Interim Order 1

Order Details: Other
Pdf Text: 1 Ad-Int -NM No.4628-19 in St.13377-19
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEF ON
NOTICE OF MOTION NO. 4628 of 2019
(CNR no. MHCC01-012706-2019)
IN
STAMP NO. 13377 OF 2019
(CNR no. MHCC0125772019)
Asha Cloth Stores ]
Through its Proprietor ]
Mrs. Jayshree J. Sadalage ]
Age : 80 years, Occ Business ]
Shop No.1, Keshav Kripa, Station Road, ]
Opp. Laxmi Market, Chembur, Mumbai400 071. ]... Plaintiff
Versus
1. Municipal Corporation of Greater Mumbai, ]
Having its address at Mahapalika Marg, ]
Opp. Azad Maidan, Next to Killa Court, ]
CSMT Area, Fort, Mumbai 400 001. ]
2. S.T.K. Corporation ]
Builders and Developers ]
Laalasis, Plot No.219, 11th Road, ]
Chembur, Mumbai 400 071. ]....Defendants
Appearances:
Ld. Advocate Mr. Vishal Acharya for the Plaintiff.
Ld. Advocate Mrs. D. D. Patil h/f Ld. Advocate Mr. S.C. Khandagale for
defendant no.1/MCGM.
Ld. Advocate Ms. Shruti Keer I/by Ld. Advocate Mr. Mahesh Dhuri for
defendant no.2.
CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 8)
DATED : 20th December, 2019
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O R A L O R D E R O N A D I N T E R I M R E L I E F
1. Perused plaint, Notice of Motion, documents annexed to
the plaint, documents filed by defendant/MCGM and heard both sides.
The plaintiff challenges notice issued by defendant/MCGM dated
27.11.19 purported to be under Section 354 of Mumbai Municipal
Corporation Act, 1888 (hereinafter "MMC Act") for pulling down the
suit building after it is found in ruinous condition. Ld. Advocate for the
plaintiff has vehemently argued that the structural auditor of plaintiff
has categorically stated in his structural audit report that the building
falls to C2B category, the structural auditor of the landlord also made
observations on the same line and he never stated that the building is
beyond repair. Ld. Advocate for the plaintiff further submits that the
landlord has instituted suit in the Small Cause Court for eviction of the
plaintiff wherein there is no averment that the building is in dilapidated
condition and therefore, the statement of the landlord (defendant no. 2
herein) in the said suit estops him for claiming that the building is in
dilapidated condition. Lastly, he has submitted that the landlord is
trying to evict the plaintiff by all means and the plaintiff is always ready
to bear the costs to the extent of his shops in the suit building.
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2. I have gone through the plaint, documents annexed thereto and
documents submitted by the defendant/MCGM. It is not in dispute that
the matter was referred to Technical Advisory Committee (hereinafter
"TAC") after defendant/MCGM received conflicting structural audit
reports. It is pertinent to note that the TAC meeting was held on
06.07.2019, 11.09.2019 and 19.09.2019. Interim order was passed by
the TAC on 06.07.2019 directing both structural consultants to comply
the orders mentioned therein. The final decision dated 18.11.2019
shows that after the interim order dated 06.07.2019, the structural
consultants of both sides did not appear on 11.09.2019. After elaborate
discussion, the TAC came to the conclusion that the building was in C1
category and directed to initiate further action for demolition of the
same. In the TAC conclusion it is highlighted that there is 90%
probability of corrosion of steel in concrete, estimated cost of repair is
66.56 lakhs and the building is more than 50 years and even after
repairs life will increase with frequency of 5 years repairs and so on and
therefore, the option of demolition is economically viable. After
considering all the above aspects it cannot be said that the TAC has
acted mala fide, arbitrarily. As argued by the Ld. Advocate for the
defendant/MCGM on the basis judgment of Hon'ble Bombay High Court
the Trial Court is not expected to sit over TAC report and take any
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different view of the matter.
3. Ld. Advocate for the plaintiff has submitted that the landlord has
not made any provision for alternate accommodation and he wants to
evict the plaintiff by using the machinery of the local authority i.e.
defendant/MCGM. In that respect, it is clear from catena of judgments
and express words of section 354 that inter se rights of the parties in
respect of tenancy, alternate accommodation are not affected by the
action of 354 of MMC Act. From the above discussion, I do not find any
infirmity in the action of defendant/MCGM. Therefore, following order :
ORDER
Adinterim relief is rejected.
(C. V. Marathe)
Judge,
Date : 20.12.2019 City Civil Court, Gr. Mumbai.
Dictated on : 20.12.2019
Transcribed on : 20.12.2019
Signed by HHJ on : 21.12.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 23.12.2019 at 11.29 a.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. C. V. Marathe
C.R. no.08
Date of Pronouncement of
JUDGMENT/ORDER
20/12/2019
JUDGMENT/ORDER signed by
P.O. on
21/12/2019
JUDGMENT/ORDER uploaded
on
23/12/2019
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