Final Order 1

Order Details: Notice of Motion
Pdf Text: ..1.. NM NO. 3304/2019
MHCC010089982019
IN THE CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO. 3304/2019
IN
S.C. SUIT NO. 2294/2019
Seeta Sadan Co-operative Housing
Society Ltd.,
A Housing Society duly registered under
The Maharashtra Co-operative Housing
Societies Act, 1960 under Registeration no.
BOM/HSG/251 of 1962 and having its Office
at Plot No.259, Dr. B. Ambedkar Road,
Opp. Gandhi Market,
Sion (West), Mumbai 400 022. .. Plaintiff.
Versus
1. Mr. Sailesh Ramesh Jain
Age: 46 years, Occ: Business,
2. Mrs. Mamta Shailesh Jain
Age: 42 years, Occ: Housewife,
Both residing at 18, Seeta Sadan,
Dr. B. Ambedkar Road, Opp.Gandhi
Market, Sion (West), Mumbai 400 022.
3. Mr. Narendra Kanaiyalal Shah.
Adult, Occupation : Business,
4. Mrs. Nisha Narendra Shah
Adult, Occupation : Housewife,
Both residing at Nish Enclave, Plot No.95,
Sector No.23, CIDCO Industrial Estate,
Turbhe, Navi Mumbai 400 703.
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5. Mr. Eshwar Pitumal Keshwani
Adult, Occupation : Service,
Residing at 152-D1, Karmashetra,
Comrade Harbanslal Marg,
Sion-Koliwada, Mumbai 400 037. .. Defendants.
Advocates
Harish Pawar for plaintiff.
Furiya for defendants.
CORAM : HIS HONOUR JUDGE
Sunil T. Soor.
(COURT No.: 2)
DATED : 5th November, 2020.
ORAL ORDER
Heard both parties on notice of motion moved on behalf
of the plaintiff for grant of temporary injunction in terms of prayer
clause (a) and (b) thereby restraining defendant nos.1 and 2 from
creating third party interest in suit premises i.e., Enclosed Garage no.2
situated adjacent to Flat no.4 at south side on the ground floor of
plaintiffs society and parking cars of the members of plaintiffs society in
open space in front of suit premises. In terms of prayer clause (c),
plaintiff claimed mandatory temporary injunction against defendant
nos.1 and 2 to remove notice “NO PARKING IN FRONT OF THIS
GARAGE” displayed by painting on the door of suit premises.
2. Perused the notice of motion alongwith affidavit, plaint,
documents, affidavit in reply of defendant nos.1 and 2, written
statements of all defendants alongwith documents and rejoinder of
plaintiff to reply of defendant nos.1 and 2.
3. Relevant facts of the plaintiff's case in short to decide the
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notice of motion are that one Pitumal Sukharam Keshwani being the
developer/builder and Chief Promoter constructed Ground Floor plus
three upper floors building viz. Seeta Sadan (plaintiff's society)
consisting 24 flats alongwith two garages on Plot no.259, Scheme no.6,
Sion Matunga Estate pursuant to approvals and sanctions of the
Municipal Corporation of Greater Mumbai (MCGM).
4. Plaintiff Society is formed in the year 1962. After
formation of the plaintiff society, share certificates had been issued to
all individual members. Flat no.4 was allotted to Pitumal Sukhram
Keshwani vide Share Certificate No.13 and Flat no.1 is allotted to S.B.
Motwani vide Share Certificate no.1. Garage no.2 on South Side (suit
premises) is adjacent to flat no.4. Garage no.1 on North Side is adjacent
to flat no.1. Pitumal Sukhram Keshwani conveyed building alongwith
two garages to the plaintiff society vide Indenture of Assignment Deed
dated 14.09.1968. Upon the demise of Pitumal Sukhram Keshwani,
being his son Share Certificate of Flat no.4 was transferred in the name
of Defendant no.5 on 26.10.1980.
5. Suit premises is assessed to the record of the MCGM and
plaintiff society is regularly paying assessment charges. On 06.07.2000,
MCGM issued notice to the plaintiff society pointing out several
breaches. It is mentioned in said notice that garage on north side is
being used as office by Meghdoot Society Agency and Garage on south
side i.e., suit premises is being used as storage. By said notice, the
MCGM further called upon the plaintiff society for taking necessary
steps to rectify/regularize breaches being the lessee of said plot.
6. On 15.09.2005, defendant no.5 sold flat no.4 to N.R.
Pillai and resigned from membership of the plaintiff society. On
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30.06.2005 by separate Sale Agreement, defendant no.5 sold suit
premises to defendant no.3 and 4. By letter dated 09.09.2006,
defendant no.5 notified to the plaintiff society agreeing to surrender
possession of suit premises on request that the Society immediately allot
suit premises to defendant no.3, an existing member of the society.
Then on 26.03.2012, defendant no.3 and 4 sold flat no.18 alongwith
suit premises to defendant no.1 and 2.
7. And now dispute arose when by virtue of Agreement for
Sale dated 26.03.2012, defendant no.1 and 2 applied to the plaintiff
society for transfer of share certificate and admit them as members of
the society in respect of flat no.18 and suit premises. Plaintiff society
refused to transfer and endorse name of defendant no.1 and 2 on share
certificate of flat no.18 as suit premises belongs to plaintiff society.
Hence defendant no.1 and 2 filed Appeal no.16/2012 before the Asst.
Registrar Co-operative Societies. Vide order dated 30.04.2013, said
appeal was partly allowed and the plaintiff society admitted defendant
no.1 and 2 as members of society in respect of flat no.18 only. By said
order, Asst. Registrar directed either of parties to approach the
competent Court for obtaining necessary order in respect of ownership
of garage on south side of the plaintiff society i.e., suit premises.
8. By letter dated 28.04.2014, defendant no.1 and 2
requested the plaintiff society to furnish supplementary deal in respect
of suit premises. On 06.03.2014, plaintiff society disposed of said
matter on the ground that order of Assistant Registrar was pertaining to
flat no.18 only. By letter dated 23.10.2015, defendant no.1 and 2
stated that Mr. Pillai who is parking car in front of suit premises should
be directed to remove his car within 7 days otherwise they will take
legal action. On 21.12.2016, defendant no.1 and 2 by claiming
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ownership over suit premises sought permission of repair. By letter
dated 12.01.2017, plaintiff society regretted to consider request of
defendant no.1 and 2.
9. Contention of the plaintiff is that Pitumal Sukhram
Keshwani, by virtue of his capacity and position as developer and chief
promoter, allocated usages of garage - one to himself situated in the
south i.e., suit premises for storage of building construction materials to
facilitate completion of construction of the building and another one in
the north side to the owner of Flat no.1 i.e., Motwani. Neither Pitumal
Sukhram Keshwani nor his son defendant no.5 was parking car in suit
premises.
10. Defendant no.3 was functioning as Honorary Secretary
of the plaintiff society since 01.04.2002 to 31.03.2007. After purchase
of suit premises from defendant no.5 and after letter dated 09.09.2006
submitted by defendant no.5 to the society to allot suit premises to
defendant no.3 and 4, plaintiff claims that defendant no.3 started
parking his car in suit premises by using his official position and tried to
influence members for transferring suit premises in the name of
defendant no.3 and 4. Defendant no.3, by misrepresenting the then
Chairman of the society, Krishnamoorthy, got undated letter stating that
defendant nos.3 and 4 have purchased suit premises in plaintiff society
and their names would be entered in the certificate after managing
committee meeting. From the year 2012 onwards, usage charges in
respect of garages have not been levied on any member including
defendant no.1 and 2.
11. Till 06.02.2017, defendant no.1 and 2 did not park their
car in the suit premises and the same was vacant. However on
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07.02.2017, under duress to the watchman, defendant no.1 brought his
four wheeler inside the Society's compound and parked inside the suit
premises. Defendant no.1 and 2 also got painted on the doors of suit
premises displaying “NO PARKING IN FRONT OF THE GARAGE” and
took photographs to establish their usage of suit premises with an
intention to create evidence. Hence on 10.02.2017, plaintiff society
issued notice to defendant no.1 to remove vehicle from the suit
premises with immediate effect. After said notice, defendant no.1
removed his car from suit premises.
12. Then defendant no.1 and 2 filed S.C. Suit No.2444/2017
against the plaintiff society for permanent injunction and by way of
Notice of Motion No.3873/2017 claimed temporary injunction
restraining plaintiff from disturbing use, occupation and possession of
suit premises. By order dated 07.09.2018, after hearing both parties, my
predecessor allowed said notice of motion in terms of prayer clause (a).
13. Further contention of the plaintiff is that after passing
order dated 07.09.2018 by this Court, defendant no.1 and 2 started
behaving as if they have been declared as owners of suit premises. They
carried out extensive repair of the suit premises without permission of
the plaintiff society and also extended electric power connection to the
suit premises. According to the plaintiff, order dated 07.09.2018 is a
cause of action to file the present suit and thereafter defendant no.1
and 2 are obstructing members of plaintiff's society to park their cars in
open space in front of suit premises. Hence prayed for allowing and
making absolute notice of motion in terms of prayer clause (a) to (c).
14. Defendant no.1 and 2 opposed the notice of motion.
Relevant facts of the case of defendant no.1 and 2 to decide notice of
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motion are that prior to the formation of the plaintiff society, suit
premises was retained by the developer Pitumal Keshwani, father of
defendant no.5, for his personal use. Defendant no.1 and 2 purchased
suit premises from defendant no.3 and 4. Defendant no.3 and 4 had
purchased suit premises from defendant no.5 on 30.062005. When
defendant no.3 and 4 had applied for transfer of suit premises in their
names, plaintiff society had obtained opinion of advocate Prabhanand
Sawant who informed by his letter dated 28.09.2005 that suit premises
can be sold and plaintiff society can transfer the same to defendant no.3
and 4. In addition to the assessment taxes, plaintiff was taking
maintenance charges from defendant no.3 to 5 in respect of suit
premises. Suit premises is in use, occupation, possession and enjoyment
of defendant no.1 and 2, and their predecessor-in-title as owners since
the year 1961-1962. Plaintiff has no right over suit premises.
15. No reliefs can be granted to the plaintiff as there is
already injunction against the plaintiff in respect of suit premises which
has been granted by order dated 07.09.2018 in notice of motion no.
3873 of 2017 in suit no. 2444/2017 in a suit filed by defendant no.1
and 2 against the plaintiff. Present suit is an abuse of process of law.
Hence prayed for dismissal of notice of motion.
16. After hearing both parties and perusing the record, it
appears that present suit is for declaration that Agreement for Sale
dated 30.06.2005 and 26.03.2012 by which defendant no.5 transferred
suit premises to defendant no.3 and 4 who in turn transferred the same
to defendant no.1 and 2 are not binding on plaintiff society, injunction
restraining defendant no.1 and 2 from creating third party interest in
suit premises and for possession of suit premises.
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17. From the documentary evidence on the record, it appears
that two garages including suit premises i.e., garage on south side on
ground floor of plaintiff's society is mentioned in approved map
submitted to the MCGM. Predecessor-in-title of defendant no.1 and 2
were in use, occupation and enjoyment of suit premises. Plaintiff society
was recovering maintenance charges of suit premises from predecessor-
in-title of defendant no.1 and 2 in addition to assessment taxes in
respect of their flat. There is mention of garage (suit premises) in
maintenance bill issued by plaintiff society to defendant no.3 to 5.
18. Plaintiff mentioned that Pitumal Sukhram Keshwani, by
virtue of his capacity and position as developer and chief promoter,
allocated usages of garage - one to himself situated in the south i.e.,
suit premises for storage of building construction materials to facilitate
completion of construction of the building and another one in the north
side to the owner of Flat no.1 i.e., Motwani. Though plaintiff mentioned
that S.B. Motwani surrendered possession of garage in northern side but
no document is brought on record showing that he really handed over
possession to plaintiff society. S. B. Motwani who is owner of flat no.1 is
running Meghdoot Society Agency in a garage on Northern Side which
is adjacent to flat no.1 of the plaintiff society.
19. If defendant no.3 to 5 and father of defendant no.5 were
in not possession and enjoyment of suit premises, there is no reason for
the plaintiff society to collect maintenance charges from defendant no.3
to 5 and father of defendant no.5 in respect of suit premises. Further
plaintiff society admitted that maintenance charges are not collected
from defendant or any other members of the society in respect of suit
premises after the year 2012. Plaintiff society was having knowledge
about sale agreement dated 30.06.2005 and 26.03.2012 in respect of
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suit premises by which ownership of suit premises is transferred to
defendant no.1 and 2.
20. Further regarding transfer of suit premises in the name
of defendant no.3 and 4 by virtue of sale agreement dated 30.06.2005,
plaintiff society obtained opinion of its advocate Prabhanand Sawant,
who after considering registered sale agreements of defendant no.3 to
5, opined that suit premises can be sold and transferred to defendant
no.3 and 4. Defendant no.1 and 2 is claiming ownership over suit
premises through defendant no.3 and 4 by virtue of sale agreement
dated 26.03.2012. Legality of sale agreement dated 30.06.2005 and
26.03.2012 cannot be decided at this stage.
21. May be so, plaintiff is seeking temporary injunction
restraining defendant no.1 and 2 from creating third party interest in
suit premises. Defendant no.1 and 2 submitted that as they purchased
flat no.18 alongwith suit premises from defendant no.3 and 4, there is
no question of creating third party interest in suit premises. Except
pleading, plaintiff has not brought on record any material to show that
defendant no.1 and 2 are trying to create third party interest in suit
premises. Mere apprehension of the plaintiff that defendant no.1 and 2
will create third party interest in suit premises is not sufficient to grant
temporary injunction.
22. Plaintiff is further seeking temporary injunction
restraining defendant no.1 and 2 from obstructing and or preventing
from parking cars of other members in front of suit premises of the
plaintiff's society. However plaintiff has not brought on record any
material to show that defendant no.1 and 2 obstructed other member
from parking their car in open space of plaintiff society.
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23. Plaintiff is further seeking temporary mandatory
injunction against defendant no.1 and 2 to remove with immediate
effect the notice displayed by painting on suit premises “NO PARKING
IN FRONT OF GARAGE”. On the other hand, defendant no.1 and 2
given letter to the plaintiff society stating that one Pillai had parked his
car in front of suit premises thereby causing obstruction to egress and
ingress of the car of defendant no.1 and 2 in suit premises.
24. On the other hand, as the plaintiff society was
obstructing and preventing defendant no.1 and 2 from parking their car
in suit premises, they filed S.C. Suit No.2444/2017 against the plaintiff
for permanent injunction and filed notice of motion no.3873/2017
claiming temporary injunction restraining plaintiff society from parking
their car in the suit premises. By order dated 07.09.2018, my
predecessor granted temporary injunction in favour of defendant no.1
and 2 and against the plaintiff thereby restraining the plaintiff society
from parking car of defendant no.1 and 2 in suit premises. Order dated
07.09.2018 is not set aside or modified by this Court. Plaintiff did not
prefer appeal against the order dated 07.09.2018. In view of above
facts, circumstances and documentary evidence on record, prima facie
case is not made out by the plaintiff to grant temporary injunction
against defendant no.1 and 2. In the result, following order.
ORDER
Notice of Motion no.3304/2019 is dismissed and
disposed of.
(Sunil T. Soor)
Judge
Date : 05.11.2020 Gr. Mumbai.
Typed on : 09.11.2020
HHJ signed on : 09.11.2020
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
09.11.2020, 2.30 p.m.
UPLOAD DATE AND TIME Mrs. V. N. Rajgole.
NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.2)
H.H.J. Shri. S. T. Soor
C.R.No.02
Date of Pronouncement of
JUDGMENT/ORDER
05.11.2020
JUDGMENT/ORDER signed by P.O.
on
09.11.2020
JUDGMENT/ORDER uploaded on 09.11.2020
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