Final Order 1

Order Details: Notice of Motion
Pdf Text: ORDER ..1..
MHCC010047862019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.1741 OF 2019
IN
S.C. SUIT NO.1018 OF 2018
Maker Development Services Pvt. Ltd. … Applicant.
Defendant no.1.
In the matter between.
Make Tower ‘I’ Co-operative Housing Society Ltd., ...Plaintiff.
Versus
Makers Development Services Pvt. Ltd., and another...Defendants.
Appearance
Adv. Sunita Sonawane for plaintiff.
Adv. Dalal for defendant no.2.
Adv. M.J. Humranwala for defendant no.2.
CORAM : HIS HONOUR JUDGE
R.R.Patare
COURT NO.2
DATED : 17th August, 2022.
ORAL ORDER
This notice of motion is taken out by the defendant no.1 for
rejection of plaint under Order 7 Rule 11(d) of the Code of Civil
Procedure. Defendants also seek direction to strike out his name from
suit under Order 1 Rule 10(2) of the C.P.C.
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2. Brief facts of the defendant’s case are as under :-
One Reliance Tea Pvt. Ltd. purchase flat no.82 in the “I” Wing of
Maker Tower in terms of agreement dated 26.06.1981. The said
Reliance Tea Pvt. Ltd. was allotted garage no.I-9 under allotment letter
dated 17.09.1981. Thereafter vide agreement dated 23.09.1983 said
Reliance Tea Pvt. Ltd. sold flat no.82 in favour of M/s. Lord Krishna
Enterprises. Similarly Reliance Tea Pvt. Ltd. sold garage no.I-9 in favour
of defendant no.2. Defendant no.2 is in possession of garage no.I-9
since 1983. Sell transaction of garage was brought to the notice of the
secretary on 06.11.1985. Plaintiff Society did not bring suit within a
period of 3 years from the date of knowledge regarding disputed
transaction. The cause of action to file suit arose on or about
06.11.1985. The suit of plaintiff in respect of disputed garage is time
barred. It is further contended that plaint does not disclose cause of
action against the defendant no.1. The dispute in the present suit is
between plaintiff and defendant no.2. No relief is sought against the
defendant no.1. Defendant no.1 is not necessary nor proper party to the
suit.
3. Defendant no.2 filed reply to the notice of motion. Defendant
no.2 has also requested to reject the plaint under Order 7 Rule 11 of the
C.P.C.
4. The plaintiff has filed reply to the notice of motion. Plaintiff
states that suit against defendants is filed seeking mandatory relief
under the provisions of MOFA. Therefore, question of limitation will not
arise in the suit. It is further stated that defendant no.1 is only,
authorize to sell flats. It is alleged that garage no.I-9 is illegally sold in
favour of defendant no.2. Defendant no.2 is not member of plaintiff
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society. Defendant no.1 is party to sell transaction. Defendant no.1 has
committed breach of statutory obligation under MOFA. Plaintiff is
having continuous cause of action against defendant no.1. Defendant
no.2 is not entitled to purchase garage without purchasing flat. Plaintiff
has requested for dismissal of notice of motion.
5. Heard advocates for parties. The learned advocate appearing for
defendant no.1 made reference to the plaint and letter dated
06.11.1985 and tried to demonstrate that sell transaction in respect of
disputed garage was within the knowledge of plaintiff society, however
they did not initiate action against the defendant no.2 within a period
of three years from the date of cause of action. Therefore, suit is barred
by limitation.
6. The learned advocate relied on the case of Raghwendra Sharan
Singh v/s. Ram Prasanna Singh (Dead ) by legal representatives,
reported in (2020) 16 SCC 601 wherein it is observed in para 7 as
under :-
7. Applying the law laid down by this Court in the aforesaid
decisions on exercise of powers under Order 7 Rule 11 CPC to the
facts of the case in hand and the averments in the plaint, we are of
the opinion that both the courts below have materially erred in not
rejecting the plaint in exercise of powers under Order 7 Rule 11
CPC. It is required to be noted that it is not in dispute that the gift
deed was executed by the original plaintiff himself along with his
brother. The deed of gift was a registered gift deed. The execution of
the gift deed is not disputed by the plaintiff. It is the case of the
plaintiff that the gift deed was a showy deed of gift and therefore
the same is not binding on him. However, it is required to be noted
that for approximately 22 years, neither the plaintiff nor his brother
(who died on 15-12-2002) claimed at any point of time that the gift
deed was showy deed of gift. One of the executants of the gift deed,
brother of the plaintiff during his lifetime never claimed that the gift
deed was showy deed of gift. It was the appellant herein-original
defendant who filed the suit in the year 2001 for partition and the
said suit was filed against his brothers to which the plaintiff was
joined as Defendant 10. It appears that the summon of the suit filed
by the defendant being TS (Partition) Suit No.203 of 2001 was
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ORDER ..4..
served upon Defendant 10-plaintiff herein in the year 2001 itself.
Despite the same, he instituted the present suit in the year 2003.
Even from the averments in the plaint, it appears that during these
22 years i.e., the period from 1981 till 2001/2003, the suit property
was mortgaged by the appellant herein-original defendant and the
mortgage deed was executed by the defendant. Therefore,
considering the averments in the plaint and the bundle of facts
stated in the plaint, we are of the opinion that by clever drafting the
plaintiff has tried to bring the suit within the period of limitation
which, otherwise, is barred by law of limitation. Therefore,
considering the decisions of this Court in T. Arivandandam² and
others, as stated above , and as the suit is clearly barred by law of
limitation, the plaint is required to be rejected in exercise of powers
under Order 7 Rule 11 CPC.
7. On the other hand, the learned advocate appearing for plaintiff
would submit that defendant no.1 was party to the sale transaction of
flat no.82. She would further submits that disputed garage was allotted
in favour of Reliance Tea Pvt. Ltd. vide allotment letter dated
17.09.1981. Thereafter under tripartite agreement dated 23.09.1983
said Reliance Tea Pvt. Ltd. sold only flat in favour of M/s. Lord Krishna
Enterprise. Similarly, the said Reliance Tea Pvt. Ltd. by another tripartite
agreement dated 06.10.1983 sold suit garage in favour of defendant
no.2. The learned advocate would further submit that defendant no.1,
promoter has no right to sell any portion of building which is not a 'flat'
and cannot sell garage/parking space. She submits that suit garage is
attached with flat no.82, therefore sell transaction regarding suit garage
is illegal. She relied on the case of Nahalchand Laloochand Pvt. Ltd. Vs.
Panchali Co-operative Housing Society Ltd., reported in LAWS (SC)
2010-8-92 and case of M.R. Sethi V/s. Gurmauj Saran Baluja reported
in LAWS (DLH) 1972-2-6.
8. Clause (d) of Rule 11 of Order 7 of C.P.C. provides that in case
where the suit appears from the statement in the plaint to be barred by
any law the plaint shall be rejected by the Court. Clause (d) of Rule 11
of Order 7 of C.P.C. applies to those cases only where the statement
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made by the plaintiff in the plaint without any doubt or dispute shows
that the suit is barred by any law in the force. It further provides that
provisions of clause (d) of Rule 11 of the Order 7 of the C.P.C. can be
invoked only when suit is barred by any law in view of the statement
made by the plaintiff himself in the plaint.
9. It is settled that the question of limitation can be decided on
admitted facts, it can be decided as a preliminary issue under Order 14
Rule 2(2)(b) of C.P.C. Once facts are disputed about limitation, the
determination of the question of limitation also cannot be made under
Order 14 Rule 2 (2) of C.P.C. as a preliminary issue or any other such
issue of law which requires examination of the disputed facts. The issue
of limitation is mixed question of law and facts.
10. In this backdrop, it is just and necessary to examine the plaint to
verify whether the relief claimed by the plaintiff is time barred.
11. Admittedly, defendant no.1 is party to sell transaction regarding
disputed garage. The question whether the defendant no.1 was
necessary party to the said transaction is not for consideration for
deciding the present application. It is settled that defendant no.1,
promoter has no right to sell any portion of building which is not a 'flat'
within a meaning of section 2(a-1) of the Act. The plaintiff has came
with the case that the sell transaction regarding disputed garage has
taken place without sell of flat in the present case. The sell of disputed
garage is in contravention of MOFA and therefore illegal. On the other
hand, the defendants have contended that the provisions of MOFA will
not attract in the present case. The plaintiff did not admit that the cause
of action arose for filing suit as claimed by the defendants. There is
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dispute as regards facts regarding the date of cause of action arose for
filing the suit. In such circumstances, the issue of limitation cannot be
taken up for determination as preliminary issue. The defendant no.1 is
party to the agreement in respect of sell of suit garage and therefore, he
is proper party to the suit. The facts of the case law cited supra on
behalf of defendant no.1 are not identical with the present case. Hence,
will not help the defendant. In the above backdrop, plaint cannot be
rejected under Order 7 Rule 11 of the CPC. Hence following order.
ORDER
1. Notice of Motion No.1741 of 2019 stands rejected.
2. No order as to costs.
(R.R.Patare)
Judge
City Civil Court, Gr.Mumbai
Date : 17.08.2022
Typed on : 17.08.2022
HHJ signed on : 17.08.2022
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ORDER ..7..
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
DATED 17.08.2022 , 5.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
H.H.J. Shri. R.R.Patare
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
17.08.2022
JUDGMENT/ORDER signed by P.O.
on
17.08.2022
JUDGMENT/ORDER uploaded on 17.08.2022
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