Order 1

Order Details: Notice of Motion
Pdf Text: 1
IN THE BOMBAY CITY CIVIL COURT AT GREATER BOMBAY
NOTICE OF MOTION NO.2141 OF 2018
IN
L.C.SUIT NO. 874 OF 2009
(C.N.R.NO.MHCC010069402018)
M/s. Emzed Corporation And Ors. )...Plaintiffs.
Versus
Meher Manzil Cooperative Housing Society Ltd. )
And Ors. )...Defendants.
Appearance:
Advocate Mr.S.K.Srivastav for plaintiff.
Advocate Mr.Yusuf Baugwala for defendant nos.1 to 36.
Advocate Mr.Dhumale for defendant/MMC.
CORAM: HIS HONOUR JUDGE
SHRI. R.V.KOKARE
DATE : 03rd OCTOBER, 2019.
(C.R.No.06)
O R D E R
This notice of motion is taken out by the defendant no.4 for
various prayers, one of the prayer for suit of the plaintiff be dismissed
in view of Order 7 Rule 11 of Civil Procedure of Code. This notice of
motion resisted on behalf of the plaintiffs by filing their reply. Read the
present notice of motion, reply of the plaintiffs thereon. Heard both the
learned counsel on behalf of both the sides at length. Perused the
record.
2. On scrutiny of the pleading of the present notice of motion and
reply of the plaintiffs thereon and after arguments of both the learned
counsel on behalf of both the sides, the learned counsel on behalf of
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defendant no.4 has submitted that there is no cause of action for filing
the present suit. The plaintiffs have no any concern with the suit
property. This Court has no jurisdiction to try and entertain the suit. On
these grounds, the learned advocate on behalf of defendant no.4 has
requested that the suit of the plaintiff may be kindly dismissed in view
of Order 7 Rule 11 of C.P.C.
3. The learned counsel on behalf of the plaintiffs has submitted that
the present suit came to be filed by the plaintiffs in the year 2009.
Whereas the present notice of motion came to be filed on behalf of
defendant no.4 in the year 2018. The plaintiff no.1 is the partnership
firm and plaintiff nos.2 and 3 are its partners. The plaintiffs have
developed the suit property and sold the flats out of suit building to the
defendant nos.2 to 36. The plaintiffs have yet not executed any
conveyance in respect of the suit flats in favour of the defendants. The
defendant no.1 Meher Manzil Cooperative Housing Society Ltd. is the
formal party. The defendants had unauthorisedly changed the nature of
the suit flats by demolishing some walls, constructing new walls without
prior permission of defendant nos.37 to 39 i.e. the Municipal
Corporation. The plaintiffs are being the developer of the suit flat, they
are liable if any accident occur due to changing the nature of flats by
the defendants. On these grounds, the learned counsel on behalf of the
plaintiff has submitted that the present notice of motion of defendant
no.4 may kindly be dismissed.
4. On scrutiny of the plaint, it appears that the plaintiffs have
mentioned the cause of action for filing the present suit. They have also
mentioned in their plaint that the plaintiffs are the developers of the
building namely Meher Manzil Cooperative Housing Society Ltd. and
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they allotted the flats out of the building to the defendants but yet the
plaintiffs have not executed any document about transfer of the flats to
the defendants out of the suit building. On scrutiny of the pleadings of
the present notice of motion and arguments advanced on behalf of
defendant no.4, it has not specifically submitted or mentioned that by
which law and by which provision the suit of the plaintiffs is not
maintainable. It is not denied on behalf of the defendant no.4 that the
plaintiffs are not executed conveyance in respect of suit flat to the flats
purchaser.
5. In view of section 9 of the C.P.C., the Courts shall (subject to the
provisions herein contained) have jurisdiction to try all suits of a civil
nature excepting suits of which their cognizance is either expressly or
impliedly barred. There is no any barred by any law or Act for filing
the present suit. Therefore, the present notice of motion taken out by
the defendant no.4 is liable to be dismissed. Hence, I have proceed to
pass following order.
ORDER
Notice of Motion No.2141 of 2018 of the defendant no.4 is hereby
dismissed.
Date : 03/10/2019 (R.V.Kokare)
Judge,
City Civil Court, Gr. Bombay.
Dictated on : 03/10/2019
Transcribed on:03/10/2019
Signed by HHJ :04/10/2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
04/10/2019 5.00p.m. Mrs. V.V.Malgaonkar
Name of the Judge HHJ Shri R.V.Kokare(CR
No.06)
Date of Pronouncement of
Judgment/Order
03/10/2019
Judgment/order signed by P.O on 04/10/2019
Judgment/order uploaded on 04/10/2019
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