Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 1693-18 in L.C.SUIT no.1028-18
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 1693 OF 2018
(CNR no. MHCC010055942018)
IN
LONG CAUSE SUIT NO.1028 OF 2018
(CNR no. MHCC010041672018)
Runwal Grandeur CHS Ltd. ]
Having its office at Plot No. 175, 18th Road, ]
Near Gandhi Maidan, ]
Chembur (East), Mumbai 400071. ]....Plaintiff
V/s
1. The Municipal Corporation of Gr. Mumbai, ]
having their Head office at Mahapalika Bhavan, ]
Mahapalika Marg, Fort, Mumbai400 001 ]
2. Designated Officer,
Assistant Engineer (B&F) ]
"MWest" Ward, Municipal office building, ]
Sharad Acharya Marg, Chembur (East), ]
Mumbai400 071.
3. Shri Vishnu Shankar Vishwanath ]
Flat No. 702, Runwal Grandeur CHS Ltd, ]
175, 18th Road, Chembur, Mumbai 71. ]
4. Smt. Vijaylakshmi Venkat ]
Flat No. 702, Runwal Grandeur CHS Ltd, ]
175,18th Rd, Chembur, Mumbai 71. ]
5. Runwal Builders Pvt Ltd ]
5th Floor, Runwal and Omkar Square, ]
Opp Chunabhatti, Eastern Expressway Signal, ]
Sion (East), Mumbai 22. ]....Defendants
Appearances:
Ld. Advocate Ms. Meena A. Ruparel for the Plaintiff.
Ld. Advocate Mr. Khandagale for defendants no. 1 and 2/BMC.
Ld. Advocate Mr. A. J. Bhor for defendants no. 3 and 4.
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2 NM no. 1693-18 in L.C.SUIT no.1028-18
CORAM : HIS HONOUR JUDGE
SHRI C.V. MARATHE
(Court Room no. 8)
DATED : 1st October, 2019
O R A L O R D E R
1. This is an application by Notice of Motion under O.XXXIX R.1 of
The Code of Civil Procedure, 1908.
2. The plaintiff's contentions in brief are as under:
The plaintiff Society has filed instant suit against defendants no.
3 and 4 (brother and sister inter se) in respect of the terrace on the 7th
floor of the building namely Runwal Grandeur CHS. Ltd. The defendant
no. 4 purchased a flat no. 702 on 7th floor of the said building from the
Builder having carpet area 1115 sq. ft. (hereinafter ‘suit flat’). The main
dispute is with respect to a common terrace of 945 sq. ft. area having
several connecting pipes on the 7th floor which is adjoining to the suit
flat (hereinafter ‘the terrace’). The defendant no. 3 stopped the access
to the terrace which is exclusively belonging to the society as per the
approved plan and as per the provisions of Maharashtra Ownership
Flats Act, 1963 (hereinafter "MOFA"). The defendant no. 4 has
constructed a brick masonry wall to block the entrance of the terrace to
the occupants of the building. Therefore, the plaintiff society has prayed
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3 NM no. 1693-18 in L.C.SUIT no.1028-18
to grant temporary mandatory injunction directing defendants no. 3
and 4 to demolish the wall (shown in blue colour in Exh.A with letter
"X"), also for direction to defendants no. 3 and 4 to close the entry to
the terrace carved out from suit flat no. 702 as shown in letter "Y" in the
plan in Exh.A. The plaintiff has further prayed to grant mandatory
injunction directing defendants no. 1 and 2, local authority, to take
action against defendants no. 3 and 4 for above illegal act.
3. The defendants no. 3 and 4 have resisted the notice of motion
and filed affidavit in reply contending inter alia as under:
The allegations are totally false. Suit flat along with open space
(bounded terrace) has been purchased by defendant no. 4 from the
builder (defendant no. 5) on 13.06.2008 vide registered Agreement for
Sale. The defendant no. 4 is a purchaser of open terrace also. The
defendant no. 5/Builder has allotted the terrace vide his letter dated
13.06.2008 for exclusive use to the occupants of flat no. 702. Therefore,
the plaintiff society cannot claim any right over the terrace and notice of
motion be dismissed with costs.
4. Considering rival contentions, following points arise for my
determination. Findings on those points for the reasons mentioned
thereunder are as follows:
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4 NM no. 1693-18 in L.C.SUIT no.1028-18
Sr.
No. POINTS FINDINGS
1. Whether the plaintiff society members
have right to use the terrace on 7th
floor?
In the affirmative.
2. Whether plaintiff has made out three
ingredients required for grant of
temporary injunction in its favour?
In the affirmative.
3. What order ? Notice of Motion is
allowed.
R E A S O N S
AS TO POINTS NOS. 1 & 2:
5. From the allegations made in the plaint, it can be gathered that
the plaintiff society contends that the terrace admeasuring 945 sq. ft.
area (the terrace) is a common terrace for all occupants of the suit
building but the defendants no. 3 and 4, being owners of flat no. 702,
claim that the terrace appertaining to their flat is allotted to them by the
builder. In support of the claim the defendants no. 3 and 4 have relied
upon the letter dated 13.06.2008 issued by the builder whereby the
terrace was allotted to the defendant no. 4 for her exclusive use and
enjoyment. Ld. Advocate for the defendants no. 3 and 4 has pointed
out from the paragraph no. 2.41 of the Agreement for Sale dated
29.12.2007 between the builder and defendant no. 4 that the terrace
space in front of the terrace flat in the building was belonging
exclusively to the purchaser of the terrace flat (defendant no. 4 herein).
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5 NM no. 1693-18 in L.C.SUIT no.1028-18
6. It is not in dispute that the defendant no. 4 purchased flat no. 702
from the builder. The definition of ‘flat’ is provided in MOFA in section
2(a) to mean “a separate and selfcontained set of premises used or
intended to be used as residence, or office, showroom or shop or
godown or for carrying on any industry or business and includes a
garage, the premises forming part of a building and includes an
apartment”. In the agreement the description of subject matter therein
viz. flat no. 702 was given in paragraph no. 2.2 as under:
"The purchaser hereby agrees to purchase from the promoter and
the promoter hereby agrees to sell to the purchaser one flat no.
702 having carpet area admeasuring 1115 sq. ft. building known
as "Runwal Grandeur CHS Ltd." on 7th floor as shown in the floor
plan thereof hereto annexed and marked Annexure "G" for the
price of Rs.59,26,000/ including proportionate price of the
common areas and facilities appertaining to the premises such as
staircase, lifts, area common passages, stilts, landing etc."
This description in the agreement does not specify that the
terrace adjoining to the flat was subject matter of that agreement.
Despite that the defendant no. 4 executed gift deed in favour of her
brother (defendant no. 3) of the suit flat with description in paragraph
no. 4 thereof by adding open terrace adjoining to the flat admeasuring
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6 NM no. 1693-18 in L.C.SUIT no.1028-18
945 sq. ft. carpet area having exclusive entrance from the flat. On the
basis of these documents the defendants no. 3 and 4 claim ownership
over the terrace. In this context, the plaintiff has relied upon judgment
of Hon'ble Bombay High Court in Ramagauri Keshvlal Virani Vs.
Walkeshwar Triveni Cooperative [AIR 1999 Bom 385] wherein it is
categorically ruled that the definition of the "Flat" as given in Section 2
does not include in its ambit the terrace of the building nor the
protection is given under Section 10(1) in the last sentence of that
Section authorize the builder or promoter to sell the terrace of the
building. It is also laid down that even if the builder executes sell of
such terrace, the said document will not and cannot clothe the
purchaser with rights of ownership over the terrace for want of legal
sanctity or authority of the builder and considering the rights of the
society.
7. In this matter even though, the builder subsequently issued
allotment letter dated 13.06.2008 in respect of the terrace, such letter
cannot be given any weightage for want of legal sanctity. With regard to
paragraph no. 2.41 of the Agreement with defendant no. 4 dated
29.12.2007, the said open terrace referred to therein was appurtenant
to terrace flats in the building. This was a pretyped format used by the
builder for all the flats and it can be seen from another Agreement for
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7 NM no. 1693-18 in L.C.SUIT no.1028-18
Sale with Tapan Mukherjee dated 03.06.2004. In the agreement with
defendant no.4 it was not mentioned that the suit flat was a terrace flat.
Therefore, this paragraph no. 2.41 is of no use to the defendants.
8. For all the above reasons a plaintiff's society has prima facie
established that the terrace belongs to all members/ occupants of
Runwal Grandeur building. Therefore, points no. 1 and 2 answered in
the affirmative and following order:
ORDER
1. Notice of Motion No.1693 of 2018 is allowed and made absolute
in terms of prayer clause (a).
2. Other prayers are rejected.
sd/
(C. V. Marathe)
Judge,
Date : 01.10.2019 City Civil Court, Gr. Mumbai.
Dictated on : 01.10.2019
Transcribed on : 01.10.2019
Signed by HHJ on : 03.10.2019
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8 NM no. 1693-18 in L.C.SUIT no.1028-18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 04.10.2019 at 1.56 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
01/10/2019
JUDGMENT/ORDER signed by
P.O. on
03/10/2019
JUDGMENT/ORDER uploaded
on
04/10/2019
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