Final Order 1

Order Details: Notice of Motion
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MHCC010054462019
IN THE CITY CIVIL COURT AT BOMBAY
Notice of Motion No.2730 of 2019
IN
L.C.Suit No.1638 of 2019
Mumtaz Tazuddin Shaikh
age 44 years 104, 1st floor,
Khwaja Manzil, 5th Lane,
Kamathi Pura, Dunkan Road,
Mumbai400 008. …. Plaintiff
V/s
1. Mr.Mohammad Akram Nirban
age 45 years s/o Mohd.Hussain
Jalaluddin Nirban
carrying on business in the name of
Nirban Realtors and Developers
having address at 10, Ganesh Wadi,
M.J.Market, Zaveri Bazar,
Mumbai400 002.
2. The Chief Executive Officer
Mumbai Building Repair and Reconstruction
Board, (MBRRB) A MHADA Unit
Kala Nagar, Bandra(E),Mumbai.
3. The Executive Engineer
Mumbai, MBR&R Board
Gr.Floor, Building No.34,
Abhudaya Nagar, Kalachowki
Mumbai 400 033
4. Mumbai Municipal Corporation
Mahanagarpalika Marg,
Mumbai. ….Defendants
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Appearance:
Adv Asad Bukhari for plaintiff.
Adv Mohd Allar @ Adv Diamondwala for defendant no.1.
Adv Mangal Kadam for defendant nos.2 and 3/MHADA
Adv Suraywanshi for defendant no.4/BMC.
CORAM: K.P.Kshirsagar, Judge
Court Room No.8, Dt.28/09/2022
ORDER
1. Plaintiff has taken out present Notice of Motion for grant of
interim relief of appointment of Court Receiver and for grant of
interim temporary injunction restraining defendant no.1 from
disposing, transferring, alienating suit flat and for interim temporary
injunction restraining defendant nos.2,3 and 4 from granting
permission, NOC/Occupancy certificate in respect of suit property/
flat described in schedule of ExhT to the plaint.
2. Perused the Notice of Motion, affidavit in support of same,
written statement cum reply to the Notice of Motion of defendant
no.1 at Exh5 and record. Heard arguments advanced Ld. Advocate
for plaintiff and Ld. Advocate for defendant no.1.
3. Ld.Advocate for plaintiff vehemently argued that plaintiff was
tenant of premises no.1A, admeasuring 94 sq.ft. on the ground floor
of the building known as “Patni House” (hereinafter for the sake of
brevity above premises is referred as tenanted premises). Defendant
no.1 purchased the said “Patni House” property on 17/06/2010. The
tenanted premises was 'residential premises' in the record of
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defendant no.2 and 3. Defendant no.1 is redeveloping property
wherein tenanted premises was situated under 33(7) of Development
Control Regulations for Gr.Mumbai, 1991. The name of plaintiff is
reflected in the certified list of tenants/occupants i.e. AnnextureII
prepared by MHADA in respect of tenanted premises. Therefore,
plaintiff was entitled for permanent alternate accommodation i.e.
residential premises in lieu of tenanted premises.
4. Defendant no.1 had promised to allot residential premises in
the proposed building to the plaintiff. However, thereafter defendant
no.1 approached the plaintiff and informed that defendant no.1 was
facing objection from the authorities in getting NOC as the plaintiff
and its predecessor used it's residential premises as commercial
premises. Therefore, it would not be possible for him to get the plan
approved as a residential premises for the plaintiff if she does not
enter into an agreement with defendant no.1 for commercial
premises. Defendant no.1 also assured that the agreement for
commercial premises is to be executed only for the purpose of NOC
and he will hand over residential premises to the plaintiff after
redevelopment. Due to above misrepresentation the plaintiff entered
into an agreement dtd.16/07/2011 with defendant no.1 wherein
defendant no.1 agreed to allot to the plaintiff on ownership basis a
shop admeasuring 45 sq.ft. carpet area by way of permanent
alternate accommodation in lieu of tenanted premises.
5. However, defendant no.1 obtained NOC and approval for
residential premises in lieu of tenanted premises. After construction
of building when the plaintiff approached defendant no.1 for
allotment of residential premises, defendant no.1 denied to allot the
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residential premises i.e. flat no.906 described in scheduled to ExhT
to the plaint which is reflected in the name of plaintiff therein.
Defendant no.1 got executed agreement dtd.16/07/2011 by
committing fraud and making misrepresentation of facts to the
plaintiff. Therefore, agreement dtd. 16/07/2011 is null and void. As
per provision of MHADA Act and Development Control Regulation
for Gr.Mumbai, the defendant no.1 is bound to provide residential
premises of minimum carpet area of 300 sq.ft. in the reconstructed
building in lieu of tenanted premises. As per Sec.23 of Indian
Contract Act, the object of the suit agreement is not lawful as it
would defeat the provisions of law and it involves injury to the
plaintiff's property. Therefore, agreement dtd.16/07/2011 for
providing commercial premises of 45 sq.ft. in lieu of tenanted
premises prima facie is null and void.
6. No person of ordinary prudence will accept 45 sq.ft.
Commercial premises instead of residential premises of 300 sq.ft. The
above facts prima facie reveals that defendant no.1 got executed
agreement dtd.16/07/2011 by making misrepresentation and by
fraud. Moreover, defendant no.1 has not obtained any permission of
MHADA for allotting commercial premises in lieu of residential
tenanted premises. Therefore, Ld. Advocate for plaintiff prayed for
grant of interim relief in terms of prayer clause (a) & (b) of Notice of
Motion. Ld. Advocate for plaintiff kept his reliance on following
judgments, 1) Maharwal Khewaji Trust (Regd), Faridkot V/s
Baldev Dass reported in 2005(1) Mh.LJ 1043 wherein it is observed
that “An application for grant of interim injunction restraining the
defendant from alienating or changing the nature of suit proerty must
be granted unless an irreparable loss or damage is shown by the
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defendant to be caused in case the injunction is granted”. 2)
Murlidhar Agarwal V/s State of Uttar Pradesh reported in 1974
SCC 281 wherein it is observed that “Section 3 is base on Public
policy. It is intended to protect a weaker section of the community
with a view of ultimately protecting the interest of the community in
general by creating equality of bargaining power. Although the
section is primarily intended for the protection of tenants only, that
protection is based on ublic policy. The respondent could not have
waived the benefit of the provision”. 3) Mannalal Khetan etc. V/s.
Kedar Nath Khetan and others,etc reported in 1977 AIR (Supreme
Court) 536 wherein it is observed that “It is well established that a
contract which involves in its fulfillment the doing of an act
prohibited by statute is void. The legal maxim a pactis privatorum
publico juri non derogatur means that private agreements cannot
alter the general law. Where a contract, express or implied, is
expressly or by implication forbidden by statute, no Court can lend its
assistance to give it effect. (See Melliss v. Shirley Local Board, (1885)
16 QBD 446). What is done in contravention of the provisions of an
Act of the Legislature cannot be made the subject of an action”. 4)
Surinder Mohan V/s Deep Kuar & Co. & others wherein it is
observed that “Contract for or about any matter which is prohibited
by law shall be a void contract – Every contract made for or about
any matter which is prohibited shall be deemed to be a void contract
irrespective of the fact whether it was made unlawful by a statute or
not”. Court has gone through the observations therein.
7. On the other hand Ld. Advocate for defendant no.1 argued that
admittedly the tenanted premises is reflected as residential premises
in the certified list of tenants/occupants i.e. AnnextureII prepared by
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MHADA. Plaintiff is certified to be eligible tenant/occupant of
tenanted premises and tenanted premises is accepted as residential
premises. Defendant no.1 has redeveloped property under 33(7) of
Development Control Regulations for Gr. Mumbai, 1991. Though the
plaintiff is eligible for residential premises she requested him to
provide shop premises. Therefore, at the instance of plaintiff
defendant no.1 entered into an agreement dtd. 16/07/2011 with
plaintiff and agreed to provide 45 sq.ft. commercial premises. After
more than seven years on 29/1/2018 plaintiff lodged complaint with
defendant no.2 and insisted to provide her residential premises. After
redevelopment of the building plaintiff has changed her mind.
Plaintiff had voluntarily entered into an agreement for providing
commercial premises. Therefore, agreement is valid. The suit is
barred by law of limitation. There are delay and latches on the part of
plaintiff. Therefore, Ld. Advocate for defendant no.1 submitted that
Notice of Motion be dismissed.
8. Following points arise for determination and Court has
recorded its decision thereon for the reasons stated there under.
Sr.No. Points Findings
1. Whether plaintiff proves that prima facie case
lies in her favour?
Yes
2 Whether plaintiff proves that balance of
convenience lies in her favour?
Yes
3 Whether plaintiff will suffer irreparable loss if
interim relief of temporary injunction is not
granted?
Yes
4 Whether plaintiff is entitled for relief of
appointment of Court Receiver?
No
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5 What order ? As per final
order.
REASONS
As to Point Nos.1 to 3:
9. As Point Nos.1 to 3 are interlinked with each other they are
decided simultaneously in order to avoid repetition of facts.
10. From the matter on record it appears that the plaintiff has filed
present suit for the relief of declaration that agreement
dtd.16/07/2011 is null and void and for declaration that plaintiff is
entitled for allotment of flat no.906 as described in schedule annexed
to ExhT to the plaint. In order to seek equitable relief of temporary
injunction as sought, it is necessary for plaintiff to prima facie show
that the agreement dtd.16/07/2011 is null and void and she is
entitled for allotment of residential premises as prayed.
11. In the present matter admittedly plaintiff was tenant of the
tenanted premises admeasuring 94 sq.ft. Admittedly, the name of the
plaintiff is reflected in list of tenants/occupants i.e. AnnextureII
prepared by MHADA in respect of tenanted premises and plaintiff is
certified to be eligible tenant and tenanted premises is accepted as
the residential premises. Admittedly, as per agreement
dtd.16/07/2011 defendant no.1 agreed to provide commercial
premises of 45 sq.ft. only in lieu of tenanted premises which was
admeasuring 94 sq.ft. As per plaintiff she entered into agreement
dtd.16/07/2011 due to misrepresentation of defendant no.1 and
fraud committed by defendant no.1 and agreement is void as per
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provision of Sec.23 of Indian Contract Act.
12. The question whether suit agreement dtd.16/07/2011 is void
or valid cannot be decided at this interim stage and it will have to be
decided on merit after trial. From Development Control Regulations
for Gr. Mumbai 1991, Appendix3 R.2 prima facie it appears that
plaintiff being certified tenant/occupant of residential premises is
entitled for residential premises of minimum carpet area of 300
sq.ft.as provided under MHADA Act. Moreover, in case of non
residential occupier the area to be given in the reconstructed building
has to be equivalent to the area occupied in the old building. In the
present matter inspite of the above provision of law it appears that
defendant no.1 has not executed an agreement for providing
permanent alternate accommodation of residential premises in favour
of the plaintiff. Moreover, prima facie it appears that commercial
premises sought to be provided is also of 45 sq.ft. only though
tenanted premises was of 94 sq.ft. and as such the premises agreed to
be provided is not equivalent to the area occupied i.e. area of
tenanted premises.
13. It is not the case of defendant no.1 that he had obtained any
permission or NOC from defendant nos.2 and 3 for entering into an
agreement for providing commercial premises to the plaintiff though
plaintiff's premises was accepted as residential. Moreover, from the
schedule to ExhT to plaint it appears that flat no.906 is shown in the
name of plaintiff. Had it been the fact that the agreement dtd.
16/07/2011 was valid as per provision of law then there was no
necessity for defendant no.1 to obtain NOC and construct above
residential premises in the name of plaintiff. Therefore, from the
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provision of Development Control Regulations for Gr. Mumbai, 1991
and MHADA Act, prima facie it appears that the object of the
agreement dtd.16/07/2011 is of such nature that it would defeat the
provision of MHADA Act and Development Control Regulations for
Gr. Mumbai, 1991, it is fraudulent and implies injury to the plaintiff.
From the provision of MHADA Act and Development Control
Regulations for Gr. Mumbai, 1991, it appears that provisions thereof
are intended to protect weaker section of community and protection
is based on public policy and provision of providing particular carpet
area in lieu of old premises also appears to be mandatory in nature.
Therefore, prima facie it appears that an agreement dtd.16/07/2011
involves in its fulfillment doing of an act prohibited by statute and it
is void. Moreover, as the provisions of MHADA Act and Development
Control Regulations for Gr. Mumbai, 1991 are based on public policy
prima facie rights given therein cannot be waived. Therefore,
observations of Hon'ble Apex Court in the case of Murlidhar Agarwal
V/s State of Uttar Pradesh, Mannalal Khetan etc. V/s. Kedar Nath
Khetan and others, etc, Surinder Mohan V/s Deep Kuar & Co. &
others cited supra relied by plaintiff also support contention of the
plaintiff that as object of the agreement dtd.16/07/2011, prima facie
appears to be unlawful that agreement is null and void abinitio.
Moreover, in the agreement dtd. 16/07/2011 or Memorandum of
Understanding there is nothing that plaintiff had insisted defendant
no.1 to execute agreement for commercial purpose and stated that
she does not want residential premises. As such prima facie there
appears no substance in the contention of defendant no.1. Therefore,
there appears triable issue in the present matter. As such prima facie
case lies in favour of plaintiff.
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14. From the matter on record and particularly ExhN, O and
schedule to ExhT to the plaint, it appears that defendant no.1 has
constructed residential premises which is reflected in the name of
plaintiff i.e. flat no.906 in reconstructed building. Therefore, from
the matter on record and above discussion plaintiff prima facie
appears to be entitled for allotment of residential premises i.e. flat
no.906 described in schedule annexed to ExhT to the plaint. If the
defendant no.1 succeed to dispose of, transfer, alienate said flat in
that case naturally it will cause more hardship to the plaintiff than
the defendant no.1 and plaintiff will suffer irreparable loss which
cannot be compensated in terms of money. Defendant no.1 has not
come with case and demonstrated that he will suffer irreparable loss.
It is also not case of defendant that he already disposed of suit flat.
Therefore, balance of convenience also lies in favour of plaintiff and
plaintiff will suffer irreparable loss if interim temporary injunction as
sought in terms of prayer clause (b) & (c) is not granted. In view of
observations in the case of Maharwal Khewaji Trust (Regd),
Faridkot V/s Baldev Dass cited supra relied by plaintiff and above
discussion plaintiff has made out case for grant of interim relief in
terms of prayer clause(b) & (c).
15. From the matter on record and above discussion Court held
that plaintiff proved that prima facie case and balance of convenience
lies in her favour and will suffer irreparable loss if interim relief in
terms of prayer clause (b) and (c) in respect of flat no.906 described
in schedule to ExhT to the plaint is not granted. Therefore, Point
Nos.1 to 3 are answered in the affirmative.
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As to Point No:4
16. Plaintiff has prayed for relief of appointment of Court Receiver
in respect of suit property i.e. flat no.906 described in schedule
annexed to ExhT to the plaint. In view of affirmative decision as to
Point No.1 to 3 as suit flat will be adequately protected by grant of
temporary injunction as sought, there appears no necessity to appoint
Court Receiver for protection and preservation of flat no.906 as
described in schedule annexed to ExhT to the plaint. Therefore,
Court held that there is no just cause for appointment of Court
Receiver and it will not be convenient to appoint Court Receiver.
Therefore, Court hold that plaintiff is not entitled for relief of
appointment of Court Receiver in terms of prayer clause (a) in Notice
of Motion. Therefore, Point No.4 is answered in the negative.
As to Point No.5:
17. In view of affirmative decision as to Point Nos.1 to 3 for
preventing alienation of the flat no.906 described in schedule
annexed to ExhT to the plaint to which plaintiff prima facie appears
entitled, it is necessary to grant temporary injunction in terms of
prayer clause (b) and (c) of the Notice of Motion to the extent of flat
no.906 as described in schedule annexed to ExhT to the plaint till
decision of the suit or further order whichever is earlier. In view of
negative decision as to Point No.4 the plaintiff is not entitled for
relief in terms of prayer clause (a). Therefore, present Notice of
Motion deserves to be partly allowed. Hence, following order is
passed.
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ORDER
Notice of Motion No. 2730/2019 is partly allowed as under:
1) Defendant no. 01 is hereby temporary restrained from disposing,
transferring, alienating or creating third party right or interest in flat
no. 906 described in schedule to Exh.T to the plaint till decision of
the suit or further order whichever is earlier.
2) Defendant nos. 02, 03 and 04 are temporary restrained from
granting NOC/Occupancy certificate in respect of flat no. 906
described in schedule of Exh. T to the plaint till decision of the suit or
further order whichever is earlier.
3) Prayer of plaintiff for grant of relief of appointment of court
receiver is dismissed.
4) Notice of Motion No. 2730/2019 is disposed off accordingly.
Dt.28/09/2022 (K.P.Kshirsagar)
Judge
City Civil Court,Mumbai
Dictated on : 28/09/2022
Transcribed on : 29/09/2022
Checked on : 1/10/2022
Corrected & signed on : 10/10/2022.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
10/10/2022. Mrs. P.P. Khanvilkar.
Name of the Judge (With Court room
no.)
SHRI K.P. Kshirsagar (Court Room
No.08)
Date of Pronouncement of
JUDGMENT/ORDER
28/09/2022.
JUDGMENT/ORDER signed by P.O.
on
10/10/2022.
JUDGMENT/ORDER uploaded on 10/10/2022.
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