Order 1

Order Details: Chamber summons
Pdf Text: : 1 : Chamber Summons No.1072 of 2018
CNR No.MHCC010075752018
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
CHAMBER SUMMONS NO.1072 OF 2018
IN
S.C. SUIT NO.5902 OF 2007
Mr. Navinchandra M. Dedhia and Ors. .. Plaintiffs
Versus
M/s. Madhu Constructions .. Defendants
AND
Shobha Suman Coop. Hsg. Soc. Ltd. .. Proposed plaintiffs
Appearance:
Ld. Advocate Paland for plaintiff.
Ld. Advocate Thorat alongwith Advocate Merchant for defendant.
CORAM : HIS HONOUR JUDGE
SHRI ANAND L. YAWALKAR
(COURT ROOM NO. 31)
DATED : 19.10.2018
: ORDER :
This Chamber summons is taken out by plaintiffs to add
Shobha Suman Coop. Hsg. Soc. Ltd. as the proposed plaintiff No. 10.
2. Plaintiff submitted that they have filed this suit to direct the
defendant to comply with the statutory obligation under 'Ownership of
Flats and Apartment in Maharashtra (MOFA) Act'. Plaintiffs had
purchased their respective flats in Shobha Suman Coop. Hsg. Soc. Ltd.
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The defendant is the promoter/developer. In the year 2004 the
proposed plaintiff Shobha Suman Coop. Hsg. Soc. Ltd. had filed the
suit No. 627/2004 before City Civil Court for same cause of action
in this suit. But as the society was deregistered the said suit was
withdrawn with the liberty to file fresh suit. Thereafter a writ
petition was filed before the Hon'ble High Court, wherein on inquiry 40
flats are found as against 76 flats as claimed by the defendant.
Thereafter on 23.04.2004 by the orders passed by the Divisional Joint
Registrar Coop. Society, the society was registered on 26.11.2002 by
the Dy. Registrar under section 21(1) of MCS Act, 1960. Thereafter
registration was confirmed by the same authority on 08.10.2007. As
per contention of the plaintiff there is devolution of title infavour
of the proposed plaintiff and in the light of Order I Rule 10 of CPC
they wants to add proposed plaintiff as party in the suit.
3. Defendant appeared and submitted that the application is
barred by law of limitation. The registration of CHS was affirmed in
2007. The society is already registered. But the society had not taken
any steps to file any suit or to implead themselves in the present suit.
It was also submitted that the present suit has been filed by the plaintiff
in their individual capacity. The trial had commence and considering
this the society is not the proper and necessary party.
4. Heard both the parties. Perused the material on record.
5. Upon considering the hearing as per contention of the
plaintiff earlier suit filed by the proposed plaintiff society was
withdrawn due to deregistration of the society. As per Order 22 Rule
10 there is devolution of interest and due to this society is proper and
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necessary party in the suit. They also attracted the attention of the
court towards Section 11 of the MOFA Act, wherein the promoter has to
convey his right, title, interest in the land and building, etc to the
society or organization of persons.
6. Admittedly, society was registered on 26.11.2002 by order
dated 23.04.2004 and finally the confirmation of the registration was
done by the Divisional Joint Registrar CoOp. Societies on 08.10.2007.
Plaintiff had strongly relied Order 22 Rule 10 pf CPC, which is about
the devolution, assignment, creation of interest during the
pendency of the suit. As observed the confirmation of registration of
the society was done on 08.10.2007. The present suit is filed on
17.10.2007. Thus a party can be impleaded in a suit on the basis of
Order 22 Rule 10 when the there is assignment or creation or
devolution of interest during the pendency of the suit and not a
interest that is created prior to the filing of the suit. In this case the
interest has been devolved prior to the institution of suit and thus the
plaintiff cannot be allowed to invoke Order 22 Rule 10, for adding the
proposed plaintiff in the suit.
7. It has been more than 10 years the proposed Shobha Suman
Coop. Hsg. Soc. Ltd. has came in existence. But considering the
hearing it appears that they have not taken any steps to get the
right, title and interest in land and building transferred in their favour
as per section 11 of MOFA Act. It is also apparent that the Cooperative
society is having 40 members, the present suit is filed by 9 members.
There is no resolution of the society or any letter of the society filed on
record, which would had fortified or strengthened the case of plaintiff
to implead the proposed plaintiff in this case. The court is of the
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opinion that few members of a society cannot implead a society on their
side as a plaintiff unless the society desires to do so. Further as per
section 11 of the MOFA Act there is not limitation during which period
the society can get the title of land and building conveyed in their
favour. But infact the burden is casted upon the promoter/builder to
comply the said provision of law.
8. For all these reason the court is not inclined to implead
Shobha Suman Coop. Hsg. Soc. Ltd. as a proposed plaintiff in this suit.
But if Shobha Suman Coop. Hsg. Soc. Ltd. is interested in pursuing the
matter further they can take appropriate steps to implead themselves
as the plaintiff in this matter. With this observations, accordingly I pass
the following order.
: ORDER :
1. Chamber Summons No.1072 of 2018 is rejected.
2. Parties to bear their own cost.
Anand.L.Yawalkar
Judge,
City Civil & Sessions Court,
Date: 19.10.2018 Gr. Mumbai
Dictated on : 20.10.2018
Transcribed on : 20.10.2018
Signed on : 20.10.2018
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
On 22.10.2018 at 3.22 p.m.
UPLOAD DATE AND TIME Mrs. P.R.Vengurlekar
NAME OF STENOGRAPHER
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Name of the Judge
(With Court Room No.)
H.H.J. Anand.L.Yawalkar
C.R.No.31
Date of Pronouncement of
JUDGMENT/ORDER
19.10.2018
JUDGMENT/ORDER signed by P.O. on 20.10.2018
JUDGMENT/ORDER uploaded on 22.10.2018
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