Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.4263 OF 2019
IN
SUIT NO.2046 OF 2018
Yasin Ismail Balwa and anr ..Plaintiffs
V/s
M/s.B.M.K.Enterprises & ors ..Defendants
Adv.Giriraj for the plaintiffs
Defendants and their advocate absent.
CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 10/02/2020
ORAL ORDER
1. This notice of motion is
interalia tendered by the
plaintiffs seeking direction from this Court to pass
an order against defendant nos.2 and 3 for
providing various details and for directing them
to register the project under RERA Act and
further to pass an order of temporary injunction
restraining them from creating third party interest
and giving free access to the plaintiffs in property
bearing C.S.Nos.1590 and 1591, Cama Chawl,
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Dr.Anandrao Nair Marg, ‘E’ ward Mumbai.
2. Heard.
3. In short the case of the plaintiffs is that plaintiffs
and defendant nos.2 and 3 are the partners of
defendant no.1-firm. Defendant no.1 firm has
been registered with the Registrar of firms. The
plaintiff nos.1 and 2 are having 20% share each
whereas defendant nos.2 and 3 are 30% share
each in defendant no.1 firm. The partnership
firm proposed to construct a building on plot
no.CS 1590 and 1591, Cama chawl, Dr.Anandrao
Nair Marg, ‘E’ ward, Mumbai. The
commencement certificate for the construction of
the property was received on 28/05/2008. The
defendant nos.2 and 3 duly carried out
construction work. The plaintiffs were shocked
and surprised to receive a letter dated 27/01/2012
from the Municipal Corporation of Gr. Mumbai
stating that as per the commencement certificate
the construction was to be completed within 2
years and that since the same has not been
completed, a hardship allowance has to be paid.
The plaintiffs were shocked to receive the said
notice, which was only because of the lethargy
and lack of diligence on the part of defendant
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nos.2 and 3. The plaintiffs agreed to co-operate
and provide necessary financial and other
assistance to the defendants. Again Municipal
Corporation of Gr.Mumbai issued stop work
notice u/s. 354-A of Municipal Corporation of
Gr.Mumbai, Act. Defendant nos.2 and 3 have
kept the plaintiffs in the dark about the working
of the partnership firm. Despite persistent
request defendants failed to give inspection of the
documents to the plaintiffs. Therefore the
plaintiffs gave legal notice to the defendants
dated 30/05/2018 thereby invoking clauses 9,10
and 11 of the Indenture of partnership. Despite
the receipt of the letter, defendants did not
comply and therefore plaintiffs were constrained
to file the present suit with this accompanying
notice of motion.
4. The defendants have filed the reply to the notice
of motion and objected that other three partners
have not been joined as party to the suit. There
is arbitration clause in the partnership agreement
and remedy available to the plaintiffs to seek
reliefs as contained in clause (21) of the
Partnership Deed. The suit is barred by law of
limitation. The plaintiffs have not given the
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appropriate sharing. The plaintiffs together have
stake of 40% share, defendant nos.2 and 3
together have 30% share and the other partners
who are not party to the suit have 30% share in
the partnership business. The majority of the
shares are with the plaintiffs. The
correspondence annexed to the plaint refers to the
year 2012 which was addressed to defendant no.1
and the plaintiffs are aware and inspite of the
said correspondence being to the knowledge of
the plaintiffs, the plaintiffs have failed to act as
partners. The plaintiffs in order to wriggle out of
the clutches of law and to run away from the
liability filed this suit and this notice of motion.
Hence, prayed for dismissal of the notice of
motion.
5. On the rival contentions of the parties, following
points arise for my determination and findings to
it are recorded for the reasons stated hereinafter:-
POINTS
(i) Whether the plaintiffs have made out a
prima facie case in their favour?
(ii) Whether the needle of balance of
convenience tilt in favour of plaintiffs?
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(iii) To whom irreparable loss would be caused?
(iv) What order?
FINDINGS
(i) In the negative
(ii) In the negative
(iii) To the defendants
(iv) As per final order.
REASONS
Point Nos. 1 to 3
6. It is not disputed between the parties that the
plaintiffs and defendant nos.2 and 3 are the
partners. The plaintiff’s contention is that
defendant nos.2 and 3 were carrying out the
construction on the suit plot. There is nothing
except bare statement of the plaintiffs that
defendant nos.2 and 3 informed that they were
expertise to carry out the construction and
therefore they were only carrying out
construction. The indenture of the partnership
nowhere discloses that the construction which is
the business of partnership firm would be carried
out by the selective partners.
7. The plaintiffs submitted that they received letter
dated 27/01/2012 from Municipal Corporation of
Greater Mumbai (M.C.G.M.) stating that the
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construction work was not completed within two
years as per commencement certificate dated
28/05/2008, a hardship allowance has to be paid.
The plaintiffs submitted that because of the
lethargy and lack of diligence on the part of
defendant nos.2 and 3, the work is not completed
but the plaint is silent about the action taken by
the plaintiffs at the relevant time. The plaintiffs
agreed to co-operate in the finance to the
partnership firm that may be required to go on
with the construction and ensure that the project
is not stalled. There is no action from defendant
nos.2 and 3. It is further the contention of the
plaintiffs that notice u/s. 354-A of Municipal
Corporation Act was issued by M.C.G.M. The
said notice is dated 05/09/2012 but after the
issuance of the said notice, the plaintiffs have not
taken any action. The plaintiffs submitted that
the plaintiffs have demanded the inspection of
documents and update of work status and
financial status. But the defendants did not
comply. The notices were issued in the year
2012 and the letter issued by the plaintiffs was
on 30/05/2018 seeking status and inspection of
documents. Throughout this years, the plaintiffs
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have not done any act. This inaction of the
plaintiffs speak in volume. On perusal of the
deed of partnership, it reveals that there are
other partners and even it is pointed in the reply
of defendant nos.2 and 3. These partners have
not been joined as party to the suit. The
contention of the defendants is that they have
completed rehabilitation project consisting of 63
tenants and separate Masjid and could hand over
occupation to the tenants of the then existing
building under redevelopment. The contention is
that plaintiffs being partners never participated in
the project and did not attend the business. The
contention of the defendants is that the details of
the sale and purchase is available online on site
of Sub-Registrar of Assurances.
8. On perusal of the plaint avernments, it appears
that the plaintiffs apprehend that the defendants
are not working in the interest of firm and they
are required to produce the details of the project
and other documents. The plaintiffs are seeking
relief of mandatory nature. The plaintiffs are
seeking details of the project as contemplated by
them that the defendants have kept them in dark
in the year 2012. In the year 2018, after the
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period of six years demand of the plaintiff cannot
be said to be an extraordinary case, therefore the
plaintiffs are not entitled for the relief of
mandatory nature.
9. The other allegations are that the defendants
should be restrained from creating third party
interest and obstructing or interfering with
plaintiff’s free ingress, egress or entry in the suit
property. There is no whisper about
apprehension of creating of third party right by
defendant nos.2 and 3 in the suit property.
10. There is no avernment that the defendant nos.2
and 3 prevented the plaintiffs from entering in
the suit property and therefore the plaintiffs have
not made out prima facie case in their favour.
The needle of balance of convenience does not
tilt in favour of plaintiffs and the plaintiffs would
not suffer any irreparable loss. Hence, I answer
point nos.1 to 3 in the negative.
Point No.4
11. In view of the above discussion and
findings to point nos.1 to 3, this notice of motion
needs no consideration. Hence, it is expedient to
pass following order:-
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ORDER
1. N/M No.4263/2019 stands rejected.
2. Costs in the cause.
3. N/M No.4263/2019 is disposed off
accordingly.
10/02/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on: 6-10/02/2020
Transcribed on: 24/02/2020
Signed on: 03/03/2020
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
04/03/2020 at 4.00 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/
order
10/02/2020
Judgment and order signed by P.O. 04/03/2020
Judgment/order uploaded on 04/03/2020
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