Final Order 3

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1766 OF 2020
(CNR NO. MH CC01-005114-2020)
IN
L.C. SUIT NO. 3053 OF 2013
1. Manisha Vijay Joshi and ]
others. ].. Plaintiffs.
V/s.
The Maharashtra Housing And ]
Area Development Authority ]
And others ]..Defendants.
Advocate Mr. Rakesh Pathak for plaintiff.
Advocate Ms. Mangal Kadam for defendant Nos.1 to 3/MHADA.
Advocate Mrs. Chandramore for defendant No.4/BMC.
Advocate Ms. Ankita Manjrekar for defendant No.5.
CORAM : HIS HONOUR JUDGE
MR. SITARAM N. PATIL
(C.R.NO.09)
DATE : 25th AUGUST 2022
ORAL ORDER
This Notice of Motion has been taken out by the plaintiffs
for giving directions to defendant No.5 to execute Leave and License
Agreement with current Licensor (Mrs. Ratnaben J. Sakaria) for the
period 23.08.2020 to 22.08.2021 for monthly Rent of Rs.45,000/- and
for next every year thereafter alongwith 10% incremental in the
monthly rent in respect of current temporary transit accommodation
situated at Flat No.B/02, Ground Floor, Bhagya Nagar Co-operative
Housing Sciety Ltd., Khot Lane, Mahim (West), Mumbai-400016 till the
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allotment of permanent alternate accommodation to the plaintiff in the
newly constructed building. It is further prayed that direction may be
given to defendant No.5 to deposit the amount at the rate of
Rs.55,000/- per month for the transit rent plus Rs.8,000/- in the
registry of this Court for shifting charges for the proposed Leave and
License Agreement as and when executed and continue to deposit every
next year and the defendant No.5 shall bear 10% incremental in the
transit rent, calculated on the basis of previous year’s monthly rent as
well 10% incremental in shifting charges till the allotment of permanent
alternate accommodation to the plaintiff in the newly constructed
building. The defendant No.5 shall deposit the said yearly aggregate
amount of transit rent in the registry of this Court before 15 days on
expiry of the Leave and Licence Agreement and thereafter, the plaintiff
will be allowed to withdraw the same. It is further prayed that the
directions may be given to defendant No.5 to pay Rs.45,000/- to the
plaintiff forthwith as one month transit accommodation and in addition
to this any further amount which would paid by the plaintiff as monthly
transit rent during pendency of the present Notice of Motion. It is also
prayed that the defendant Nos/1 to 4 shall forthwith withdraw the
permission granted and/or restrain from granting further permission to
defendant No.5 for carrying out any development activities on the suit
property.
2. The the plaintiff has filed affidavit in support of Notice of
Motion wherein stated that the plaintiff has filed suit for the reliefs
more particularly stated in the plaint. Since he has raised various
illegalities, breached, omissions and violations about the NOC and IOD
committed by MHADA and MCGM in collusion and connivance with the
defendant No.5. Therefore, the defendant No.5 has served Show Cause
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Notice to the plaintiff and he replied the said notice. The defendant
No.5 without executing permanent alternate accommodation, the
plaintiff has handed over the possession of flat No.2, admeasuring 460
square feet, situated on Ground Floor, Anand Building Plot No.112,
Opp: Balmohan School, Dr. M.B. Raut Road, Shivaji Park, Dadar (West),
Mumbai 400 028 to defendant No.5. (Hereinafter referred to said
“Tenanted Premises”.)
3. It is further averred that after handing over the possession
of the said tenanted premises for redevelopment scheme under DCR
33(7), the plaintiff requested defendant No.5 to provide temporary
accommodation. Thereafter, defendant No.5 provided him temporary
alternate accommodation by executing leave and licenses agreement as
well as agreed to pay license fees with 10% incremental increase in
transit rent every year till defendant No.5 allotted a permanent
alternate accommodation in newly constructed building. The said Leave
and License Agreement is about to expire on 22.08.2020. Therefore, he
wrote letter to defendant No.5 about the extension of said agreement.
Thereafter, Licensor of the said transit accommodation sent a notice
dated 31.07.2020 to the plaintiff as well as defendant No.5 informing
that defendant No.5 failed to pay last four months compensation.
4. It is further averred that on repeated request, defendant
No.5 paid two months outstanding rent amount to the said Licensor.
However, the said Licensor again sent a notice whereby demanded
remaining two months outstanding or to vacate the said temporary
transit accommodation. Defendant No.5 requested plaintiff to shift
another premises of the same carpet and he will pay rent upto Rs.80/-
per sq.feet on carpet area. Defendant No.5 agreed and started paying
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compensation for the said transit accommodation as Rs.87.26per sq.
feet along with 10% incremental in every year. Defendant No.5 is
paying compensation fees as Rs.51,500/- per sq. feet and that comes to
Rs.137.51 per sq. ft. However, suddenly without any substantial reason,
he has reduced transit accommodation rate by Rs.49.51 per sq. feet.
Defendant No.5 has paid remaining two months outstanding to the
Licensor and defendant No.5 has refused to extend the Leave and
License period pertaining to the said temporary transit accommodation.
Thereafter defendant No.5 did not agree to execute Leave and License
Agreement for the proposed period dated 23.08.2020 to 22.08.2021.
Therefore, prayed for allowing Notice of Motion.
5. The defendant No.5 has filed affidavit in reply to the Notice
of Motion and also filed written arguments and raised objection. It is
contended that the original plaintiff Shree Vijay Joshi expired and his
legal heirs are prosecuting the Notice of Motion. The plaintiff seeks a
mandatory direction against defendant No.5 to execute a Leave and
License Agreement with Mrs. Ratanbai J. Sakaria and she expired prior
to filing of this Notice of Motion and he shall not execute any fresh
agreement with her for the said premises. He offered him the rent for
another premises for same carpet area. The original plaintiff did not
give any positive response to the said offer made by him.
6. It is contended that the plaintiff fraudulently snatched the
ad-interim order. The defendant No.5 has filed a Review Application by
Notice of Motion No.1886 of 2020. The record of the case will show
that the plaintiff has alone hindered the entire project for several years
by taking undue advantage of the fact that he is retired Joint/Deputy
Municipal Commissioner. On account of nuisance and on other
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grounds, he has filed an Eviction Suit against him in the Court of Small
Causes. He shall to pay the plaintiff any amount beyond his means. He
has withdrawn his offer to pay the rent to the plaintiff at the rate of
Rs.80/- per sq. feet. He is ready to provide to the plaintiffs only the
Transit Accommodation provided by MHADA at Pratikshanagar Sipon
Koliwada. Any case, the building permission cannot be challenged in
this Court. Hence, prayed for rejection of Notice of Motion with costs.
4. Heard the learned advocate for the plaintiffs and the
learned advocates for the defendant Nos.1 to 3 and 5.
5. Considering the plaint, Notice of Motion, Documents on
record and submissions of both learned Advocates, following points
arise for my determination and my findings to them are as stated below
for the following reasons.
Sr.
No.
POINTS FINDINGS
1 Whether the Plaintiffs have proved
prima
facie case?
In the
Affirmative
2 Whether the Plaintiffs have proved that they
will suffer irreparable loss if the Notice of
Motion is dismissed?
In the
Affirmative
3 In whose favour does the balance of
convenience lie?
In favour
of the plaintiffs
4 What order? As per final order
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R E A S O N S
AS TO POINT NO.1 -:
6. Perused plaint, affidavit and reply in support of Notice of
Motion. It appears that the defendant No.5 without executing
permanent alternate accommodation, the plaintiff has handed over the
possession of flat No.2, admeasuring 460 square feet, situated on
Ground Floor, Anand Building Plot No.112, Opp: Balmohan School, Dr.
M.B. Raut Road, Shivaji Park, Dadar(West), Mumbai-400 028 to
defendant No.5 i.e. tenanted premises. Instead of that the defendant
No.5 provided alternate accommodation by executing Leave and License
Agreement from time to time and lastly for the period of 23.08.2019 to
22.08.2020. After the expiry period of Leave and License, the Licensor
of the said transit accommodation sent notice to plaintiff as well
defendant No.5 for outstanding of rent.
7. It seems reply filed by the defendant No.5 that he offered
the plaintiff the rent for another premises for same carpet area. He
further admitted that he is ready to provide to the plaintiff only transit
accommodation provided by MHADA and in his reply he submitted that
the plaintiff and his wife were the only persons and they did not require
such a big place. But the defendant No.5 admitted that he has provided
transit accommodation to the plaintiff. The License premises which was
earlier taken by him from the plaintiff was admeasuring 485 sq. feet.
Now the defendant No.5 cannot say that the plaintiff and his wife did
not require such a big place though the plaintiff and his wife residing in
the transit premises. Every person requires more place for their
comfortable residence.
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8. Perusing documents on record, it appears that the
defendant No.5 had provided temporary alternate accommodation to
the plaintiff by executing Leave and License Agreement as well as
agreed to pay liicense fees with 10% incremental increase in transit rent
every year till defendant No.5 allotted a permanent alternate
accommodation in newly constructed building. The defendant No.5 did
not provide permanent alternate accommodation in newly constructed
building. Therefore, it is duty bound to provide the alternate
accommodation to the plaintiff.
9. It also appears that since from 23.08.2013 onwards and as
on date, the plaintiffs are residing in Flat No.B/02, Ground Floor,
Bhagya Nagar Co-operative Housing Society Ltd., Khot Lane, Mahim
(West), Mumbai – 400016. Now the plaintiff is no more and the
present Notice of Motion is filed by his wife who was residing with the
plaintiff when the defendant No.5 refused to execute Leave and License
Agreement thereon the plaintiff wrote a letter to defendant No.5 to
make arrangement for execution of Leave and License Agreement and
also requested to extend the Leave and License period of transit
accommodation. The Licensor of the said transit accommodation sent a
notice dated 31.07.2020 to the plaintiff as well as defendant No.5 and
informed them that defendant No.5 had failed to pay last four months
compensation/license. Thereafter, the defendant No.5 paid two months
outstanding rent amount to the said Licensor. However, the said
Licensor again sent notice dated 23.08.2020 and demanded remaining
two months outstanding license fees as well as requested to vacate the
temporary transit accommodation as the Leave and License period is
expiring on 23.08.2020 itself. The defendant No.5 not extended period
of Leave and License Agreement by paying rent. Therefore, the plaintiff
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herself executed Leave and License Agreement with Mrs. Padmini
Velayudhan Menon for a period of 12 months commencing from
16.03.2022 and ending 15.03.2023 and permitted the plaintiff to
occupy the said premises. The plaintiff placed on record the said Leave
and License Agreement. The defendant No.5 did not take much efforts
to provide Leave and License agreement and alternate accommodation
to the plaintiff. The defendant also not denied the said fact.
10. Perusing the documents on record and the case made out
by the plaintiff in his Notice of Motion that the defendant No.5 failed to
make arrangement for alternate accommodation to the plaintiff. The
Leave and License Agreement is filed on record which was executed
between the plaintiff and Mrs. Padmini Velayudhan Menon on
28.03.2022 which also shows that the said Leave and License executed
for a period of 12 months commencing from 16.03.2022 and ending on
15.03.2023. Therefore, the defendant No.5 is liable to pay rent for the
alternate accommodation and the plaintiff is also entitled to claim the
amount paid by the plaintiff.
11. In such circumstances, it appears that the plaintiff has
prima-facie made out case and entitled to receive temporary transit
accommodation as well as rent as per the Leave and License Agreement.
It also appears that the plaintiff paid Rs.2,25,000/- as rent. Therefore,
the defendant No.5 to pay Rs.2,25,000/- to the plaintiff which was paid
by the plaintiff from his own pocket. Therefore, it is proved that the
plaintiff has made out prima-facie case. Accordingly, I answer point
No.1 in the affirmative.
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AS TO POINT NOS.2 AND 3:
12. As I have earlier discussed, the plaintiff paid Rs.2,25,000/-
as rent from his own pocket and if defendant No.5 did not pay the said
amount to the plaintiff, it will cause irreparable loss to the plaintiff. In
view of the above discussion, the balance of convenience lies in favour
of the plaintiff. Therefore, I answer point no. 2 in the affirmative and
point no. 3 in favour of plaintiff and in answer to point no. 4 proceed to
pass the following order.
ORDER
1. Notice of Motion No. 1766 of 2020 is partly
allowed in terms of prayer clause (b) and (c).
2. The defendant No.5 is further directed to pay
transit rent for five months @ Rs.45,000/- per
month amounting to Rs.2,25,000/- to the plaintiff
which was paid by the plaintiff from his own
pocket.
3. Notice of Motion No. 1766 of 2020 stands
disposed of accordingly.
(SITARAM N. PATIL)
Judge,
City Civil Court,
Date: 25/08/2022 Gr. Bombay.
Dictated on : 25/08/2022
Transcribed on : 26/08/2022
Signed on : 23/01/2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
23/01/2023 At 5.50 P.M. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. SITARAM N. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
25.08.2022
Judgment/Order signed by P.O. on 23.01.2023
Judgment/Order uploaded on 23.01.2023
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