Final Order 1

Order Details: Notice of Motion
Pdf Text: N/m No. 4040/19 in S.C.Suit No. 2506/19. 1 Order.
MHCC010111232019
Presented on : 04-11-2019
Registered on : 04-11-2019
Decided on : 08-08-2024
Duration : 4 years, 9 months, 4 days
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
NOTICE OF MOTION NO. 4040 OF 2019
IN
S. C. SUIT NO. 2506 OF 2019
Shivshakti Co-op. Hsg. Society (Proposed) )
and others )...Plaintiffs
Versus
Mr. Shishir Shivapurkar )...Defendant
Shri Sanjay Prabhala h/f Shri Dhananjay Pathak, Advocate for the
plaintiffs.
Shri Vijay Sharma alongwith Smt. Reshma Mahajan, Advocate for the
defendant.
CORAM : HIS HONOUR JUDGE SHRI U.C.DESHMUKH.
(COURT ROOM NO.66).
DATE : 8th AUGUST, 2024.
ORDER
1. This notice of motion is moved by the defendant to frame
preliminary issue in view of Order 14 Rule 2 Sub-rule (2) and reject the
plaint under Order 7 Rule 11 Sub-rule (a) of the Code of Civil
Procedure (In short the Code).
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N/m No. 4040/19 in S.C.Suit No. 2506/19. 2 Order.
2. The defendant contends that plaintiffs have filed the suit
seeking relief of declaration and injunction against the defendant.
However, suit is based upon false and frivolous contentions. Plaintiffs
have no cause of action to institute the suit. Plaintiff no.1 is said to be a
proposed society and plaintiff no.2 to 3 claim themselves to be
representative of the society and its members. In such case, it was
necessary for plaintiffs to seek the leave of the court under Order 1 Rule
8 of the Code before the institution of the suit. The suit is filed to
extract the money from the defendant, hence prayed to reject the same.
3. In reply, plaintiff no.3 contends that plaintiff no.1 had
passed resolution on 02/06/2019 to initiate action against the
defendant as he failed to fulfill the terms and conditions of the
Permanent Alternate Accommodation Agreement executed by it with
plaintiff no.2 to 4 and members of the plaintiff no.1. Due to failure of
the defendant to fulfill his obligation, plaintiffs no.2 to 4 and members
of plaintiff no.1 are residing in accommodation which is not fit to
reside. Plaintiff and its members repeatedly requested the defendant to
complete the pending work. However, he failed. Hence they have
instituted the suit. Hence prayed to reject the notice of motion.
4. It is case of plaintiffs that plaintiff no.1 is proposed housing
society of which plaintiff no.2 to 4 are promoters. The defendant had
redeveloped building in the name and style ‘Bori Building’ C.S.No.
1/204, Shri Ramtekdi Road, Sewree (West), Mumbai which is known
after redevelopment as ‘Neha Residency’. The original tenants of Bori
Building formed society in the name and style of Shivshakti Co-
operative Housing Society i.e. plaintiff no.1.
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N/m No. 4040/19 in S.C.Suit No. 2506/19. 3 Order.
5. Plaintiffs specifically contend that the defendant had
agreed to redevelop the Bori Building though it has not completed its
work as agreed. The defendant and MHADA office had handed over the
possession of flats and shops to the original tenants though there was
lot of work pending in the same building. Despite of several request
made by the members of the plaintiff no.1, defendant has not given
possession letter to the tenants of the said building which constrained
plaintiffs to institute the suit.
6. The sum and substance of contention of the plaintiffs is
that there are several tenants of Bori Building with whom the defendant
entered into redevelopment agreement and consequently it executed
Permanent Alternate Accommodation Agreement with them. Plaintiff
nos.2 to 4 are one of them. As per Permanent Alternate Accommodation
Agreement plaintiffs no.2 to 4 and other tenants have formed proposed
society by name and style of plaintiff no.1. The defendant failed to
fulfill its obligations which resulted into hardship to the plaintiffs.
Therefore the defendant is bound to complete the work as per
agreement. Hence the suit. On the other hand, it is specific contention
of the defendant that plaintiffs ought to have seek leave of the Court
under Order 8 Rule 1 of the Code, therefore plaint is liable to be
rejected. It is also its contention that the suit is not maintainable.
Therefore preliminary issue needs to be framed.
7. The perusal of the plaint and copy of agreement in between
the plaintiff no.3 and defendant, it manifests that there was agreement
in between the defendant and plaintiff no.3 to redevelop the Bori
Building and as per contentions of the plaintiffs defendant has partly
constructed the building and did part work of construction. The plaint
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N/m No. 4040/19 in S.C.Suit No. 2506/19. 4 Order.
further reveals that plaintiffs are filing suit on behalf of all members of
the proposed society which yet to register. In such case, it was
incumbent on the part of the plaintiffs to seek the leave of the Court
under Order 1 Rule 8 of the Code. Therefore there is substance in
submission of the defendant that plaintiffs have not taken leave of the
Court, hence there is defect in the plaint.
8. However, it is necessary to note that the contents of the
plaint bring on record that due to act of defendant the personal life of
the plaintiffs no.2 to 4 and other tenants residing in their building is in
danger. In such case, inspite of rejecting the plaint under the provision
of Order 1 Rule 8 of the Code, it would be just and proper to direct the
plaintiffs no.2 to 4 on record to comply the Order 1 Rule 8 of the Code.
It will serve the purpose of provisions of Order 1 Rule 8 of the Code. It
is also necessary to note that an agreement filed on record in between
the plaintiff no.3, the original owner of the Bori Building and the
defendant. In such case, the owner of the suit property is necessary
party to decide the controversy between the parties to the suit.
Similarly, as per agreement between the plaintiff no.3 and defendant, it
was mandatory for the plaintiffs no.2 to 4 and other tenants of Bori
Building to form the society and get it register. Similar obligation is
upon the defendant. The plaintiffs have also not filed on record the
document to show that one Mrs. Indirabai Bhojne was the owner of the
Bori Building. Therefore, certain directions are hereinafter passed to the
plaintiffs. Consequently the notice of motion is liable to be rejected. In
the result, following order is passed :
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N/m No. 4040/19 in S.C.Suit No. 2506/19. 5 Order.
- ORDER -
1. Notice of Motion No. 4040/2019 stands rejected.
2. The plaintiffs to file admissible document on record to show that
Mrs. Indirabai Bhojne was the owner of the Bori Building.
3. Plaintiffs to furnish the names and addresses of all tenants and
occupants of Bori Building on or before next date.
4. Plaintiffs no.2 to 4 to give notice of the suit to all
tenants/occupants or members of the society if formed on or
before next date.
5. The plaintiffs no.2 to 4 to add Mrs. Indirabai Bhojne as defendant
no.2 and carry out necessary amendment on or before next date
and file amended copy of the plaint and serve the copy of the
amended plaint alongwith documents filed, to Mrs. Indirabai
Bhojne.
6. Plaintiff Nos. 2 to 4 to file affidavit in compliance on aforesaid
directions on or before next date.
7. Accordingly N/m No. 4040/2019 is disposed off.
(U.C.DESHMUKH)
Judge,
City Civil Court,
(Court Room No.66)
Date : 08/08/2024. Mumbai.
1. Dictated on : 08/08/2024.
2. Transcribed on : 16/08/2024.
3. Placed for correction on : 20/08/2024.
4. Correction carried on : 20/08/2024.
6. Signed on : 20/08/2024.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
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N/m No. 4040/19 in S.C.Suit No. 2506/19. 6 Order.
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22/08/2024. 1.22 p.m. Miss M.A.Kulkarni.
Name of the Judge (with Court Room no.) HHJ Shri U.C.Deshmukh.
(Court Room No.66).
Date of Pronouncement of Judgment/Order 08/08/2024.
Judgment/Order signed by P.O. on 20/08/2024.
Judgment/Order uploaded on 22/08/2024.
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