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.1778 OF 2018
AND
NOTICE OF MOTION NO.3817 OF 2018
IN
S.C. SUIT NO.1152 OF 2018
Kahini Developers Pvt. Ltd ..Plaintiff
V/s
1. Mr.Amin Khan E Sirgurch
2. Ashoka Shopping Centre Premises
Cooperative Housing Society
Limited
3. Mr.Abdullah Gheewala ..Defendants
Ld. advocate Mr.Dubash for the plaintiff
Ld. advocate Mr.S.Mathew for defendant No.1
Ld. advocate Mr.P.Rajan for defendant No.2
CORAM: HIS HONOUR JUDGE SHRI M.SALMAN AZMI
DATE: 15/06/2019
COMMON ORAL ORDER
1. The plaintiff company has taken out these Notice of
Motions interalia for relief of handing over forthwith
the possession of godown No.124 located at the
basement of Ashoka Shopping Centre admeasuring
240 sq. feet to the plaintiff company (hereinafter
referred to as suit premises) and appointment of
Court Receiver with specific direction to the Court
Receiver to take possession of the suit premises from
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defendant no.3 and to put the plaintiff company in
possession and further to restrain the defendants
from alienating or creating third party rights or
parting with possession of the said premises in any
manner whatsoever.
2. At the outset the facts of the case are summarized as
under:
The plaintiff company is the owner of the suit
premises. Defendant No.1 is the member of
managing committee of defendant no.2 society.
Defendant no.3 claims to be in possession of the suit
premises. Defendant Nos.1 and 3 in connivance with
the members of the managing committee members
have illegally broke the lock and took forcible
possession of the suit premises without following due
process of law. The plaintiff company is not only the
owner of the suit premises but in occupation of the
suit premises since prior to 1996 which has been
accepted even by defendant no.2.
3. The plaintiff company's director visited the suit
premises in or about October 2017, it was found that
the lock has been illegally broken and plaintiff
company has been dispossessed by defendant no.3
without following due process of law, therefore the
plaintiff company has filed this suit for restoration of
the possession of the suit premises and other reliefs
therein.
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4. The claim of the plaintiff company has been denied
by the defendants by filing their respective written
statement. It is the claim of defendant no.1 that
defendant no.1 was inducted in the suit premises by
Mr.Nandlal Mehta, erstwhile Managing Director of
the plaintiff company and the father of current
Managing Director Mr.Pankaj Mehta right from
19951996 as the defendant no.1 as an accountant
used to handle the accounts of late Mr.Mehta.
Defendant No.1 is in occupation of the suit premises
since more than 20 years. He used to handle the
accounts of the plaintiff company in addition with his
own professional work from the suit premises after
he was inducted. The plaintiff company therefore
never objected to defendant no.1 occupying the suit
premises. After the demise of late Mr.Mehta, the
current Managing Director of the company resorted
to file the suit on false and frivolous ground.
Defendant No.1 was in exclusive possession of the
suit premises. Defendant no.3 was allowed to be in
joint possession of the premises since beginning of
2017 and in or about September/October exclusive
possession was handed over to defendant no.3 who
helped defendant no.1 in various ways in business
and personal life. Defendant no.1 claims ownership
by way of adverse possession. It is also claimed that
the suit is barred by limitation as the suit is not filed
within six months of alleged dispossession.
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5. It is the contention of defendant no.2 society that as
per it's knowledge, defendant no.1 has been in
possession of the suit premises at least before the
society was formed in 1999 and even it was informed
by late Mr.Nandlal Mehta that he has given
possession of the suit premises to defendant no.1 and
defendant no.1 has been in possession of the suit
premises since then. Even the society has denied the
contention of plaintiff company that defendant no.1
and defendant no.3 in connivance with some of the
members of the Managing Committee of defendant
no.2 had illegally broke open the lock and took
forcible possession of the suit premises.
6. Even more or less same grounds are raised by
defendant no.3 in the written statement as that of
defendant no.1. It is the contention of defendant
no.3 that since 2017, defendant no.3 is in exclusive
possession of the suit premises.
7. 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 company has made out
the case for restoration of the possession of the suit
premises till disposal of the suit ?
(ii) Whether the plaintiff company has made out
the case for appointment of Court Receiver in respect
of the suit premises?
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(iii) Whether the plaintiff company has made out
prima facie case in it's favour?
(iv) Whether the needle of balance of connivance
tilt in favour of the plaintiff company?
(v) To whom the irreparable loss would be
caused?
(vi) What order?
FINDINGS
(i) In the negative.
(ii) In the negative.
(iii) Redundant
(iv) Redundant.
(v) Redundant
(vi) As per final order
REASONS
Point Nos. 1 to 5
8. Ld. Counsel for plaintiff company submitted that
defendant no.1 and defendant no.3 have taken
forcible possession of the suit premises and therefore
in this circumstances pending the suit, the Court
Receiver is required to be appointed. In support of
his contention, he has placed reliance upon the
judgment of Hon'ble Bombay High Court in the case
of Anwar Faramosh Khan V/s Mahendrakumar
Jugalkishore Gupta and ors of Hon'ble Bombay
High Court, MANU/ MH/ 0213/ 2004, wherein the
Hon'ble Bombay High Court held that,” Sec.6 of the
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Specific Relief Act is expected to be a speedy remedy
for restoration of possession of a person who has
been dispossessed without due course of law. It is
for this reasons that Subsection (3) of Section 6
provides that even an appeal shall not lie against an
order or decree passed in a suit under Section 6.
Despite the eagerness of the Legislature to provide
speedy justice to the persons who are dispossessed
without due course of law, because of the pendency
of large number of cases, Courts have not been able
to deal with these cases expeditiously”. It has been
further held by the Hon'ble Bombay High Court that
“In the facts and circumstances, it would be just,
convenient and appropriate to pass interim orders for
appointment of a receiver with direction to appoint
the plaintiff as agent of the receiver. I am conscious
of the fact that this order is similar to the order in the
nature of mandatory injunction of restoration of
possession at the interlocutory stage.
9. He further placed reliance upon the judgment of
Hon'ble Bombay High Court in the case of
Khushnuma Ibrahim Khan V/s Asadullah Khan,
MANU/MH/1641/2012, wherein the Hon'ble
Bombay High Court reiterated the principles in the
case of Deepak Eknath Dhavan V/s Anwar Faramosh
Khan and Anr, MANU/MH/0545/2004 and held that
once the Court comes to the conclusion even at the
interim stage that the plaintiff had been dispossessed
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within six months prior to the date of filing of the
suit, the suit would take many years to reach for final
hearing and, therefore, the Court would be right in
passing the mandatory order of appointing the Court
Receiver for the suit premises with further direction
to the Court Receiver to hand over possession to the
plaintiff.
10. He also placed reliance upon the judgment of
Hon'ble Supreme Court in the case of Dorab
Cawasji Warden V/s Coomi Sorab Warden and
others, MANU/SC/0161/1990, wherein the Hon'ble
Supreme Court held that “the relief of interlocutory
mandatory injunctions are thus granted generally to
preserve or restore the status quo of the last non
contested status which preceded tht pending
controversy until the final hearing when full relief
may be granted or to compel the undoing of those
acts that have been illegally done or the restoration
of that which was wrongfully taken from the party
complaining.
11. In the case in hand, if the facts prima facie are
scrutinized, it appears that from the plaint
avernments that the plaintiff company is not
confirmed about the date of illegal dispossession. It
is the contention of the plaintiff company that when
it's director had been at the suit premises some what
in or about 21/10/2017, he found name plate of the
plaintiff company was removed and locks were
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changed and name plate of defendant no.1 had been
put at it's place, therefore the plaintiff company came
to the conclusion that the plaintiff company was
dispossessed from the suit premises. At this juncture,
the exact date of dispossession is not coming
forward. At this point of time, date 21/10/2017 can
be said to be the date on which the director of the
plaintiff company noticed of dispossession. The
defendants have taken specific objection as regard
the limitation and they claimed that the suit is barred
by limitation. No doubt the question of limitation is a
mix question of facts and law and has to be decided
on merits, but at the same time the said issue cannot
be ignored for the purpose of dealing with the
present notice of motions.
12. It is the stand of the plaintiff company that
additional affidavit cum sur rejoinder filed by
defendant no.2 society before the Cooperative Court
wherein they have annexed the copy of the minutes
of the Annual General Meeting of the society dated
11/09/2017 which shows that the Managing
Committee of the society was authorized to take all
necessary and legal steps against the plaintiff
company and their tenants using the premises of the
plaintiff company i.e. shop nos.22/23/24/25 on the
ground floor and godown no.126 on the first
basement.
13. Ld. Counsel for the plaintiff company
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submitted that copy of the minute book supplied to
him of the same resolution shows the deletion of
entire sentence which recorded as shop
nos.22/23/24/25 and godown no.126 on the first
basement.
14. On perusal of Ex.E and the resolution, it
appears that there is recital as under:
And that tenants using the premises of Puri
Construction (B) Pvt.Ltd. Will be made party to the
case filed against Puri Construction (B) Pvt. Ltd i.e.
shop no.22/23/24/25 on ground floor, godown
no.126 on first basement.
15. It at all it is taken into consideration that the
above said resolution is deleted in the copy of the
minutes supplied to the plaintiff company, then as to
how it is material for deciding present controversy, is
not pointed out. Even otherwise the copy of the
minutes which plaintiff claims to be supplied by
defendant no.2 does not bear the signature of any
office bearers of the society. On careful reading of
the above sentences of the minutes it reveal that the
tenants using the premises of Puri Construction (B)
Pvt. Ltd will be made party to the cases filed against
Puri Construction which includes the godown. The
ownership of the plaintiff company is not disputed.
The above sentences nowhere reflects that on the
date of resolution, the plaintiff company was in
possession of the suit premises, on the contrary it
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reflects that the tenants were using the premises
mentioned in the said resolution including the suit
premises. Therefore at this juncture, the part of the
said resolution cannot said to be the material to
demonstrate the previous possession of the plaintiff
company.
16. In the case of Deepak Eknath Dhavan(supra) if
the facts are perused, it is apparent that 3035 anti
social elements armed with weapons ransacked and
looted all the building materials and articles lying in
that shop and forcibly dispossessed the plaintiff.
Herein, no such contingency is pointed out. Even in
that case there was material to demonstrate the
possession of the plaintiff company. Prima facie, at
this juncture, there is no document to show the
possession of the plaintiff company preceding to six
months of institution of suit. Therefore in this
peculiar facts and circumstances, the law cited in the
case of Anwar(supra), Deepak(supra) and
Khushnuma Ibrahim Khan(supra) with greatest of
respect is not applicable.
17. There is no quarrel about the ratio laid down
by the Hon'ble Supreme Court in the case of Dorab
Warden(supra). Prima facie it should be established
by sufficient material that the plaintiff was in
possession and has been unlawfully dispossessed
Prima facie in absence of any material in that regard
it would be unsafe at this juncture to restore the
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possession of the plaintiff company. The avernments
in the plaint and the material annexed prima facie
does not indicate that the plaintiff company was
forcibly dispossessed from the suit premises which
would warrant appointment of the Court Receiver.
The avernments prima facie does not disclose as to
when the plaintiff company was dispossessed. The
fact of dispossession was noticed on 21/10/2017 and
even there is no material to suggest the immediate
action taken by the plaintiff company on it's
dispossession. Further it is the claim of the
defendants that defendant no.1 is in standing
possession and defendant no.3 is in possession since
October 2017. Although at this stage there is no
material to support their case, but it cannot be
ignored. Thus, the plaintiff company has not made
out the case for appointment of Court Receiver and
for restoration of the possession of the suit premises.
18. As the plaintiff company failed to make out the
case for restoration of possession and appointment of
Court Receiver, the claim of the plaintiff company for
further protection of the possession does not survive.
The relief of the plaintiff company that defendants
should not create third party interest in respect of the
suit premises becomes redundant in view of the
statement made by the defendant's counsel on
25/10/2018 which is accepted that they will not
create any third party right or interest. In view of
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the forgoing discussion, I answer point nos.1 and
2 in the negative and point nos.3 and 4 as
redundant.
POINT NO.6
19. In view of the above discussion, the Notice of
Motions deserve to be rejected. Accordingly, it is
expedient to pass following order:
ORDER
1. Notice of Motion No.1778/2018 and Notice of
Motion No. 3817 of 2018 stand rejected.
2. Cost in cause.
3. Notice of Motion No.1778/2018 and 3817/2018 are
disposed of accordingly.
15/06/2019 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 15/06/2019
Transcribed on : 18/06/2019
Signed on : 24/06/2019
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
24/06/19 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.16
Date of Pronouncement of
judgment/order
15/06/2019
Judgment and order signed by P.O. 24/06/2019
Judgment/order uploaded on 24/06/2019
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