Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Suit No. 2562-2019
...Order in NM No. 3739-2019
MHCC010101522019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 3739 OF 2019
IN
SUIT NO. 2562 OF 2019
Amrutlal Shambulal Vora and Anr. ]….Plaintiffs
V/s.
Maharashtra Housing and Area
Development Authority and Anr. ]....Defendants
Appearances :
Learned Adv. Chaitra Rao for Plaintiff.
Learned Adv. Ms.Mangal Kadam for Defendant No.1/MHADA.
Learned Adv. A. M. Vernekar a/w Adv. Kiran Chandukar for Defendant
No. 3
CORAM : HER HONOUR JUDGE
SMT. A. V. KASTURE
(C.R.NO.09)
DATE : 16th APRIL, 2025
ORDER
1. This is the notice of motion taken out by the plaintiff with
request to direct defendant no.2 to enter into an agreement with the
plaintiff for grant of permanent alternative accommodation and to
provide transit rent from 13.01.2019 @ Rs.500/- per square feet of
carpet area of the old premises situated in ‘B’ Wing of building “Palan
Sojpal’ till the plaintiffs are put in possession of the permanent alternate
accommodation and also to provide the corpus fund, shifting charges
and brokerage as agreed by MOU dated 09.04.2017.
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2. According to the plaintiff, the plaintiffs were in used,
occupation and possession of the residential premises being room
no.127 situated at 3rd floor of ‘B’ Wing of Building ‘Palan Sojpal’ (Old
premises). The defendant No.1 is statutory body incorporated under
the provisions of Maharashtra Housing and Area Development Act,
1976. The defendant No.2 is a partnership firm and is the builder and
developer who have undertaken the redevelopment of building ‘Palan
Sojpal.’
3. The Plaintiffs are tenants of the old premises since last
several years. Somewhere in the year 2014, the partner of Defendant
No.2 acquired development right from the owner for implementation of
redevelopment scheme of ‘Palan Sojlal’ building. Accordingly, the said
partnership firm approached the plaintiffs and requested to give no
objection and also assured the plaintiffs that, they shall be provided
with permanent alternate accommodation in lieu of old premises.
Relying on the said assurance the plaintiffs gave no objection.
Thereafter, the partner of Defendant No.2 entered into MOU dtd.
09.01.2014. As per MOU, it was agreed to provide Permanent Alternate
Accommodation to the plaintiffs alongwith Corpus fund and shifting
charges. Thereafter, defendant no.2 approached the defendant no.1 for
issuance of NOC. In view of NOC the Executive Engineer, M.B.R.& R.
Board, Mumbai of Defendant no.2 issued letter dtd.15.05.2014 to all
tenants to keep the documentary evidence ready to fix the eligibility.
The site was visited and the eligibility of plaintiffs was fixed and
defendant no.2 also prepared the list. The name of the plaintiffs are
appearing as one of the eligible persons in the said list. In meanwhile
the daughter of defendant No.1, Kalpana Boricha claimed that she was
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also entitled for an alternate accommodation in redevelopment scheme
on the ground that she was occupying the portion of room no.127.
However, her claim was rejected.
4. In the month of January, 2019 when the plaintiffs were
required to go to their native place on 13.01.2019, the defendant no.2
unlawfully demolished the old premises for which the plaintiffs had
filed/lodged complaint with Shivaji Park Police Station. Thus, the
plaintiffs have been forcibly dispossessed from the original premises
without executing agreement and without providing transit rent as per
Memorandum of Understanding. Therefore, the plaintiffs have taken
out the present Notice of Motion. According to the plaintiffs if the
interim relief as claimed is not granted, the plaintiffs still suffer from
irreparable loss, harm injury which can not be compensated in terms of
money. The balance of convenience and equity is in favour of plaintiff.
On the other hand, if the relief as prayed for is granted no harm, loss
prejudice will be caused to the defendants. Hence, requested to made
the Notice of Motion absolute.
5. The defendant Nos. 2 and 3 have filed their reply
respectively. According to defendant No.2, the plaintiffs have filed the
present suit with a motive to obtain illegally and unfairly two flats in
lieu of tenement No.127. The plaintiffs have suppressed the fact that
the old premises was a single unit/tenement which was partitioned
internally between the plaintiffs and their daughter Smt.Kalpana
Narendra Shah. The partition of the old premises between plaintiffs
and Kalapna was neither with the consent of landlords of the premises
nor BMC or Defendant No.1. A single rent receipt was issued in respect
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of old premises. The plaintiffs have suppressed that the old premises
was also occupied by the plaintiffs daughter, Kalpana Shah and
plaintiffs had left and were not residing in the old premises. The
plaintiffs have also suppressed the order dtd. 17.12.2018 of Defendant
no.1 holding Room no.127 as a single tenement and the plaintiffs and
smt Kaplana Shah together are the co-occupants of the old premises.
The Executive Engineer of Defendant no.1 was called upon to update
the Certified list of tenants/occupants. The order dtd. 17.12.2018 was
passed by Deft. no.1 after providing hearing to the plaintiffs and
Kalpana Shah.
6. According to defendant. no.2 the suit is not maintainable as
the plaintiffs were admittedly not in possession of the old premises.
The plaintiffs through their daughter who was co-occupant at the
material time has already been assured allotment of alternate
permanent accommodation in lieu of the old premises for which
requisite agreement has been entered into with Smt. Kalpana Shah who
was in possession of the premises at the material time. The vacant and
peaceful possession of the old premises has been handed over by the
Smt. Kalpana Shah to defendant no.2 vide letter dtd. 07.01.2019
against an assurance by the defendant. No2 as entering into an PAA
agreement and handing over her cheques towards transit rent, hardship
allowance, shifting charges etc.
7. Perusal of plaint and Notice of motion reveals that the
plaintiffs are seeking the final reliefs at interim stage which will have
the effects of disposing of the suit at the interim stage without trial.
The plaintiffs have not substantiated their entitlement to another
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permanent alternate accommodation in lieu of old premises. Moreover,
the present suit is not maintainable before this court by virtue of
Section 41 of Presidency Small Causes Act. Hence, requested to reject
the notice of motion.
8. The defendant no.3 has objected the notice of motion on
the ground that by way of interim reliefs the plaintiffs are seeking final
reliefs in terms of prayer clause (a) and (c) of the plaint. She is the
accepted and certified by Defendant no.1 as a co occupant of the old
premises and therefore, the agreement of grant of Permanent Alternate
Accommodation is required to be jointly executed by Defendant no.2
with the plaintiffs and her and she and plaintiffs are required to be put
the joint possession of the Permanent Alternate Accommodation in
Redevelopment scheme. It is denied by her that the plaintiffs have been
forcibly dispossessed from the old, premises without executing
agreement and without providing transit rent as per the alleged
Memorandum of Understanding. Therefore, she requested to reject the
Notice of motion taken out by the plaintiff.
9. Perused the Notice of motion supported with the Affidavit
and documents and the reply filed by Defendant nos. 2 and 3. Also
perused the plaint and Written statement filed by the defendants. Heard
Ld. Advocate for Plaintiff, Defendant Nos.2 and 3.
10. Perusal of the record shows that, the plaintiff has filed
MOU dtd. 09.04.2014. The said MOU prima-facie shows that the
plaintiff. no.1 and his deceased son (Original Plaintiff no.2) were
recognized as tenant and relevant benefits were promised to be given to
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the plaintiff no.1 and his deceased son. However, it is admitted fact that
by the order dtd. 17.12.2018, the defendant no.1 has declared the
Room No. 127 as a single tenement. According to the plaintiff No.1, the
defendant No.3 is certified as a co-occupant of Room No. 127 vide
order dtd. 17.12.2018 and therefore, defendant No. 3 is entitled for
Permanent Alternate Accommodation Agreement to be executed in her
favour and also entitled for the transit rent and the other benefits.
11. It is not disputed that at the relevant time, the defendant
no.3 Kalpana Shah was in possession of the old premises and she
handed over the possession of the old premises to defendant no.2 vide
letter dtd. 07/01/2019. It is the case of the plaintiff that when he was
at his native place the defendant no.2 illegally demolished the old
premises. However, the documents on record shows that the possession
of the old premises was given by the defendant no.3 to defendant no.2
vide letter dtd. 07.01.2019 therefore, it can not be prima-facie said that
the demolition was illegal. The question that whether the defendant
No.3 was having right to give the possession of old premises or not
having right to receive rent and other benefits is a question which will
be decided on merits.
12. The defendant no.2 and 3 vide their reply submitted that
the grant of relief under present Notice of Motion would amount final
relief granted to the plaintiff and hence, requested to reject the Notice
of Motion. On this point, the ld. Adv. for plaintiff has relied on the
decision of Honourable Apex Court in Deoraj V/s. State of Maharashtra
in which it is observed by the Honble Apex Court in para no.12 as,
“ 12. Situations emerge where the granting of an interim relief
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would tantamount to granting the final relief itself. And then there may
be converse cases where withholding of an interim relief would
tantamount to dismissal of the main petition itself; for, by the time the
main matter comes up for hearing there would be nothing left to be
allowed as relief to the petitioner though all the findings may be in this
favour. In such cases the availability of a very strong prima facie case-
of a standard much higher than just prima facie case, the considerations
of balance of convenience and irreparable injury forcefully tilting the
balance of the case totally in favour of the applicant may persuade the
court to grant an interim relief though it amounts to granting the final
relief itself. Of course, such would be rare and exceptional cases. The
court would grant such an interim relief only if satisfied that
withholding of it would prick the conscience of the court and do
violence to the sense of justice, resulting in injustice being perpetuated
throughout the hearing, and at the end the court would not be able to
vindicate the cause of justice. Obviously such would be rare cases
accompanied by compelling circumstances, where the injury
complained of is immediate and pressing and would cause extreme
hardship. The conduct of the parties shall also have to be seen and the
court may put the parties on such terms as may be prudent. ”
13. However, in the present case the alleged injury caused to
the plaintiffs is not such that it would cause extreme hardship to the
plaintiff. Under such circumstances, though in view of Memorandum
of Understanding dtd. 09.04.2014 the plaintiff has prmia facie case, it is
not the case that the plaintiff will suffer irreparable loss which can not
be compensated in terms of money as the old premises has already
admittedly been demolished. As such, I am of the view that the balance
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of convenience is also not in favour of the plaintiff. Hence, I am not
inclined to allow the Notice of Motion. Therefore, I pass the following
order.
ORDER
1. The Notice of Motion No.3739 of 2019 stands dismissed
and disposed of accordingly.
(A. V. Kasture)
Judge,
City Civil Court,
Date: 16.04.2025 Gr. Bombay.
Dictated on : 16.04.2025
Transcribed on : 16.04.2025
Signed on : 17.04.2025
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
17.04.2025 At 3.30 P.M. Mrs. Poonam Y. Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ SMT. A. V. KASTURE
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
16.04.2025
Judgment/Order signed by P.O. on 17.04.2025
Judgment/Order uploaded on 17.04. 2025
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