Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Notice of Motion 3833-2019 in SCSU No.44-2015
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.3833 OF 2019
(CNR No.MHCC01-010450-2019)
IN
SHORT CAUSE SUIT NO.44 OF 2015.
(CNR No.MHCC01-013263-2014)
1. Mukund Namdeo Nikte, }
Age : 76 years, Occ.: Retired, }
R/o. A wing, Flat No.14, }
The Vijay Co-op Housing Society, }
Bhandup Village, Bhandup(E), Mumbai-42. }
Presently residing at- Room No.604, }
Building No.9, Ashok Society, Vasant Vihar, }
Opp. Jasmin Tower, Pokhran Road No.2, }
Thane(West)-400 610. }
2. Shivaji Ganesh Pednekar, }
Age : 70 years, Occ.: Retired, }
R/o. A wing, Flat No.04, }
The Vijay Co-op Housing Society, }
Bhandup Village, Bhandup(E), Mumbai-42. }
Presently residing at Mrs. Namrata Pandit, }
B-202, 2nd Floor, Balaji CHS Ltd., }
Plot Nos.D-31, 32, 39 and 40, Sector 9, }
Airoli, Navi Mumbai-400 708. }
3. Sambhaji Mahadeo Sawant, }
Age : 70 years, Occ.: Retired, }
R/o. A wing, Flat No.23, }
The Vijay Co-op Housing Society, }
Bhandup Village, Bhandup(E), Mumbai-42. }
Presently residing at Mr. Sunit Sawant, }
602, Balaji Amrut, Plot No.193, Sector 10, }
Kharghar, Navi Mumbai-410 210. }
4. Vishwasrao R. Dhulap, }
Age : 63 years, Occ.: Retired, }
R/o. A wing, Flat No.18,
The Vijay Co-op Housing Society, }
Bhandup Village, Bhandup(E), Mumbai-42. }
Presently residing at B/2/6, Green Society, }
Golden Park Phase-I, Beturkar Pada, Kalyan(W).}...PLAINTIFFS.
Versus
1. The Vijay Co-operative Society Ltd. }
Registration No.BOM/HSG/484-1963 }
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Having its registered office at Bhandup village, }
Bhandup(E), Mumbai-42. }
Present address of secretary for service }
Mr. Vipesh Jaywant Patil, }
C/2, Swastik Apartment, Bhandup Village, }
Near Shivai School, Bhandup(E), Mumbai. }
2. Sai Life Realtor’s through its Proprietor }
Mr. Leebin Shreedharan Muthathyan, }
201, Sai Plaza, Jawahar Road, }
Opp.Ghatkopar Railway Station, Ghatkopar(E), }
Mumbai-400 077. }
3. Daisaria Associates, }
801, Skyline Epitome, Kirol Road, }
Near Jolly Gymkhana, Vidyavihar (W), }
Mumbai-86. }
4. M/s. Sai Life Devta Realtor’s Partnership Firm }
through its Partners Mr. Hem Raj Tejuja and }
Mr. Leebin Sreedharan Muththayan }
having address 304, 3rd Floor, }
Swastik Chambers, C.S.T. Road, }
Chembur(E), Mumbai-400 071. }...DEFENDANTS.
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Smt. Namrata Padit., learned advocate for the plaintiff Nos.1 and 2.
Shri.Ankit Rajput i/b Manoj Bhat, learned advocate for defendant Nos.1,2&4.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.9)
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O R A L O R D E R
(Delivered on 04/02/2021)
1. This Notice of Motion is taken out by the plaintiff Nos.1
and 2 for seeking the following reliefs;
A. That pending the hearing and final disposal of this suit the
defendant No.4 to pay complete arrears of rent alongwith
interest from the year 2014 till date to plaintiff Nos.1 and 2
which was already paid to other society members.
B. That pending the hearing and final disposal of this suit the
defendant No.4 to pay future agreed rent amount on
regular monthly/quarterly/half yearly basis till handing
over of possession of redeveloped flat to the plaintiff Nos.1
and 2.
C. That defendant No.4 to pay agreed arrears of
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transportation and brokerage amount which was already
paid to other society members.
D. That defendants to submit or deposit true copies of papers
and documents and approved plan related to building and
agreements/documents which are entered with 3rdstructure
flat holders (the structure which taken fraudulently by the
defendants in Redevelopment Project) i.e. details of
membership given to the 3rd structure flat holders, executed
Alternate Accommodation Agreement entered with 3rd
structure flat holders.
E. That Hon’ble Court to pass order related to necessary
interim injunction to take any further Approvals Or
Amendment in plans more than 22nd floors or any other
amendments in plans.
F. ...
G. ...
H. ...
2. Read the affidavit filed in support of Notice of Motion and
affidavit-in-reply filed by defendant Nos.1, 2 & 4. Heard learned Smt.
Namrata Pandit advocate for plaintiff Nos.1 & 2 and learned Shri.Ankit
Rajput i/b Manoj Bhat advocate for defendant Nos.1, 2 & 4. I have also
gone through the written notes of arguments filed by learned advocates
for both the parties. Perused the entire record.
3. Learned advocate for plaintiffs Nos.1 & 2 argued that
despite obtaining possession of their respective premises from plaintiff
Nos.1 & 2 and despite demolishing the existing structures, defendant
No.4-developer has not paid the arrears of rent from year 2014 till date
to plaintiff Nos.1 & 2. She argued that plaintiff Nos.1 & 2 are entitled
for the past and future rent along with interest, transportation charges
and brokerage amount from defendant No.4. She argued that
defendants have illegally got approved the plan related to 3rd structure
by entering into agreements illegally with the 3rdstructure flat holders
even though, tenders were called in respect of two building only. She
argued that plaintiffs are entitled to know about the agreements
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entered into by the developer with the flat holders of third structure
(C Wing) as those agreements are executed by keeping the plaintiffs in
dark hence, it is necessary to direct the defendants to produce the
documents as is prayed in prayer Clause(D) of the Notice of Motion.
She argued that merely because the plaintiffs have availed their lawful
rights by filing the present suit, it does not mean that plaintiffs are not
entitled for rent amounts, transportation charges and brokerage charges
which is already paid to the other members of the society due to which,
the Notice of Motion may be allowed in terms of prayer Clause(A) to
(D). He submitted that plaintiffs are not pressing prayer Clause(E) at
this stage.
4. As against this, learned advocate for defendant Nos.1, 2
and 4 vehemently opposed the Notice of Motion by submitting that
plaintiff Nos.1 & 2 are adopting delaying and pressurizing tactics for
illegally extracting more amounts and more area from the defendants.
He argued that suit itself is barred in view of Section 91 of the
Maharashtra Co-operative Societies Act hence, plaintiffs are not entitled
for any interim relief. He argued that plaintiff Nos.1 and 2 are not ready
to execute Permanent Alternate Accommodation Agreements & hence,
in view of the terms of development agreement, plaintiff Nos.1 & 2 are
not entitled for any relief in the form of transit rent and transportation
charges unless they execute the registered agreements due to which,
Notice of Motion is liable to be dismissed. He argued that Notice of
Motion taken out previously by the plaintiff for injunction has been
dismissed by this court wherein the aspect of 3rd structure was raised
and decided by the court hence, plaintiffs cannot agitate said aspect
again in the present Notice of Motion and on that count also, the Notice
of Motion is liable to be dismissed. In support of his argument, learned
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advocate for defendant Nos.1, 2 & 4 has placed reliance on the
observations of Hon'ble Bombay High Court in
PC Order dt.27/3/2012
passed in
Notice of Motion No.560/2012 in
Suit No.532 of 2012 (Vas
Infrastructure Limited Vs. Jaydeep Apartment CHS Limited and Ors). I
have gone through the said authority.
5. In her rejoinder argument, learned advocate for plaintiff
Nos.1 & 2 submitted that bar under Section 91 of the Maharashtra
Cooperative Societies Act is not applicable. In support of her argument,
learned advocate for the plaintiffs has placed reliance on
Order
dtd.26/08/2013 passed by Hon'ble High Court in
Notice of Motion (L)
No.1518 of 2013 in
Suit (L) No.666 of 2013 (M/s.Akash Pruthvi
Lifestyle V/s. Akash Co-operative Housing Society Limited). I have gone
through said authority.
6. At the outset, it may be stated here that the relief claimed
in the Notice of Motion is against defendant No.4 who is the developer.
Dispute between the plaintiffs and defendant No.4 is not touching to
the business of the Society hence, the argument of learned advocate for
defendants is not acceptable that suit is not maintainable in view of
Section 91 of the Maharashtra Co-Operative Societies Act.
7. It is not in dispute that plaintiff Nos.1 & 2 are eligible for
Permanent Alternate Accommodation and their names are available in
the list of eligible persons. Contention of the plaintiffs is that other
members of the Society have not entered the development agreement in
larger interests of all the members of the Society. According to the
plaintiffs, they are entitled for more carpet area and certain other more
facilities from the developer than mentioned in the development
agreement. As is argued by learned advocate for defendant Nos.1,2 & 4,
plaintiff Nos.1 & 2 being the members of the Co-Operative Society, they
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have lost their independent status. It is not in dispute that majority
members of the Society have agreed for development through
defendant No.4. It is now well settled that the majority view in such
matter will prevail. It is not in dispute that Notice of Motion filed
previously by the plaintiffs for temporary injunction has been dismissed
by this court. Having gone through the copy of said order, I found force
in the argument of learned advocate for defendants that the aspect of
construction of 3rd structure was raised and decided by the court against
the plaintiffs while deciding the said Notice of Motion hence, the prayer
made by plaintiff Nos.1 & 2 in terms of prayer Clause (D) of this Notice
of Motion cannot be accepted.
8. So far as the prayers made in Clauses (A), (B) & (C) of this
Notice of Motion are concerned, the objection of defendant Nos.1, 2
and 4 is that plaintiff Nos.1 and 2 are not entitled for those reliefs as
plaintiffs have not executed Permanent Alternate Accommodation
Agreements so also, defendants have been forced by the plaintiffs to
expend amounts for litigating various matters filed by the plaintiffs
against the defendants. Admittedly, plaintiff Nos.1 & 2 have not
executed Permanent Alternate Accommodation Agreements. Contention
of the plaintiffs is that other members of the Society are forcing them to
sign the said agreement by passing illegal resolutions and plaintiffs are
not ready to succumb to those illegal activities.
9. Learned advocate for defendant Nos.1, 2 & 4 drew my
attention to the copy of Development Agreement produced on record by
the plaintiffs themselves and brought to the notice that there is a clause
in the said Development Agreement that the entitlement for transit rent
& other charges shall be on execution of agreement with the developer
by the members of the Society. As mentioned earlier, decision taken in
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majority by the members of the society will prevail. Having regards to
the said aspect, this court is of the opinion that plaintiffs' entitlement for
rent and other charges from the developer would be only after they
execute Permanent Alternate Accommodation Agreements. Even then
also, it is not in dispute that names of the plaintiffs are available in the
list of the persons eligible for alternate accommodation and the building
has been demolished. Since the plaintiffs have filed this suit by raising
the contentions as mentioned here-in-above along with certain other
contentions, it appears that suit will become infructous if agreements
are executed by the plaintiff Nos.1 and 2. Likewise, the defence of
defendant No.4 may get frustrated if it pays the amounts as prayed to
plaintiff Nos.1 and 2 without execution of agreements by those
plaintiffs. Having regards to those aspects, this court is of the opinion
that if defendant No.4 is directed to pay the past & future arrears of
rent and other amounts as per the development agreement to plaintiff
Nos.1 & 2 on their executing Permanent Alternate Accommodation
Agreements in favour of defendant No.4 with further direction that
execution of those agreements by plaintiff Nos.1 & 2 so also, making of
payments by defendant No.4 to those plaintiffs shall be without
prejudice to the rights and contentions of those parties, it will protect
the interest of justice. Thus, an order.
O R D E R
Notice of Motion No.3833 of 2019 is partly allowed in
terms of its prayer Clauses (A) to (C) as under;
(a) On executing registered Permanent Alternate
Accommodation Agreements by plaintiff Nos.1 & 2, defendant
No.4 shall pay past as well as future rent, transportation charges
and brokerage charges to those plaintiffs.
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(b) Execution of Permanent Alternate Accommodation
Agreements by the plaintiff Nos.1 & 2 so also, making payment of
the amounts as mentioned above by defendant No.4 to plaintiff
Nos.1 & 2 shall be without prejudice to the rights and contentions
of both those parties.
Other prayers made in the Notice of Motion are rejected.
Date : 04/03/2021. (P.P.RAJVAIDYA)
Dictated on : 04/03/2021. Judge, C.R.No.9
Checked on : 06/03/2021. City Civil Court,
Signed on : 06/03/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
08.03.2021 at 2.54 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.09)
Date of pronouncement of Order 04/03/2021.
Order signed by P.O. on 06/03/2021.
Order uploaded on 08/03/2021.
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