Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.1848 OF 2019
ALONGWITH
NOTICE OF MOTION NO.2068 OF 2019
IN
S.C. SUIT NO.1635 OF 2019
CNR NO.MHCCO10051542019
Mr.Ashok Ramashankar Gupta,
Aged 43 years, Occ:Selfemployed,
An Indian Inhabitant,
Residing at : Flat No.810,
Gavanpada Savitri C.H.S. Ltd, Gavanpada,
V.B.Phadke Marg, Mulund East,
Mumbai400 081. ..Plaintiff
Versus
1. Gavanpada Savitri C.H.S. Ltd,
A registered Cooperative Housing Society
Through its Chairman, Secretary
and Treasurer
i. Mr.Balkruhna J.SherkeChairman
ii. Mr.Shrikant H.SableSecretary
iii. Mr.Kundalik R.SonawaneTreasurer
Having office at:
Ground floor, Gavanpada Savitri C.H.S. Ltd,
Gavanpada,V.B.Phadke Marg,
Mulund East, Mumbai400 081.
2. M/s. Essar Construction Company
A partnership firm through its partner
i. Mr.Amit A.Pangam
ii. Mr.Siddesh A.Pangam
iii. Mrs.Trupti K.Raul
iv. Mrs.Swati S.Shete
having registered office at:
Amit Villa, Plot No.27,
RSC8, Sector2, Charkop
Kandivali West, Mumbai400 067. ..Defendants
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Ld. advocate Mr.Sunil Kevalramani for the plaintiff
Ld. advocate Ms.Reshma for defendant no.1
Ld. advocate Mr.Chothani for defendant no.2
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 31/08/2019
ORAL ORDER
1. The plaintiff has tendered notice of motion No.1848
of 2019 for grant of temporary injunction restraining
the defendants their servants, agents or any other
person to restore the water and electric supply to the
suit flat of the plaintiff and dispossessing the plaintiff
from the suit flat(described hereinafter in the
subsequent paragraph).
2. The notice of motion no.2068/2019 is tendered by
defendant no.1 for appointment of Court receiver in
respect of the suit flat and further direction to SRA as
one of the PAP tenement.
3. In short the facts of the case are that
The plaintiff claims to be staying in flat no.810, 8th
floor of the Rehabilitation building of Gavanpada,
Savitri C.H.S. Limited admeasuring 269.10 sq. feet
carpet area (hereinafter referred to as suit flat).
The plaintiff claims that since 1999, he was residing
in hut no.40, Savitri society, CTS no.492(pt),
V.B.Road, Gavanpada, Mulund, Mumbai, prior to the
start of slum redevelopment scheme. The plaintiff is
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having electric bill and other documents. The
plaintiff is legal member of defendant no.1 and
eligible to receive the suit flat in rehabilitation
building proposed in Gavanpada Savitri CHS Ltd, at
CTS No.492(pt), Gavanpada, Mulund East, Mumbai.
There was a tripartite agreement dated 04/02/2013
executed between defendant no.2 through its four
partners, the defendant no.1 through its 3 office
bearers and the plaintiff being the party of third
therein. By the virtue of the said agreement,
defendant nos.1 and 2 agreed to allot a residential
permanent alternative premises free of cost in the
rehabilitation building to be constructed on the said
plot CTS No.492(pt). Defendant no.2 started giving
rent to the plaintiff from February 2013 for the
temporary alternate accommodation till September
2017 and thereafter defendant no.2 stopped giving
the rent to plaintiff from October 2017 to December
2018. There is dispute pending in respect of hut
no.40 between the previous owner of hut no.40 and
other persons. However, the plaintiff has been not
made a party in the said dispute. The plaintiff is in
actual physical possession of the suit flat since
March2019. The office bearers of defendant no.1
and employee came to the suit flat and gave threats
to the plaintiff to vacate the suit flat and have high
handedly and illegally disconnected the light and
water connection of the suit flat. The plaintiff filed
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the police complaint. Due to the illegal
disconnection serious hardship was caused to the
plaintiff. The plaintiff's daughter is handicap. The
office bearers of defendants many times kept on
regularly visiting the suit flat and used to threaten
the plaintiff and his family members and therefore
the plaintiff has filed the present suit with
accompanying notice of motion.
4. Defendant nos.1 and 2 resisted the claim of the
plaintiff by filing separate written statement. It is the
contention of the defendants that plaintiff was never
handed over the possession of the suit flat. There is
no correspondence of handing over the possession to
the plaintiff with the society or SRA. The plaintiff
broke open the door and damaged the property and
has entered in the suit flat. His possession is illegal
possession. He made false statements and
suppressed material facts. The suit flat was was
earmarked to be allotted and possession to be
handed over to SRA forming part of 28 tenements to
be handed over to SRA as the flats are marked as
PROJECT AFFECTED PEOPLE TENEMENTS. The suit
flat is required to be handed over to SRA as one of
the PAP tenement. The MHADA after following
necessary and proper procedure issued AnnextureII
wherein the name of one Sunilkumar Ramdhari
Sharma is reflected in the second column and reflects
and records 'Court matter' in 8th column as far as
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eligibility is concerned. One late Girdhari Yadav was
the original owner and after his death his widow had
agreed to sell hut no.40 to Sunil Ramdhari Sharma
somewhat in the year 2002. They had some dispute
and suit was filed by widow of Girdhari Yadav viz.
Smt.Subhavati Girdhari Yadav which came to be
dismissed and the first appeal is pending before the
Hon'ble High Court. The plaintiff was put in
possession as licensee. Smt. Subhavati Yadav also
issued notice to the plaintiff through her advocate.
The slum rehabilitation scheme was delayed due to
dispute and therefore agreement was executed with
the plaintiff. The agreement speaks that this
agreement was subject to outcome of proceedings
which were then pending before the Hon'ble High
Court. The plaintiff approached the Collector(Enc)
by challenging his noneligibility in respect of hut
no.40 and challenging the remark 'court matter' by
filing appeal u/s. 35 of the Slum Act, which came to
be dismissed. The allotment was carried out by the
SRA, appointed authorised officer Mr.Chandrakant
Pawar and the said procedure was conducted on
26/09/2018 and the respective persons were allotted
the respective tenements on 09/10/2018. The
plaintiff was never allotted with the suit flat and
therefore plaintiff is the trespasser and hence prayed
for dismissal of the suit and notice of motion.
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5. On the rival submissions of the parties, following
points arise for my determination and findings to it
are recorded for the reasons stated to follow:
POINTS
(i) Whether the plaintiff has made out a prima
facie case?
(ii) Whether the needle of balance of convenience
tilt in favour of plaintiff?
(iii) To whom the irreparable loss would be
caused?
(iv) Whether defendant no.1 has made out the case
for appointment of receiver?
(v) What order?
FINDINGS
(i) In the negative.
(ii) In the negative.
(iii) Not to the plaintiff.
(iv) In the negative.
(v) As per final order
REASONS
Point Nos. 1 to 3
6. At the outset, the parties are not at dispute that there
was a tripartite agreement between the plaintiff,
defendant no.1 and defendant no.2. The plaintiff is
claiming his right on the basis of the said agreement.
7. At this juncture, the limited question is whether after
the redevelopment of the CTS No.492(part) the
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building was constructed and suit flat was given in
possession of the plaintiff.
8. The plaintiff claims that possession was handed over
to the plaintiff in March2019 and since then he is in
legal possession of the suit flat. To counter the same,
Ld. Counsel for the plaintiff has drawn attention of
this Court to certain documents. At this juncture, it
would not be relevant to hold the inquiry as the
entitlement of the plaintiff in respect of the suit flat.
It is not proper for this Court at the interim stage to
hold the inquiry as to the right of the plaintiff for
getting the said flat. The annextureII which is the
list of hutment dwellers situated at CTS 492(part)
prepared by MHADA board shows that the occupant
of hutment no.40 as Sunilkumar Ramdhari Sharma
and before it, it is recorded as Court matter. So,
prima facie at this juncture, there is some dispute as
regard the eligibility of the plaintiff in respect of
occupancy of hut no.40. Be that as it may, the
dispute is also between the original owner and said
Sunilkumar Sharma. At this stage the same is also
not relevant.
9. The other aspect of the matter is that the suit flat is
one of the 28 tenements earmarked by SRA as PAP
tenement. The documents filed by defendant no.1
reveals that there was allotment of tenements to
different persons. The list of persons to whom the
tenements were allotted with their photographs and
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signatures alongwith the signatures of President and
Secretary of the society and also of the Developer. It
is the contention of defendant no.1 that the officer of
SRA Shri Chandrakant Pawar was designated for
handing over the tenements and the same was
handed over on 09/10/2018. The defendant claims
as pointed above that the list was prepared of the
persons to whom the flats were allotted. The said list
does not include the name of the plaintiff. The
plaintiff claims that he has been handed over the
possession by the society, but there is no document
to substantiate the said fact and therefore at this
juncture the contention of the plaintiff that he was
legally placed in possession cannot be taken into
consideration. Prima facie, it appears that entry of
the plaintiff to the suit flat is without any proper
formality as required. Even the officer, i.e. Society
manager of SRA in it's certificate mentioned that one
tenant of flat no.810(i.e. suit flat) was occupied
illegally. Further the letter addressed by the Society
Manager of SRA to defendant no.2 also reflects that
flat no.810 was illegally occupied. It is apparent
from the communication and the certificate of the
Manager of SRA that possession of the plaintiff over
the suit flat is not legal.
10. The claim of the plaintiff of handing over
possession to him by the defendant society was in
March2019 is contrary to the record. The plaintiff is
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seeking equitable relief and prima facie coming with
false case of his legal entry. It appears that plaintiff
has not come with the clean hands and therefore not
entitled for any relief. Even otherwise, the flat which
the plaintiff is occupying is for the purpose of PAP
tenement and there is statutory body i.e. SRA who
after taking the possession from the developer, hand
over it to the concerned PAP tenements. Thus, in
view of that matter, the needle of balance of
convenience does not tilt in favour of the plaintiff. No
irreparable would be caused to the plaintiff as his
entry in the suit flat is prima facie not legal. Hence,
in view of the above discussion, I answer point
nos.1 to 3 in the negative.
POINT NO.4
11. Defendant no.1 has also filed the notice of
motion for the appointment of Court receiver and to
take possession from the plaintiff and to restrain the
plaintiff from parting with possession, dealing with
or disposing it in any manner in respect of the suit
flat. The present suit is not filed by the defendant
no.1 society. It is the stand of defendant no.1 society,
the suit flat is illegally occupied by plaintiff. The
record prima facie speaks that the developer has not
handed over the suit flat to SRA. At this juncture,
prima facie there is no vested right in favour of the
society in respect of the suit flat. So the request by
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the society for appointment of Receiver is not
maintainable.
12. The object of appointing a Receiver is to protect,
preserve and manage the property. The appointment
of Receiver is recognized as one of the harshest
which the law provides for the enforcement of rights.
Thus, a Receiver is to be appointed when there is
apprehension that the property will be dissipated or
other mischief may be done. There should be
substantial background for such interference and
prima facie it should be established that there is
danger of waste of the suit property. No such
contingency is made out in the notice of motion filed
by defendant no.1. No circumstance as required
under order 40 of C.P.C. is pointed for indulgence of
this Court for appointment of Receiver. Hence, I
answer point no.4 in the negative.
Point No.5
13. In view of the above discussion, BOTH the
notice of motions faIls and hence it is expedient to
pass following order:
ORDER
1. Notice of Motion Nos.1848/2019 and 2068/2019
stand rejected.
2. Costs in the cause.
31/08/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
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Dictated on : 31/08/2019
Transcribed on : 09/09/2019
Signed on : 27/09/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
30/09/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
31/08/2019
Judgment and order signed by P.O. 30/09/2019
Judgment/order uploaded on 30/09/2019
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