Final Order 1

Order Details: Notice of Motion
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MHCC010125302019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 4569 OF 2019
IN
SUIT NO. 604 OF 2010.
Rameshchandra L. Jain alias ]
Shah. ]..Applicant.
IN THE MATTER BETWEEN
Rameshchandra L. Jain alias ]
Shah. ]..Plaintiff.
V/s.
1. The Chief Officer, MHADA ]
and others. ]..Defendants.
Advocate Mr. Abhishekh Nikharge for the plaintiff.
Advocate Ms. Mangal Kadam for defendants Nos.1 and 2/MHADA.
Advocate Mr. D.A. Barot for defendant No.3.
CORAM : HIS HONOUR JUDGE
MR. VAIBHAV V. PATIL
(C.R.NO.09)
DATE : 30TH JUNE 2023
ORAL ORDER
The plaintiff has taken out present Notice of Motion
seeking prayer to direct defendant No.3 to pay the plaintiff’s arrears of
rent for the period from 12.03.2010 till 26.11.2019 and further to direct
defendant No.3 to pay monthly rent amount from 27.11.2019 til date.
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2. The plaintiff has filed Affidavit in support of Notice of
Motion. It is the contention of the plaintiff that he is the owner and
occupier of the Shop No.2, Ground Floor, Second Carpenter Street,
28/30, Jaya Building Premises Co-op. Housing Society Ltd., Mahim
Kurla Marg, Mumbai admeasuring about 176 sq. feet (hereinafter
referred as “Suit Premises). The plaintiff learnt from the occupants of
the building, other members of the society that some of the office
bearers of the society have decided to redevelop the society with
permission of MHADA. The plaintiff was unaware about the same. He
came to know that the society has issued NOC to the defendant No.3
i.e. builder and developer for the redevelopment of the property. The
said NOC was issued in collusion with some of the office bearers of the
society. The defendant No.3 in collusion with some of the office bearers
of the society had partly demolished the suit premises on 08.03.2010.
Thereafter, the plaintiff had filed captioned suit against the defendants.
This Court has passed an order of status-quo on 12.03.2010. The suit
premises became completely unusable since 12.03.2010. The other
members/owners of their respective units had already vacated their
units except for 5 units including the suit premises.
3. It is further contended that thereafter, the Notice of Motion
came to be dismissed and the plaintiff preferred an Appeal from Order
bearing No.655 of 2010 which was admitted by the Hon’ble High Court
vide its order dated 03.12.2012 and the status-quo order was extended
therein. Thereafter, the said Appeal from Order came to be dismissed
for default on 12.06.2012. The suit premises was fully demolished in
June 2012. Thereafter, the plaintiff had taken out Civil Application
No.767 of 2012 for the restoration of the said Appeal from Order
No.655 of 2010 and the Hon’ble High Court allowed the Civil
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Application vide Order dated 16.06.2012. The said Appeal from Order
was finally culminated in the order dated 05.11.2012 identifying the
premises (Shop No.1) in lieu of Shop No.2 which shall be kept intact
and shall be available for allotment to then appellant (plaintiff herein)
as per the final order of the trial Court.
4. It is further contended that after filing of the suit, when the
Written Statement of defendant No.3 came on record, the plaintiff came
to know that the Society has already entered into the Development
Agreement dated 29.10.2009 with the defendant No.3 i.e. builder and
developer. As per Clause-23(i) and 25 of the said Development
Agreement dated 29.10.2009, the defendant No.3, Builder and
Developer is liable to pay the members of the said society the certain
amount from the date of vacating premises till date of giving possession
of the permanent alternate accommodation and in case of any default,
defendant No.3 is liable to pay certain amount of compensation.
5. In the light of aforesaid facts, the plaintiff is entitled to
receive the arrears of rent in respect of the suit premises due and
payable from the defendant No.3 i.e. builder and developer at the rate
of 12% of interest from 12.03.2010 till 26.11.2019. The defendant No.3
has not paid a single rupee towards the rent in respect of the suit
premises to the plaintiff till date. The defendant No.3 has demolished
the suit premises in March 2010 and therefore, the plaintiff is entitled
to receive the arrears of rent in respect of the suit premises from
12.03.2010 to 26.11.2019 at the rate of 12% interest thereon. Hence,
the plaintiff has moved present Notice of Motion and prayed for
allowing the present Notice of Motion in terms of prayer clause (a) and
(b).
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6. The defendant No.3 has strongly opposed the claim of the
plaintiff by filing detailed reply. It is submitted that the plaintiff is
challenging the redevelopment of the suit property and challenging the
Development Agreement and right of the defendant No.3 to develop the
suit property. Thus, on one hand, the plaintiff is challenging the
Development Agreement and on other hand, the plaintiff is relying
upon the terms and conditions of the Development Agreement.
Therefore, he is not entitled to any relief pursuant to the Development
Agreement.
7. It is further contended that defendant No.3 has filed his
Additional Affidavit dated June 2018 and offered the plaintiff the new
premises. Inspite of the same, the plaintiff declined to accept the new
premises. Therefore, the plaintiff is not entitled to claim any relief. In
the present suit, the plaintiff has examined himself as a PW-1 and
thereafter he has examined other two witnesses and thereafter, to delay
the hearing of the suit, the plaintiff has taken out present Notice of
Motion which is liable to be dismissed with cost.
8. It is further contended that the plaintiff has filed several
Court litigation. Due to the plaintiff’s various Court litigation, the
defendant No.3 has suffered heavy loss in the redevelopment project of
the suit property and construction of the building was delayed. In view
of the order passed by the Hon’ble High Court and this Court, the
plaintiff is not entitled to claim any relief as prayed. Hence, prayed
that Notice of Motion be dismissed with costs.
9. Perused affidavit in support of Notice of Motion, reply and
documents. Heard learned advocates for both the parties at length.
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Also perused plaint and supporting documents placed on record by both
the parties.
10. Considering the plaint, Notice of Motion, affidavit, reply,
documents on record and submissions of all learned advocates, the
following points arise for my determination and I have recorded my
findings to them for the reasons stated below.
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff has
prima facie
case?
In the
Negative
2 Whether the balance of convenience lies
in favour of the plaintiff ?
In the
Negative
3 Whether the plaintiff has proved that he
will suffer irreparable loss if the Notice
of Motion is rejected?
In the
Negative
4 What order? As per the final order
R E A S O N S
AS TO POINT NOS.1 TO 3 :
11. From the rival contentions, it appears that it is not disputed
that the plaintiff is the owner of Shop No.2 situated in Jaya Building. It
is also not disputed that the society decided to redevelop the building
and issued NOC to defendant No.3 for redevelopment of the property.
Further, from the rival contention, it is revealed that the suit premises
was fully demolished in June 2012. Then plaintiff filed the present suit
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against the defendants wherein status-quo order was passed on
12.03.2010. Thereafter, the Notice of Motion came to be dismissed. The
plaintiff challenged the said order in the Hon’ble High Court, wherein
status-quo order was extended by order dated 03.12.2012. Thereafter,
the said Appeal from Order came to be dismissed for default on
12.06.2012. The plaintiff had also filed criminal private complaint
before the Additional Chief Metropolitan Magistrate, 4th Court at
Girgaon being Case No.CC/131/SW/2010 which was dismissed on
25.07.2014. The plaintiff filed Criminal Revision No.755 of 2014
against the said order before the Session Court which was also
dismissed on 01.01.2018. Thereafter, the plaintiff filed Writ Petition
No.651 of 2019 before the Hon’ble High Court and the same is not
admitted and it is pending for admission.
12. It further revealed that the plaintiff had also filed Dispute
No.CC/II/475 of 2010 in the Second Co-operative Court at Mumbai
against the society and for challenging the redevelopment of the suit
property. The Interim Application taken out in the said dispute was
rejected by the Co-operative Court on 12.02.2014. Against the said
order, the plaintiff has filed the Appeal No.22 of 2014 before the Co-
operative Appellate Court at Mumbai and the same is withdrawn by the
plaintiff on 24.09.2014. Thereafter, the o-operative Court also
dismissed the Dispute No.CC/II/475/2010 filed by the plaintiff on
15.03.2018.
13. In the present case, the plaintiff had taken out first Notice
of Motion No.1004/2010 for urgent reliefs which was dismissed by this
Court. Thereafter, the plaintiff had taken out Notice of Motion No.503
of 2014 for injunction to restrain defendants from carrying out any
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work of development in respect of the suit property which is also
dismissed by this Court on 25.02.2014, Against the said order, the
plaintiff has filed Appeal from Order No.807 of 2014 which is dismissed
by the Hon’ble High Court on 13.01.2015.
14. The plaintiff had filed Contempt Petition No.21 of 2011
before the Hon’ble High Court who was pleased to dismiss the same by
the Order and Judgment dated 07.04.2015 and awarded the cost of
RS.10,000/- to the plaintiff. The plaintiff had also filed Contempt
Petition No.301/2013 before the Hon’ble High Court which is also
dismissed by Judgment and Order dated 13.07.2015 as withdrawn. The
plaintiff has also filed Appeal from Order No.655 of 2010 which is also
disposed off by this Court on 14.01.2013.
15. Further, it is reflected from the record that evidence of the
plaintiff was commenced. The plaintiff has examined himself and two
more witnesses. Thereafter he has moved the present Notice of Motion
claiming arrears of rent and compensation. For that purpose, the
plaintiff has relied upon Clause-23(i) and 25 of the Development
Agreement dated 29.10.2009, entered into between the society and
defendant No.3 by which the defendant No.3 is liable to pay the
members of the society certain amount from the date of vacating the
until handing over the possession of permanent alternate
accommodation.
16. Now, as submitted on behalf of defendant No.3, the
plaintiff on one hand is challenging the Development Agreement and on
the other hand is claiming the arrears of rent and compensation on the
basis of the Development Agreement itself. Moreover, as argued by the
learned advocate for defendant No.3 that as per Clause-23(i) and 25 of
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the Development Agreement itself, defendant No.3 is liable to pay each
of the members, in advance a certain amount mentioned in the said
Clause from the date of members/occupants/members vacating the
existing tenements. It is submitted that the defendant No.3 has already
paid compensation to all 58 tenants except three tenants including
plaintiff who have not vacated the premises and also provided alternate
accommodation to them. Since the plaintiff has not vacated the
premises, defendant No.3 is not liable to pay any compensation or rent
to the plaintiff. Now, admittedly, the present plaintiff has not vacated
the premises and therefore, obviously at this stage he is not entitled to
any amount as per the Clause-23(i) and 25 of the Development
Agreement.
17. It is also not disputed that in the suit proceeding, the
defendant No.3 has filed his additional Affidavit in June 2018 and
offered the plaintiff the new premises, but the plaintiff refused to accept
the new premises. Thus, on bare perusal of clause-23(i) and 25 of
Development Agreement,
prima-facie the plaintiff is not entitled to the
amount as claimed by him.
18. Moreover, it is pertinent to note that it is after recording
evidence and after trial is finished, it will be finally decided, if the
plaintiff is entitled to amount of rent and compensation. For that
purpose, the entire evidence of both the parties needs to be recorded.
As stated above, the evidence in this suit is partly recorded. The plaintiff
has examined himself and other two witnesses also. The plaintiff has
not closed his evidence. The evidence of defendants is yet to be
recorded. Therefore, at this stage, it cannot be concluded that the
plaintiff is entitled the arrears of rent and compensation as prayed.
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19. Considering the material on record, I have come to the
conclusion that the plaintiff has failed to make out
prima-facie case. The
balance of convenience also does not lie in favour of the plaintiff. In
such circumstances, if Notice of Motion is dismissed, no irreparable loss
will be caused to the plaintiff. On the other hand, the defendant No.3
will definitely suffer irreparable loss, if Notice of Motion is allowed.
Hence, I answer point Nos. 1 to 3 in the negative.
AS TO POINT NO.4.
20. In view of negative findings on Point Nos.1 to 3, I hold that
the Notice of Motion is liable to be dismissed with costs. In the result, I
proceed to pass the following order:-
ORDER
1. Notice of Motion No. 4569 of 2019 is hereby
dismissed with costs.
2. Notice of Motion No. 4569 of 2019 is disposed of
accordingly.
(VAIBHAV V. PATIL)
Judge,
City Civil Court,
Date: 30.06.2023 Gr. Bombay.
Dictated on : 30.06.2023
Transcribed on : 01.07.2023
Signed on : 04.07.2023
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
06/07/2023 At 12.40 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room
Number)
HHJ MR. VAIBHAV V. PATIL
(C.R.NO.09)
Date of pronouncement of Judgment/
Order
30.06.2023
Judgment/Order signed by P.O. on 04.07.2023
Judgment/Order uploaded on 06.07.2023
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