Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.3053 OF 2019
CNR NO.MHCCO10083442020
IN
S.C. SUIT NO.2172 OF 2019
Dr.Rajkumar V.Tripathi ..Plaintiff
V/s
Simmering Height CHS Ltd & Ors ..Defendants
Ld. advocate Mr.Tripathi for the plaintiff
Ld. advocate Mr.Bhandari for defendant no.1
Ld. advocate Mr.Gadadkar for defendant nos.2 and 3
CORAM : HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
(C.R.NO.01)
DATE : 2nd JANUARY, 2020
ORAL ORDER
1. This notice of motion is tendered by the plaintiff
interalia for restraining the defendants or their
representatives from preventing entries of doctors
vehicles of Rahul Nursing Home through the main
entrance gate of defendant no.1's building and
further restraining them preventing the plaintiff for
using and parking the vehicles in the reserved car
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parking slots of the said Nursing Home.
2. In short the case of the plaintiff is that defendant
no.2 is partner of defendant no.3. Defendant no.3
constructed rehab building namely building Nos.A,B
and C to accommodate the occupants of slums at
final plot No.487, TPS III(Mahim), Bhagoji Keer
Marg, Mahim, Mumbai. The defendant no.3 was
allowed to construct saleable building to sell the flats
at market rate. Defendant no.3 was unable to
develop the saleable building. He got the building
redeveloped through another developer M/s.
Kamanwala Lakshchandi Today's Constructions. In
'A' wing of the building first floor is sanctioned for
sale at the market rate for running the Nursing
Home. Accordingly the plaintiff agreed to purchase
the same by agreement dated 31/12/2004 and paid
full consideration for the purchase of the said
Nursing home alongwith three parking space of the
said building. The plaintiff is running the Nursing
Home at the said premises. Defendant No.2
threatened the plaintiff that he is not entitled to the
parking space mentioned in the sanction plan of the
saleable building. The plaintiff filed Suit No.2242 of
2007 against the defendant nos.2 and 3 for specific
performance of the contract and other reliefs.
Defendant no.2 filed affidavit in reply and admitted
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their statutory obligation for three parking space to
the plaintiff. The suit was settled and defendant
nos.2 and 3 agreed that they have to provide three
parking space to the plaintiff. M/s.Kamanwala
Lakshachandi Todays Construction started
development of the saleable building. The plaintiff
issued letter dated 14/01/2011 to defendant nos.2
and 3 and Kamanwala developer to furnish to the
plaintiff copy of plan of the saleable building so that
the plaintiff could ascertain as to whether there is
any provisions of car parking for Nursing Home.
After exchange of letters, the said Kamanwala
developer informed that there is no privity of
contract between plaintiff and Kamanwala developer
and therefore he is not bound by any agreement
between the plaintiff and defendant nos.2 and 3.
The plaintiff filed suit No.903 of 2011 against
defendant nos.2 and 3 and M/s.Kamanwala
developer. Accordingly consent terms was drawn
and on 16/08/2012 decree was passed in terms of
the consent terms. In the sanction plan, three
parking space of Nursing Home was shown.
Defendant nos.2 and 3 were not giving the
possession and therefore the plaintiff filed execution
application No.147 of 2018 and defendant nos.2 and
3 handed over physical possession of three parking
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space to the plaintiff. Defendant no.1 started
preventing the plaintiff and his doctors from parking
their vehicles in the reserved parking slots. The
plaintiff issued letter dated 13.11.2018 calling upon
defendant no.1 not to obstruct the entry of vehicles
of Nursing Home or of visiting doctors to park the
same in the parking slots. Defendant no.1 replied the
said letter by stating that as per existing law, the
builders have no right over parking spaces in the
property of the society and cannot either sell or allot
them to outsiders. Therefore the plaintiff filed the
present suit alongwith accompanying notice of
motion.
3. Defendant no.1 has filed reply and written statement.
It is the stand of defendant no.1 that complete
registered document with Annexture XI as also the
stampduty calculations etc. is not annexed. The
plaintiff claims to have entered into the first consent
terms on 16/09/2008 with defendant nos.2 and 3 in
suit no.2242 of 2007, whereby the said open space
for parking were agreed to be physically demarcated
and possession was agreed to be handed over within
30 days from the entire scheme is implemented and
full O.C. was issued by the SRA. The second consent
terms is dated 16/08/2012 between plaintiff and
defendant nos.2 and 3 whereby defendant nos.2 and
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3 agreed and undertook to provide and hand over
two car parking space for doctors car and one car
parking space for ambulance in the stilt level of the
said free sale component building free of cost on
completion of the said entire project and scheme
within 30 days of obtaining full O.C. The consent
terms was required to be adjudicated for determining
whether any additional stamp duty was payable or
not. The same was compulsorily required to be
registered. The question of creating any right, title or
interest in the said changed premises does not arise.
As per DCR Rules, the quantitative requirements of
the parking space required for hospitals and medical
institutions is one parking space for every 150 sq.mt.
of total floor area, and in addition, one parking space
for ambulance measuring 10 mt x 4 mt for hospitals
and medical institutions with bed strength of 100 or
more. The plaintiff's present Nursing home measures
125.79 sq.meters which is a lesser area than as
required as per the DCR regulations. Hence, the
plaintiff is not entitled for the relief claimed.
4. Defendant nos.2 and 3 submitted that the plaintiff
has suppressed material facts. The plaintiff has not
issued notice u/s. 164 of the Maharashtra Co
operative Societies Act and therefore the suit is not
maintainable. It is also submitted that under section
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149 of the Maharashtra Regional and Town Planning
Act, 1966, this Court has no jurisdiction to entertain
and try this suit. The plaintiff has not made M/s.
Kamanwala as a party who has completed the project
and hence suit is bad for non joinder of the parties.
Hence, prayed for rejection of the notice of motion.
5. On the rival contentions of the parties, following
points arise for my determination and findings to it
are recorded for the reasons stated hereinafter:
POINTS
(i) Whether the plaintiff has made out a prima
facie case in his favour?
(ii) Whether the needle of balance of convenience
tilt in favour of plaintiff?
(iii) To whom irreparable loss would be caused?
(iv) What order?
FINDINGS
(i) In the affirmative
(ii) In the affirmative
(iii) To the plaintiff.
(vi) As per final order
REASONS
Point Nos. 1 to 3
6. On perusal of the pleadings of the plaintiff and the
submissions canvassed by the Ld. Counsel for the
plaintiff it appears that plaintiff agreed to purchase
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the Nursing Home which was marked on the first
floor of the building of Tadeshwar SRA Cooperative
Housing Society for an area of 125.79 sq. meters
equivalent to 1354 sq. feet vide registered agreement
dated 31/12/2004. The agreement in clause (2)
provided that there are two open space for car
parking and one open space for ambulance parking
and the same was permitted to be used for the
benefit of Nursing Home by defendant nos.2 and 3.
There was some denial of rights by defendant nos.2
and 3, consequently the plaintiff filed suit
no.2242/2007. There was consent terms between
the plaintiff and defendant nos.2 and 3 whereby
defendant nos.2 and 3 agreed to hand over three car
parking space. Subsequently the saleable building
was constructed and developed by Kamanwala
developers and refused the plaintiff for providing the
parking space as per the agreement dated
31/12/2004 on the count that there was no privity of
contract between plaintiff and M/s. Kamanwala
developers. The plaintiff filed suit no.903 of 2011.
In that suit, the plaintiff, defendant nos.2 and 3 and
M/s. Kamanwala developers entered into a consent
terms where they agreed to hand over to the plaintiff
possession of three parking space on the completion
of saleable building as per clause (2) of the said
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agreement. Accordingly consent decree was passed.
Defendant nos.2 and 3 did not abide by the decree
and therefore plaintiff filed execution proceedings for
execution of the decree and in the said execution
proceedings, the possession was handed over by
defendant nos.2 and 3 to the plaintiff. Since then,
the plaintiff is claiming exclusive use and occupation
of the said parking slots. The stand of defendant
no.1 is that the consent decree is not registered. The
said stand, at this stage does not hold good for the
reason that the agreement dated 31/12/2004 is a
registered document where the rights of the plaintiff
for two car parking space and one ambulance
parking are secured. The plaintiff prayed for
execution of the agreement in those suits where the
consent terms were drawn in terms of the said
agreement. In that suits no new condition was added
in consent terms and any other right was not
granted. At this stage this argument does not hold
good. The other argument is that agreement is dated
31/12/2004 and the sanction plan is dated
25/09/2009, hence the same could not be the
sanction plan at the time of execution of the
agreement. The argument of the defendants does
not hold good for the reason that the construction
was undertaken subsequently of the saleable
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component and defendant nos.2 and 3 and other
developer agreed to provide the car parking space in
the saleable building which was subsequently said to
be reserved in the plan.
7. The other argument is that the agreement of the
plaintiff contemplates that plaintiff is required to
become member of the society and the said parking
space is already controlled by defendant no.1. For
permitting the plaintiff to use and enter the parking
space, the plaintiff ought to be the member of the
society. If the plaintiff is not following the same, the
defendant no.1 can take legal action for the same.
But it does not give any right to defendant no.1 to
obstruct the plaintiff enjoying the benefit which he is
entitled for and subsequently affirmed by the consent
decree.
8. Defendant nos.2 and 3 in their written statement has
stated that all the purchasers of the flat in defendant
no.1 society were appraised above the fact of
providing the parking space to the plaintiff and the
same find place in the agreement. Therefore, the
defendant no.1 society is aware of the same and
hence cannot object about the same.
9. The other objection of defendant no.1 is that as per
DCR rules one parking space for every 150 sq. meter
of total floor area. The area of Nursing home is
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125.79 sq. meters and therefore, plaintiff is not
entitled for enjoyment of such three parking area.
The DCR rules gives entitlement of the parking area
as per floor area. But the DCR Rules does prohibit
that for providing parking if floor area is less. The
rights of plaintiff is flowing from agreement and
therefore argument in that regard at this stage is
misdirected.
10.Prima facie it is apparent that the plaintiff is enjoying
the parking space facility as per the agreement and in
view of the consent decree of the Court. Defendant
nos.1 to 3 or their agents have no right to restrain
the plaintiff from enjoying the same. The rights of
the plaintiff are flowing from the agreement. If the
plaintiff is restrained, he would suffer irreparable loss
which cannot be compensated in terms of money as
the parking space is utilized by the doctors coming to
the clinic and hence the needle of balance of
convenience tilt in favour of the plaintiff. In view of
the above, I answer point nos.1 to 3 in the
affirmative.
POINT NO.4
11. In view of the above discussions and findings to point
nos.1 to 3, notice of motion needs consideration.
Hence, it is expedient to pass following order:
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ORDER
1. N/M No.3053/2019 is made absolute in terms
of prayer clause (a).
2. Cost in the cause.
3. N/M No.3053/2019 is disposed off accordingly.
02/01/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 02/01/2020
Transcribed on : 13/01/2020
Signed on : 20/01/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
24/01/2020 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of
judgment/order
02/01/2020
Judgment and order signed by P.O. 20/01/2020
Judgment/order uploaded on 24/01/2020
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