Final Order 1

Order Details: Notice of Motion
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Presented on : 30.08.2019
Registered on : 30.08.2019
Decided on : 14.02.2024
Duration : 04 Ys 05 Ms 15 Ds
IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.3320 OF 2019
IN
SUIT NO.2543 OF 2015
(CNR NO.MHCC01-009039-2019)
Gilroy Gabriel Mendes and 3 Ors. ).. Plaintiffs
V/s.
M/s. Nirvana CHS Ltd. and Anr. ).. Defendants.
Appearances :-
Ld. Adv. Mr. V. R. Tripathi for plaintiff.
Ld. Adv. Mr. Rakesh Pathak for defendant No.1.
Ld. Adv. Ms. Yasmin Sarang for defendant No.2/BEST.
CORAM : HIS HONOUR JUDGE V. V. PATIL
COURT ROOM NO.09
DATE : 14th February, 2024.
ORDER
1. Plaintiff has taken out this notice of motion directing the
respondents i.e. Senior Inspector of Police, Mahim Police Station, to
render all possible assistance to the plaintiffs and their contractors and
to defendant No.1 to lay down pipe lines and all other devices as may
be required to provide electricity to the suit premises and if necessary
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by deputing a police at the site of the suit premises.
2. It is contention of the plaintiff that by order dated
30.06.2018 this Court made Notice of Motion No.4155/2015 of the
plaintiff’s absolute in terms of prayer clause (d) which was for directing
defendant No.2 to provide the plaintiffs electrical connection without
no objection of defendant No.1 and on plaintiffs complying with
defendant No.2’s usual terms and conditions. Thereafter, defendant
No.2 by its order dated 25.09.2018 directed the plaintiffs to lay down
pipe lines between nearby building services up to the service column or
to lay a meter outgoing lead wires from nearby meter cabin to the suit
premises.
3. Thereafter plaintiffs appointed the authorized contractor to
lay down the electric pipeline, however, some of the miscreants in the
Society of defendant No.1 prevented the plaintiff from laying down
pipeline and sought help of anti social elements. Such miscreants also
removed already laid down part of the pipeline. Plaintiff, therefore
through their advocate wrote letter dated 01.02.2019 to the defendant
No.1 Society to ensure safe process of laying down of pipeline and to
comply with the order of the Court. Plaintiff also wrote letter dated
02.02.2019 to the Senior Police Inspector, Mahim Police Station against
unauthorized act of some of the members of defendant No.1 Society
and to give protection but police expressed their inability without an
order of the Court in that respect. Hence, plaintiffs have taken out
present Notice of Motion and prayed for allowing the Notice of Motion.
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4. Defendant No.1 Society filed an Affidavit-in-Reply to the
Notice of Motion and strongly opposed the same. It is submitted that
plaintiffs have suppressed material facts with ill-intention to obtain
interim relief from this Court. The plaintiffs are neither tenants nor
members of defendant Society and have illegally taken electric
connection from the meter of defendant No.1 Society without the
permission of defendant No.1 Society which amounts to theft of
electricity. Further, defendant Society has challenged the order dated
30.06.2018 passed by this Court before Hon’ble High Court by filing
Appeal from Order No.575/2018. Said Appeal from Order No.575/2018
is pending for final adjudication.
5. It is further submitted that on 12.01.2019 one Mr. William
Moses Piedade alongwith plaintiff No.1 started digging up an open area
of Society’s compound without consent and permission of the Society.
Hence, they were asked to shown work order in this regard, but said Mr.
Piedade failed to show any work order pertaining to the service
quotation shows by him. Therefore Society sent letter dated 25.01.2019
to defendant No.2 and Mahim Police Station complaining about
aforesaid fact. Thereafter defendant No.2 i.e. BEST had taken
cognizance of defendant Society’s letter and thereby initiated action
against said Mr. Piedade. Thus, it is clearly revealed that plaintiff had
appointed an unauthorized contractor to lay down the electrical
pipeline. Defendants denied that some of the miscreants in the Society
prevented the plaintiffs from laying down the pipelines as alleged by the
plaintiff. It is submitted that under guise of the said order dated
30.06.2018, the plaintiffs are trespassing the premises of the Society
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alongwith some unknown persons and damaging the property of the
Society. It is further submitted that in earlier S.C. Suit No.4110/1989
which was filed by present defendant No.1 Society against the plaintiffs
therein, the Hon’ble City Civil and Sessions Court at Mumbai passed
judgment and decree of permanent and mandatory injunction against
the plaintiffs restraining him from encroaching not even an inch of land
of Society which is still running against the plaintiffs. Therefore, Notice
of Motion taken out by present plaintiff is misconceived and devoid of
merits and is liable to be dismissed with heavy compensatory cost.
6. Defendant No.2 BEST has not filed reply to Notice of
Motion. Perused the Notice of Motion & Affidavit in support of Notice of
Motion. Also perused an Affidavit-in-Reply filed by defendant No.1
Society. Heard both sides. The following points arise for my
determination and I have recorded my findings to them for the reasons
stated below :-
Sr. No. POINTS FINDINGS
1. Whether the plaintiff has made out
prima facie case in his favour ? In the affirmative.
2. Whether balance of convenience lies in
favour of plaintiff ?
In the affirmative
3. Whether irreparable loss will be caused
to the plaintiff, if present Notice of
Motion is not allowed ?
In the affirmative
4. What order? As per the final order
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R E A S O N S
AS TO POINT NO.1 TO 3 :
7. As point No.1 to 3 are interrelated with each other, in order
to avoid repetition of discussion, I am discussing them together.
8. Heard Ld. Advocate for both sides at length. From the rival
submissions, it appears that plaintiff had taken out Notice of Motion
No.4155/2015. Said Notice of Motion was made absolute vide order
dated 30.06.2018 in terms of prayer clause (d) which reads as under ;
“That pending the hearing and final disposal of the
suit, the Defendant No.2 be directed by mandatory
orders and injunction of this Hon’ble court to provide
to the plaintiffs electric connection without No
Objection of the Defendant No.1 and on plaintiffs
complying with 2nd defendants usual terms and
conditions.”
9. Further, it appears that thereafter plaintiff appointed
contractor to lay down electric pipelines as directed by defendant No.2
BEST, however, some of the members of defendant No.2 Society
prevented them from laying down pipelines. According to plaintiff,
some of the miscreants of Society of defendant No.1 prevented plaintiffs
from laying down pipelines and also removed already laid down part of
the pipelines. Whereas, according to defendant No.2 Society, plaintiff
started digging up an open area compound of Society without consent
and permission of the Society and he also failed to show the work order.
Thus, plaintiff had appointed an unauthorized contractor to lay down
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the electric pipeline.
10. Here, it is pertinent to note that, Secretary of defendant
No.1 Society, Mr. Aniket Pradhan filed affidavit on behalf of defendant
No.1 Society that it has been resolved in Special General Body Meeting
of Society held on 03.07.2022 with Mr. Mendes, the plaintiff can be
given No Objection on humanitarian ground to lay BEST Electrical cable
through Society premises with minimum utilization of Society’s
property as approved by the Society for laying the cable. The plaintiff
filed affidavit submitting that the BEST undertaking have electric
experts and cables are being laid down under guidance of such experts
and Notice of Motion be made absolute.
11. Here it is pertinent to note that, already by order dated
30.06.2018 this Court has made absolute Notice of Motion
No.4155/2015 in terms of prayer clause(d) by which defendant No.2
BEST was directed to provide the plaintiff electric connection without
No Objection of defendant No.1 Society. Said order is still in operation.
Therefore, in view of said order, the plaintiff has right to take electricity
supply in his premises from defendant No.2 BEST and defendant No.1
Society can not object to the same. However, it appears that while
laying down pipelines for taking electric supply, the work of laying
down pipelines was prevented by defendant No.1 Society on the ground
that plaintiff failed to show the work order. Thus, it can be gathered
that defendant No.1 Society has obstructed the work of laying down
pipelines. It is submitted on behalf of defendant No.1 that defendant
No.1 is not obstructing the work but only contention of defendant No.1
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Society is to restore position of Society and that no damage be caused
to the property of the Society.
12. As discussed above, Notice of Motion No.4155/2015 of
plaintiffs is made absolute in terms of prayer clause (d). Therefore,
plaintiff is entitled to the electric supply from defendant No.2 BEST and
if, he requires police protection for execution of order of the Court,
police protection needs to be given for the same. The plaintiff has made
out prima facie case in his favour and balance of conveyance also lies in
favour of plaintiff. Defendant No.2 has already submitted that they are
not obstructing to the plaintiff. Therefore, no irreparable loss will be
caused to the defendant, if Notice of Motion is allowed. As against this,
plaintiff would suffer irreparable loss, if Notice of Motion is not allowed
and if, plaintiff is prevented from executing order of this Court. Hence, I
answer point Nos. 1 to 3 in affirmative and hold that the present Notice
of Motion deserves to be allowed. In the result, I proceed to pass the
following order :-
ORDER
1. Notice Motion No.3320/2019 in Suit No.2543/2015, is
hereby made absolute in terms of prayer clause (a).
2. Notice of Motion is disposed off accordingly.
(Order dictated & pronounced in open Court)
(V. V. PATIL)
Judge, City Civil Court,
Dated : 14.02.2024 C.R. No.09, Gr. Mumbai
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Dictated on : 14.02.2024
Transcribed on : 14.02.2024
Signed on : 14.02.2024
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“Certified to be true and correct copy of the original signed order”.
15.02.2024
at about 16.30 p.m.
(Manisha D. Hirole)
Stenographer (Grade-I.)
Court Room No.09, Gr. Mumbai.
Name of the Hon'ble Judge : HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Order : 14.02.2024
Order signed by Hon'ble Judge on : 15.02.2024
Order uploaded on : 15.02.2024
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