Final Order 1

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.4334 OF 2019
IN
SUIT NO.2679 OF 2019
(CNR NO.MHCC01-011945-2019)
Bhalchandra Sadanand Keni & Ors. ).. Plaintiffs.
V/s.
Mumbai Building Repair and
Reconstruction Board and Ors. ).. Defendants.
Appearances :-
Ld. Adv. Mr. Rajeev Matkar for plaintiff.
Ld. Adv. Mr.Kandekar for defendant No.1/MHADA.
Ld. Adv. Mr. Akshay Pawar i/b Adv. Kunal Bhanage for defendant Nos.2
and 3.
Ld. Adv. Mr. R. Y. Gaonkar for defendant No.4.
CORAM : HIS HONOUR JUDGE V. V. PATIL
COURT ROOM NO.09
DATE : 30th March, 2024.
ORDER
Plaintiff has taken out present Notice of Motion for
appointment of Court Receiver.
2. In short, it is contention of the plaintiffs that, defendant
No.4 is married sister of plaintiff and defendant No.5 is brother of
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plaintiffs. Plaintiff’s father Sadanand Triambak Keni (since deceased)
was the owner in respect of the land bearing C.S.No.66 of Mahim
Division, original plot No.221 and at F. P. No.872 of TPS IV of Mahim
Division, admeasuring about 671 sq. yards equivalent to 561.04 sq.
meters of thereabout situated lying and being at 20-A-20, Agar Bazar,
R.B.S.K. Bole Marg, Dadar (W), Mumbai (hereinafter referred to as ‘suit
land’). Plaintiff’s father had constructed a chawl on the said land which
was occupied by various tenants. It was cessed property under the
provisions of MHADA Act, 1976. In the said chawl plaintiff’s family was
occupying room No.11 and 12. Defendant No.4 got married to
Mr. Bhalchandra Keni on 20.06.1991 and shifted to Dahanu. She had
thereafter, never returned to the said room except few occasions.
Plaintiff continued to stay in the room Nos. 11 and 12 till its vacation in
2008. Plaintiff’s father expired on 18.09.1973. By mutual agreement,
defendant No.3 decided to do construction work on suit land. Later on,
defendant No.2 approached plaintiff’s family for undertaking the
redevelopment scheme and defendant No.2 executed agreement dated
24.06.2008 thereby agreeing to pay consideration of Rs.40 Lacs and
further consideration in form of five residential flats of 500 sq. ft. each.
3. It is contended that defendant No.3 was earlier developer
and defendant No.2 is current developer. Plaintiffs are the eligible
occupiers for being rehabilitated in the present rehabilitation scheme
under DCR 33(7) in lieu of their old rooms. Under the said scheme,
plaintiffs alongwith their families have been shifted to Temporary
Alternate Accommodation since June, 2008. Defendant No.4 was
staying at her matrimonial house at Dahanu since her marriage in the
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year 1991. Defendant No.2 has executed Leave and License agreement
from time to time for providing transit residence to the plaintiffs.
Thereafter, at one pretext or the other, defendant No.3 has delayed the
construction work for several years from vacation of old rooms by
plaintiffs. Despite that, with great delay ‘B’ wing of new building was
partly ready by October-November, 2018 and finally, somewhere in
month of April, 2019, the construction of the ‘B’ wing of the new
building is completed. In the meantime, the daughter of defendant No.5
Prakash Keni, was to get married on 19.12.2018 and defendant No.5
required new flat out of five flats mentioned in the agreement dated
24.06.2008. Therefore, in December, 2018, defendant No.2 handed over
new flat No.203, 2nd floor of the ‘B’ wing of newly constructed building
to him as per said agreement dated 24.06.2008. This has nothing to do
with the new flat to be allotted in lieu of old rooms.
4. Defendant No.2 through, its advocate’s notice dated
10.07.2019 had called upon plaintiff to execute agreement and to take
possession of the five flats and demanded to vacate and hand over
possession of the Temporary Alternate Accommodation. From the said
notice, plaintiffs came to know that defendant No.3 has sent a letter to
defendant No.2 calling upon him not to execute agreement in respect
flat No.202, admeasuring 500 sq.ft. located on the second floor of the
new building at the said land. Said notice is full of dishonesty, falsehood
and mischief. It is contended that when the old rooms got demolished
in the year 2008, defendant No.4 was not occupying the said old rooms
and she is not a part of statutory scheme at all. Despite that, defendant
Nos.1 and 2 are withholding possession of the suit flat on the pretext
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that there is a dispute raised by defendant No.4 in respect of suit flat.
Plaintiffs are the occupants of the old rooms and are entitled for
allotment of Permanent Alternate Accommodation in lieu of old
premises and they approached defendant No.2 for handing over flat
No.202 urgently. However, defendant No.2 told that as per letter dated
08.10.2018, the defendant No.1 has directed to give possession of the
suit flat to all legal heirs. It is contended that there is no legally tenable
reason to withhold possession of suit flat from plaintiffs as their
Permanent Alternate Accommodation in lieu of old rooms. Hence,
plaintiff prayed that pending the hearing and final disposal of the suit,
the Court be pleased to appoint a Court Receiver of this Hon’ble Court
or some other fit and proper person be appointed as Receiver of the suit
flat i.e. flat No.202 with all powers under Order XL, Rule I of the Code
of Civil Procedure, 1908 including the power to take possession of the
suit flat with directions to hand over the same to the plaintiffs and to
appoint the plaintiffs as the agent of the Court Receiver without any
security or compensation and put the plaintiffs in possession of the suit
flat. Consequently, plaintiffs prayed for allowing Notice of Motion.
5. Defendant No. 4 has filed reply to Notice of Motion and
strongly opposed the same. It is submitted that plaintiffs have not came
before this Court with clean hands and have knowingly made false
representation as they being the exclusive heirs of her late father and
mother. They are five heirs of late Sadanand Keni and Gajibai Keni i.e.
plaintiff Nos.1 to 3 and defendant No.4 and 5 who are entitled to
inherit to succeed the compensation agreed to be given in terms of the
consent terms filed on 27.12.1984, in the Hon’ble High Court in
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O.O.C.J. Suit No.1763/1984. Plaintiffs have also relied upon the said
consent terms in the plaint. Accordingly, defendant No.4, being legal
heir of deceased landlord is entitled to inherit and succeed one flat out
of five flats which are given in lieu of compensation and defendant No.4
is entitled for flat No.202 in ‘B’ wing of Annapurna building as per the
consent terms.
6. It is contended that defendant No.4 is visiting terms in her
parent’s home in a old chawl and occasionally she used to stay 4-5 days
in her parents home till the year 2008. Further, plaintiffs and defendant
No.5 may have taken possession of their respective flats viz. flat
Nos.101, 102, 201 and 203 in ‘B’ wing of Annapurna building and last
flat i.e. flat No.202 to be allotted to defendant No.4 and the plaintiffs as
well as defendant No.5 have no rights whatsoever in the said flat and
therefore, the defendant Nos.1 to 3 are bound to give her possession of
flat No.202 withheld by them. It is submitted that plaintiffs are not
entitled to take out present Notice of Motion for ad-interim relief of
appointment of Court Receiver in respect of flat No.202 which is
reserved for her and to be allotted to her as she being one of the
surviving legal heir of the deceased owners and therefore, no order of
appointment of Court Receiver be granted. Consequently, defendant
No.4 prayed for dismissing the Notice of Motion.
7. Defendant No.2 and 3 also filed reply to Notice of Motion
and strongly opposed the same. It is submitted that development
agreement dated 24.06.2008 was entered into between plaintiffs and
defendant Nos.4 and 5 and their mother late Smt. Gajibai Sadanand
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Keni as the owner and defendant No.2 as developer and defendant No.3
as confirming party. As per the terms of the said development
agreement, the defendant No.2 paid an amount of Rs.40 Lacs to the
plaintiffs at the time of execution of the said development agreement
and also agreed to provide five flats each admeasuring area of about
500 sq.ft. to be provided free of cost in newly constructed building in
consideration of surrendering the said land for redevelopment as well as
surrendering their old premises which they were occupying i.e. room
Nos.11 and 12 in the said chawl. It is submitted that by their letter
dated 27.11.2017 and 30.11.2017, defendant No.2 informed plaintiffs
and defendant Nos. 4 and 5 about completion of building i.e.
Annapurna building and also informed them that as per the
development agreement dated 24.07.2008, the defendant No.2 has kept
flat No.101 and 102 on the first floor and flat Nos.201, 202 and 203 on
the second floor of the said building reserved for occupation of Keni
family and they amongst themselves should decide which member shall
occupy which flat and execute the Sale Deed with respect to the same.
Plaintiffs and defendant No.4 and 5 confirmed that they are ready to
accept the flat No.101, 102, 201 and 203 as Permanent Alternate
Accommodation in lieu of room Nos.11 and 12. However, they did not
turned up to sign agreement and possession letter in respect of flat
No.202. Thereafter, defendant No.4 through her advocate’s letter dated
20.10.2018, called upon the defendant No.2, not to execute any
agreement in respect of flat No.202 with other co-owners i.e. the
plaintiffs and defendant Nos.4 and 5 being the brothers of defendant
No.4. Defendant No.2 vide their reply letter dated 05.11.2018 informed
defendant No.4 that defendant No.2 has not entered into agreement
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and they are awaiting consent of all the owners for purpose of
executing the said agreement. Plaintiffs and defendant No.4 i.e. four of
the co-owners addressed a letter dated 03.11.2018 to defendant No.2
stating therein that defendant No.2 should allot four flats out of five
flats to them and also informed defendant No.2 to continue to retain
possession of 5th flat i.e. flat No.202 as there were dispute between
them and their co-owner, defendant No.4. Defendant No.2 informed
that as no consent was given by defendant No.4, it was not possible for
defendant No.2 to accede to request made by them to execute
agreement of four flats and retain agreement of flat No.202 with
defendant No.2. It is submitted that granting any interim relief in favour
of plaintiff as prayed will lead to miscarriage of justice and would result
in severe injustice to all the defendants which can not be compensated
in terms of money. Hence, prayed for dismissal of Notice of Motion with
exemplary cost.
8. Perused the Notice of Motion & Affidavit-in-support of
Notice of Motion. Also perused reply filed by defendants to the Notice
of Motion. The following points arise for my determination and I have
recorded my findings to each of them for the reasons stated below :-
Sr. No. POINTS FINDINGS
1. Whether the plaintiffs have made out
prima facie case for appointment of
Court Receiver in respect of suit
property as prayed?
In the Negative.
2. What order? As per the final order
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R E A S O N S
AS TO POINT No.1 :
9. Heard Ld. Advocates for both the sides. Admittedly, plaintiff
Nos.1 to 3 and defendant Nos.4 and 5 are brothers and sisters. Their
father late Sadanand Keni was owner in respect of the suit land who
had constructed chawl on the suit land wherein plaintiff’s family was
occupying room Nos.11 and 12. It appears that suit land was gone for
redevelopment. Defendant No.3 is earlier developer and defendant No.2
is current developer who carried out work of construction. It is
submitted that by plaintiff that flat No.202 was constructed in lieu of
room No.11 and 12. Defendant No.4 was married to Mr. Bhalchandra
Keni on 20.06.1991 and shifted to Dahanu and she never returned to
the old room except few occasions. Therefore, only the plaintiffs are
eligible occupiers for being rehabilitated in the rehabilitation scheme
under DCR 33(7) in lieu of their own rooms. It appears that defendant
No.3 has constructed new building as per development agreement
entered into between plaintiffs and defendant Nos.2 and 3. Defendant
No.2 paid an amount of Rs.40 Lacs to the plaintiffs and also agreed to
provide five flats admeasuring area at about 500 sq.ft. In the newly
constructed building and accordingly, defendant No.2 has kept flat
No.101 and 102 on first floor and flat Nos.201, 202 and 203 on the
second floor of ‘B’ wing of the Annapurna building reserved for
occupation of Keni family and asked them to decide themselves which
member should occupy which flat and execute the Sale Deed in respect
of the same.
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10. Further, it appears that, defendant No.4 issued letter to
defendants thereby asking not to provide possession of flat No.202 to
the plaintiffs. Whereas, the plaintiffs and defendant No.5 addressed
letter dated 03.11.2018 to defendant No.2 thereby stating that
defendant No.2 should allot four flats i.e. flat Nos.101, 102, 201, 203 to
plaintiff Nos.1 to 3 and defendant No.5 and asked defendant No.2 to
continue to retain possession of 5th flat i.e. flat No.202 as there were
dispute between them and defendant No.4.
11. It is argued on behalf of defendant No.4 that since
defendant No.4 is one of the legal heirs of deceased father Sadanand
Keni, she is entitled to get possession of one flat i.e. flat No.202.
However, plaintiffs did not want to give any share to the sister i.e.
defendant No.4. Hence, defendant No.4 has filed counter claim.
Plaintiffs and defendant No. 5 are illegally asking to give possession of
one flat to each of them and opposing to give possession of 5th flat i.e.
flat No.202 to defendant no.4. They have taken out present Notice of
Motion and prayed for appointment of Court Receiver in respect of the
flat No.202 only to deprive defendant No.4 from getting possession of
flat No.202 to which, she is entitled. Thus, the Notice of Motion is taken
out with ulterior motive to defeat his legitimate right of defendant No.4
and therefore, Notice of Motion be rejected. I find substance in the
argument advanced on behalf of defendant No.4. Though, plaintiffs
have prayed for appointment of Court Receiver, they have not given any
valid ground for appointment of Court Receiver. Merely because there is
dispute between plaintiffs and defendant No.4 in respect of flat No.202
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is not a ground for appointment of Court Receiver. Further, it is
pertinent to note that, the plaintiffs have not prayed for appointment of
Court Receiver in respect of all the suit properties i.e. all the flats, but
they are prayed for appointment of Court Receiver only in respect of flat
Nos.202 which defendant No.4 is claiming. Thus, there are grounds for
believing the contention of defendant No.4 that plaintiffs are praying
for appointment of Court Receiver of flat No.202 with ulterior motive
only to deprive defendant No.4 from getting possession of flat No.202.
Since, no grounds are made out for appointment of Court Receiver, I do
not find it just and convenient to appoint a Court Receiver. Hence, I
hold that Notice of Motion is devoid of merits and is liable to be
dismissed. Hence, I answer point No. 1 in the negative and proceed to
pass the following order :-
ORDER
1. Notice of Motion No. 4334 of 2019 in Suit
No.2679 of 2019 stands dismissed with cost.
2. Notice of Motion stands disposed of accordingly.
(Order dictated & pronounced in open Court)
(V. V. PATIL)
Judge, City Civil Court,
Dated : 30.03.2024 C.R. No.09, Gr. Mumbai.
Dictated on : 30.03.2024
Transcribed on : 30.03.2024
Signed on : 30.03.2024
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“Certified to be true and correct copy of the original signed order”.
01.04.2024
at about 16.30 p.m.
(Manisha D. Hirole)
Stenographer (Grade-I.)
Court Room No.09, Gr. Mumbai.
Name of the Hon'ble Judge : HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Order : 30.03.2024
Order signed by Hon'ble Judge on : 01.04.2024
Order uploaded on : 01.04.2024
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