Order 1

Order Details: Notice of Motion
Pdf Text: NM 2264/18 in SU 1177/18 .. 1 .. Order
CNR No. MHCC010072962018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2264 OF 2018
IN
SUIT NO. 1177 OF 2018
Mr. Shivaji Shamu Waghralkar ...Plaintiff.
V/s.
Navin Asha Premises Cooperative
Housing Society Limited ...Defendant.
Appearances:
Learned Adv. Mr. Dalal I/b S.K. Legal Associates LLP for plaintiff.
Learned Adv. Mr. Kunal Damle for defendant.
CORAM : HIS HONOUR JUDGE
SHRI M.M. SYED.
(C.R.No.04)
DATED : 15th July, 2019.
: ORAL ORDER :
1. The plaintiff has taken out this Notice of Motion and requested to
grant temporary injunction restraining the defendant/society and its
office bearers, members, servants, agents and any other person/persons
for claiming through or under the defendant society from any manner
disturbing the possession and occupation of the plaintiff and to put any
type of obstruction or compound on the suit premises and to maintain
statusquo.
2. The plaintiff contended that he has filed the suit for declaration
of ownership and/or right to hold the suit property and issuance of
perpetual injunction and the same is pending.
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3. Wherein, the plaintiff contended that plaintiff is an absolute and
lawful owner/right holder of the suit premises being attached terrace to
the flat bearing flat No.102, 1st floor, Navin Asha Premises Cooperative
Housing Society Ltd., Plot No. 126/D, Dadasaheb Phalke Marg, Dadar
(E), Mumbai – 14 (hereinafter referred to as “suit premises”).
4. The suit premises was purchased by the plaintiff under the
agreement being Memorandum of Understanding(MOU) dated
24.01.2012 made and executed between the plaintiff and Mr. Suresh
Chhabria i.e. previous owner of the suit premises. The plaintiff and his
family is in peaceful possession and occupation of the suit premises and
continuously occupying and using the same for which same is
permissible under the law. There is no any other entry or access to suit
premises except from the said flat of the plaintiff i.e. flat No.102.
5. The plaintiff further contended that original owner Mr. Mulchand
Bajaj had purchased the said flat alongwith attached terrace i.e. the suit
premises under an Agreement for Sale dated 21.08.1978 from previous
owners Dr. Vasant Harishankar Pandya and Dr. Mrs. Saritaben Vasant
Pandya. Thereafter, the said Mr. Mulchand Bajaj has
transferred/assigned the said flat alongwith attached terrace i.e. the suit
premises to Mr. Suresh Chhabria under the Gift Deed dated 29.08.1978.
6. After purchasing the suit premises, the plaintiff was put in
possession of the suit flat and the suit premises. He immediately
approached to the defendant society with request to transfer the said
flat in his name and shown his willingness to pay the applicable transfer
fees/charges as well as the maintenance charges. However, the society
was insisted to obtain the NOC from the legal heirs of the previous
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owner. Accordingly, the plaintiff has obtained the NOC from the legal
heirs of Mr. Suresh Chhabria for transferring the said flat in the name of
plaintiff and same was also submitted to the defendant society. The
defendant society has assured the plaintiff to transfer the said flat in his
name, but failed and neglected to transfer the same.
7. The plaintiff has paid the maintenance charges as well as other
outgoings charges to the society, as per the bills raised by the defendant
society. Defendant society has intentionally withhold the transfer of said
flat and not issued maintenance receipt in his name.
8. In the year 2013, the overflowed water from the flat Nos.501 &
502 caused mosquitoes breeding and malaria fever to the family
members of the plaintiff. Therefore, the plaintiff has submitted a
complaint to the defendant society. Accordingly the defendant by their
letter dated 14.10.2013 addressed to the owners of the flat Nos.501 &
502 have admitted and recorded the fact that the suit premises i.e. the
terrace is attached to the said flat is belongs to the plaintiff and
requested the owners of flat Nos.501 & 502 to remove the flower pots
and keep the plants inside.
9. The plaintiff has also sought necessary permission from the
society to repair the suit premises and for the same, he has deposited an
amount of Rs.10,000/ being refundable security deposit and after
completion of the repair, the plaintiff has demanded the refund of
aforesaid amount by his letter dated 09.04.2015. Accordingly,
defendant has refunded the said amount.
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10. There is absolutely no any private access for other members of
the defendant or the defendant to enter into suit premises. The
defendant suddenly started threatening the plaintiff and started
claiming the rights on the suit premises for which the society has also
made illegal efforts to create an access by putting an iron staircase from
one side of the building which was removed/demolished by the
Municipal Corporation of Greater Mumbai on the complaint filed by
another aggrieved/affected parties/occupants of the building i.e. Mr.
Jagat Das (owner of flat No.101).
11. The defendant is continuously acting illegally and time to time
threatening the plaintiff for taking forceful possession of the suit
premises. Therefore, the plaintiff by his Advocate's notice dated
27.02.2018 addressed to the defendant and recorded a detailed facts
about the illegal acts of the defendant and its office bearers including
the illegal act of not transferring the name of the plaintiff in the record
of the society in respect of said flat and suit premises.
12. The plaintiff has received the letter dated 23.03.2018 being reply
to the plaintiff's said letter dated 27.02.2018 and, thereby, surprisingly
and without any authority and/or without giving any proper reply or
response to the aforesaid notice dated 27.02.2018, the defendant has
called upon the plaintiff to give/provide copy of the Agreement entered,
in respect of said flat and suit premises. In fact, the plaintiff has already
in the year 2013 itself provided the copy of the agreement to the
defendant with his application for transfer of the said flat in the name
of plaintiff. Therefore, the plaintiff by letter dated 27.03.2018
submitted copy of aforesaid agreement dated 24.01.2012 made and
executed in respect of said flat and suit premises between the previous
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owner/right holder and the plaintiff.
13. The defendant society has first time made the false claims and
contentions that the suit premises is belonging to the defendant society.
The defendant has made false claims and contentions about alleged
construction of chhapper and extension of premises and also alleged
that the plaintiff is making concrete construction. In fact, there is no any
such construction is carried out by the plaintiff. Therefore, the plaintiff
has filed the present suit, wherein filed the present Notice of Motion.
14. The defendant resisted the Notice of Motion by filing reply. They
contended that the defendant is Cooperative Housing Society duly
registered under the Maharashtra Cooperative Societies Act, 1960
bearing registration number BOM/HSG/2347 of 1970 dated
21.03.1970.
15. The plaintiff is a trespasser, who is claiming to have purchased
the flat No.102 situated on the first floor of the defendant society. The
plaintiff is currently residing in the said flat No.102 illegally and is
enjoying all the facilities provided by the defendant society, without
paying any maintenance charges to the society.
16. The society was formed in the year 1970 and there are in all 84
members. One Smt. Suneeta Gopal Dhadphale was the original member
of the flat No.102 and accordingly, share certificate No.64 was given to
her. Subsequently, one Dr. Vasant Harishankar Pandya and Mrs.
Saritaben Vasant Pandya purchased the said flat in the year 1978.
Accordingly, the flat was transferred in their name on 04.01.1978.
Subsequently, it was sold to Mr. Mulchand M. Bajaj in the same year
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1978 and society transferred the flat No.102 in the name of
Mr. Mulchand M. Bajaj on 28.10.1978 and till today, this flat is
recorded in the name of Mr. Mulchand M. Bajaj, who was not regularly
paying the maintenance and other charges. The society constrained to
issue legal notice to Mr. Mulchand M. Bajaj for recovery of the dues.
17. Mr. Mulchand M. Bajaj informed the members of the society that
because of his health issues, he will be moving to Pune and henceforth,
his nephew Mr. Suresh Chhabria will look after the flat and will pay the
maintenance charges of the society. Mr. Suresh Chhabria was
corresponding with the society and paying the maintenance of the
society on behalf of Mr. Mulchand M. Bajaj, but he was irregular in
paying the maintenance charges.
18. On 20.01.2018, there was an outstanding amount of
Rs.2,53,083/ towards the maintenance of the said flat No.102, duly
payable by Mr. Mulchand M. Bajaj. Therefore, on 20.01.2018, a notice
was issued to Mr. Mulchand M. Bajaj calling upon him the maintenance
charges.
19. All of sudden, in or around in January 2013, the plaintiff started
to reside in the said flat No.102. On being enquiry being made with the
plaintiff, he informed the members of the society that he has purchased
the said flat from Mr. Suresh Chhabria and requested the society to
make him member of the society.
20. As the society informed to him that as per the records of the
society, Mr. Suresh Chhabria is not the owner of the said flat and true
owner is Mr. Mulchand M. Bajaj. Therefore, the Mr. Suresh Chhabria
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has no right, title and interest in the said flat and cannot sale the same.
The society demanded the documents to the plaintiff to claim to be
owner of the said flat No.102. The plaintiff has produced xerox copy of
unregistered Memorandum of Understanding dated 24.01.2012
executed between the Mr. Suresh Chhabria and the plaintiff. On perusal
of the said Memorandum of Understanding, it clearly shows that the
alleged MOU has no legal sanctity.
21. The plaintiff requested to give some time to produced the
documents, but thereafter, he did not approach. Neither he produced
valid documents nor vacated the suit flat and enjoying services provided
by the society. He also parking his two cars and one two wheeler in the
premises of the society and not paying the amount and using the
services. There is outstanding amount of Rs.2,73,359/ against said flat
No.102 for the period from January 2013 to March 2018.
22. The terrace adjoining to the said flat No.102, which is the subject
matter of the present suit, which belongs to the society. The plaintiff
has erected permanent structures on the said terrace without obtaining
permission from the society or from Municipal Corporation. The
erection of said illegal structures is causing damage to the said terrace.
The plaintiff is also obstructing the society officials from entering in the
said terrace and is not allowing to carry out any repairs. The terrace
does not have entry from the flat No.102, but plaintiff has illegally
created entrance to the said terrace from flat No.102.
23. The defendant has received a notice from the plaintiff through
Advocate claiming ownership over the flat No.102. He has contended
that he has purchased the flat from Mr. Suresh Chhabria, to whom Mr.
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Mulchand M. Bajaj has gifted the said flat. The plaintiff has also sent
letter through Advocate dated 27.02.2018 to make him as a member of
the society. The society by letter dated 23.03.2018 asked the plaintiff to
supply the documents and plaintiff submitted the documents by letter
dated 27.03.2018 including unregistered MOU dated 24.01.2012 made
between Mr. Suresh Chhabria and the plaintiff.
24. The plaintiff is claiming his ownership on the basis of forged
documents. The flat is not legally transferred in favour of the plaintiff.
The society also sought opinion from the Architect, whether the terrace
attached to the flat No.102 has an access from the flat No.102 and
Architect given opinion that there is no access directly from flat No.102
to the terrace. The defendant prayed to reject the Notice of Motion.
25. The plaintiff has filed rejoinder to this Notice of Motion and
prayed to allow the Notice of Motion.
26. Following points arise for determination on which I record my
findings as under for the reasons to follow :
POINTS FINDINGS
1. Whether the plaintiff has made out prima
facie case for granting the interim relief as
requested in the instant Notice of Motion ?
In Negative
2. Whether the plaintiff has balance of
convenience in his favour ?
In Negative
3. Whether the plaintiff would suffer irreparable
loss, if temporary injunction is not granted ?
In Negative
4. What order? As per final order
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: R E A S O N S :
AS TO POINT NO.1 TO 4 :
27. Heard learned Advocate for the plaintiff as well as the learned
Advocate for the defendant society.
28. There is no dispute that the defendant society is registered under
the provisions of Maharashtra Cooperative Societies Act, 1960 bearing
registration number BOM/HSG/2347 of 1970 dated 21.03.1970. There
is also no dispute that the flat No.102 is situated on 1st floor of the
building known as Navin Asha Premises Cooperative Housing Society
Limited, Plot No. 126/D, Dadasaheb Phalke Marg, Dadar (E), Mumbai
400 014. There is also no dispute that the original owner was one
Smt. Suneeta Gopal Dhadphale and she was holding share certificate
No.64.
29. It is pleaded by the defendant that the said flat was transferred by
Smt. Suneeta Dhadphale in favour of Dr. Vasant Harishankar Pandya
and Mrs. Saritaben Vasant Pandya in the year 1978 and in the same
year, they both purchasers transferred the flat No.102 in favour of Mr.
Mulchand M. Bajaj, within a period of 9 to 10 months. The defendant
admitted that the Mr. Mulchand M. Bajaj become the owner of the flat
No.102 on 28.10.1978 and since then, the flat No.102 stands in the
name of Mr. Mulchand M. Bajaj.
30. The plaintiff has contended that he has purchased the flat No.102
from one Mr. Suresh Chhabria in the year 2012 and since then, he is in
peaceful possession and enjoyment of the suit flat. I would like to
mention here that the defendant also admitted in their reply that since
201213, the plaintiff is in possession of the flat No.102 of building
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known as Navin Asha Premises Cooperative Housing Society Ltd. The
plaintiff has produced certain documents alongwith plaint including
xerox copy of Agreement being a Memorandum of Understanding dated
24.01.2012 and also photographs.
31. No doubt, the plaintiff has also filed certain documents about
transfer of the flat from Dr. Vasant Harishankar Pandya and Mrs.
Saritaben Vasant Pandya to Mr. Mulchand M. Bajaj. I reiterated hear
that the defendant did not make any dispute about the transfer of the
flat No.102 from time to time and lastly transferred in the name of Mr.
Mulchand M. Bajaj. However, the defendant make dispute about the
area of terrace admeasuring 1000 Square Feet.
32. During the course of argument, learned Advocate for the plaintiff
invited my attention to the contents of the MOU dated 24.01.2012 as
well as Gift Deed alleged to be executed by Mr. Mulchand M. Bajaj.
During the course of argument, the learned Advocate for the defendant
society vehemently argued that both the documents relied upon by the
plaintiff are unregistered documents and, therefore, no right can be
transferred from Mr. Mulchand M. Bajaj to Mr. Suresh Chhabria and
Mr. Suresh Chhabria to plaintiff. Therefore, the plaintiff has no locus
standi to file the present suit. Whereas, the learned Advocate for the
plaintiff also vehemently argued that a trespasser is also entitled to get
the injunction against even true owner.
33. I am well aware of the fact that in some exceptional cases, even a
possession of the trespasser can be protected by granting the injunction
as the trespasser cannot be evicted without due process of law. In the
present matter, the defendant contended that since 2013 to 2018, the
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owner of the flat No.102 is in arrears of payment of maintenance
charges of Rs.2,53,083/. They also admitted that plaintiff approached
to the defendant society and requested to transfer the flat No.102 in his
favour and the members of the defendant sought document of title and
accordingly, the plaintiff has produced MOU dated 24.01.2012. But the
defendant refused to transfer the flat No.102 in favour of plaintiff, as
the documents were not the legal documents.
34. Consequently, though the plaintiff is residing in flat No.102 since
the 201213, the flat is still in the name of Mr. Mulchand M. Bajaj is
continued in the record of the society. The society nowhere contended
that they tried to evict the plaintiff from flat No.102.
35. Now I turn to the material aspects and controversy in this matter
about the premises situated over the terrace. No doubt, there is recital
in the MOU as well as Gift Deed that there is area admeasuring
1000 sq. ft. situated over the building is belonging to Mr. Mulchand M.
Bajaj and the said Mr. Mulchand M. Bajaj alleged to be gifted the said
premises to Mr. Suresh Chhabria, the nephew of said Mr. Mulchand M.
Bajaj.
36. It has brought on record form the plaintiff as well as defendant
that some construction was made over the terrace adjoining to flat
No.102. It is the contention of the defendant society that the terrace is
belonging to them. They also contended that the plaintiff has created
access which leads from flat no.102 to the terrace. Therefore, much or
less, it is obvious that certain renovation/erection is made over the area
of 1000 sq. ft. on terrace. The defendant sought the expert opinion by
letter dated 28.04.2018 whether there is access/direct entry from the
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flat no.102 to the terrace as per the approved plan of the building Navin
Asha Premises Cooperative Housing Society Ltd. and after examining
the approved plan of the building, the Architect M/s. K.R. Rege &
Associates submitted the opinion that there is no direct entry or access
from the flat No.102 to the terrace.
37. It also appears from the documents filed by the plaintiff at serial
No.12 & 13 that some notice was issued to the society by Asst.
Engineer, Building and Factory dated 26.02.2018 alleged about the
erection towards terrace. Wherein, it has specifically alleged that the
members of the society have illegally erected the terrace.
38. The learned Advocate for the plaintiff also invited my attention to
the notice dated 26.02.2018 and pointed out that the plaintiff is in
possession of the terrace as he made some construction over the terrace.
39. Thus, considering the facts and circumstances of the matter as
mentioned above, particularly it is very doubtful that the plaintiff is the
owner of the terrace admeasuring 1000 Square Feet as well as flat
No.102 in question. These issues can be decided by leading evidence of
both the parties. Since the defendant society has admitted that the
plaintiff is residing in the flat No.102 and tries to furnish certain
documents though, they may be valid or invalid, that can be decided at
the time of final hearing.
40. So far as, prima facie case in respect of terrace area of the suit
premises is concerned, the plaintiff prima facie failed to show his rights
over the terrace premises as a owner and purchaser. The Municipal
Corporation also issued notice about some illegal construction. The
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Architect M/s. K.R. Rege & Associates also specifically expressed the
opinion on the basis of approved plan that there is no direct entry or the
access from flat No.102 to terrace, but the plaintiff is tried to create the
access. Such act of the plaintiff cannot be protected by way of granting
temporary injunction.
41. The plaintiff failed to make out the prima facie case, in respect of
suit premises. Balance of convenience at this stage, certainly not lies in
favour of plaintiff. Consequently, no irreparable loss would be caused to
the plaintiff, if the injunction is refused. Therefore, the plaintiff is not
entitled to get the temporary injunction in respect of the terrace
premises as sought.
42. Thus, conclusion flowing from above discussion is that the Notice
of Motion taken out by the plaintiff is liable to be dismissed, as the
plaintiff did not claim any relief in respect of flat No.102. Hence, I have
answered point Nos.1,2 & 3 in the negative and proceed to pass the
following order.
: O R D E R :
The Notice of Motion No.2264 of 2018 is hereby dismissed.
(M.M. SYED)
Judge, (C.R.No.4)
Date : 15.07.2019. City Civil Court, Gr. Mumbai
Dictated on : 15.07.2019.
Transcribed on : 16.07.2019.
Signed on : 16.07.2019.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18.07.2019, at 2.56 p.m.
UPLOAD DATE AND TIME
Tushar P. Kuwar
[NAME OF STENOGRAPER]
Name of the Judge
(With Court room no.)
HHJ Shri M.M. SYED
Court Room No.4
Date of Pronouncement of Judgment/order 15.07.2019.
Judgment/order signed by P.O. on 16.07.2019.
Judgment/order uploaded on 18.07.2019.
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