Final Order 1

Order Details: Other
Pdf Text: 1 MA 116/2019 in EA 456/2018
MISC. APPLICATION NO. 116 OF 2019
IN
EXECUTION APPLICATION NO. 456 OF 2018
IN
SUIT NO. 7728 OF 1998
(HIGH COURT SUIT NO. 830 OF 1998)
CNR NO. MHCC01-010179-2019
Dr. Samant … Applicant
In the matter between
Chogle Dham Co-operative Housing
Society Ltd. ... Plaintiff
Versus
Dr. Samant & Ors. …Respondents
Appearances:-
Mr. K.N. Kandekar, Advocate for applicant/JD.
Mr. Nikunj Mehta, Advocate for D/H.
CORAM : SMT. S.S. NAGUR,
JUDGE,
(C.R.NO.20)
DATED : 24th MARCH 2021
ORAL ORDER
1. The application is filed by the applicant seeking following reliefs:-
a) Plaintiff be directed to submit an updated copy of the Deed of
Conveyance along with all the copies of approved sanctioned
plans by the BMC along with copy of notice received from the
BMC for illegal construction in the plaintiff society;
b) The matter should be adjourned till the hearing of the SLP
before the Hon’ble Supreme Court, as the matter is res-
subjudice, and the plaintiff have failed to provide service of
Caveat filed before the Supreme Court, for reasons known to
them, which has caused the delay for the matter being heard.
2. The applicant has narrated in brief the history of dispute
between the parties. The First Appeal bearing no. 440 of 2018 is
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2 MA 116/2019 in EA 456/2018
pending before the Hon’ble High Court. The reason for not getting the
conveyance done was not entirely due to non-cooperation from their
side, but it was due to the illegal construction done by M/s. Ajay
Associates, who have even received BMC notice regarding the illegal
construction, against the original authorized sanctioned plan.
3. Heard advocate K.N. Kandekar for applicant/JD and advocate
Nikunj Mehta for D/H. Perused contents of application supported by
affidavit.
4. Advocate K.N. Kandekar for applicant/ JD argued that the SLP is
decided by the Hon’ble Supreme Court. Therefore relief in the
Miscellaneous application may not be considered. The First Appeal is
pending before the Hon’ble High Court. The Execution Proceeding may
not proceed. The construction in the property is illegal. Therefore,
direction be given to produce the documents.
5. On the other hand, advocate Nikunj Mehta for DH argued that
the decree is to be executed, therefore the objection raised by the
applicant/JD is not tenable. Advocate for DH has drawn my attention to
the order dated 22.01.2020 passed by Hon’ble High Court in Interim
Application No. 1/2019 in First Appeal No. 440 of 2018. The Hon’ble
High Court in para 6 held that the development agreement came into
existence on 28.09.2013 whereas the impugned Judgment and decree
came to be passed on 30.11.2017. Clause (L) of the Development
Agreement clarifies that, the society is the owner of the said property,
however, formal execution and registration of a Deed of Conveyance in
respect of the said property in their favour is pending. The rights of the
society stood materialized and crystalized only after the impugned
Judgment and decree was passed on 30.11.2017. The impugned
Judgment and order is assailed in the present appeal and interim relief
in the form of stay of the Judgment and decree is already rejected by
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this Court and confirmed by the Hon’ble Apex Court. While disposing of
the Special Leave Petition, a clear cut direction is given by the Hon’ble
Apex Court to the respondents that they shall not create any third party
rights in respect of the suit property during pendency of appeal. The
application of the present applicant was dismissed.
5. The applicant/JD in the present application is trying to prolong
the execution of decree. The applicant/JD knows that their attempt to
get the decree stayed has failed. The prayer (b) of the applicant in the
present application is nothing but a fishing inquiry in order to gain
useful information. The said information the applicant can collect from
BMC. The application is not tenable. Hence, pass following order :-
ORDER
1. Application is dismissed.
2. No order as to cost.
3. Accordingly, application is disposed of.
Dated : 24.03.2021 (Smt. S.S. Nagur)
Judge,
City Civil Court
Gr. Mumbai.
Dictated on : 23.03.2021
Typed on : 23.03.2021
Pronounced on : 24.03.2021
Checked & Sign on : 24.03.2021
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4 MA 116/2019 in EA 456/2018
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
26/03/2021 1.45 p.m. Prachi Y. Potdar
Stenographer – Grade I
Name of the Judge HHJ Smt. S.S. Nagur
(C.R.NO.20)
Date of Pronouncement of
Judgment/Order.
24/03/2021
Judgment/order signed by P.O on 24/03/2021
Judgment/order uploaded on 26/03/2021
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