Final Order 2

Order Details: Notice of Motion
Pdf Text: 1 N/M 4644/19 in Suit 2956/19
MHCC010127312019
IN THE BOMBAY CITY CIVIL COURT, AT MUMBAI
NOTICE OF MOTION NO.4644/2019
IN
S.C. SUIT NO. 2956/2019
1. Mr. Ashok Kumar Ratanlal Agarwal
2. Mrs. Lalitadevi Ashok Agarwal ..Plaintiffs
V/s.
1. Mr. Anil Kantaprasad Patel,
2. Mr. Sunil Kantaprasad Patel,
3. Mrs. Sunita Tejbahadur Patel,
4. Sahakar Nagar Vibhag-2 CHS Ltd.
5. Godrej Redevelopers (Mumbai) Pvt.Ltd. ..Defendants
Appearance:-
Adv. Mr. Rakesh Agarwal @ Mr. Chattiyar for plaintiffs.
Adv. Mr. D.V. Saroj for defendants no. 1 to 3.
Adv. Ms. Divya Tyagi for defendant no.4.
Adv. Ms. Archana Venkatrama with representative of defendant no.5.
CORAM : HHJ Shri V.V Vidwans.
C. R. No.03.
DATE : 28.2.2020.
ORAL ORDER
1. This Notice of Motion has been taken out by plaintiffs for
seeking various reliefs, including mandatory directions to the
defendants more particularly, defendant no.4, to hand over vacant and
peaceful possession of the flats in question to the defendant no.2 as
permanent alternative accommodation being flat nos.201 and 202
respectively in Tower No. T-07 in the building known as ‘Godrej Prime’,
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Road no.1, Shell Colony, Chembur(E), Mumbai-400071.
2. Alternatively, the plaintiffs have prayed for appointment of
Court Receiver, High Court Bombay in respect of above said permanent
alternative accommodation during pendency of the Suit as per
provisions of Order 40 Rule 1 of CPC with directions to take physical
possession of the suit flats from defendant no.4 and hand over the same
to the plaintiff no.2 as agent of the Court Receiver without surety and
without royalty on terms and conditions which this court may deed fit
and proper. The plaintiffs have also prayed for perpetual injunction
against the defendant no.1 to 3 not to execute any document or enter
into any agreement or create third party interest in respect of the suit
premises during pendency of the suit.
3. The Motion is supported by the affidavit of plaintiff no.1
Mr.Ashok Agarwal. It is strongly opposed by the defendant no.1 to 3 by
submitting affidavit in reply sworn by Mr.Anil Kantaprasad Patel, along
with documents and it is also opposed by the defendant no.4 by
submitting affidavit in reply of Mr. Praveenchandra S. Mendon,
Secretary of defendant no.4 Society.
4. Ld. Counsel for the plaintiffs had moved this court for
passing interim order during pendency of the present Motion and
therefore, on 9.12.2019, I had heard Ld. Counsels for the both sides in
respect of grant of interim relief in terms of prayer clause (c) of the
Motion in favour of the plaintiffs. Considering the submissions made by
Ld. Counsels for both sides and after going through the prima facie
material and documents on record, I had come to the conclusion that
the plaintiffs had made a prima facie case and balance of convenience
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for grant of interim protection and therefore, interim relief was granted
in favour of the plaintiffs directing the defendant no.1 to 3 not to
execute any document or enter into agreement or create third party
interest in respect of the suit premises during pendency of the Motion,
until it is decided on merit.
5. I have heard Ld Counsels for the plaintiffs and defendants
on merit in this Motion finally and by this order, the Motion is being
disposed of on merit.
6. Ld. Counsel for the plaintiffs submitted that, while deciding
the grant of interim relief in the present Motion, this court had also
recorded finding in paragraph-9 of the order date 9.12.2019 that the
plaintiffs were entitled for interim relief and that they have made out
prima facie case and balance of convenience in their favour. The Ld.
Counsel elaborated his submission before the court and argued that,
basically, it is the case of the plaintiffs that there was an agreement for
specific performance of contract entered into between the plaintiff no.1
and father of defendants no.1 to 3, deceased Kantaprasad Patel dated
27.10.2002. Defendant no.4 is a registered Co-op. Housing Society,
while defendant no.5 is a Developer appointed by Participating
Societies. It is submitted that, the fact of execution of the agreement for
sale and its terms and conditions etc. are admitted facts on record. The
fact of death of deceased Kantaprasad Patel is also an admitted fact on
record. As per the transaction in the suit, the defendant no.5 developer
was appointed by Participating Societies for the redevelopment of plot
of land bearing Survey No. 14(part) of City Survey No.52(part) and 53
(part) admeasuring 15,903.46 sq. meters situated at Sahakar Nagar,
Chembur, Mumbai 71.
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7. It is further submitted that, relationship between the
plaintiff and father of the defendants no.1 to 3 late Kantaprasad Patel
was friendly and cordial at the time of execution of the agreement.
Therefore, late Kantaprasad Patel had requested the plaintiff no.1 to
provide financial assistance of Rs.6 Lakh to him by way of friendly loan
to enable him to purchase residential premises. He had assured to repay
the said amount by August' 2002. He had also informed the plaintiff
no.1 that he is purchasing the residential premises as an investment and
he will sale it at enhanced price for getting profit of about Rs.1 lakh in
the said transaction. It is submitted on behalf of the plaintiffs that, in
view of agreement dated 27.10.2002, plaintiff no.1 and his family has
started residing in the suit room and has filed on record necessary
documents in that regard vide Exhs.'C' to 'N' along with the plaint. It is
further submitted that, before transaction between the plaintiff no.1
and father of defendants no.1 to 3 late Kantaprasad Patel was
completed as per registered documents as agreed and understood, but
he died on 6.3.2003 and left behind defendants no.1 to 3, who are his
legal heirs and successors and therefore, the agreement is binding upon
them. Therefore, it is submitted that, interest has been created in favour
of the plaintiffs in respect of suit premises and they were in lawful
possession, until they are required to vacate and therefore, they are
protected u/s. 53-A of Transfer of Property Act.
8. On the above factual background, Ld. Counsel for the
plaintiffs specifically argued that, it is a matter of fact in the present
case that MHADA had accepted plaintiff no.2 as occupant of the suit
premises and the plaintiff no.2 was getting transit rent during the
period of redevelopment. He further submitted that, the process of
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redevelopment was completed as per provisions of Regulation 33(5) of
DCR Rules 1991 and thereafter the defendant no.5 had handed over the
possession of the permanent alternative accommodation in the newly
constructed building to defendant no.4 Society as a trustee observing
that the possession may be handed over to the person who is found
entitled for the same.
9. Ld. Counsel for the plaintiffs argued that, urgency in the
present Motion is that, after redevelopment process is completed and
possession of the suit premises is handed over by the defendant no.5 to
the defendant no.4, defendant no.5 has stopped payment of the transit
rent to plaintiff no.2. Therefore, as on today, the plaintiff no.2 is neither
getting the transit rent nor she is in possession of the suit premises,
though her possession and right in respect of the newly constructed
permanent alternate accommodation has been recognized by the
authority. She is required to spend from her own pocket for rental
accommodation, and that has become financial burden on her
unnecessarily. Under the above circumstances, Ld. Counsel for the
plaintiffs argued that, the plaintiffs are entitled for mandatory
directions against defendants, more particularly defendant no.4, to
hand over vacant and peaceful possession of the suit premises to the
plaintiffs or alternatively, the plaintiffs are entitled to be put in
possession as representative of the Court Receiver by appointing the
Court Receiver under Order 40 Rule 1 of CPC, during pendency of the
suit.
10. Per contra, Ld. Counsel for the defendants has strongly
opposed the Motion and submitted that, there are disputed questions of
facts which need to be adjudicated by the court during trial of the case
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and there is no urgency for passing orders as prayed by the Ld. Counsel
for the plaintiff on urgent basis. Ld. Counsel for the defendants no.1 to
3 argued that, they are relying on leave and license agreement dated
26.5.2009, entered into between the father of defendant no.1 to 3 with
plaintiff no.2 Mrs. Lalitadevi Agarwal. As per said agreement of leave &
license the parties had agreed to continue the possession of the suit
premises with the plaintiff no.2 on leave and license basis for the period
of 55 months, w.e.f. 30.5.2009 to 29.10.2014. Therefore, the plaintiffs
cannot claim any right, title or interest in respect of the suit premises on
the basis of sale agreement dated 27.10.2002 between the plaintiff no.1
and father of defendants no.1 to 3. The Ld. Counsel for the plaintiff has
denied execution of such leave and license agreement dated 26.5.2009
and argued that, it is for the defendants to prove said agreement during
the trial of the case. Ld Counsel for the defendants no.1 to 3 argued
that, at this stage, the court is concerned with the prima facie case and
balance of convenience and need not to go into the merit of the case.
The leave and license agreement dated 26.5.2009 is a Notarized
document and can be believed and taken into consideration by the
court, while deciding the present Motion.
11. Ld. Counsel for the defendant no.4 has also opposed the
Motion and relied upon the affidavit in reply by Mr. Praveenchandra
Mendon, Secretary of defendant no.4 Society. It is submitted that, the
submission of Ld. Counsel of the plaintiff that, MHADA had accepted
the plaintiff no.2 as an occupant of the suit premises, is not correct and
assuming that there was such acceptance, mere occupation of the suit
premises by the plaintiff no.2 would not create any right, title or
interest in her favour because it is observed by the competent authority
of MHADA that, it has no right to determine the issue of ownership and
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succession with reference to any member of the Cooperative Housing
Society. It is submitted that, as per order of MHADA, the plaintiff no.2
was allowed to receive transit rent in respect of the suit premises during
the redevelopment of the suit plot. But now that has been completed
and defendant no.5 has handed over the suit premises to the defendant
no.4 as a trustee and defendant no.4 is obliged to hand over the
possession of the suit premises to the person who is found entitled by
the court. Defendant no.4 has no vested interest in the suit premises.
12. I have gone through the prima facie material on record and
documents filed with the plaint as per list at pg.32 of the documents
filed with the suit. The document at Sr.No.2 is an agreement of sale
dated 27.10.2002 executed between Kantaprasad Patel in favour of
plaintiff no.1. Then there are copies of electricity bills, landline/
telephone bills, maintenance paid by plaintiffs to the Society, bank
passbooks, Voter ID cards, ration card, BPCL Gas Service Subscription
vouchers, LIC Agent allotment letter, LIC premium documents, domicile
certificate, driving license, passport etc. on record showing possession
of the plaintiff no.2. Then there is a copy of death certificate of
Kanaprasad D. Patel at pg.147. He died on 6.3.2003. There is copy of
development agreement dated 28.3.2013 and supplementary
development agreement dated 10.4.2014, order passed by MHADA
dated 11.9.2015 u/s. 95A of MHADA Act, copy of order dated
30.3.2016 passed by Dy. Registrar, MHADA, copy of order dated
29.8.2018 passed by Dy. Registrar, Cooperative Societies, MHADA, order
passed by Dy. Registrar dated 22.10.2018, order passed by Divisional
Joint Registrar dated 6.3.2019, order passed by Divisional Joint
Registrar dated 10.5.2019 and copy of order passed by Dy. Registrar,
Cooperative Society, MHADA dated 29.8.2019.
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13. It is clear from the above facts and circumstances of the
case and prima facie documents filed on record that certain facts are
admitted facts on record. In the order passed by MHADA dated
11.9.2015, it is clear that the plaintiff no.2 was required to vacant the
premises as per legal procedure. As per said order of MHADA, the
statutory authority has observed in paras (ii) and (iii), pg.7, that, out of
200 members 184 members had vacated their respective tenements and
the Developer was paying them monthly rent and hardship
compensation. At page 9, it is observed that, the Board had no right to
determine the issue of ownership or succession in respect of any of the
members of the Cooperative Housing Society. Therefore, it was ordered
that, the plaintiff no.2 Lalita Agarwal should vacant the tenement and
accept rent and displacement hardship compensation as per provisions
of development agreement and supplementary development agreement
and she was directed to hand over vacant and peaceful possession of
the tenement no.A-1/471 of Shantivan CHS Ltd, situated at Sahakar
Nagar Layout at Chembur and hand over vacant and peaceful
possession of the same to the Society/ Developer within seven days.
Accordingly, plaintiff no.2 had vacated the same and was paid rent and
displacement hardship compensation from defendant no.5 till
redevelopment process was going on and thereafter defendant no.5 had
handed over the possession of the suit premises to the defendant no.4
Society and stopped payment of rent and displacement hardship
compensation to the plaintiff no.2.
14. It is clear that, on the basis of the agreement dated
27.10.2002 between the plaintiff no.1 and father of defendants no.1 to
3, deceased Kantaprasad Patel, plaintiffs have made out a
prima facie
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case in their favour to show that, lawful interest was created in favour
of the plaintiffs by above said agreement. As per said agreement for
sale, the plaintiff no.1 had provided financial assistance to late
Kantaprasad Patel on the promise that he intended to purchase the
residential premises in the Sahakar Nagar II Shantivan CHS Ltd from
Mrs. VIjaylaxmi Seshan. Late Kantaprasad Patel had also assured that he
shall repay the money by August 2002. The relationship between the
plaintiff no.1 and late Kantaprasad Patel was very cordial and that of
trust. They were good friends and both had shared feeling that the
plaintiff no.1 was purchasing the said residential premises for good
price and shall sale it for better value and shall make profit of about one
lakh in the said transaction. Then in consideration of said financial
assistance of Rs.6 Lakh the plaintiff no.1 had got a clear right, title and
interest in the suit premises i.e. five shares of face value of Rs.50/- each
having aggregate value of Rs.250/- bearing distinctive no. 11 to 15 and
bearing share certificate no.3 of said Sahakar Nagar II Shantivan CHS
Ltd and became member of the society. Thus, being member of the
Society they were holding the shares.
15. On the above factual background, it can be seen that, it is
the case of the plaintiffs that, late Kantaprasad Patel was supposed to
repay the amount of Rs.6 Lakh to the plaintiff no.1 by August 2002.
However, he failed to repay the money within time and assured the
plaintiff no.1 that he intended to repay the money after selling the suit
premises but he was not getting the buyer. He proposed plaintiff no.1 to
instead purchase the suit premises i.e. his shares for lump-sum
consideration of Rs.7,50,000/-. The plaintiff was also in need of
residential premises for his children who were growing up. Therefore,
in or about first week of August 2002, the plaintiff no.1 went to see the
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suit premises and on or around 10th August 2002, plaintiff no.1 had a
meeting with late Kantaprasad Patel and his wife where they negotiated
the transaction and it was agreed that, Kantaprasad Patel shall sell to
the plaintiff no.1 the suit premises for lump-sum consideration of
Rs.7,30,000/-, excluding stamp duty, registration charges and society
charges etc. which the plaintiff no.1 was supposed to bear. It was also
agreed that, friendly loan of Rs.6,00,000/- advanced by the plaintiff
no.1 will be treated as ‘earnest money’ and the plaintiff no.1 shall make
payment of balance amount of Rs.1,30,000/- to late Kantaprasad Patel
on completion of sale transaction and registration of transfer
documents.
16. Accordingly, on 27.10.2002, the document titled
‘Agreement for Sale’ was executed for total consideration of
Rs.7,30,000/- between the parties. In the said document, receipt of
Rs.6,00,000/- was also acknowledged by late Kantaprasad Patel as
earnest money to the plaintiff no.1. The parties had agreed to complete
the transaction by entering into registered document and late
Kantaprasad Patel had applied to the Society by a letter dated
18.8.2002 for permission to transfer the suit premises (shares in the
Society) in favour of plaintiff no.1 and he was awaiting permission of
the Society. He was informed by the Society that, late Kantaprasad Patel
could not enter into such registered agreement for transfer of his right,
title and interest in favour of the plaintiff within one year from the date
of Kantaprasad Patel having acquired the membership of the Society. In
this regard, the plaintiff had relied upon the copy of agreement for sale
dated 27.10.2002. It is further contended that, since the date of
execution of agreement for sale dated 27.10.2002, plaintiff no.1 and his
family started residing in the suit premises as the lawful owner and had
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been in occupation of the same. The plaintiffs have filed on record
various documents for proving their possession vide Exhs.‘C’ to ‘M’
collectively.
17. It is submitted on behalf of the plaintiffs that, while the
transaction between the plaintiff no.1 and late Kantaprasad Patel was
pending for execution of registered document, as agreed, Mr.
Kantaprasad Patel died on 6.3.2003 leaving behind his wife Smt.
Ramdulhari K. Patel and defendants no.1 to 3 as his legal heirs.
18. Thus, on the basis of possession over the suit premises as
per agreement of sale dated 27.10.2002, the plaintiff are protected as
per provisions of Sec.53A of the Transfer of Property Act and they are
entitled for interim protection during pendency of the suit and for
completion of the sale transaction by the defendants. Therefore, I have
come to the conclusion that the plaintiffs have made out a prima facie
case and balance of convenience weighs in their favour. If the plaintiffs
are not protected, during the pendency of the Suit, they will suffer
irreparable loss which cannot be compensated in terms of money. On
the other hand, if the interim relief, as prayed for, is granted in favour of
the plaintiffs, the defendants will not suffer any loss or injury, much less
financial loss, as they are under legal obligation to complete and fulfill
the terms of the agreement entered into by their father in favour of the
plaintiff no.1. It may also be noted that, as per provisions of Hindu law,
sons and daughters are having pious obligation to discharge legal
liabilities of their father, apart from their religious obligations under the
law.
19. Under these circumstances, I hold that, it will be just and
proper to partly allow the present Notice of Motion to protect right, title
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and interest of the plaintiffs in the suit premises, at this stage.
However, considering the facts and circumstances of the case and that,
some of the facts are required to be established during the trial of the
case, it will be proper to appoint a Court Receiver to take possession of
the suit premises during pendency of the suit and to direct the Court
Receiver to hand over possession of the suit premises to the plaintiff
no.2 as his agent so that the aspect of hardship of the plaintiffs that they
are required to pay rental expenses because they were compelled to
vacate the suit premises during the period of redevelopment as per law.
In this context, it may be mentioned that Ld. Counsel for
the plaintiffs, in the course of his arguments, proposed to the
defendants that considering need of the family of the plaintiffs, at this
juncture, if out of two flats possession of one flat is given to the
plaintiffs and possession of remaining flat is allowed to be retained by
the defendants no.1 to 3, as an interim arrangement, that can serve the
purpose and the Court would not be required to appoint the Court
Receiver during pendency of the suit. However, there was no response
from the defendants no.1 to 3 to the above said proposal. Therefore, the
Court is required to decide the Motion on its merit. It is observed that
even after decision in this Motion, the parties shall be at liberty to settle
their dispute amicably with the help of ADR process i.e. through
conciliation, mediation etc. and I find that there is an element of
compromise in the matter which the parties to the suit and their
Counsels should consider seriously in the interest of justice.
20. With the above observations, I reiterate my conclusion that
the plaintiffs have made out a case for partly allowing the notice of
motion, as discussed above. Hence, I proceed to pass following order :-
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ORDER
Notice of Motion No.4644 of 2019 is partly allowed as
under: -
1. The alternative prayer of the plaintiffs vide prayer clause
(b) and prayer clause (c) of the Notice of Motion are
hereby allowed and interim relief/ protection granted
on 09.12.2019 is hereby confirmed.
2. Court Receiver, High Court Bombay is hereby appointed
to take possession of the Suit premises i.e. alternative
accommodation bearing flat no.201, admeasuring 650
sq. ft. carpet area, and flat no.202, admeasuring 400
sq.ft carpet area, in the Tower No. T-7, in the building
known as Godrej Prime, Road No.1, Shell Colony,
Chembur(E), Mumbai 400 071, as per Order 40 Rule 1
of CPC, during pendency of Suit.
3. After taking possession of the suit premises, the Court
Receiver is directed to appoint plaintiff no.2 as his
agent, by executing necessary Agency Agreement, and to
hand over possession of the suit premises to plaintiff
no.2 without surety and without royalty, on usual terms
and conditions.
4. After the Agency Agreement is executed, the plaintiff
no.2 shall submit an undertaking to this Court that she
will abide by the terms and conditions of the Agency
Agreement, during pendency of the Suit.
5. The Court Receiver shall submit Report of compliance to
this Court after he has handed over possession of the
suit premises to plaintiff no.2 as his agent.
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6. Sheristedar of this Court is directed to give
authenticated copy of today’s Roznama to the Ld.
Counsel for the plaintiff for information and for
communicating the same to the Court Receiver for
information and compliance.
Notice of Motion stands disposed of accordingly.
(V.V. Vidwans)
Judge, City Civil Court,
Date: 28.2.2020 Gr. Bombay (C.R. 03)
Dictated on : 28.2.2020 (partly) and 3.3.2020 (remaining part).
Typed on : 28.2.2020 and 3.3.2020.
Draft given to HHJ on 3.3.2020.
Signed by HHJ on : 5.3.2020.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT/ ORDER.
UPLOADED ON : 6.3.2020
(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 28.2.2020
Judgment/ order signed by P.O on 5.3.2020
Judgment/ order uploaded on 6.3.2020
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