Final Order 1

Order Details: Notice of Motion
Pdf Text: NOTICE OF MOTION NO. 2710/2019 ..1.. IN SUIT NO. 1961/2019
CNR NO.MHCC010074342019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 2710 OF 2019
IN
L.C. SUIT NO. 1961 OF 2019
Kohinoor City Wing A Office Area,
Industrial Estate and Premises Cooperative
Society Ltd., A Premises CoOp. Society
Regd under the Provisions of Maharashtra
CoOp. Societies Act, 1960,
Having their Office At : Ground Floor,
Administrative "A" Wing, Kirol Road,
Off LBS Marg, Kurla, Mumbai 400 070. ...Plaintiff
Versus
1. The Asst. Assessor and Collector,
"L" Ward, 2nd Floor,
Laxman Rao Yadav Mandal Bldg.,
S.G. Barve Marg, Ambedkar Nagar,
Brahmanwadi, Kurla (West),
Mumbai 400 070.
2. The Asst. Municipal Commissioner,
"L" Ward, Laxman Rao Yadav Mandal Bldg.,
S.G. Barve Marg, Ambedkar Nagar,
Brahmanwadi, Kurla (West),
Mumbai 400 070.
3. The Municipal Corporation of Greater Mumbai,
Through Municipal Commissioner,
BMC Headquarters, Opp. C.S.T. Station,
Mumbai 400 001. ...Defendants
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Appearance :
Mr. Sandeep R. Jalan, Advocate for Plaintiff.
Ms. Mhatre, Advocate for defendant/MCGM.
CORAM : HIS HONOUR JUDGE
SHRI A. N. MARE (C.R.No.11)
DATE : 10th OCTOBER, 2019.
O R A L O R D E R
By this notice of motion the Plaintiff is seeking restoration of water supply
to it's building in the nature of mandatory injunction against defendants No.1 and 2
and to restrain defendants from taking action pursuant to the draft impugned
demand notice and warrant of attachment.
2. In brief plaintiff's case is that, plaintiff is registered society housing 67
commercial units. Defendant No. 1 has illegally disconnected water supply on
21.02.2019 without prior notice alleging non payment of the property taxes. The
plaintiff has paid taxes against bills raised by the defendant No. 2. On 27.09.2018,
defendant No. 1 called upon the plaintiff to pay outstanding amount of
Rs.3,23,86,826/ due as on 31.03.2019. Vide another demand notice dated
10.01.2019, defendant No. 1 claim taxes of Rs.3,14,85,635/ due as on 31.03.2019.
Due to non payment, defendant No.1 has disconnected water supply on 21.02.2019.
Defendant No. 1 has issued warrant of attachment. The plaintiff has paid an amount
of Rs.1,79,51,260/. More than 50% amount is paid by the plaintiff. By an order
dated 24.02.2014 in Writ Petition No. 2592/2013 the Hon'ble Bombay High Court
has directed Defendant No. 3 to accept 50% of the taxes. Plaintiff is liable to pay
taxes at preamended rates + 50% of the additional taxes. The plaintiff has paid
around 80% of total due amount. The plaintiff has requested defendant No. 2 to
restore water connection through various representation. The Hon'ble Bombay High
Court has upheld the validity of amended provisions but the provisions of Rule 20 to
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22 of capital value Rules 2010 and 2015 are declared ultra vires. The disconnection
of water supply is causing tremendous hardship to the members of the plaintiff and
is also affecting there fundamental right to life.
3. Defendants have opposed the Notice of Motion contending that the suit
itself is not maintainable for want of Notice of Motion under Section 527 of the
M.M.C. Act. Plaintiff has no legal status to file present suit. The jurisdiction to
entertain subject matter of the suit lies with the Small Causes Court. Mr. U. M. Joshi,
M/s. Kohinoor Planate Structure Ltd., Kohinoor City 'A' and 'B' Wing and Kohinoor
Mall both have a single and common water connection. Kohinoor Mall is in arrears
of Rs.3,14,85,635/ and further amount of Rs.8,58.96,770/ from 01.10.2012
onwards. The demand was made. Penalty of rupees 2% on delayed payment is
provided under Section 202 of M.M.C. Act. It was informed vide demand letter that
on failure of payment of demand amount the water will be disconnected. Kohinoor
City A and B Wing has paid 54% dues but Kohinoor Mall has paid nothing.
Defendants have followed due process of law before disconnecting the water supply.
The plaintiffs have all commercial units. The ratio in Writ Petition No. 2592/2013
does not apply to the plaintiff as the order of Hon'ble High Court is stayed by the
Hon'ble Supreme Court. The plaintiff is misleading this Court and has not come with
clean hands. The plaintiff has not made out the primafacie case. The plaintiff is a
profit making organization. This Court has no power to pass mandatory direction
against the defendants in subject of administrative matters.
4. The plaintiff has filed rejoinder contending that a notice under Section
527 is served in the form of representation. There is no deficiency in plaint as they
have already taken out chamber summons. Plaintiff is a juristic legal entity.
Provisions of Section 217 of the M.M.C. Act will not attract to this case since the
plaintiff has not disputed the fixation of capital value of the property belonging to
the plaintiff nor as disputed the property taxes. The interim orders of the Hon'ble
Bombay High Court squarely apply to the present case. If there is single water
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connection to two different properties, the plaintiff cannot suffer for the fault of
another. The demand notice issued by defendants is subject to the order dated
24.02.2014 of the Hon'ble High Court. The plaintiff has already applied for separate
water connection vide letter dated 06.04.2018. However, the defendants did
nothing. It is for the defendants to clarify why they issued two property numbers for
one water meter and for one single premises. The interim order dated 24.02.2014
does not make distinction in the residential and commercial premises. The demand
notice never indicated disconnection of water supply in the event of non payment of
taxes. The circular by BMC can not dilute provisions of M.M.C. Act more particularly
Section 279. The defendants themselves admit that plaintiff has paid 50% of the
demand.
5. Following points arise for determination against which findings are
recorded for the reasons to follow:
Sr. No. POINTS FINDINGS
1. Whether the plaintiff has made out a
primafacie case?
In the negative.
2. Whether the balance of convenience lies
in plaintiff’s favour?
In the negative.
3. Whether the plaintiff will suffer
irreparable loss if injunction as sought
is refused?
In the negative.
4. What Order ? Notice of motion is
dismissed with
costs.
REASONS
AS TO POINT NOS.1 TO 4.
6. At the outset, the advocate for plaintiff submitted that, he is pressing only
for the relief of restoration of water supply. Hence, the notice of motion is being
considered only to the extent of said relief.
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7. The defendants have claimed that the interim mandatory injunction can
not be granted.
8. Advocate for plaintiff relied upon Goa Industrial Development
Corporation V/s. Sadhana Builders Pvt. Ltd. and others, 2015 (1) Maharashtra
Law Journal 340, wherein the Hon'ble Bombay High Court has held,
"16. The relief of interlocutory mandatory injunctions are thus
granted generally to preserve or restore the status quo of the last
noncontested status which preceded the 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. But since the granting of such an injunction to a
party who fails or would fail to establish his right at the trial may
cause great injustice or irreparable harm to the party against
whom it was granted or alternatively not granting of it to a party
who succeeds or would succeed may equally cause great injustice or
irreparable harm, Courts have evolved certain guidelines.
Generally stated these guidelines are:
(1) Plaintiff has a strong case for trial. That is, it shall be
of a higher standard than a primafacie case that is
normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury
which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one
seeking such relief."
9. In view the observations of the Hon'ble Bombay High Court in the
authority cited Supra, thus mandatory injunction can be granted even at adinterim
stage.
10. The contention of the defendants that plaintiff has not come with clean
hands before this Court and thus is trying to mislead this Court. According to the
Advocate for defendants the plaintiff did not disclose that there is a single water
connection provided to the plaintiff i. e. A Wing, Kohinoor City B Wing as well as
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Kohinoor Mall. According to him, the plaintiff did not disclose that the injunction as
sought if granted in favour of the plaintiff, will benefit another defaulter. According
to him in such circumstances it is not necessary to probe into the merits of the case
and plaintiff can be denied equitable relief of injunction as he has tried to play fraud
upon the Court.
11. On the other hand the advocate for plaintiffs submitted that the plaintiff is
before the Court to challenge the unlawful action of defendants of disconnecting
water supply without following due process of law and for alleged non payment of
the water taxes. If the defendants have provided single water connection to two
different premises, the plaintiff can not be penalized for such act of the defendants.
The plaintiff has applied for separate water connection but the defendants have not
considered plaintiffs application for separate water connection. Thus, the conduct of
defendants is not equitable.
12. The law is well settled that whenever an application for injunction, may be
mandatory or prohibitory, is to be considered, the conduct of the parties will be of
prime consideration. The relief of injunction being discretionary and equitable
remedy, a person seeking such relief has to come before the Court with clean hands.
Meaning thereby that such person has to disclose all the material and relevant facts
which will be required to be placed before the Court for deciding the entitlement of
such person to the equitable and discretionary relief. If the defendant has pointed
out that plaintiff seeking such relief has not come with clean hands before the Court,
the Court can refuse to use its discretion in favour of such person to grant an
equitable remedy of injunction and can even refuse to look into the merits of the
case.
13. Considering these principals of law, the facts in this case need to be gone
into initially to assess whether the plaintiff has made full disclosure of all the
material and relevant facts connected with the case, so as to put forth a clear picture
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before the Court.
14. Perusal of the record reveals that the plaintiff is claiming to be a registered
society as Kohinoor City, Wing A office area industrial Estate and premises Co
Operative Society Ltd. In the entire plaint the plaintiff has not disclosed the status of
Wing B i.e. whether plaintiffs society covers the premises situated in Wing B. The
plaintiff has also not disclosed that another premises named Kohinoor Mall also
exists and was being supplied with water from the same water connection from
which plaintiff was also being supplied water.
15. Defendants have produced certain documents at Exh.3. One of the
documents is opining that if the water connection is restored, Kohinoor Mall, which
is in arrears of water taxes, will be automatically benefited by such reconnection of
water supply. The documents produced by the defendant further reveal that
Kohinoor Mall was served with a demand notice in November, 2018 wherein it was
informed that if the amount is not paid 2% penalty will be levied as well as the
water connection will be disconnected.
16. Considering the circumstances of this case, it is difficult to believe that the
plaintiff was unaware of having a single water connection being provided to it as
well as Kohinoor Mall. It was the duty of the plaintiff to make full disclosure of the
facts before this Court about the single water connection was being provided to the
plaintiff and Kohinoor Mall and the action taken by defendants against Kohinoor
Mall. However, for the reasons known to the plaintiff these facts are not disclosed.
17. The question arises whether suppression of these facts will amount to
suppression of material facts. If it is not brought on record that there is a single
water connection supplied to the plaintiff and Kohinoor Mall and it is disconnected
due to the arrears and demand notice issued to Kohinoor Mall and the case of
plaintiffs only is considered, the Court might have come to the conclusion that the
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plaintiffs case is acceptable. If in such a case the injunction would have been
granted, then another defaulter Kohinoor Mall would be benefited by such order
and the process of law followed by the defendants against Kohinoor Mall would be
nullified without affording an opportunity to defendant. Hence, suppression of the
fact that single water connection was provided to the plaintiff and Kohinoor Mall is
the suppression of material fact.
18. Once it is held that a plaintiff has suppressed material facts from the
Court, the plaintiff will be guilty of playing fraud upon the Court and will be dis
entitled to seek any equitable relief from the Court. On this ground alone the
plaintiff is not entitled to the relief sought.
19. The plaintiff has relied upon orders passed by the Hon'ble Bombay High
Court in Writ Petition No.2592/2013 and the order passed by Hon'ble Supreme
Court in SLP Civil No. 17009/2019. From the orders passed by Hon'ble Bombay
High Court and the Hon'ble Supreme Court it is clear that the parties like plaintiff
have to pay taxes at the rate an unamended rates and 50% of the differential taxes
between the tax payable under the old regim and payable on the basis of capital
value of the property under amended rules. Considering the bill amounts raised
against the plaintiffs and the payment made by the plaintiffs revealing from Exh.H
to the plaint, primafacie it can be concluded that plaintiff has complied with the
orders of the Hon'ble Bombay High Court which were continued by the Hon'ble
Supreme Court.
20. The proceedings do not indicate that the plaintiff was given any notice for
disconnection of the water supply. The demand notice was issued threatening the
action of attachment and sale of the properties.
21. Advocate for defendants has submitted that similar issue was raised in
Writ Petition No. 109/2019 which came up before the Hon'ble Bombay High Court
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in which the Hon'ble Bombay High Court was not inclined to grant the relief. A
letter of the law officer of the defendants to that effect is placed before this Court.
The copy of Writ Petition No. 1094/2019 is also placed before this Court. Perusal of
it reveals that it is not filed by the present plaintiff. The bills and warrants of
attachment challenged in it are different. The petitioner therein claimed to be a
owner of certain units in Wing A of Kohinoor City Mall. Considering that the Writ
Petition is not filed by the plaintiff and the subject matter of Writ Petition were
different bills and warrants of attachment, the defendant can not make a capital of
it.
22. Considering above circumstances, though the plaintiff can claim that the
act of defendants is not equitable, it is prima facie seen that plaintiff is guilty of
suppression of material facts. In view of this I hold that plaintiff has failed to make
out a prima facie case. The balance of convenience does not lie in the plaintiff's
favour. No case of irreparable loss is made out. Hence, I hold that the plaintiff is not
entitled to the equitable remedy sought. Consequently I pass following order.
ORDER
1. Notice of Motion No.2710 of 2019 is dismissed.
2. Costs in cause.
(A. N. MARE)
Judge,
Date : 10.10.2019 City Civil Court, Mumbai.
Dictated On : 10.10.2019
Transcribed on : 11.10.2019
HHJ Signed on : 15.10.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
17.10.2019 4.44 p.m. Mahendrasing D. Patil (H.G. Steno)
Name of the Judge H.H.J. SHRI. A. N. MARE
(Court Room No. 11)
Date of pronouncement of Order 10.10.2019
Order signed by P.O. on 15.10.2019
Order uploaded on 17.10.2019
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