Final Order 1

Order Details: Notice of Motion
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IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.4705 OF 2019
IN
S.C. SUIT NO. 204 OF 1990
1. Raju Krishnani and others ..Applicants
In the matter between
1. Mrs. Rakhi Asandas Techwani
and others ..Plaintiffs
Versus
1. Mahesh Associates and others
..Defendants
AND
1. Kirit B.Shah and others ..Respondents
Ld. advocate Babita Kesharwani for plaintiff nos.4 and 11
Ld. advocate Salman Haider for defendant nos.1 and 2
Ld. advocate Devang Shah for defendant no.3
Ld. advocater Mrutyunjay for plaintiff nos.13(a) to 13(e)
Ld. advocate K.M.Bhatia for plaintiff no.26
Ld. advocate P.D.Gandhy for defendant no.24
Priti Pawshe alongwith Uma Dalvi, representative of Court
Receiver, Hon’ble High Court, Bombay present.
CORAM: HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
DATE: 15/01/2021
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ORAL ORDER
1. By this notice of motion, plaintiff nos.13(a) to 13(e),
interalia seeks direction for calling the report from the office of
Court Receiver about steps taken for handing over possession of
flat no.104, Mahesh Mangal Baugh, S.V.Road, Borivali West,
Mumbai-400 092 to the plaintiff nos.13(a) to 13(e), direct the
Court Receiver to hand over vacant and peaceful possession of flat
no.104 to plaintiff nos.13(a) to 13(e) and in the alternative if
respondent nos.1 and 2 fail to hand over possession of suit flat,
the Court receiver be directed to get vacated the suit flat from
respondent nos.1 & 2.
2. Plaintiff nos.13(a) to 13(e) filed service affidavit
dated 14/01/2020 whereby they claimed that they have served
the respondents with notice. From the service affidavit it is
apparent that the consignment was delivered to the respondents.
3. At the outset it is necessary to mention that the
respondents are not party to the suit. The Court receiver was
called upon to file report and he submitted the report bearing
no.01 of 2021.
4. It is the contention of the applicants i.e. plaintiff
nos.13(a) to 13(e) in the notice of motion that their father agreed
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to purchase the suit flat vide Agreement for Sale dated
06/10/1987. The Confirmation Deed was subsequently
registered. The agreement was confirmed vide Confirmation Deed
dated 30/07/1988 The father of plaintiff nos.13(a) to 13(e) filed
the suit for specific performance of contract. As defendant nos.1
and 2 could not complete the construction of the building, the
Hon’ble Bombay High Court in the notice of motion no.3283 of
1990 appointed Court receiver directing the Court Receiver to
take possession of the incomplete structure and to complete the
construction of the building. In compliance of the order, the
Court receiver appointed Ambika Constructions to complete the
balance construction. The original plaintiff no.13 expired on
20/05/2003 and accordingly his heirs are brought on record i.e.
plaintiff nos.13(a) to 13(e). The contention of the plaintiff
nos.13(a) to 13(e) is that they came to know that suit flat was
occupied by illegal occupant and therefore seek possession of the
suit flat from the occupant and accordingly filed the present
notice of motion.
5. I perused the report of the Court Receiver. From the
said report it is apparent that suit flat is occupied by one Kirit
Shah. The report also pointed out that Kirit Shah has given
undertaking before the Hon’ble High Court on 28/02/2007 that
he will hand over the vacant and peaceful possession of the suit
flat to the Court Receiver as and when directed by the Court.
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6. On perusal of the documents, it appears that the
original plaintiff no.13 agreed to purchase suit flat from
defendant nos.1 and 2. The document of Agreement of Sale was
confirmed by registered instrument of confirmation. There is
nothing on record to show that respondents have agreed to
purchase suit flat from defendant nos.1 and 2. The undertaking
given by Kirit Shah itself is sufficient to show that the occupation
of-Kirit Shah is not on the basis of any right and title. The Court
receiver’s report suggests that one Mrs. Varsha Kirit Shah claimed
to be in possession of flat no.104 on the basis of rent of
Rs.5500/-. She claims to have taken the flat no.4 from
Baldevsingh of Shree Ambika Construction. At any rate, the said
Ambika Construction was not given any power to hand over the
flat no.104 to Mrs. Varsha Shah or Kirit Shah or any other person.
Thus it is apparent from the documents that the original plaintiff
no.13 agreed to purchase suit flat and plaintiff nos.13(a) to 13(e)
being legal heirs are entitled to occupy the suit flat. Hence, this
notice of motion needs consideration. Accordingly, it is expedient
to pass following order:-
ORDER
1. N/M No.4705/2019 is allowed.
2. The respondents are directed to hand over the
vacant and peaceful possession of flat no.104 to the
Court Receiver within a period of four weeks from
today.
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3. In case, the respondents fail to hand over the
peaceful and vacant possession of flat no.104 to the
Court Receiver, the Court Receiver to take the forcible
and peaceful possession of the flat no.104 from the
occupant/whosoever is found in it with the aid of the
police and the charges for the same will be borne by
plaintiff nos.13(a) to 13(e).
4. The Court Receiver shall hand over the
possession of flat no.104 to the plaintiff nos.13(a) to
13(e) or their representative having their written
consent or affidavit after the deposit of the
construction cost, if any, by the plaintiff nos.13(a) to
13(e).
5. N/M No.4705/2019 is disposed of accordingly.
15/01/2021 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 15/01/2021
Transcribed on : 16/01/2021
Signed on : 16/01/2021
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
16/01/2021 at 4.40 pm.
MRS.T.C.KAMBLE
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Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/order 15/01/2021
Judgment and order signed by P.O. 16/01/2021
Judgment/order uploaded on 16/01/2021
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