Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.3422/2019 ..1.. In S.C. Suit No.1019/2014
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 3422 OF 2019
IN
S.C. SUIT NO. 1019 OF 2014
CNR NO :- MHCC01-009347-2019
Kaluram Dharmaji Jadhav,
Age : 46 Years, Occ.: Service,
Residing At : c/o., BDD Chawl No. 14,
Room No. 52, G. M. Bhosale Marg,
Worli, Mumbai - 400 018. ...Plaintiff
Versus
M/s. Akshaya Sthapatya Pvt. Ltd.,
Having Office At : 401,
Raheja Chamber 213,
Nariman Point, Mumbai - 400 021. ...Defendant
Appearance :-
Mr. Redekar, Advocate for the Plaintiff.
Mr. Dinesh Shinde, Advocate for defendant.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 24TH FEBRUARY, 2021.
ORAL ORDER
By this notice of motion the defendant has sought rejection
of plaint under Order 7 Rule 11 Clause (d) of Civil Procedure Code
(hereinafter referred as, “CPC”) r/w Section 42 of Maharashtra Slum
Areas (Improvement, Clearance and Redevelopment) Act, 1971,
(hereinafter referred as, “The Act of 1971”).
2. It is the contention of defendant that, present suit is
seeking specific performance of an agreement dated 29.01.2008 entered
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Notice of Motion No.3422/2019 ..2.. In S.C. Suit No.1019/2014
under the provisions of the Act of 1971. The Slum Rehabilitation
Scheme is being implemented by the defendant. The plaint is
apparently barred by the law from the statements therein. The plaint
alleges that the plaintiff is eligible occupant under the Act of 1971. The
defendant has allegedly agreed to pay certain amounts to provide
alternate accommodation under or for the purpose of implementation of
Slum Rehabilitation Scheme. The defendant has failed to pay the
amount to secure transit accommodation for implementation of the
Slum Rehabilitation Scheme. The averments in the plaint reveal that,
the cause of action squarely falls within the jurisdiction of the
Administrator or Competent Authority who is empowered to determine
supervise and monitor the implementation of Slum Rehabilitation
Scheme. There is specific bar under Section 42 of the Act of 1971 to the
jurisdiction of the Civil Court to entertain any matter which the
authorities under the Act of 1971 are empowered to deal with. The
plaintiff himself appeared to have made representation before Deputy
Collector Slum Rehabilitation Authority regarding his grievances.
However, due to pendency of present suit the Deputy Collector has not
passed any order. The appropriate forum to consider plaintiff’s
grievances is the Slum Rehabilitation Authority under the provisions of
the Act of 1971. The plaint does not disclose dispute entertainable by
the Civil Court.
3. The plaintiff has opposed notice of motion claiming that,
the notice of motion is filed intentionally to prolong the trial of the suit.
The suit is already scheduled for recording plaintiff’s evidence. The suit
premises were demolished by the defendant. The defendant executed
an agreement for allotment of permanent alternate accommodation.
During the redevelopment process the plaintiff is entitled for
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Notice of Motion No.3422/2019 ..3.. In S.C. Suit No.1019/2014
compensation amount till handing over new permanent accommodation
by the defendant. The defendant has also executed an agreement to
that effect, but is not ready to pay further compensation amount to the
plaintiff and is avoiding to pay the same. Till date permanent alternate
accommodation is not ready. Notice of motion is filed after 4 years of
institution of suit. The compensation amount was a temporary
arrangement. The relief sought by defendant is beyond the pleadings
and prayers. Defendant’s conduct is blameworthy. The notice of
motion is misconceived. Considering the issues involved in the suit,
only the Civil Court has jurisdiction. Provisions of Section 42 of the Act
of 1971 are not attracted in the case. The statements in the notice of
motion are false. The Competent Authority has also observed that, it
won’t decide the plaintiff’s claim till adjudication of the suit by this
Court.
4. Perused. Heard.
5. Provisions of Clause (d) of Rule 11 of Order 7 of CPC
provide for rejection of plaint where the suit appears from the
statements in the plaint to be barred by any law.
6. Thus, the consideration for decision on this notice of
motion will be only the plaint and nothing else. The defence raised by
the defendant will be irrelevant for the decision of present motion. At
the same time, it needs to be mentioned that, the ‘plaint’ will include
the plaint and the annexures attached to it at the time of its institution.
7. Perusal of plaint reveals that, the plaintiff claims that his
old premises were demolished by the defendant for the purpose of
redevelopment under D.C.R. 33 (10) for implementation of SRA
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Scheme. The plaintiff is eligible occupant. Therefore, the defendant
entered into an agreement dated 29.01.2008 with the plaintiff and
agreed to pay the rent for temporary transit accommodation @ rate of
Rs.5,000/- per month for 30 months and thereafter at an increased rate.
Later, defendant paid rent for transit accommodation @ rate of
Rs.10,000/- per month. Since, 16.11.2012 the defendant has not paid
the rent. Though it is paying the same to other Slum Dwellers. The
plaintiff demanded the amount of rent by serving a demand notice. The
defendant served a letter on the plaintiff disclosing the willingness to
pay compensation till 20.06.2013 and thereafter directing the plaintiff
to shift to his old premises, despite knowing that the old premises do
not exists. On these allegations the plaintiff has sought recovery of rent
@ rate of Rs.10,000/- per month from the defendant.
8. Advocate for defendant submitted that, in view of
provisions of Section 42 of the Act of 1971 the Civil Court has no
jurisdiction to deal with the aspects, which can be dealt with by the
authorities treated by the Act of 1971. According to him the dispute as
to rent is to be dealt with by the Slum Rehabilitation Authority under
Section 3A of the Act of 1971. According to him therefore the Civil
Court cannot entertain a claim as raised in the plaint. He submitted
that, bare reading of the plaint as well as the documents attached to it
clearly indicate that, the dispute raised in the plaint cannot be dealt
with by the Civil Court. Therefore, he submitted that, the plaint on the
face of it is barred by the provisions of law i.e. the bar to jurisdiction
provided by Section 42 of the Act of 1971.
9. On the other hand, the advocate for the plaintiff submitted
that, the case has already been scheduled for recording of evidence.
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Issues are already framed and issue No. 1 pertains to the aspect of
jurisdiction of this Court. At this stage the notice of motion is taken out
by the defendant only to delay the trial. The plaintiff has already
approached the Competent Authority. However, the Competent
Authority has not decided plaintiff’s claim and is awaiting the orders of
this Court as can be seen from letter dated 03.12.2016 produced by
defendant itself along with its affidavit in support of present notice of
motion. He submitted that, the dispute raised in respect of specific
performance of an agreement entered into by the plaintiff and
defendant. Such dispute is clearly cognizable by the Civil Court.
Therefore, he prayed for dismissal of notice of motion with
compensatory costs.
10. The provisions of Section 42 of the Act of 1971 provide
that,
“42. Bar of Jurisdiction.- Save as otherwise expressly
provided in this Act, no civil Court shall have
jurisdiction is respect of any matter which the
Administrator, Competent Authority or Tribunal is
empowered by or under this Act, to determine; and no
injunction shall be granted by any Court or other
authority in respect of any action taken or to be taken
in pursuance of any power conferred by or under this
Act.”
11. Perusal of said provisions reveals that, the Civil Court
cannot have jurisdiction in respect of any matter which either the
Administrator or the Competent Authority or the Tribunal is empowered
by or under the Act of 1971 to determine.
12. Provisions of Section 3A provide for Constitution of Slum
Rehabilitation Authority for implementing Slum Rehabilitation Scheme.
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Sub-section (3) Clause (d) of Section 3A of the Act of 1971 confers
powers, duties and functions of the Slum Rehabilitation Authority to do
all such other acts and things as may be necessary for achieving the
objects of Rehabilitation of Slums.
13. In the course of hearing a notification is produced by the
defendant which is published by the Slum Rehabilitation Authority. It is
dated 06.06.2015. It provides for a mechanism for payment of rent by
the developer to the eligible slum dwellers in lieu of transit
accommodation during the redevelopment of slum. The circular, in sub
Clause (d) of its Clause (3) provides that, the dispute between eligible
slum dweller and developer in respect of the rent shall be heard by the
co-operative department and the decision given by the co-operative
department will be binding on both the parties.
14. Perusal of notification produced on record reveals that, it is
of 06.06.2015. The plaint in this case is instituted on 24.03.2014 i. e.
prior to issuance of said notification. However, the fact remains that,
the duty of Slum Rehabilitation Authority as provided in Sub-section 3
of Section 3A of the Act of 1971 covers relief of such dispute also in its
residuary sub-clause (d) which empowers it to do all such other acts
and things as may be necessary for achieving the objects of
Rehabilitation of Slums. No doubt said Clause also covers all the
disputes amongst all the stake holders arising out of the process of
Rehabilitation Scheme. In view of this, the dispute raised in the plaint
is cognizable by the Slum Rehabilitation Authority constituted under
Section 3A of the Act of 1971. Thus, from the statement in the plaint
itself it is evident that, the dispute raised in the plaint is cognizable by
Slum Rehabilitation Authority and not by the Civil Court, in view of
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specific bar under Section 42 of the Act of 1971. Consequently, I hold
that, the plaint is barred by the provisions of law and thus it attracts
Clause (d) of Rule 11 of Order 7 of CPC. In the result, I hold that, the
plaint as presented is liable for rejection. Hence, following order :-
ORDER
1. Notice of Motion No. 3422/2019 is made
absolute in terms of prayer Clause (a).
2. The plaint is rejected.
3. The suit is disposed of.
(AJIT N. MARE)
Judge,
Date : 24.02.2021 City Civil Court, Gr. Mumbai.
Dictated On : 24.02.2021
Transcribed on : 25.02.2021
HHJ Signed on : 01.03.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
01.03.2021 05.05 p.m. Mahendrasing D. Patil
(Stenographer (Grade-I)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 24.02.2021
Order signed by P. O. on 01.03.2021
Order uploaded on 01.03.2021
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