Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 Ord. in NM no 4583 of 2019, in Suit no.2973 of 2019
MHCC010126282019
IN THE BOMBAY CITY CIVIL COURT, AT BOMBAY
NOTICE OF MOTION NO.4583 OF 2019
IN
S.C. SUIT NO.2973 OF 2019
Mrs. Lata Canser W/o Narendra Canser. Plaintiff.
V/s
Vivekanand CHS Limited. Defendants.
CORAM : HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(COURT ROOM NO.01)
DATE : 17th DAY OF JANUARY, 2023
: Appearances:
The learned Adv. Mr. Karan Choudhary for plaintiff.
ORAL ORDER
The present Notice of Motion is filed by the plaintiff for
claiming relief inter alia, to issue temporary mandatory order and
direction directing defendants to forthwith provide necessary sewage
and water facility to suit shop.
2. Briefly stated, it is contention of the plaintiff that she
being owner of suit shop is in possession of the same. Defendants are
society incorporated under the provisions of Maharashtra Co
operative Societies Act.
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2 Ord. in NM no 4583 of 2019, in Suit no.2973 of 2019
3. It is further contention of the plaintiff that after being
purchased of suit shop she being accepted as member of the
defendants society. Accordingly necessary Share Certificate have been
issued in her favour. It is further contended that the plaintiff being in
lawful use, occupation and possession of suit shop, like any other
members, of the society is entitled to get necessary facilities as
enjoyed by other members of the society. However, defendants
society for one reason or other prevented the plaintiff from enjoying
said benefits. Defendants declined to provide necessary water and
sewage facility to the plaintiff.
4. It is further contended that, therefore the plaintiff
approached to concern Registrar of the Cooperative Societies.
Accordingly the Registrar have been pleased to direct defendants to
issue necessary NOC so as to enable the plaintiff to have independent
water facility and also independent sewage line. However defendants
have challenged the said order by preferring Appeal bearing
No.71/2017 which is pending for adjudication. Now the plaintiff
learnt that defendants have provided facility of water and sewage to
some of the shop owners and thus the present Notice of Motion.
5. Defendants society strongly opposed Notice of Motion by
filing reply on affidavit. It is contended that suit is not maintainable
for want of compliance u/s. 164 of Maharashtra Cooperative
Societies Act 1960. It is further contended that the plaintiff has been
illegally admitted to membership of the society in violation of
provisions of law. Therefore the plaintiff is not entitled for reliefs
claimed.
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3 Ord. in NM no 4583 of 2019, in Suit no.2973 of 2019
6. It is further contention of defendants that the plaintiff is
not residing in suit shop and it was given on leave and license basis to
others. It is further contention of defendants that as already the
matter is subjudice before the Divisional Joint Registrar hence Notice
of Motion is not tenable and thus liable to be rejected.
7. Heard both learned advocates for respective parties at
length. Perused the record.
8. Following points arises for my determination to which, I
record my finding with reasons as follows:
Sr.No Points Findings
1. Whether the plaintiff is entitled for the
relief of temporary mandatory
injunction as claimed?
No
2 What order? As per final order.
REASONS
AS TO POINT No.1:
9. At the outset, I want to mention that the plaintiff herself
admitted that for her above grievances she has approached to the
Registrar of Cooperative Societies and accordingly order came to be
passed in her favour thereby defendants society is directed to issue
necessary NOC so as to enable her to have her independent water
supply and independent sewage line. It is further contended by the
plaintiff that said order was challenged before the Divisional Joint
Registrar and is pending for adjudication. The plaintiff has filed copy
of order passed by the Registrar. The plaintiff has also filed copy of
Appeal pending before the Divisional Joint Registrar, Bombay. It is to
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4 Ord. in NM no 4583 of 2019, in Suit no.2973 of 2019
be seen that, whatever relief claimed by the plaintiff vide this present
Notice of Motion were already granted by the Registrar. Now same is
subjudice before the Divisional Joint Registrar in an appeal preferred
by the defendant. In my humble view for similar reliefs, the plaintiff
cannot file the present NM when already matter is subjudice before
the Divisional Joint Registrar, Mumbai. Hence the plaintiff is not
entitled for relief claimed. Thus my answer to Point No.1 is in
negative.
AS TO POINT NO.2:
10. In view of my above discussion, I pass following order.
ORDER
1. Notice of Motion No.4583/2019 is rejected.
2. Notice of Motion stands disposed off.
(Virendra D. Kedar)
Judge, City Civil & Sessions
Court,Gr.Mumbai
Date: 17.01.2023. (C.R. No.1)
Dictated on : 17.01.2023
Transcribed on : 17.01.2023
checked and Signed on : 18.01.2023
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5 Ord. in NM no 4583 of 2019, in Suit no.2973 of 2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ORDER.”
UPLOAD DATE 18.01.2023 NAME OF STENOGRAPHER(GI)
Mr. V.S. Shinde
TIME: 3.20 p.m.
Name of the Judge (With Court room no.) HHJ Shri Virendra D. Kedar
(Court Room No.1)
Date of Pronouncement of JUDGEMENT/ORDER 17.01.2023
JUDGMENT/ORDER signed by P.O. on 18.01.2023
JUDGEMENT/ORDER uploaded on 18.01.2023
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