Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 O. – N/M No.3147/19 in Suit No.2245/19
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.3147 OF 2019
( CNR NO.MHCC010085812019 )
IN
SHORT CAUSE SUIT NO.2245 OF 2019
Sharmila Ravindra Angara ...Plaintiff.
V/s.
M/s. Rubberwala Realty ...Defendant.
Appearances:
Ld. Adv. Javed Akhtar Khan for plaintiff.
Ld. Adv. Giriraj for defendant.
CORAM : HIS HONOUR JUDGE
SHRI. M.SALMAN AZMI
COURT ROOM NO.1
DATED : 10th DECEMBER, 2020.
ORDER
Plaintiff has tendered this N/M interalia for grant of
temporary injunction restraining the defendant or any person acting on
their behalf from creating third party right, interest or title in respect of
the premises provided under the registered agreement dated
08.05.2015 and further to, direct the payment of compensation and to
deposit the amount of default committed by the defendant.
2. In short, the case of plaintiff is that the plaintiff was in use,
occupation and possession of a commercial premises admeasuring about
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312 sq.ft. carpet area situated at shop no.6 at Vora Building, 357,
Sindhi Lane, 456/88, Falkland Road, Mumbai. The defendant is
developer company of the said building by virtue of an agreement dated
06.12.2010 executed by and between the defendant and the owners of
the said building. The defendant entered into a registered agreement of
permanent alternate accommodation with the plaintiff and thereby,
agreed to allot shop no.11 admeasuring 445 sq. ft. carpet area out of
which, agreed to provide existing carpet area of 312 sq. ft. on the
ground floor and the remainder area i.e. common area plus 17%
fungible which is equivalent to 133 sq. ft. carpet area on first floor. The
defendant has executed agreement dated 20.01.2014 with the plaintiff
and agreed to pay the monthly compensation in lieu of transit
accommodation. The second installment cheques were dishonoured.
The defendant failed to honour the commitment. The plaintiff has
already complied her part and handed over the possession of the old
premises which was demolished by the defendant. The defendant failed
to make the payment of compensation amount. The defendant has
played fraud upon the plaintiff and IOD is liable to be canceled. Thus,
the plaintiff has filed the suit along with this accompanying N/M.
3. The defendant resisted the claim of plaintiff by filing the
written statement (Exh.4). The defendant contended that the written
statement be treated as reply to N/M. The plaintiff is claiming the relief
of possession u/s.6(iv)(d) r/w.6(v) of the Maharashtra Court Fees Act,
wherever there is prayer for possession as in the present case, the
plaintiff is required to seek relief in respect of possession and affix the
court fees for the same. The value of the suit land is more than
Rs.10 Crores which is beyond the pecuniary jurisdiction of this Court.
This Court has no jurisdiction to try and entertain the suit. Suit is
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barred by limitation. The plaintiff is claiming right by virtue of tenancy
and therefore, the plaintiff ought to have approached the Presidency
Small Causes Court. The plaintiff has suppressed the material facts.
There was huge delay in the project as plaintiff and other tenants did
not vacate their premises for the period more than three years.
Defendant has paid part of rent against temporary alternate
accommodation. The plaintiff also evinced interest in having additional
area on the first floor and it was agreed in that case plaintiff will not be
entitled to claim any compensation for alternate accommodation which
would be adjusted against the additional area to be provided to the
plaintiff. Defendant prayed for dismissal of the suit and N/M.
4. On rival contention of the parties, following points arise for
my determination and findings to it are recorded for the reasons stated
to follow :
POINTS FINDING
1. Whether the primafacie
case is made out by the
plaintiff ?
In the affirmative
2. Whether the needle of
balance of convenience tilt in
favour of the plaintiff ?
In the affirmative
3. To whom irreparable loss
would be caused ?
To the plaintiff
4. Whether the plaintiff is
entitled for the amount of
compensation pending the
suit ?
In the negative
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5. Whether the defendant
can be directed to deposit
the amount of default in the
court as contented by the
plaintiff ?
In the negative
6. What order ? As per final order
AS TO POINT NOS.1 TO 5.
5. The parties are not at dispute as regard the agreement
dated 05.05.2015 registered on 08.05.2015 of permanent alternate
accommodation and the agreement dated 20.01.2014. The parties are
governed by the above two agreements.
6. The objection of the defendant on the count that the suit is
barred by limitation cannot be decided in this N/M. Even otherwise,
the issue of limitation is a mixed question of fact and law.
7. The other objection of the defendant is that the plaintiff is
claiming right by virtue of tenancy and therefore, there is question of
landlord/developer/tenant relationship is involved. As per, section 28
of the Presidency Small Causes Court Act r/w. section 42 of the said
Act, the present suit can only be entertained by Court of Small Causes.
In this suit, the plaintiff is claiming right on the basis of the above said
two agreements. The defendant is not the landlord of the plaintiff. By
virtue of the agreement dated 05.05.2015, the defendant agreed to
confer the ownership of the new premises. The tenanted premises is
not in existence as on day. Therefore, at this juncture, the argument of
the Ld. Counsel for defendant is not convincing.
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8. The agreement contemplates that the defendant agreed to
provide on ownership basis free of costs as and by way of permanent
alternate accommodation a commercial shop admeasuring 445 sq. ft.
clear carpet area out of which defendant agreed to provide existing 312
sq. ft. clear carpet area on ground floor with ceiling height of not less
than 12.9 ft. and the remainder area i.e. common area plus 17 %
fungible area which is equivalent to 133 sq. ft. of the carpet area on the
first floor with the ceiling height of not less than 9.9 ft. This position is
not disputed by the defendant in their written statement. The written
statement of the defendant is to the extent that when necessary, they
will refer the agreement for their true meaning and interpretation. From
the said stand of the defendant, it is difficult to ascertain as to what
ambiguity, the plaintiff wish to point out. The plain reading of the
above portion of the agreement dated 05.05.2015, it is clear that
defendant agreed to provide shop no.11 on the above terms. The
counsel for plaintiff argued that the plaintiff apprehend that the
defendant would create third party interest in respect of the shop no.11.
On perusal of the plaint avernments and the affidavit to N/M, there is
nothing to show as to how the plaintiff apprehends that the defendant
would create third party interest. This suit is a simplicitor injunction
suit. The plaintiff has not claimed any relief for the specific
performance of the said contract. At this juncture, it would be proper to
deal with that aspect. There is nothing on the record to show that the
agreements are canceled or not in existence. Even, there is no material
primafacie to show that the cause of action to file suit for specific
performance has arisen.
9. The defendant was supposed to complete the construction
within 42 months of the first commencement certificate granted by
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MCGM. The contention of defendant is that the work was delayed as
the plaintiff and other tenants did not vacate their respective structure.
He argued that 121 tenants have occupied the old building. There is
nothing from the side of either plaintiff or defendant as to when the
first commencement certificate was issued. Only there is avernment in
the plaint that old premises was demolished by the defendant. When
the said old premises was demolished is not coming on the record.
Even, the objection of the defendant that the plaintiff did not vacate her
premises is vague. There is nothing from the side of the defendant to
show how much delay was there from the side of the plaintiff. The
efforts taken by the defendant in case of default by the plaintiff for not
complying the terms of the agreement for vacating the premises within
stipulated time is also not coming forward. At this juncture, the
material which is on the record are the agreements which were
executed between the plaintiff and the defendant. As per the
agreement dated 05.05.2015, primafacie plaintiff is entitled for shop
no.11 by way of permanent alternate accommodation. The same is not
specifically denied by the defendant. Therefore, the plaintiff has the
right on the basis of the agreement. There is considerable delay from
the side of the defendant since the agreement for allotment of the said
shop to the plaintiff. Apart from that, if the defendant is restrained
from alienating the shop no.11, there will be no irreparable loss to the
defendant. It will only amount to protect the right of the plaintiff which
emerges from the agreement. Thus, the plaintiff has right on the basis
of the agreement to protect the shop no.11 from creation of any third
party interest. The needle of balance of convenience tilt in the favour of
plaintiff as he has right on the basis of agreement. If the defendant
creates third party interest in the said shop, it would create multiplicity
of proceedings and further complication resulting grave and irreparable
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injury to the plaintiff. Thus, the plaintiff has made out case for grant of
temporary injunction.
10. The plaintiff has also sought the direction for directing the
defendant to pay compensation at the rate of Rs.46,800/ per month
from 09.01.2016 to 08.01.2017, at the rate of Rs.58,500/ from
09.01.2017 to 08.01.2017 and at the rate of Rs.64,350/ from
09.01.2018 to 08.07.2018. The plaintiff has further contended that the
defendant failed to pay the second installment and therefore, prayed for
directing him to deposit Rs.5,61,600/ and Rs.3,51,000/.
11. The second claim of compensation is at the rate of
Rs.58,500/ for the period 09.01.2017 to 08.01.2017. I failed to
understand how the compensation for the said period i.e. 09.01.2017 to
08.01.2017 can be considered. It may be some typographical error. Be
that as it may, the plaintiff has not filed the suit for recovery of the
above said amount. The amounts are claimed on the basis of
agreements dated 20.01.2014. The suit is for declaration and
permanent injunction. The suit is not for recovery of any amount. It is
settled position of law that interim reliefs are in aid to the main relief.
Even otherwise, the entitlement of the plaintiff for the claim of
compensation amount cannot be considered in such summary inquiry
and has to be decided after the trial. The contention of the plaintiff is
that the defendant failed to make the payment of the amount of
compensation since those were due. But, the plaintiff has not taken any
step for the recovery of the same and claiming the same by way of
interim relief.
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12. The Ld. Counsel for defendant argued that the plaintiff was
interested in having additional area on the first floor of the new
building and it was agreed that the plaintiff will not be entitled for any
compensation for alternate accommodation. The same would be
adjusted against the additional area to be provided to the plaintiff. The
said arguments of the defendant do not find any place in the
agreements. The parties are governed by the agreements. In absence of
such condition in the agreements, the argument of Ld. Counsel for
defendant in that regard is misplaced.
13. The plaintiff contended that the defendant is required to be
directed to deposit an amount of Rs.5,61,600/ and Rs.3,51,000/. It is
the contention of the plaintiff that the defendant issued two cheques of
Union Bank, Dunkan Road Branch, Mumbai of Rs.5,61,600/ and
Rs.3,51,000/. The plaintiff has annexed those cheques along with
cheque return memos. The cheque dated 09.06.2016 bearing
no.332108 for Rs.5,61,600/ was dishonored on 29.06.2016. The
cheque dated 09.01.2017 bearing no.332111 for Rs.3,51,000/ was
dishonored on 02.02.2017. Since, then the plaintiff has not taken any
efforts for recovery of those amounts, but claim those amounts by way
of interim relief.
14. The contention of the plaintiff for direction to defendant to
pay the compensation and to deposit the amount in the court in absence
of a suit for recovery of the said amount cannot be granted. The
inaction of the plaintiff for considerable period for claiming the said
amount is also sufficient to refuse the interim relief in that regard.
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15. Thus, in view of the above discussion, the plaintiff is
entitled for the relief of only temporary injunction for restraining the
defendant from creating third party interest in the shop no.11. The
plaintiff is not entitled for interim relief in respect of grant of
compensation. Hence, I answer point nos.1 to 5 accordingly.
AS TO POINT NO.6.
16. Upshot of the above discussion and finding to point nos.1
to 5 is that the notice of motion deserve to be partly allowed. Hence, it
is expedient to pass the following order.
ORDER
1. N/M No.3147/2019 is partly allowed.
2. The defendant by an order of temporary injunction is restrained
from transferring or creating third party interest in any manner
whatsoever in respect of shop no.11 admeasuring 445 sq. ft. carpet area
as described in plaint para no.5 and in the second schedule of the
agreement dated 05.05.2015 registered on 08.05.2015.
3. Costs in the cause.
4. N/M No.3147/2019 is disposed of accordingly.
( M.SALMAN AZMI )
Judge,
Date : 10/12/2020 City Civil Court, Gr. Bombay
Directly dictated on computer : 10/12/2020
Signed on : 24/12/2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE TIME NAME OF TYPIST
24.12.2020 04.10 p.m. Amit Dattatray Shinde
(CourtTypist)
Name of the Judge HHJ Shri M.S. Azmi
(C.R. No.1)
Date of Pronouncement of
Judgment/Order.
10.12.2020
Judgment/order signed by P.O on 24.12.2020
Judgment/order uploaded on 24.12.2020
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