:
Plaintiffs alongwith defendant Nos.6, 7 and their
deceased mother Matina Azim Khatkhatay entered into a
development agreement with defendant Nos.1 to 5 for the
development of the property situated at Mount Road, Seetafal
wadi, Mazgaon Division on 01/01/2012. Defendant Nos. 2 to 5
are partners of defendant No.1partnership firm. Defendant No.1
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agreed to develop the property 'as is where is' basis . Defendant
Nos. 1 to 5 were aware that lease of the property was expired and
application for renewal of lease was pending. Defendant Nos.1 to
5 agreed to complete the construction of the building within six
years after the execution of the agreement. Defendant Nos.1 to 5
agreed to give possession of 10 flats to plaintiffs, defendant Nos.6
and 7 and their deceased mother Matina Azim Khatkhatay. In
the event, construction work is not completed within stipulated
period of six years from the date of execution of agreement,
defendant Nos.1 to 5 were liable to pay a sum of Rs. 5 lacs per
flat p.a. with 10% escalation per year for the period of delay in
handing over possession of respective flat to plaintiffs. Said
amount was payable at the start of each year and that amount
was to be paid within 45 days. The agreement was executed on
01/01/2012. Defendant Nos.1 to 5 have not started the
construction work of the building. As per clause No.23 of the
agreement, defendant Nos.1 to 5 are liable to pay the amount of
Rs.25 lacs to plaintiffs on 01/01/2018.
3. As per development agreement dated 01/01/2012,
defendants were also liable to pay Municipal Assessment Tax.
But, they did not pay the same. To save the default, plaintiffs
paid Rs.8,39,403/ towards Municipal Assessment Tax.
Defendant Nos.1 to 5 are also liable to pay said amount to
plaintiffs. Plaintiffs further contended that defendants are also
liable to pay Municipal Assessment Tax and Repair Cess of
Rs.9,38,378/ and also sought mandatory injunction against
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defendant Nos.1 to 5. But, during the course of arguments, by
filing pursis Ex.5, plaintiffs have not pressed for said relief.
4. Plaintiffs contend that they are entitled to an amount
of Rs.25 lacs as per clause No.23 of the development agreement.
They have claimed interest at the rate of 18% p.a. from
01/01/2018. By adding the interest amount, till the date of filing
suit, total amount comes to Rs.25,56,250/. Plaintiffs claimed
interest at the rate of 7.5% p.a. on the amount of Rs. 8,39,403/
which they paid towards Municipal Assessment Tax. By adding
interest at the rate of 7.5% p.a. on aforesaid amount, total
amount comes to Rs.8,47,293/. Plaintiffs are claiming an
amount of Rs.25,56,250/ with interest @ 18% p.a. and an
amount of Rs. 8,47,293/ with future interest @ 7.5.% p.a.
Defendants failed to make payment of said amount. Hence, this
suit.
5. As per Service affidavit filed on record, defendants
were served with writ of summons. Defendant Nos. 6 & 7 failed to
appear before the Court. Defendant Nos.1 to 5 appeared and
taken out notice of motion No.313 of 2019. Said notice of motion
was allowed as per order dated 20/02/2020 subject to payment
of costs of Rs.1500/. But, defendant Nos. 1 to 5 failed to comply
said order. Therefore, as per order dated 03/09/2021, suit
proceeded without appearance of defendant Nos.1 to 5.
6. Heard Ld. advocate for plaintiffs.
7. Following points arise for determination, findings
thereon for the reasons to follow are as under:
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Sr.No. Points Findings
1. Do the plaintiffs prove that
claim amounts mentioned in
prayer clause (a) and prayer
clause (b) of the plaint are
outstanding against defendant
Nos. 1 to 5?
Proved
2. What order? Suit is partly decreed as
per final order.
REASONS
Point No.1
8. In order to substantiate the claim, plaintiffs have
filed claim affidavit of PW1 Mubin A.Hetavkar at Ex.2. They
have also filed on record documents alongwith list Ex.3. Suit is
based upon a written contract i.e. development agreement dated
01/01/2012. PW1 Mubin A.Hetavkar reiterated all the facts
pleaded in the plaint. PW1 Mubin A.Hetavkar testifies that as
per the terms of the development agreement dated 01/01/2012,
defendant Nos.1 to 5 were liable to hand over possession of 10
flats to plaintiffs, defendant Nos.6 and 7 and their deceased
motherMatina Azim within six years of the date of agreement.
The agreement also contain the default clause for compensation.
As per terms of the agreement, if defendant Nos.1 to 5 failed to
hand over possession of 10 flats to the plaintiffs, defendant Nos.6
& 7 and their deceased motherMatina Azim, they were liable to
pay a sum of Rs.5 lacs p.a. per flat with 10% escalation p.a. for
the delay in handing over the flats. As per the terms of the
agreement, plaintiffs sent notice dated 08/12/2017 asking
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defendant Nos.1 to 5 to make the payment of the compensation
amount. But, defendant Nos.1 to 5 failed to make the payment of
the compensation amount.
9. The oral evidence of PW1 Mubin A.Hetavkar get
requisite support from the certified copy of the development
agreement filed on record. Clause No.23 of the said development
agreement supports plaintiffs' claim regarding compensation of
Rs.5 lacs per flat. Plaintiffs were entitled to get possession of 5
flats. Thus, they are entitled to get compensation of Rs.25 lacs on
failure of defendant Nos.1 to 5 to hand over possession of 5 flats
within 6 years of execution of development agreement dated
01/01/2012.
10. As per the terms of the development agreement
dated 01/01/2012, defendant Nos.1 to 5 are liable to pay all the
taxes. Thus, they were also liable to pay Municipal Assessment
Taxes. Plaintiffs have filed on record receipts to show that they
have paid the Municipal Assessment Taxes. As per the terms of
the agreement, they are entitled to get said amount from
defendant Nos.1 to 5.
11. Plaintiffs claimed interest at the rate of 18% p.a. on
the compensation amount of Rs.25 lacs and by adding interest at
the rate of 18% p.a. till the date of filing of the suit, said amount
comes of Rs.25,56,250/. Said liability arises out of commercial
transaction and therefore defendant Nos.1 to 5 are liable to pay
the interest @ 18% p.a. Plaintiffs paid Municipal Assessment
Taxes to the tune of Rs.8,39,403/. Plaintiffs claimed interest @
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7.5% on the said amount. By adding interest @ 7.5% p.a. till the
date of filing suit, said amount comes to Rs.8,47,293/.
12. As discussed above, suit proceeded without
appearance of defendants, therefore plaintiffs' claim which is
well supported by documents, filed on record needs to be
accepted. As stated above, plaintiffs have not pressed for prayer
clause (c). Plaintiffs are entitled to get an amount of
Rs.25,56,250/ alongwith future interest @ 18% p.a. and an
amount of Rs.8,47,293/ alongwith interest @ 7.5% p.a. as
prayed in prayer clauses (a) & (b). Point No.1 is answered
accordingly. In the result, following order:
ORDER
1. Suit is partly decreed with costs.
2. Defendant Nos.1 to 5 shall pay an amount of
Rs.25,56,250/ (Rupees Twenty Five Lacs, Fifty Six
Thousand, Two Hundred and Fifty only) alongwith
interest @ 18% p.a. on the principal amount of Rs. 25
lacs from the date of filing of suit till it's realization to
plaintiffs within two months.
3. Defendant Nos.1 to 5 shall further pay an amount of
Rs.8,47,293/ (Rupees Eight Lacs, Forty Seven
Thousand, Two Hundred and Ninety Three only)
alongwith interest @ 7.5% p.a. on the principal amount
of Rs. 8,39,403/from the date of filing of suit till it's
realization to plaintiffs within two months.
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4. Court fees be refunded as per (E) Rules framed
under Section 11(2) of the Bombay City Civil Court Act,
1948, for the refund of Institution Fee.
5. Decree thus follow.
02/12/2021 SUNIL U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 02/12/2021
Transcribed on : 02/12/2021
Signed on : 06/12/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
06/12/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
02/12/21
Judgment and order signed by
P.O.
06/12/21
Judgment/order uploaded on 06/12/21
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