Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM no. 2109-18 in L.C.SUIT no.1164-18
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
NOTICE OF MOTION NO. 2109 OF 2018
(CNR no. MHCC010068152018)
IN
L.C. SUIT NO. 1164 OF 2018
(CNR no. MHCC010042332018)
1. Shabbar Fakhruddin Jam & 3 ors. ]..Plaintiffs
Versus
1. M/s. Limrass Construction Pvt. Ltd. & 2 ors. ]... Defendants
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 01)
Date : 16th March, 2019.
Mr. Nasikwala, advocate for plaintiffs.
Mr. Jahangir, advocate for defendant no. 1.
Mr. Diamondwala, advocate for defendant no. 2.
Ms. Sejal Shah, advocate for defendant no. 3.
ORDER
1. The plaintiffs have taken out this motion seeking temporary
injunction for restraining the defendants from transferring, alienating,
subletting and / or parting with possession of either of the tenanted
premises located at suit property to third party and / or from any
portion of the suit property by any mode of construction etc.
2. The learned advocate for the plaintiffs submitted that the
plaintiffs are having 1/3rd share in the suit property. The defendant no.
1, in spite of execution of development agreement and power of
attorney in 2010 in his favour has not yet started the redevelopment of
the suit property. The defendant no. 1 has committed several breach of
the development agreement deliberately. Therefore, the Mumbai
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2 NM no. 2109-18 in L.C.SUIT no.1164-18
Building Repair and Reconstruction Board (M.B.R.R.B.), an authority of
MHADA by letter dated 28.06.2017 canceled the No Objection
Certificate (N.O.C.) issued by it to the defendant no. 1 for
redevelopment of the suit property, as the defendant no. 1 did not
carried out necessary repairs. The plaintiffs by notice dated 07.12.2017
called upon the defendant desist from parting with possession of the
tenanted premises or creating third party notices therein. According to
plaintiffs, the defendant no. 1 is trying to destroy the property by
lowering the plinth.
3. On the other hand, the learned advocate for the defendant
no. 1 submitted that though the development agreement and power of
attorney was executed in 2010, the defendant no. 1 is required to get
the property out of the acquisition of the MHADA. The said acquisition
was said society in 2015. The defendant no. 1 obtained N.O.C. from
MHADA and also submitted plan. However, the plaintiffs in collusion
with some tenants are harassing the defendant no. 1. The building was
in nonrepairable condition, however, MHADA repaired the same. Out
of 40 tenants 22 tenants have surrendering their premises and the
defendant no. 1 is paying them rent for alternate accommodation.
4. He further submitted that the N.O.C. issued by the MHADA
was canceled as per Government Resolution as the property was located
within the radius of 20 mtrs. from the Arthur Road Jail. According to
him, now the radius has been reduced to 15 mtrs., and therefore, the
suit property is out of that limit and thus, the defendant no. 1 submitted
plans. He submitted that the defendant no. 1 has only dealt with the
tenanted room nos. 4A, 4C, 4D, 7 and 21 for construction as per MOU
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3 NM no. 2109-18 in L.C.SUIT no.1164-18
as per clause IX and X of the MOU dated 18.10.2012 by initiating
appropriate legal proceedings against them. However, the plaintiffs
suppressed the said MOU and power of attorney. He further submitted
that the defendant no. 1 will not deal with any other tenant except the
tenants mentioned in said MOU.
5. The learned advocate for the defendant no. 3 submitted
that the motion has been taken out only to dealt the project. According
to her, 22 senior citizens who were the tenants are staying in alternate
accommodation and waiting for redevelopment. In reply the learned
advocate for plaintiffs submitted that the MOU should be read as a
whole.
6. The plaintiffs have instituted suit for declaration that the
registered development agreement and power of attorney dated
14.05.2010 have become infructous and obsolete and further for their
cancellation and consequential relief for injunction. The building
consists of ground plus four upper storeyed building having 36
residential and 4 commercial tenaments named as Lucky Mansion (suit
building) at land bearing C.S. no. 1510 (suit property), Byculla,
Mumbai execution of the development agreement, power of attorney
dated 14.05.2010 and subsequent, MOU and MOU dated 18.10.2012
and power of attorney dated 18.10.2012 are prima facie undisputed.
7. The copy of letter dated 28.06.2017 issued by M.B.R.R.B.
to the defendant no. 1 prima facie shows that the N.O.C. granted by the
said board was canceled consequent to failure of the defendant no. 1 to
carried out urgent repairs of the suit building or to initiate an action for
its redevelopment in spite of the fact that the suit building was declared
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4 NM no. 2109-18 in L.C.SUIT no.1164-18
dangerous by the M.B.R.R.B. in 2016 and 2017. The copy of notice
dated 07.12.2017 issued by the plaintiffs to the defendant no. 1 shows
that the defendant no. 1 was called upon to desist itself from misusing
the agreement and power of attorney in creation of fresh tenancies and
handing over possession of the rooms to third party etc.
8. It prima facie appears from the copies of correspondence
between the defendant no. 1 and M.B.R.R.B. that the defendant no. 1
started taking steps towards redevelopment of the property. According
to the defendant no. 1 some tenants did not shift to transit
accommodation. The learned advocate for the defendants submitted
that the N.O.C. issued for the period of one year and it was required to
be revalidation and accordingly, the defendant no. 1 applied for
revalidation. According to him, more than 70% of the tenants have
vacated their premises.
9. The copy of MOU dated 18.10.2012 prima facie shows that
the defendant no. 1 was permitted to take legal action against non co
operating tenants for recovery of possession of their premises. It also
prima facie shows that the defendant no. 1 was given right to appoint
new tenant in place of out going tenants and accept rent etc. and that
the plaintiffs and other coowners will not interfere with the decision of
second party in that behalf. It was also agreed that the defendant no. 1
should not misuse the said MOU in respect of other tenanted premises.
10. Considering the rival submissions and copies of documents
placed on record, it prima facie appears that the defendant no. 1 has
not yet started the actual development activity at the suit property for
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5 NM no. 2109-18 in L.C.SUIT no.1164-18
various reasons. The plaintiffs apprehended that on the basis of such
power of attorney, MOU and development agreement, the defendant
no. 1 may sublet the premises which are surrendered by the tenants for
the purpose of redevelopment and thereby will protracted the
development activity to the prejudice of the plaintiffs and tenants.
Under such circumstances, the plaintiffs have made out the prima facie
case. The plans of inconvenience lies in their favour and therefore, they
are entitled for the temporary injunction of limited nature by which the
defendant no. 1 will be restrain from subletting, alienating, transferring
or parting with possession of the tenanted rooms, except mentioned in
the MOU dated 18.10.2012 till the disposal of the suit. The plaintiffs
should not entitled to the temporary injunction for restraining the
defendant no. 1 from carrying out any construction activity in
furtherance of the development agreement etc. at the suit property
therefore, the following order is passed:
ORDER
1. The Notice of Motion no. 2109 of 2018 is made absolute by
temporarily restraining the defendant no. 1 from subletting,
alienating, transferring or parting with possession of either of the
tenanted premises located in the suit building or part of the suit
property except the room nos. 4A, 4C, 4D, 7 and 21 mentioned
in the MOU dated 18.10.2012, till the disposal of the suit.
2. Parties to bear their own costs of the notice of motion.
Sd/
(Dr. M. S. Deshpande)
Judge,
Date : 16.03.2019 City Civil Court, Mumbai.
Dictated on : 16.03.2019
Transcribed on : 16.03.2019
Checked by HHJ on : 18.03.2019
Signed by HHJ on : 18.03.2019
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6 NM no. 2109-18 in L.C.SUIT no.1164-18
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 18.03.2019 at 3.00 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.01
Date of Pronouncement of
JUDGMENT/ORDER
16/03/2019
JUDGMENT/ORDER signed by
P.O. on
18/03/2019
JUDGMENT/ORDER uploaded
on
18/03/2019
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