Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 4449/19 in Suit 8/19
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.4449/2019
(CNR No.MHCC010121932019)
IN
S.C. SUIT NO.8/2019
1. M/s. BSB Developers
2. Mr. Abdullah Mohammed
3. Salim A. Parekh ..Applicants/
Or. Defendants
In the matter between :
1. Mr. Liyaqatali s/o. Mohamedali Patankar
2. Mr. Mohammed Saleem s/o. Habibur
Rehman Patankar
3. Mrs. Rizwana Wahab Parkar nee
Miss Rizwana d/o. Habibur Rehman
Patanka
4. Mrs. Habiba w/o. Mohammedali
Patanar
5. Mr. Firoz Ahmed s/o. Mohamedali
Patankar .. Plaintiffs
V/s.
1. M/s. BSB Developers.
2. Mr. Abdullah Mohammed Siddique
3. Mr. Salim A. Parekh ..Defendants
Appearance:
Adv. Mr. M.S Kadu for plaintiffs.
Adv. Mr. Vasim A. Shaikh for applicants/ defendants.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 27.1.2020.
ORAL ORDER
1. This Notice of Motion is taken out by defendant no.3 for
rejection of plaint under Order VII, Rule 11 of CPC. The Motion is
supported by an affidavit of defendant no.3 Salim Parekh. The plaintiff
-- 1 of 6 --
2 N/M 4449/19 in Suit 8/19
has resisted the Motion by submitting affidavit/ verified reply by
Liyaqatali Mohamedali Patankar.
2. I have heard Ld Counsels for both sides.
3. Ld Counsel for defendant no.3 submitted that the plaintiffs'
claim in the suit is dishonest, misconceived and bad in law. The plaint is
liable to be rejected under Order VII Rule 11 of CPC for various reasons,
which are stated in detail in the affidavit supporting the Motion. Ld.
Counsel for the defendant no.3 specifically argued that the plaint is
liable to be rejected on following grounds :
(I) That the plaint does not disclose cause of action because
the plaintiff is seeking relief on the basis of duly registered
Conveyance Deed dated 10.12.2010 (Exh.A) filed with the
plaint. Admittedly, consideration amount has been paid by
the plaintiff. It is apparent from the plaint that, the
defendants have allotted two flats to the plaintiffs and the
plaintiffs have not raised any grievances regarding said
allotment. The grievance of the plaintiffs in the suit is that,
the defendant has not handed over possession to them but
there is no such requirement under the said Deed of
Conveyance. Hence, there is no cause of action for filing
the present suit.
(II) The plaintiffs' claim and the relief sought is prima facie
barred by law of limitation because the deed of
conveyance on which the plaintiffs are relying and seeking
cancellation was executed on 10.12.2010. Therefore, the
-- 2 of 6 --
3 N/M 4449/19 in Suit 8/19
period of limitation of three years has been over by
9.12.2013. Alternatively, it is submitted that, without
admitting the plaintiffs' claim, assuming that the flats were
to be constructed and handed over to the plaintiffs within
24 months from the date of execution of deed of
conveyance i.e. from 9.12.2012, the plaintiffs' claim for
possession would be barred by limitation by 9.12.2015.
(III) It is further contended that, the plaintiffs being allottees of
the flats and seeking relief in nature of possession of the
flats and/or for compensation in lieu of the flats,
appropriate authority under law has exclusive jurisdiction
to entertain such grievances/ complaints and jurisdiction
of civil court is barred by law.
(IV) Lastly, as per pleadings in the plaint, as drafted and filed,
the plaintiffs' claim in the suit is in respect of the market
value which is more than Rs.1 Crore and therefore, the
relief of possession is undervalued and the plaint is liable
to be rejected on this ground also because the plaintiffs
have not paid proper court fees on the claim.
4. Under the above circumstance, Ld Counsel for the
defendant no.3 submitted that the plaint is liable to be rejected.
5. Per contra, Ld. Counsel for the plaintiffs have strongly
opposed the Motion and relied on the affidavit in reply and submitted
that, the grounds raised in the Motion are false and frivolous and not
supported by record. The application is filed with malafide intention. It
-- 3 of 6 --
4 N/M 4449/19 in Suit 8/19
is bad in law. It is filed only to delay the proceedings. Ld Counsel for
the plaintiffs further submitted that, as per Conveyance Deed the
plaintiffs have paid the amount of consideration and therefore, it is not
sufficient for the defendant to merely issue allotment letter. Making
such interpretation is nothing but an attempt to misguide the court. The
so called compliance by the defendants by issuing allotment letter is not
compliance of the terms of the agreement, as defendants have failed to
hand over the possession of the suit flats. Therefore, the plaintiffs'
claim in the suit is maintainable in law. There is cause of action for
filing of the suit and the claim is also not barred by limitation, as cause
of action is continues one unless and until possession of the flats is
handed to the plaintiffs and redevelopment agreement is fully complied
with.
6. Under the above circumstances, the Motion taken out
under Order VII Rule 11 of CPC is liable to be rejected. The plaintiffs
have valued the suit at Rs. 69 lacs being market value of the property
and appropriate court fees has been paid on one half of advalorem fees
leviable on the value of the property u/s. 6(iv)(ha) of the Bombay Court
Fees Act. Hence, the Motion taken out by the defendant is liable to be
dismissed.
7. I have gone through the pleadings in the plaint and
documents filed on record. I have also considered the grounds raised in
the Motion for rejection of the plaint. It can be seen that, considering
the reliefs sought by the plaintiffs in the plaint, the relief of declaration
pertains to cancellation of the deed of conveyance and the relief of
perpetual injunction relates to the preventive order regarding alienating
or creating third party interest in the suit property during pendency of
-- 4 of 6 --
5 N/M 4449/19 in Suit 8/19
the suit. Admittedly, the defendants have failed to hand over possession
of the suit flats to the plaintiffs. Therefore, considering the reliefs of
declaration, perpetual injunction, the cause of action is continuous one
and therefore, it cannot be said that prima facie the plaintiffs' claim in
the suit is barred by limitation. It is a settled legal position that the issue
of limitation is always a mixed question of fact and law and it needs
trial for decision on the same.
8. Under the above circumstances, I am of the opinion that, if
at all necessary, the plaintiffs are at liberty to amend the plaint and
thereafter, the defendants shall be at liberty to raise an objection as to
the jurisdiction of this court. The issue as to the jurisdiction can be
framed and decided by the court as a preliminary issue. Hence, I have
come to the conclusion that the Motion taken out by the defendant no.3
is not legal and proper. Hence, I proceed to pass following order:
ORDER
1. Notice of Motion 4449/2019 is hereby dismissed
and disposed of accordingly.
2. The suit shall proceed further for trial and
disposal according to law.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 27.1.2020 Gr. Bombay (C.R. 03)
Dictated on : 27.1.2020
Transcribed on : 28.1.2020
Draft given to HHJ on 28.1.2020
Signed by HHJ on : 28.1.2020
-- 5 of 6 --
6 N/M 4449/19 in Suit 8/19
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 28.1.2020
(NITIN V. UBALE)
SELECTION GR. STENOGRAPHER.
Name of the judge (with Court Room No.) Shri V.V. Vidwans, Judge, (C.R. 03)
Date of pronouncement of Judgment/ Order 27.1.2020
Judgment/ order signed by P.O on 28.1.2020
Judgment/ order uploaded on 28.1.2020
-- 6 of 6 --