Final Order 1

Order Details: Ex-parte Judgement
Pdf Text: 1
Exp. Jud in Suit 1512 of 2019
MHCC010055992019
Presented on: 06-06-2019
Registered on: 19-06-2019
Decided on: 27-01-2023
Duration: 03-Y.07-M.11-Days
IN THE CITY CIVIL COURT OF MUMBAI
S.C. SUIT NO. 1512 of 2019
Exh.31
Vikrant Ravikan Chelekar
Age 32 yrs., OccupBusiness
Indian Inhabitant of Mumbai
Having address at: Flat No. B 602,
6th floor, JaiGopikrishna Coop.,
Hsg. Soc. Ltd., Opp. Lakme Company
Patilwadi, Govandi Station Road
Govandi (E), Mumbai 400088 ...Plaintiff
Versus
1. M/s. Navdurga Construction Co.
(Registered partnership firm under the
Indian Partnership Act 1932)
Having its registered office at 234/235/
236, Big Splash, Sector 17, Vashi, Navi
Mumbai400703
2. The Chairman/ Secretary
Jai Gopikrishna Cooperative Housing
Society (Registered under the Maharashtra)
Cooperative Societies Act, 1960, under
Regn. No. BOM/HSG/4104/74
Having its registered office at: Bhaktkavi
Shivjibhai Devshi Road, Opp. Lakme
Company, Patilwadi, Govandi Station
Road, Govandi (E), Mumbai 400088 ….Defendants
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CORAM: HIS HONOUR JUDGE
SHRI. VIRENDRA D. KEDAR
(C.R. NO.1)
DATE: 27th DAY OF JANUARY, 2023
: Appearances:
The learned Adv. Jignesh Chauhan for the plaintiff.
None for the defendants.
JUDGMENT
(Delivered on this 27th day of January, 2023)
The plaintiff has filed the suit for Specific performance of
contract, declaration and for permanent injunction.
2. Briefly stated, the case of the plaintiff is as under:
It is contention of the plaintiff that, he was the owner of
old room No. C/12, JaiGopikrishna Coop., Hsg. Soc. Ltd., Opp. Lakme
Company, Patilwadi, Govandi Station Road, Govandi(E), Mumbai. The
plaintiff is holding five fully paidup shares of Rs.50/ each numbered
from 021 to 025, along with share certificate no. 5 of said society.
3. It is further contention of the plaintiff that, he alongwith
other members of said society i.e., defendant no.2 appointed defendant
no.1 as developer to redevelop old building. Accordingly registered
development agreement dated 06/01/2007 came to be executed in
between defendant no.2 and defendant no.1. Thereafter deed of
rectification dated 05/07/2010 was also executed in between defendant
no.2 and defendant no.1. In view of redevelopment agreement, it was
agreed that upon handed over the vacant possession of old room no.
C/12 by the plaintiff, then he will get new alternate accommodation,
herein flat no. B602, 6 th floor in JaiGopikrishna Coop., Hsg. Soc. Ltd.,
(herein after referred to as 'Suit Flat'). Thus, in view of assurance given
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by defendants and inlieu of redevelopment agreement the plaintiff had
handed over vacant possession of old premises to the developer. The
developer had started paying rent towards monthly compensation for
temporary alternate accommodation to the plaintiff till he gets new
constructed permanent alternate accommodation on ownership basis in
lieu of his old room.
4. It is further contention of the plaintiff that, after sanction of
plan, he will get letter of allotment dated 16/01/2011 through which
defendant no.2 allotted him suit flat.
5. It is further contention of the plaintiff that, there after some
dispute took place in between the defendant no.2 and defendant no.1.
Thus, again they entered into the development agreement dated
16/03/2017. The name of the plaintiff is shown at serial no. 30 in the
said agreement wherein it was agreed that inlieu of old premises, the
plaintiff will get the suit flat.
6. It is further contention of the plaintiff that, after oral
information from defendants, the plaintiff made an application dated
27/09/2017 alongwith declaration cum undertaking to developer and
obtained possession of suit flat. Thereafter, the plaintiff has issued letter
dated 17/02/2018 and raised his grievances regarding the construction.
However, defendant no.2 did not reply to it. But on 19/02/2018, all of
a sudden, the plaintiff has received one letter from defendant no.1 who
informed him that they have handed over a flat to the society due to
alleged letter of one advocate. Therefore, the plaintiff tried to approach
defendant no.1 and defendant no.2 about receiving of said letter, but of
no help. Thereafter, the plaintiff has received one copy of alleged letter
dated 03/03/2018 issued by defendant no.1 to advocate Amit Joshi
through which the plaintiff came to know that defendant no.2 without
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any reasons has given 15 days’ time to alleged Somvanshi to get
restraining order pursuance to suit flat else they will hand over
possession of suit flat to the plaintiff.
7. It is further contention of the plaintiff that, he has objected
the said letter of defendant no.2 by sending reply dated 06/03/2018.
Inspite of receiving said letter, defendant no.2 did not reply to the
same. Thus, due to non cooperation from the managing committee of
defendant no.2, the plaintiff has lodged complaint dated 12/03/2018
with Govandi police station. As a result of which, managing committee
turned back and on 19/03/2018 defendant no.2 approached the
plaintiff and handed over key of suit flat. Thereafter, committee
member of defendant no.2 has demanded Goodluck against handing
over key to the plaintiff. Thereafter the committee members keep
continue demanding Goodluck. One of the members of defendant no.2
again met to the plaintiff and reminded him about Goodluck and asked
for Rs. 1,00,000/. Thus, the plaintiff for the first time realized that
said members are extorting him. Thus on 20/03/2018, the plaintiff
approached to the police station and narrated entire incident. Inspite
of calling by the police, defendants did not appear in the police station.
However, members of defendant no.2 with the help of goondas trying
to threaten the plaintiff. When again the plaintiff approached to the
police station then they informed that the matter is pertaining to civil
dispute, hence to approach the Civil Court. Hence the suit.
8. Inspite of receiving writ of summons, defendants failed to
appear hence the matter proceeded exparte against them vide order
dated 23/10/2019.
9. Heard the learned advocate for the plaintiff and perused
the record. The plaintiff has filed written notes of argument at Exh.30.
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10. Following points arise for my determination, to which, I
have recorded my findings with reasons as under:
Sr.
No
Points Determination
1. Whether the plaintiff is entitled for the relief
of specific performance thereby defendant
no.1 be directed to execute permanent
alternate accommodation / individual
agreement in favour of the plaintiff in respect
of suit flat?
Yes
2. Whether plaintiff is entitled for the relief of
permanent injunction as claimed?
Yes
3. What order and decree As per final
order.
REASONS
As to Points no.1 :
11 In support of his claim, the plaintiff examined himself as
(PW1) below Exh.5 and also filed additional affidavit at Exh.5A. The
plaintiff deposed as per contents of the plaint; hence I do not want to
reproduce the same to avoid repetition. The plaintiff relied upon
documents such as share certificate Exh.8, allotment letter Exh9,
original office copy of application dated 28/9/2017 Exh.10, original
letter dated 30/01/18 Exh.11, office copy of letter dated 17/02/2018
Exh.12, original letter dated 19/02/2018 Exh.13, original letter dated
30/03/2018 Exh.14, office copy of letter dated 06/03/2018 Exh.15,
office copy of police complaint dated 12/03/2018 Exh.16, original
Aadhar card Exh.17, original gas connection below Exh. 18colly.,
society maintenance bill alongwith payment statement Exh.19 colly.,
original letter dated 20/08/2018 Exh.20, office copy of notice dated
20/08/2018 Exh.21, office copy of notice dated 03/10/2018 Exh.22
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colly., office copy of notice dated 03/10/2018 Exh.23colly., original
reply dated 01/11/2018 Exh.24, original electricity bill Exh.25 colly.,
and Certified copy of development agreement Exh.28.
12. The plaintiff came with the case that; he was owner of old
room no. C12 as described supra. The plaintiff is also member of the
defendant no.2 society. The plaintiff is holding original share certificate
in its favour. To support this contention, the plaintiff has filed original
share certificate Exh.8, wherein it is reveals that, the share certificate
came to be issued in favour of the plaintiff on 03/03/2010 from serial
no. 21 to 25 of Rs.50/ each.
13. It is further contention of the plaintiff that, the defendant
no.2 society entered into a development agreement dated 06/01/2007
with the defendant no.1 developer. As per said agreement the other
society members along with the plaintiff has vacated their old premises
for construction purpose and developer i.e., defendant no.1 started
paying rent towards monthly compensation for temporary alternate
accommodation to the plaintiff and other members till they get newly
constructed permanent alternate accommodation on ownership basis in
lieu of their old premises.
14. It is contention of the plaintiff that, in view of development
agreement entered in between defendants interse he got letter of
allotment dated 26/01/2011 wherein he was allotted suit flat in lieu of
old premises. The plaintiff has filed copy of letter of allotment Exh.9,
which support contention of the plaintiff.
15. It is contention of the plaintiff that, due to some dispute in
between defendants interse again defendant no.2 society entered in a
development agreement dated 16/03/2017 with the defendant no.1
developer. The plaintiff has filed the copy of said agreement Exh.28.
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Upon perusal of same, it reveals that the development agreement got
executed in between defendant no.1 and defendant no.2 as well as M/s.
VVA registered as third party to the said agreement.
16. It is further reveals that vide agreement dated 06/01/2007
defendant no.1 and defendant no.2 had entered into a development
agreement to develop the building to society. It further reveals that
thereafter deed of rectification dated 05/07/2010 came to be executed
in between the plaintiff and defendant. Its copy is also filed on record. It
is further agreed that, the defendant no.2 was retained 30 fats for the
benefit of its existing members of the new building which 30 flats were
to be constructed by NDC for the benefit of the said society and its
existing members entirely at their costs. In the 4th schedule of the said
agreement, it is reveals that, the details of flat actually allotted to the
existing members of the society is given wherein the name of the
plaintiff is found at serial no.30, wherein his old flat is mentioned as
C/12, having total carpet area of 280 sq.ft., and in lieu of which he will
be getting flat no.602B admeasuring 392 sq.ft.
17. It is further case of the plaintiff that, thereafter he received
information from defendants. Accordingly, he made application dated
27/09/2017 along with declaration/ undertaking to developer and
obtained possession of suit flat. The plaintiff has filed the copy of letter
dated 27/09/2017 along with declaration/ undertaking on record
wherein it reveals that he requested to defendant no.1 to allow him to
do interior carpentry work in the suit flat. The plaintiff has also filed
the letter dated 30/01/2017 issued by defendant no.1 to him thereby
they requested the plaintiff to check the suit flat with site supervisor
and inform about any balance work. They also requested the plaintiff to
carryout fitout / furniture work. It is also informed that the final
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possession of the suit flat will be handed over to the plaintiff on or
about 15th / 20th February 2018.
18. It is further case of the plaintiff that, he came to know that
defendants have certain objection to hand over possession of the suit
premises to the plaintiff. Therefore, the plaintiff by issuing notice dated
17/02/2018 asked the defendant not to interfere with the handing over
possession of the suit flat to him. It seems that, one Somvanshi has
raised objection with society, that not to hand over possession of the
suit flat to the plaintiff. She has raised objection through advocate Amit
Joshi. Therefore, some correspondences were taken place in between
the plaintiff and defendants. The plaintiff has filed copy of all the
correspondence on record.
19. It seems that, initially share certificate was issued in favour
of one Kishan Eknath Jadhav from whom it was transferred in the name
of Smt. Smita Kashinath Somvanshi and then on 03/03/2010 in the
name of the plaintiff. The legal representative of said Smita Somvanshi
has raised some grievances with defendants and requested not to
handover possession of suit flat to the plaintiff. However, nothing on
record to show that, said Somvanshi has instituted any suit in respect of
suit flat. At this stage, nothing on record to show that said Somvanshi
has any right, title and interest in the sui flat. In fact upon perusal of the
documents, it reveals that the share certificate are issued in favour of
the plaintiff. It is the plaintiff who handed over possession of old
premises to the developer defendant no.1., in lieu of which a letter of
allotment came to be issued in favour of the plaintiff regarding suit flat.
The defendant no.1 by issuing letter dated 30/01/2018 confirm the fact
of issuing final possession of the suit flat on 15th February 2018 to the
plaintiff. Further it reveals that thereafter the plaintiff came to be put
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in possession of the suit flat. To support his contention, the plaintiff has
filed electricity bill wherein the address of suit flat is mentioned. The
plaintiff has filed society maintenance bill of October to December
2020. He paid maintenance charges of society amounting to
Rs.75,583/ in respect of suit flat. Thus, it is the plaintiff who had
handed over the possession of old premises and in lieu of which he is
entitled for suit flat. Accordingly, he was also put in possession of suit
flat.
20. It is to be noted that, though defendant no.1 is duty bound
to execute deed of permanent alternate accommodation in favour of the
plaintiff, he failed to do so. The plaintiff duly proved that he handed
over possession of old premises to defendants in lieu of development
agreement and thus he is entitled for new premise as agreed. Therefore,
in my view, the plaintiff has made out case for the relief claimed, hence
my answer to point no.1 is in affirmative.
As to point no.2:
21. The plaintiff is in peaceful possession of the suit flat. The
plaintiff was put in possession of suit flat in lieu of old premises handed
over by him to defendant no.1 for redevelopment project. Thus, the
plaintiff being owner and occupier of suit flat is entitled to protect his
possession. Thus, the plaintiff made out case for grant of relief of
permanent injunction as claimed. Hence my answer to point no.2 is in
affirmative.
As to point no.3:
22. In view of above discussion, I pass the following order:
ORDER
Suit no.1512/2019 is hereby decreed with costs.
Defendant no.1 is hereby directed to execute deed of
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permanent alternate accommodation / individual registered
agreement in favour of the plaintiff in respect of suit flat.
Defendants are hereby restrained by an order of
permanent injunction from obstructing peaceful possession of the
plaintiff over the suit flat.
Decree be drawn up accordingly.
(Virendra D. Kedar)
Judge,
Date: 27/01/2023. City Civil Court, Greater Mumbai.
(C R No.1)
Dictated on :27/01/2023
Transcribed on :30 & 31/01/2023
Signed on :01/02/2023.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 01.02.2023 NAME OF STENOGRAPHER(GI)
Mrs. V.V.Mhatre
TIME:
Name of the Judge (With Court
room no.)
Shri Virendra D. Kedar
(Court Room No.01)
Date of Pronouncement of
JUDGEMENT/ORDER
27.01.2023
JUDGMENT/ORDER signed by
P.O. on
01.02.2023
JUDGEMENT/ORDER uploaded on 01.02.2023
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