Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M 4483/19 in St. 2457/19
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.4483/2019
(CNR No.MHCC010124202019)
IN
S.C. SUIT (Stamp) No.12457/2019
1. M/s. New Sarnath Coop. Hsg. Soc. Ltd.
2. Mr.Madhukar Singhania (Chairman)
3. Ms. Shobha Shetty (Secretary) ..Plaintiffs
V/s.
Aleya Chinmulgund ..Defendant
Appearance:
Adv. Mr. R.N. Narula for plaintiffs.
None for defendant.
CORAM : HHJ Shri V.V Vidwans
C. R. No.03
DATE : 10.12.2019.
ORAL ORDER
1. This Notice of Motion (N/M) is taken out by plaintiff for
seeking urgent orders/ directions against the defendant in mandatory
form to allow the plaitniffs' contractors/ workers/ labourers access to
defendant's flat bearing No. 14B, on the first floor of building known as
“New Sarnath C.H.S. Ltd.”, 59B, Bhulabhai Desaid Road, Mumbai 400
026, for the purpose of carrying out repair work of water and drainage
pipeline passing through duct and renovation work of the building,
under the supervision of Court Officer/ Court Commissioner as the case
may be. The Motion is supported by an affidavit filed by Mr. Madhukar
Singhania (plaintiff no.2), who is chairman of the plaintiff no.1 Society.
2. I have perused the Motion and plaint in this case and
documents filed on record along with plaint, as per list at page 21.
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3. I have also heard oral submission of Ld. Counsel for the
plaintiffs. None present for the defendant though the defendant was
tried to be served with the writ of summons along with copy of plaint
and annexures and copy of N/M supported by the affidavit etc. on
22.11.2019 through courier service. As per track report, door of the flat
of the defendant was found closed and therefore service could not be
effected. Similarly, the defendnat was tried to be served again on
3.12.2019 through court bailiff, but court bailiff and clerk of Advocate
for the plaintiffs found that, the door of the said flat was locked from
inside and when they rang the bell, it was not answered for about half
an hour and it was informed that the defendant rarely opens her flat
and only occasionally it is accessible. Ld Counsel for the plaintiff filed
on record affidavit of service by Pradeep Rane dated 5.12.2019,
alongwith documents. Seen and considered the same.
4. Ld. Counsel for the plaintiff took me through the relevnat
paras of the plaint and pleadings regarding facts of the case and
documents filed on record. He submitted that, the plaintiff no.1 is a Co
op. Housing Society, registered under Maharashtra Cooperative
Societies Act 1963, plaintiff no.2 is its Chairman and plaintiff no.3 is
Secretary. The defendant is a flat owner bearing No. 14B of the
Society, but she is not member of the Society. It is submitted that, the
plaintiff has approached this court by filing present suit seeking relief of
mandatory injunction against the defendant who is obstructing to carry
out repair work of the building of the plaintiff Society and is opposing
access to her flat and common water and drainage pipeline through her
flat, and other incidential and consequential reliefs. Ld. Counsel for the
plaintiff submitted that the plaintiff society is a old one, constructed in
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the year 1974. The construction has become old and due to old age and
various other factors, the said building has become dilapidated and
fragile. Therefore, urgent repairs have become necessary for the safety
of the residents and occupants in the plaintiff Society. The Survey
Report prepared by Structural Engineer M/s. Vora & Associates is filed
with the plaint at Exh.A. In view of above, the plaintiff Society had
passed a Resolution for carrying out repair work, copy of which is filed
with the plaint at Exh.B. As per estimate, each member of the Society is
liable to pay an amount of Rs.10 Lakh towards cost of the building
repair work, however the plaintiff Society even ready to exempt the
defendant from the liability of the said cost if she cooperates as she is
not member of the society.
5. It is submitted that, for the purpose of carrying out the
repair in the portion of flat of the defendant in the building of the
plaintiff Society it is necessary that the defendant allow access to her
flat and carry out work of repair/ replacement of water drainage
pipeline etc. in the duct passing through the flat and common for all
floors. In August, 2018, the plaintiff Society had requested the
defendant to allow acess to her flat to carry out the repair work and as
one split A.C. installed in the flat of the defendant is required to be
removed in order to carry out the external plastering and painting of
the building wall, but the defendant had refused to cooperate though
defendant was assured that the A.C will be replaced after completion of
the plastering work. It is submitted that, though the defendant has not
only refused to have access her flat, she has the habit of abusing and
threatening the staff of the plaintiff Society, contractors and labourers/
workers that she had threatened that she will lodge complaint with the
police. Therefore, the plaintiff Society had sent a notice to the
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defendant through advocate on 24.5.2019 but in vain. On the contrary,
the defendant had written a letter to the plaintiff Society on 2.6.2019
along with her letter dated 1.11.2018, mentioning false and baseless
allegaitons against the plaintiff Society. The defendant had expressed
that, if A.C is removed from her flat she fairs suffering from heat strok
and advised to wait till winter season. In view of above, the defendant
was appraoched by the plaintiff society in November, 2019 and
requested her to allow the repair work to be done. But she has again
not responded.
6. Ld. Counsel for the plaintiffs has, therefore, urged for
passing urgent orders on the Motion as the repair work has become
utmost necessary and to give directions to the defendant in mandatory
form. He submitted that, if such directions are not passed by this court,
the very purpose of filing of the present suit and Motion will be
defeated and it will cause serious prejudice to the rights of the plaintiff
Society, and it will also cause danger to the lives of the members of the
plaintiff Society and occupants of the plaintiff in the said building. On
the contrary,if inteirm directions are given by the court, no prejudice
will be caused to the defendant because in fact the repair work is being
carried out also for the wellbeing and safety of the defendant herself.
7. After considering the oral submission made by Ld. Counsel
for the plaintiffs and after going through the prima facie material on
record, and documents filed with the plaint, I am satisfied that there is
urgency in the matter for passing urgent orders, as it is winter season
when split A.C can be removed from the defendant's flat for carrying
out repair work and can be replaced again as stated by the Ld. Counsel
for the plaintiffs, after repair work will be over without causing any
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prejudice to the defendant. It is also necessary to appoint a Court
Officer/ Court Commissioner to monitor the repair work and also to
facilitate the plaintiff Society in completing the repair work of the
building. I also find it necessary to provide police aid to the plaintiff
and the Court Commissioner to carry out the repair work, keeping in
view the approach of the defendant that she has not been responding
positively to the requests made by the plaintiff Society to allow access to
her flat and carry out repair work. Hence, I proceed to pass following
order:
ORDER
1. Notice of Motion No.4483/2019 is hereby allowed and
made absolute in terms of prayer clauses (a) and (b).
2. Defendant Aleya Chinmulgund, her servants,
representatives or any person acting on her behalf is
hereby directed by mandatory injunction to allow and
permit contractors/ workers/ labourers of plaintiff
Society to remove her split A.C in her flat no.14B for the
purpose of carrying out repair work and to allow the
repairs to be carried out and to complete the work of
external plastering and painting of wall of the building;
with direction to the plaintiff to reinstall the split A.C
after completion of the repair work.
3. Registrar of this Court is directed to appoint a Court
Commissioner to supervise/ monitor the work of repairs,
as prayed in this Motion, at the cost of the plaintiff
Society.
4. The plaintiff Society shall bear the charges/ fees of the
Court Commissioner.
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5. The plaintiff shall prepare the proposed plan of carrying
out repairs/ plastering work and submit the same to the
Court Commissioner to enable him to communicate the
same to the defendant well in advance.
6. The Court Commissioner shall give prior notice to the
defendant as to when the contractors will carry out
repair work so as to enable her to cooperate and
respond to the order of the Court.
7. If the defendant do not cooperate or refuses to give
consent for access to her flat for carrying out the repair
work etc., the Court Commissioner shall take a decision
in respect of taking assistance from the police authorities
to enforce the orders of this Court.
8. The plaintiff shall be entitled to take assistance/ aid
from the police authorities, if the Court Commissioner
records his opinion that the defendant is not ready and
willing to give effect to the orders of this Court.
9. The Court Commissioner is directed to submit report of
compliance and report of the work carried out under his
supervision, as directed in this order along with
necessary photographs of the work done, if found
necessary, after repair work is completed.
N/M stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 10.12.2019 Gr. Bombay (C.R. 03)
Dictated on : 10.12.2019
Typed on : 11.12.2019
Signed by HHJ on : 12.12.2019
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 12.12.19
TIME: 3.20 pm (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 10.12.19
Judgment/ order signed by P.O on 12.12.19
Judgment/ order uploaded on 12.12.19
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