Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No.4455/2019 ..1.. InS.C.Suit No.3110/2019
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
NOTICE OF MOTION NO. 4455 OF 2019
IN
S.C. SUIT NO. 3110 OF 2019
CNR NO : MHCC010122222019
Ashokkumar Baburam Sahu, ...Plaintiff
Versus
1. Siddharth Builders and Developers and Anr., ...Defen
dants
Appearance :
Mr. Sagar Pramodkumar Batavia, Advocate for the Plaintiff.
Mr. Pratik K Shah, Advocate for defendant No.1.
CORAM : HIS HONOUR JUDGE
SHRI AJIT N. MARE (C.R.No.3)
DATE : 20TH MARCH, 2021.
ORAL ORDER
By this notice of motion, the plaintiff is seeking temporary
injunction to restrain the defendants from demolishing the shop
bearing shop No. 4, Ground Floor, Matawadi Building, Maulana
Shaukat Ali Road, Near Shalimar Cinema, Grant Road, Mumbai
400 007, (hereinafter referred as, “The Suit Shop”) without
following due process of law and also to restrain them from
dispossessing the plaintiff without following due process of law.
2. It is plaintiff’s case that, he is possessing the suit shop. One
Mr. Tahir, representative of defendant No. 1 has visited the suit
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shop recently and has threatened to demolish the suit shop in the
garb of moving the machineries for redevelopment of rear portion
of the building.
3. The plaintiff claims that, he is tenant in the suit shop which
was originally allotted to his wife. His wife died in the year 2013.
After demise of his wife, the plaintiff is possessing the suit shop
and is carrying on business. Defendant No. 2 has entered into a
development agreement with defendant No. 1 who has
undergone redevelopment. Such work was to be started after
obtaining the IOD in the year 2010. A new shop was proposed to
be handed over to the plaintiff coupled with compensation, if
possession is not delivered within 24 months. The plaintiff is not
opposing the redevelopment. The defendant No. 1 proposed to
give a shop measuring 9.36 sq.mt. as shown in the plan attached
to the draft agreement. The plaintiff requested the defendants to
give additional area or to give a shop at the same place where the
suit shop is currently located. Since, the year 2010 there is no
development. Due to death of original tenant, i.e. plaintiff’s wife,
now it is proposed to give shop No. 2 measuring 103.54 Sq.Ft. i.e.
less than the original area of the suit shop that too of triangular
shape. Said shop is not proper to carry on the business. The
defendants cannot change shape of the shop which was proposed
earlier. The plaintiff therefore served legal notice on the
defendants. The plaintiff asked the defendants to provide
sanction plan IOD, approval of RERA Authority etc. which is
required for redevelopment, same is not provided to the plaintiff
yet.
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4. The defendant No. 1 has opposed notice of motion on the
ground that, the plaintiff has approached the Court with unclean
hands and has suppressed material facts. His wife late Mrs.
Chaya was the tenant. She has left behind the plaintiff, a son and
daughter. The plaintiff alone cannot maintain the suit. The
plaintiff is not using the shop and has sublet it. Some third party
is carrying on business in the suit shop. The defendant has
already provided draft copy of agreement for permanent alternate
accommodation and is ready and willing to pay rental
compensation as agreed. It has followed the due process of law.
The original owner has executed an agreement for development
with defendant No. 1. He died, however, his legal heirs are
surviving. The plaintiff has not joined all of them and so the suit
is bad for nonjoinder of the necessary parties. The defendant has
arrived at arrangement with all tenants who have granted their
consent for redevelopment as required by MHADA in terms of
Development Control Regulation 33 (7). The defendant No. 1
has executed a registered agreement for permanent alternate
accommodation with all the tenants between year 2010 to 2012.
Defendant No. 1 has provided individual agreement with
tentative plan to the plaintiff. However, the plaintiff has refused
to execute the agreement insisting on having the shop at the
same place where the existing shop stands. In view of change in
law, redevelopment of the entire property had not been feasible
as originally proposed and therefore the defendant and the
tenants have agreed upon to reduce the area of new premises to
make the project viable and to start redevelopment. Therefore,
the defendant had to modify and amend plans in the terms of
modified D C Regulation to accommodate request of tenants as
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well as to provide new shop to the plaintiff at the same place
where the suit shop exists. The defendant cannot do much due to
odd shape and small size of the plot on which the entire property
exists and is to be developed. The owner has also retained some
portion of the property for themselves and for existing temple.
Though the plaintiff is entitled to 100.75 Sq. Ft. carpet area the
defendant has made provision for 103.54 Sq.Ft. carpet area of
road side and on the same place where the suit shop is existing.
Thus, the plaintiff has not made out primafacie case to grant
injunction as sought.
5. Perused. Heard.
6. Following points arise for determination against which
findings are recorded for the reasons to follow.
Sr.
No.
POINTS FINDINGS
1. Whether plaintiff has made out a
primafacie case in his favour? In the Affirmative
2. Whether the balance of convenience
lies in plaintiff’s favour? In the Affirmative
3. Whether plaintiff will suffer
irreparable loss in case of refusal of
injunction?
In the Affirmative
4. What order? As per final Order.
REASONS
AS TO POINTS NO. 1 TO 4 :
7. From the perusal of relief sought it is clear that, the
plaintiff is not opposing the redevelopment, but is requiring the
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defendants to follow the due process of law.
8. It is admitted position that, the plaintiff is possessing the
suit shop. His entitlement to the new premises is also not in
dispute. The defendant No. 1 is admitting that it had sought to
enter into an agreement with the plaintiff and has also forwarded
copies of draft agreement to the plaintiff.
9. Though it is sought to be contended by defendant No. 1
that, the plaintiff alone cannot maintain the suit, considering the
nature of suit, the suit at the instance of present plaintiff is
maintainable as he seeks to protect the right of himself and his
children in the suit shop. Thus, nonjoinder of his children is no
ground to hold that, the suit is not competent at the instance of
plaintiff alone.
10. The plaintiff has produced on record copy of notice dated
03.09.2019 by which he has called upon the defendants, more
particularly defendant No. 1, to supply the copies of sanction
plan, IOD, approval from RERA Authority etc. for the
development of the property which includes the suit shop.
Though defendant No. 1 has filed reply to the notice of motion,
nothing is placed on record to reveal that it has replied such
notice given by the plaintiff and has provided any such document
to the plaintiff. Defendant No. 1 has not placed on record of
present suit the copy of sanction plan and IOD which is condition
precedent to start construction. If at all defendant No. 1 would
have in its possession the sanction plan and IOD, it should have
produced it before the Court to reveal that it has complied with
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the legal formalities and thus has followed due process of law
which allows it to commence the construction. In absence of any
such documents placed on record, therefore, a primafacie
inference can be drawn that defendant No. 1 has not obtained
sanction plan and IOD.
11. Advocate for defendant No. 1 submitted that, a copy
of plan is produced on record with reply. I have gone through
the annexureA. It nowhere indicates the order or seal of
Competent Authority mentioning that, it has sanctioned the plan
at annexureA. In such circumstances, his submission cannot be
accepted that annexureA is the sanctioned plan.
12. Considering the circumstances in this case, therefore,
it is clear that at present there is nothing on record to indicate
that, the defendants have obtained sanctioned plan or IOD in
order to commence the construction. In such circumstances, the
apprehension expressed by the plaintiff that defendants may act
against the suit shop without following due process of law is
justified.
13. In the light of above discussion, therefore, I hold that
the plaintiff has made out a primafacie case for grant of an
injunction as sought, the balance of convenience certainly lies in
favour of plaintiff as none can be allowed to disposses someone
or to demolish a structure without following due process of law.
Demolition of the suit shop without following due process of law
will certainly cause irreparable loss to the plaintiff.
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14. Proceedings do not indicate that, the notice of
motion is ever served on defendant No. 2. In such circumstances,
the relief as sought by the plaintiff can be granted only against
defendant No. 1. Even otherwise the threat expressed by the
plaintiff is only at the hands of representative of the defendant
No. 1. Consequently, I hold that the plaintiff has made out a
primafacie case for grant of injunction as sought against
defendant No. 1 only. Hence, I answer points No. 1 to 3 in the
affirmative as against defendant No 1 and in response to point
No. 4 pass following order:
ORDER
1. Notice of Motion No. 4455/2019 is made absolute
in terms of prayer Clause (a) and (b) against
defendant No. 1.
2. Defendant No. 1 or anybody through him is
temporarily restrained from demolishing the suit
shop without following due process of law.
3. Defendant No. 1 or anybody through him is
temporarily restrained from dispossessing the
plaintiff from the suit shop without following due
process of law.
4. Costs in cause.
5. Notice of Motion No. 4455/2019 is disposed of
accordingly.
(AJIT N. MARE)
Judge,
Date : 20.03.2021 City Civil Court, Gr. Mumbai.
Dictated On : 20.03.2021
Transcribed on : 22.03.2021
HHJ Signed on : 23.03.2021
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED ORDER.”
UPLOAD DATE TIME STENOGRAPHER NAME
24.03.2021 5.51 p.m. Mahendrasing D. Patil
(Stenographer (GradeI)
Name of the Judge H.H.J. SHRI. AJIT. N. MARE
(Court Room No. 3)
Date of pronouncement of Order 20.03.2021
Order signed by P. O. on 23.03.2021
Order uploaded on 24.03.2021
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