Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.3662/2019 ..1.. L.C. Suit No.2019/2010
CNR NO.MHCC01-009997-2019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 3662 OF 2019
IN
L.C. SUIT NO. 2019 OF 2010
Mr. Anant Shripat More )
Aged 63 years, Occupation Retired )
Residing at Room No.13, Chawl No.2 )
Sumanti Niwas, Khirade Compound )
Ganesh Nagar,Bhandup (West), )
Mumbai – 400 078. )...Plaintiff
Vs.
1. The Mumbai Municipal Corporation for )
Greater Mumbai )
A statutody Body having its office )
at Mahapalika Bhavan, Mahapalika )
Road, Mumbai – 400 001. )
2. Shivaji Bhagoji Bhosale )
Aged 58, Occupation Retired )
Residing at C/o Ashok Pawar )
Brahmadev Co. Operative Housing )
Society Room No.104, A wing, 1st floor )
P.T. Road, Mahim, Mumbai – 400 016. )
3. Santosh Mithbavkar )
Aged 42 years, Occupation – Developer )
Having their office at – Santosh )
Enterprises 306, Laxmi Commercial )
Co.operative Society 3rd Floor, Phool )
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Market, Senapati Bapat Marg, Dadar )
(West), Mumbai – 400 028. )...Defendants
APPEARANCE:-
Ld. Adv. Mr. Shriram S. Redij for the plaintiff.
Ld. Adv. Mr. S. B. Prabhavalkar for the defendant No.2.
Ld. Adv. Mr. Sutar for the defendant/BMC.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.P. JAIN (C.R. NO.06)
DATED : 3rd OCTOBER, 2020.
O R D E R
This notice of motion was moved by plaintiff praying to
restrain defendant No.2 from disposing of or alienating, or creating
third party interest in suit premises and permanent alternate
accomodation so also praying temporary injunction against defendant
No.3 from handing over possession of permanent alternate
accomodation in lieu of suit premises to defendant No.2.
2. Both learned advocates for plaintiff as well as defendant
are present today. Learned advocate for plaintiff has taken this notice
of motion on board today by moving precipe. He also filed additional
affidavit in support of notice of motion. Learned advocate for defendant
No.2 has filed reply to additional affidavit of plaintiff.
3. The anxiety of plaintiff in moving the precipe today was
that defendanat No.2 has received the keys of permanent alternate
accomodation in lieu of suit premises from society in pursuance of
order of Hon’ble High Court in Writ Petition No.776/2020 dated
31st July, 2020. So according to plaintiff, if defendant No.2 creates
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further third party interest in the permanent alternate accomodation
received by him, it will frustrate his notice of motion. Therefore,
plaintiff prays to restrain defendant No.2 from creating third party
interest in the permanent alternate accomodation received by
defendant No.2.
4. I have heard both the learned advocates. Perused the order
passed by Hon’ble High Court in Writ Petition No.776/2020 dated 31st
July, 2020, the contents in additional affidavit of plaintiff as well as
reply of defendant No.2. On perusal of clause-(ix) of the order in Writ
Petition No.776/2020, it is appearing that directions were given to the
petitioner therein i.e. Santosh Enterprises (Developer) (hereinafter
referred as “Developer” in short) to handover the keys of the respective
permenent alternate accomodation to the intervenor/applicant i.e.
Manshanti Co-operative Housing Society Ltd. (hereinafter referred as
“Society” in short) in discharge of the obligation of the aforesaid
petitioner in case of inter-se family disputes amongst the members.
5. Today the defendant No.2 has specifically pleaded in his
reply that he has received the keys of the permanent alternate
accomodation in lieu of suit premises from the aforesaid society. The
learned advocate for defendant No.2 has shown the alleged keys of the
permanent alternate accomodation in court. Learned advocate for
plaintiff has contended that the developer was to handover the keys to
the society in case of inter-se family disputes. Such restriction is implied
in the clause-(ix) of the order is argued by learned advocate for
plaintiff. Whether the society has bypassed the order and wrongly
handed over the keys to defendant No.2 will be part of merits. At this
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stage, because the keys are already handed over to defendant No.2 by
society, the prayer in clause (b) of this notice of motion becomes
redundant.
6. The defendant No.2 has specifically pleaded in
paragraph-1 of his reply that he has no intention to create third party
interest in respect of the permanent alternate accomodation till
disposal of the suit and further has no objection to record his such
statement. He has also specifically pleaded that he has executed
indemnity bond while receiving the keys of permanent alternate
accomodation from society. The notarized copy of the indemnity bond
is annexed along with his reply.
7. From aforesaid documents it is revealing that in pursuance
of order of Hon’ble High Court in Writ Petition No.776/2020, the
developer has handed over the keys of permanent alternate
accomodation in lieu of suit premises to society and the society in turn
has handed over the keys of permanent alternate accomodation to
defendant No.2 upon getting the indemnity bond from defendant No.2.
When defendant No.2 has specifically made statement in his reply that
he has no intention to dispose of the permanent alternate
accomodation till disposal of the suit, the anxiety of plaintiff and
purpose of second part of prayer clause (a) of this notice of motion
suffices. As the anxiety of plaintiff has been redressed by statement of
defendant No.2 in his reply which is on oath, no purpose remains in
this notice of motion. Therefore, the notice of motion needs to be
disposed of by taking the statement of defendant No.2 on record.
Accordingly, I proceed with following order-
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ORDER
1. Notice of Motion No.3662/2019 is hereby disposed of in terms
that defendant No.2 shall not dispose of the permanent alternate
accomodation received in lieu of suit premises till final disposal
of the suit as is averred by him in paragraph-1 of his reply dated
03.10.2020.
2. No order as to costs.
3. Notice of Motion No.3662/2019 is accordingly disposed of.
(C.P. Jain)
Ad-hoc Judge, (C.R.No.06)
Date : 03.10.2020 City Civil Court, Gr. Bombay
Directly dictated on computer : 03.10.2020.
Signed on : 05.10.2020.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 06.10.2020, 11.44 am.
NAME OF STENOGRAPHER : Mr. Harshal D. Jagtap
Name of the Judge (With Court
Room No.)
HHJ Smt. C.P. Jain
C.R. No.06
Date of Pronouncement of
JUDGMENT/ORDER
03.10.2020.
JUDGMENT/ORDER signed by P.O.
on
05.10.2020.
JUDGMENT/ORDER uploaded on 06.10.2020.
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