Final Order 1

Order Details: Notice of Motion
Pdf Text: CNR NO : MHCC010102772019. 1 Notice of Motion No. 3805/2019.
in L.C. Suit No. 4954/2008.
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO. 3805 OF 2019.
IN
L.C. SUIT NO. 4954 OF 2008.
Subhash M. Dhanjani+1. ....……………… ….. PLAINTIFFS.
V/s.
M/s. Ankur Developers and the Others. .... ….. DEFENDANTS.
CORAM : SHRI. A.G. SANTANI.
(Court Room No.11).
DATED : 28th March, 2024.
APPEARANCES :
Mr. Rajesh Kachare a/w Mr. Tushar Dahibavkar, Ld. Advocate for the Plaintiffs.
Mr. Zubin Dalal, Ld. Advocate for Defendant No. 4.
*****
01. The plaintiffs have taken out this Notice of Motion (for
short the NM), to restrain defendant No. 4 from carrying out any more
changes to the structure, in size 820 sq.ft. (carpet), constructed on the
area carved out as per the Order dtd. 22.10.2008, passed by the Hon’ble
High Court in NM No.4322/2008, on the first Commercial Floor (facing
Linking Road) in the new building ‘Rajdoot’ of defendant No.3 - Society.
This NM further filed for directing defendant No. 4 to get restored this
structure as per the above said Order, passed by the Hon’ble High Court,
to its original shape and form. Perused the NM, the supporting affidavit
of Mr. Murli K. Dhanjani, CA of the plaintiffs, reply and additional reply
of defendant No.4 and reply rejoinder filed by the plaintiffs. Also gone
through written notes of the plaintiffs and defendant No.4 on this NM
and the documents of their reliance. Heard.
02. Considering the record, the points for determination, along
- with my findings and the reasons therefor, are as under :
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Sr. No. POINTS FINDINGS
(1). Whether the plaintiffs have a prima facie
case in their favour? …............................ …No.
(2). Whether balance of convenience lies in
favour of the plaintiffs? .…...................... ... No.
(3). Whether the plaintiffs would suffer an
irreparable loss, if the interim relief, as
prayed for, is not granted?....................... …No.
(4). What Order? …...............….................... …As per final Order.
-: REASONS FOR THE FINDINGS :-
AS TO POINT NOS.1 TO 3 :
03. As these points are interconnected, to maintain the brevity,
I am taking the same for joint discussions. Since inception, the plaintiffs
came with a specific case that they are the members of defendant No.3 -
Society. Initially, they were occupying flat No.103, admeasuring 750 sq.
ft. (carpet) together with a terrace in size 219 sq. ft. terrace (carpet) on
the first floor of the said building, along-with the stilt parking. In view
of the meeting of dtd. 18.12.2005, defendant No.3 appointed defendant
No.1 as the Developer for the purpose of demolition of the said building
and for construction of the new one. Accordingly, even, such Agreement
for Development was executed by the members of defendant No.3 and
defendant No.1 on 21.05.2006. Moreover, after negotiations, defendant
No.1 issued a letter dtd. 22.05.2006, thereby he agreed to provide a flat
to the plaintiffs on the 1st floor for the commercial user. However, later,
they were allotted flat on the 4th floor, stating that it was agreed that the
flat would be given on the 1st residential floor. As the plaintiffs were in
use of their old flat for commercial purpose, they insisted for the flat on
the 1st floor of the new building. However, defendant No.1 refused for
the same and hence, they had to file this suit. During pendency of the
suit, as per the Order of dtd. 22.10.2008, the Hon’ble High Court carved
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in L.C. Suit No. 4954/2008.
out the area of 820 sq.ft (carpet), on the 1st commercial floor and asked
defendant No. 1 not to part possession of the same. He sold the same to
defendant No. 4, who was aware about pendency of the said litigation.
Though, he purchased the area of 3200 sq.ft on the 1st commercial floor,
out of the said property, the suit property admeasuring 820 sq. ft. was
carved out separately and was always locked. The plaintiffs contended
that though, defendant No. 1 was permitted to sell the property of 820
sq.ft., he was not allowed to demolish its walls. However, in July 2019,
when CA of the plaintiffs visited the premises, he found that defendant
No.4 was in process of demolition of its walls and amalgamation of the
same with the balance area of 2380 sq. ft.. Thus, he is trying to change
nature of the suit premises illegally. If he succeeds, the plaintiffs would
suffer irreparable loss and therefore, they had to file the present NM.
04. Defendant No. 4 objected this NM as the efficacious remedy
is already available to the plaintiffs and therefore, it is not maintainable
before this Court. Moreover, defendant No. 4 was never the party in the
proceeding before the Hon’ble High Court. He denied that he was trying
to demolish walls of the suit premises and to amalgamate the same. By
his additional affidavit, he contended that the Order dtd. 22.10.2008, in
NM No. 4322/2008 was the Order only till that matter was to be heard
for ad-interim relief. Further, after hearing, ad-interim relief was refused
on 19.11.2008. The plaintiffs preferred the Appeal No. 12/2009 and the
said Appeal was disposed of as per the Order dtd. 03.04.2009. More so,
NM No. 4322/2008 was finally heard and on 28.07.2009, it came to be
dismissed. Being aggrieved, the plaintiffs preferred the First Appeal (FA)
No. 470/2009 and it was dismissed on 12.01.2010. Even thereafter, the
plaintiffs filed NM No. 3115/2013, for restraining defendant No. 4 from
creating third party interest in the suit premises and the said NM was
dismissed by this Court on 07.06.2017. On this backdrop, the plaintiffs
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in L.C. Suit No. 4954/2008.
repeatedly failed to secure any reliefs in the matter and therefore, they
had no locus to file this NM. Defendant No.4 also filed copies of the said
Orders along-with his additional affidavit.
05. In reply, the plaintiffs filed additional affidavit and thereby,
denied the contentions of defendant No.4. They contended that in May,
2014, defendant No.4 approached to them for settlement and proposed
to handover the commercial premises, admeasuring 1150 sq. ft. (carpet)
on the 1st floor, Commercial Floor, of the suit building. Accordingly, even
the emails were exchanged and draft Exchange Deed was prepared. The
Consent Terms were also finalized and the required stamp duty, for this
Exchange Deed, was paid. However, later on, defendant No.4 refused to
enter into the said Consent Terms and the Exchange Deed. That apart,
defendant No.2 imposed penalty, upon the said Developer, U/s. 152-A of
the MMC Act, for carrying illegal construction of commercial premises
on the ground floor of the suit building. More so, as per the Order dtd.
19.11.2008, the Hon’ble High Court observed that transactions made by
defendant No. 1, in respect of the suit premises, would be subject to the
further Orders passed in the NM and this suit. Hence, defendant No. 4
needs to be restrained from altering the suit premises and be directed to
restore the same to its original status. To support their contentions, the
plaintiffs placed copies of the Partnership Deed, the e-mails, shared by
the parties, drafts of the Deed of Exchange and the Consent Terms, etc..
By filing written notes on this NM, the parties reiterated their respective
stands.
06. Considering the submissions, at the outset, it is notable that
by this suit, the plaintiffs prayed for a relief for the specific performance
of the letter dtd. 22.05.2006 and the agreement dtd. 23.05.2006, along-
with the other ancillary reliefs. Since the inception, they presented their
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entitlement for allotment of flat at Commercial Floor. It is their say that
as they used their earlier flat as commercial one, they deserved for the
same. In this NM, they mainly referred and relied upon the Order dtd.
22.10.2008, of the Hon’ble High Court, in NM No. 4322/2008. On it’s
basis, they asked for the restraining Order against defendant No.4 from
carrying any more changes in the suit premises and for its restoration to
original stage. However, as referred in additional affidavit of defendant
No.4, after passing of this Order, their prayer for granting of ad-interim
relief was rejected on 19.11.2008 and even, Appeal No. 12/2009, filed
by these plaintiffs, as against this Order, was disposed of on 03.04.2009.
Moreover, on 28.07.2009, their NM was finally dismissed by the Court.
Though, the plaintiffs tested the said Order, in Appeal No. 470/2009, it
was disposed of on 12.01.2010. Bare perusal of the said Orders goes to
show that at that time, the Hon’ble Appellate Court duly considered the
effect of the Development Agreement dtd. 21.05.2006 and held that the
said allotment was proposed on the first residential floor and not on the
commercial floor, as is alleged by the plaintiffs. Consequently, nowhere,
the plaintiffs' alleged rights were recognized by the Appellate Courts. In
addition, in Order of dtd. 28.07.2009, passed in NM No. 4322/2008, it
was observed that the plaintiffs couldn’t substantiate that they used the
initial residential flat for commercial use. Moreover, the agreements dtd.
21.05.2006 and 23.05.2006 revealed that the defendants agreed to allot
the plaintiffs one residential flat on 1st residential floor of the Building.
That apart, in view of the letter dtd. 22.05.2006, defendant No.1 merely
showed his 'no objection' for commercial use of flat No.103 on the first
floor, subject to prior permission from the BMC. Simultaneously, it is the
matter of record that earlier, this Court dismissed NM No. 3115/2013,
on 07.06.2017, which was taken out for restraining defendant No. 4 to
create any third party interest in the suit premises.
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07. Coming to the recent settlement talk, the proposed Deed of
Exchange and Consent Terms, it is pertinent to note that, admittedly, for
one reason or the other, the said 'settlement talk' could not be finalized.
Therefore, the plaintiffs could only file 'Drafts' of the proposed Deed of
Exchange and Consent Terms. Further, the Draft of Deed of Exchange is
bearing the note of without prejudice. Consequently, on the basis of the
said discussions, which was being made 'without prejudice' to the rights
of the parties, it would be unjust to accept the plaintiffs' contentions for
this NM. To sum-up, considering this record, it can safely be concluded
that at no stage of this matter, they could apparently substantiate their
claim for allotment of the flat at Commercial Floor. Simultaneously, the
record silent to infer any changes, allegedly carried by defendant No. 4,
which are detrimental to the suit structure. In such circumstances, I am
of the view that at this stage, they could not present a prima-facie case
and balance of convenience also does not tilts in their side. This suit is
more than 15 years old and the issues are framed on 11.10.2018. Being
so, the parties may be called upon to test their respective claims on the
trial. Hence, I answered point No.1 to 3 in the negative and to answer
point Nos. 4, I pass the following Order:
-: O R D E R :-
(i). Notice of Motion No. 3805/2019 stands dismissed.
(ii). The parties to expedite the trial.
(iii). Notice of Motion No. 3805/2019 is, accordingly,
disposed of.
Sd/-
{A.G. Santani}
Mumbai. Judge,
Dated : 28.03.2024. City Civil Court, Mumbai.
Dictated on : 28.03.2024.
Transcribed on : 04.04.2024.
Checked and Signed on : 06.04.2024.
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
06.04.2024 at 12.30 p.m. Mrs. S.R.Mejari
Name of the Judge (with Court Room no.) HHJ Shri A.G.Santani
(Court Room No.11).
Date of Pronouncement of Judgment/Order 28.03.2024
Judgment/Order signed by P.O. on 06.04.2024
Judgment/Order uploaded on 06.04.2024
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