Interim Order 1

Order Details: Notice of Motion
Pdf Text: Draft NM IN SU 2944/2019
1
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
DRAFT NOTICE OF MOTION
IN
L.C. SUIT NO.2944 OF 2019
(CNR NO.MHCC010115952019)
Mr. Pradeep Premji Nandu and Ors. ]... Plaintiff
Versus
Municipal Corporation of Greater Mumbai ]...Defendant
Adv Rubia Taneja for plaintiff
Adv. Kumawat with Adv. Rawade for defendant / MCGM
Mr. Rahul Kamble, JE.B and F, N/ ward, MCGM
CORAM : HIS HONOUR JUDGE
Shri S.D.Kulkarni
(Court Room no. 4)
DATED : 12th April, 2022.
O R A L O R D E R
1 . The plaintiff has taken out this Notice of Motion and
prayed that the alleged notice issued by the defendant / MCGM on
04.11.2019 u/sec.354 of MMC Act is illegal and not binding on the
plaintiff. The plaintiff also prayed for injunction for restraining the
defendant from pulling down the suit structure and restraining from
interfering the basic amenities like water, electricity of the suit building.
The plaintiff stated that the suit property which is situated at Gopal
Bhavan, Gangawadi, L.B.S. Marg, Ghatkopar (w), Mumbai 400 086, is
the subject matter of the suit (hereinafter called as suit structure for the
sake of brevity).
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2. The plaintiff stated that the suit property was acquired in
the name of Jethalal Premji on rent, who run the business in the name
and style as National Chemist from the then landlord Parekh
Purshottam Jamnadas. It is further alleged that the ownership of the
building changed from time to time and since 1988 one M/s.
Yashodhan Developers used to collect the rent and issued rent receipt.
The plaintiff is running the business by obtaining proper license from
defendant / MCGM. The building consists of ground and two upper
floor and approximately forty tenants are in the suit building. The suit
building consists of commercial as well as residential premises. The
plaintiff learnt that one M/s. Sai Nidhi Developers has acquired the
rights in respect of the building from the said M/s. Yashodhan
Developers.
3. The landlord used to compel the tenant to vacate the suit
premises. Accordingly, defendant / MCGM at the instance of landlord
issued notice u/sec.354 of MMC Act. The condition of the building is
sound. It is not necessary to pull down the building but the landlord
who is having political influence was not maintaining the suit building
and tried to demolish the same. The landlord continuously threatened
the tenant to demolish the suit property and the defendant / MCGM
without hearing the plaintiff issued notice of demolition by telling that
the suit building is dilapidated condition. The defendant / MCGM has
not carried any structural audit of the suit building. The defendant /
MCGM has not followed the guidelines mentioned in Writ Petition
No.1135 of 2014. Therefore, the contention of the plaintiff that alleged
notice issued by the defendant / MCGM is bad, illegal and not binding
on the plaintiff. The defendant / MCGM be restrained from taking any
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action in pursuance of the alleged notice issued u/sec. 354 of MMC Act.
4. The plaintiff also prayed to discontinue and scratch the
records of the alleged proceeding initiated before the Technical
Advisory Committee (TAC) and the suit building will be removed from
C1 category.
5. The defendant / MCGM opposed the Notice of Motion by
filing reply and record. The defendant come up with a case that plaintiff
has seeks the final relief which can not be granted in the Notice of
Motion. The suit building is occupied by the fortythree tenants out of it
twenty tenants had given the consent for redevelopment of the suit
building. 50% of the occupant have vacated the suit building and
residing in the temporary accommodation. The suit building being C1
category building, dangerous to live in. The suit building is beyond the
condition of repair. The Technical Advisory Committee (TAC) inspected
the suit building on 22.11.2017 and visually observed repairs carried
out by the plaintiff. The Technical Advisory Committee (TAC) therefore,
called up on M/s. Sachdev and Associates, structural auditor of the
plaintiff to carryout the test and submitted the structural stability
certificate. But without necessary and important N.D. Test the structural
engineer of the plaintiff categorized the suit building as C2B category.
6. The structural auditor appointed the landlord opined that
the suit building falls under C1 category because of the conflicting
report. The matter was referred to the Technical Advisory Committee
(TAC). The B.J. Mehta structural auditor was appointed by the
defendant / MCGM and he was directed to carried out the test and
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submitted the report. The said M/s. B.J. Mehta categorized the suit
building as C1 category. Therefore, plaintiff without challenging the
Technical Advisory Committee (TAC) report only prayed for removing
the suit building from C1 category. The defendant further contended
that the defendant / MCGM followed the guidelines in the year 2010,
its suit building was declared as dilapidated and categorized in C1
therefore, now the condition of the building is very bad and reach at the
stage of collapse at any time. Therefore, plaintiff is not entitled for the
relief prayed and prayed for dismissal of the Notice of Motion.
7. Perused Notice of Motion, reply filed by the defendant /
MCGM. Heard both the advocates at length, following points arose for
my determination alongwith my findings on those points for the reasons
mentioned thereunder are as follows:
Sr.
No. POINTS FINDINGS
1. Whether plaintiff prove prima facie
case in his favour ?
In the Negative
2. Whether balance of convenience lies in
favour of the plaintiff ?
In the Negative
3 Whether plaintiff prove that he will
suffer irreparable loss if injunction is
refused ?
In the Negative
4. What order ? Notice of Motion
dismissed.
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R E A S O N S
AS TO POINTS NOS. 1 to 3:
8. I have gone through the documents filed on record by the
parties. I have also gone through the structural audit report by M/s.
Sachdev and Associates. The structural audit report submitted by the
landlord and the Technical Advisory Committee (TAC) report. The
structural engineer of the plaintiff come to the conclusion that building
is not extremely critical, only requires minor structural repairs. The
advocate for the plaintiff submitted that the suit building is in good
condition and only requires minor repairs. The structural engineer of
the plaintiff carried out the entire test. He has mentioned the
percentage of the N.D. test carried out in his observation. Therefore, it
is necessary for the Technical Advisory Committee (TAC) to consider
the report submitted by his structural engineer. But without considering
the said report, the Technical Advisory Committee (TAC) considered the
suit building in C1 category.
9. The advocate for the plaintiff further submitted that the
Technical Advisory Committee (TAC) members have threatened the
structural engineer of the plaintiff at the instance of landlord. The
Technical Advisory Committee (TAC) member ought to have called the
structural engineers of the plaintiff and give him an opportunity for
fresh structural audit of the suit building. The plaintiff has carried out
the repairs work in the year 2018 under the supervision of Senior Civil
Engineer. The Senior Civil Engineer issued stability certificate therefore,
the contention of the defendant that building is dilapidated, dangerous
to live is totally false. At the time of filing of the suit no structural audit
was carried out either by the plaintiff, defendant / MCGM or landlord.
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Therefore, there is no question of referring the matter to the Technical
Advisory Committee (TAC). The referring of the matter to the Technical
Advisory Committee (TAC) is totally unwanted. Hence, advocate for the
plaintiff submitted that defendant / MCGM be restrained from taking
any action in pursuance to the Technical Advisory Committee (TAC)
report and restrained from taking any action against the basic amenities
and it is required that the suit building be removed from C1 category.
10. The advocate for the defendant / MCGM submitted that in
this case the Technical Advisory Committee (TAC) members visited the
suit property and carried out the visual inspection. The advocate for the
defendant taken my attention over the fact that here in this case the
defendant / MCGM has also appointed the structural auditor.
Accordingly, M/s. B.J. Mehta carried out the fresh N.D. test and assess
the actual structural condition of the suit structure. The plaintiff tenants
has carried out the structural audit of the suit building through M/s.
Sachdev and Associates. The landlord appointed M/s. Retro Fitters
Consulting Engineers as a structural Auditor. The defendant / MCGM
after receiving the conflicting report from both the tenants and owners,
appointed their third structural consultant who has independently
carried out the entire test and submitted the report.
11. The advocate for the defendant further submitted that the
structural engineer of landlord come to the conclusion that the suit
building is dilapidated in condition, dangerous to live and falls under C
1 category. Considering the structural audit report, the Technical
Advisory Committee (TAC) member visited the suit building and they
found that the suit structure falls under C1 category. Therefore,
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plaintiff is not entitled any relief hence, prayed for dismissal of the
Notice of Motion.
12. I have gone through the structural audit report submitted
by the tenant that is M/s. Sachdev and Associates. I have also gone
through the report submitted by the M/s. Retro Fitters Consultancy
Engineer. I have also gone through the Technical Advisory Committee
(TAC) report. On perusal of the Technical Advisory Committee (TAC) it
reveals that meeting was held on 30.09.2019 and the members of the
committee has perused the structural audit report submitted by the
plaintiff and landlord. On going through the Technical Advisory
Committee (TAC) report the Technical Advisory Committee (TAC)
members observed that post repair N.D. Tests reports show drastic
reduction in corrosion in reinforcement and drastic improvement in
concrete strength. Such drastic changes cannot be achieved by the
Polymer treatment as stated by Shri. Sachdev and hence N.D.T. Tests
results submitted by Shri. M.P. Sachdev appear to be misleading and
cannot relied upon. The structural audit report submitted by the M/s.
Retro Fitters and B.J. Mehta concluded that the suit structure falls
under C1 category. B.J. Mehta is an independent structural auditor
gave findings that the percentage of the strength of the structure are
well below the permissible limit said by the I.S. Standards. Therefore,
the suit structure falls under C1 category. The member also observed
that during the second site visit it was observed that there are still
structural cracks and rank vegetation despites the recent structural
repairs.
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13. The advocate for the plaintiff submitted that the Technical
Advisory Committee (TAC) has not followed the guidelines. On the
other hand the Technical Advisory Committee (TAC) report shows that
the report submitted by the plaintiff was considered and opportunity
was given to the plaintiff engineer to explain his report. Therefore, I
have not agreed with the arguments of the plaintiff that defendant /
MCGM joining hands with the landlord wrongly referred matters
towards the Technical Advisory Committee (TAC). And the Technical
Advisory Committee (TAC) has not considered the audit report
submitted by the plaintiff.
14. For proving the prima facie case the plaintiff ought to have
brought on record that he is having strong prima facie case in his
favour. The plaintiff has to bring on record that the suit building is good
and habitable condition. It required only minor repairs but the
photographs and audit report specifically speaks that the suit building is
dilapidated in condition and falls under C1 category. The structural
audit report submitted by the landlord and defendant / MCGM is in
consonance and categorized the structure even in C1 category. Both
the auditor's comes to the conclusion that overall condition of the
building is dilapidated, dangerous and is unfit and unsafe for
occupation. The Technical Advisory Committee (TAC) comes to the
conclusion that the suit building is falls under C1 category and needs to
be vacated and demolish immediately. Therefore, in my opinion
plaintiff is not brought on record strong prima facie case in his favour
therefore, balance of convenience also not lies in favour of the plaintiff.
So I came to the conclusion that in my opinion if the injunction is not
granted plaintiff will not suffer irreparable loss which cannot be
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compensated in money. Therefore, plaintiff failed to brought on record
sufficient material and strong prima facie case to grant injunction in his
favour. Considering this I answer point No.1 to 3 in negative and
accordingly pass the following order :
ORDER
1. Draft Notice of Motion in L.C. Suit No.2944/2019 is
dismissed.
2. Draft Notice of Motion is disposed off accordingly.
(S.D.Kulkarni)
Adhoc Judge,
City Civil Court,
Date : 12.04.2022 Gr. Mumbai.
Dictated on : 12.04.2022
Transcribed on : 13.04.2022
Signed by HHJ on: 13.04.2022
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 4.30 p.m.
NAME OF STENOGRAPHER : Mrs. J.S. Chavan
Name of the Judge (With Court
Room no.)
HHJ Shri. S.D.Kulkarni
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
12.04.2022
JUDGMENT/ORDER signed by
P.O. on
13.04.2022
JUDGMENT/ORDER uploaded
on
21.04.2022
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