Kohinoor City WingVsMohammad Ayub Shaikh +2 more

Date: 20-12-2019
Business: By precipe.
Adv. Mr. Pradip Gandhi i/b. A.A. Jain for plaintiff present.
Adv. Rahul Thorat for deft. nos.1 and 2 present.
Adv. Devendra Sharma for deft. no.3 present.
Exh.1Plaint.
Exh.2Vakalatnama.
Exh.3Memo of address.
Exh.4List of documents.
Exh.5 Vakalatnama filed by Adv. Mr. Thorat.
O. - Seen and filed.
Draft N/M along with affidavit tendered by plaintiff.
Leave is granted to register it.
Adv. Mr. Thorat filed short affidavit of deft. no.1 and 2 to oppose grant of ad-interim reliefs.  T.O.R.
Heard Adv. for plaintiff and Adv. for deft. no.1 to 3.
The matter is adjd for order to 21.12.2019.
Next Purpose: ORDER
Next Hearing Date: 21-12-2019

Date: 21-12-2019
Business: Adv. Mr. A.A. Jain for plaintiff present.
None present for deft. nos.1 and 2.
None present for deft. no.3.
ORDER
Heard Ld. Counsels for the plaintiff and defendants.  It is contended by Ld. Counsel for the plaintiff that the plaintiff is the society and the defendants are carrying illegal repairs and renovation in the premises by digging floor of suit premises with intention of converting it into usable area.  The work is without the permission of Brihanmumbai Mahanagarpalika.  They wish to block space adjoining to the lobby at wing A of commercial building of ground floor and rear to unit nos.G1 to G7.  The plaintiff contended that the defendant no.3 has no right to transfer the said area and the said area is of common use.  The defendant nos.1 and 2 filed reply and submitted that the plaintiffs have not challenged the agreement and therefore, no relief can be granted.  The defendant nos.1 and 2 as per the plaint avernments in para no.7 are carrying out repairs and renovation by digging the floor of the suit premises.  The said repairs are tenantable repairs and u/s.342 r/w.347 of the M.M.C. Act, no permission is required, hence prayed for rejecting the interim relief.
       I had considered the rival contentions.  Ld. Counsel for plaintiff has drawn attention to judgment of Hon\''ble Apex Court in the case of Nahalchand Laloochand Pvt. Ltd. V/s. Panchali Co-Operative Housing Society Ltd. decided on 31.08.2010.    It has been held by Hon\''ble Apex Court that The promoter has no right to sell any portion of such building which is not \''flat\'' within the meaning of section 2(a-1) and the entire land and building has to be conveyed to the organisation, the only right remains with the promoter is to sell unsold flats.  It is, thus, clear that the promoter has no right to sell \''stilt parking spaces\'' as these are neither \''flat\'' nor appurtenant or attachment to a \''flat\''  He also placed reliance upon judgment of Hon\''ble Bombay High Court in Gladhurst Co-Op. Housing Society V/s. Dr. (Mrs.) V.B. Shah and Another.
      I had considered the law laid down in both the cited judgments.  On perusal of the agreement and more particularly schedule of the agreement, it reflects that the unit no.201 admeasuring 537.35 sq. ft. of carpet area on the service floor of commercial building along with 5 covered car parking spaces bearing no.215, 216, 217, 218, 219 and in the upper basement of commercial building, appears to be the property sold to the defendant nos.1 and 2 by defendant no.3.  Ld. Counsel for deft. nos.1 and 2 had drawn attention to para no.2 page no.14 of the agreement wherein it is mentioned that space adjoining to the lobby area on the ground floor of the commercial building wing-A and at the rear of unit nos.G1 to G7 admeasuring 1600 sq. ft carpet area. have also been sold to them.  At this juncture, it would not be proper to go into the merits of the matter.  The argument of Ld. Counsel for defendants does not hold good that the plaintiff have not challenged the agreement and therefore not entitled for the relief of injunction.  It is not open for the plaintiff to challenge any act if it appears to be illegal which was inter-se between the defendants.  The plaintiff when apprehended that there is infringement of his right and any overt act is carried out by the defendants, the plaintiff can file a suit for injunction restraining the defendants from committing such overt act.  The other objection that the plaintiff/society has got no right over the said portion as the premises at the ground floor were not sold to the members of the plaintiff/society. The said objection also does not hold good.  Prima-facie, there is no material to show that the space adjoining to the lobby is salable component.  If the repairs carried out by defendants are continued, it would lead to irretrievable situation.  In this background, when there is contradiction in respect of the property sold to defendant nos.1 and 2 in schedule and the body of the agreement, the defendants are required to be restrained from carrying out further repairs.  Further, as held by the Hon\''ble Apex Court in the case of Nahalchand (Supra) that the promoter has no right to sell any portion of the building which is not flat. At this juncture, the defendants are not coming with the case that the portion which is subject matter of agreement is flat, hence in that background, the plaintiff has made out case for interim protection.  Hence, it is expedient to pass the following order.
ORDER
1.   The defendants by an order on interim injunction are restrained from carrying out any repairs and renovation at the suit premises which is the space adjoining to the lobby area of the commercial building wing-A and at the rear of the unit G1 to G7 of the ground floor admeasuring 1600 sq. ft. approximately till next date.
The matter is adjd for reply of defendant no.3 and hearing on N/M to 06.01.2020.
Next Purpose: NM FOR HEARING
Next Hearing Date: 06-01-2020

Date: 06-01-2020
Business: Court is on leave
Next Purpose: NM FOR HEARING
Next Hearing Date: 03-02-2020

Date: 03-02-2020
Business: Adv. Aditya Khare for plaintiff present.
Adv. Remedios for deft. nos.1 and 2 present.
Ld. counsel for deft. nos.1 and 2 seeks time to file W/S and reply to N/M.  Granted as a last chance.
None present on behalf of deft. no.3.  Suit to proceed without W/S of deft. no.3 and N/M to proceed without reply of deft. no.3.
Earlier order, if any, to continue till next date.
The matter is adjd for reply to N/M and W/S of deft. nos.1 and 2 to 02.03.2020.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 02-03-2020

Date: 02-03-2020
Business: Adv. Kankaria for plaintiff present.
Adv. Thorat for deft. nos.1 and 2 present.
Adv. Priyanka Bhitora for deft. no.3 present.
Ld. counsel for deft. nos.1 and 2 seeks time to file W/S and reply.  Already last chance was granted, hence, request cannot be considered.  Suit to proceed without W/S of deft. nos.1 and 2 and N/M to proceed without reply of deft. nos.1 and 2.
Earlier order, if any, to continue till next date.
The matter is adjd for N/M hearing to 20.04.2020.
Next Purpose: NM FOR HEARING
Next Hearing Date: 20-04-2020

Date: 20-04-2020
Reason For Adjournment: National Lock Down
Next Purpose: NM FOR HEARING
Next Hearing Date: 11-05-2020

Date: 11-05-2020
Next Purpose: NM FOR HEARING
Next Hearing Date: 30-05-2020

Date: 30-05-2020
Business: In view of Lockdown period pursuant to the declaration of Novel Corona Virus (Covid-19) as global pademic by WHO and as per Office Order 78 of 2020, matter adjourned
Next Purpose: NM FOR HEARING
Next Hearing Date: 17-06-2020

Date: 17-06-2020
Business: In view of declaration of Novel Corona Virus (COVID 19) as Global Pandemic by WHO and Office Orders, matter is adjourned.
Next Purpose: NM FOR HEARING
Next Hearing Date: 16-09-2020

Date: 16-09-2020
Business: Due to COVID 19, the matter is adjourned.
Next Purpose: NM FOR HEARING
Next Hearing Date: 02-12-2020

Date: 02-12-2020
Business: Adv. Hardik Desai for plaintiff present.
Adv. Thorat for defts. present.
Ld. counsel for defts. seeks time to file reply on N/M. Granted.
Earlier order, if any, to continue till next date.
The matter is adjd for reply to N/M to 20.01.2021.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 20-01-2021

Date: 20-01-2021
Business: As Presiding Officer is on leave, the matter is adjourned.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 22-03-2021

Date: 22-03-2021
Business: Adv. Patil for plaintiff present.
Adv. Modi for deft. 1 and 2 present.
Ld. Counsel for the defendant no. 1 and 2 seeks time to file reply and w.s. already by virtue of order dtd. 02.03.2020 the defendant no. 1 and 2 were proceeded without w.s. and reply.  Hence the matter is placed for NM hearing.
Earlier order if any to continue till the next date.
The matter is adjd for NM hearing to 28.06.2021.
Next Purpose: NM FOR HEARING
Next Hearing Date: 28-06-2021

Date: 28-06-2021
Business: As P.O is for conducting the training programme and assessing the performance of the Potential Trainer for 40 hrs Online Mediation Training Programme  for the Judicial Officers scheduled to be held from 21st to 25th June and 28th to 30th June,2021.
Matter adjd to 23/08/2021.
Next Purpose: NM FOR HEARING
Next Hearing Date: 23-08-2021

Date: 23-08-2021
Business: Adv. Kaustubh Patil for plff is present.
Adv. Remidies for deft no.1 and 2 is present.
KB LO at 5.25 p.m.
Plff has not tendered on record original registered NM No.4965/19.
Plff is directed to tender on record the same on next date.
Earlier order to continue till next date.
Matter adjd for NM hearing on  13.10.2021.
Next Purpose: NM FOR HEARING
Next Hearing Date: 13-10-2021

Date: 13-10-2021
Business: Adv. Gandhy h/f Adv. Jain for plaintiff is present.
Adv. Thorat for defendant no.1 and 2 is present.
Heard both the sides.
Earlier order, if any, continue till next date.
Matter adjd for tendering of NM and hearing on 17.11.2021.
Next Purpose: NM FOR HEARING
Next Hearing Date: 17-11-2021

Date: 17-11-2021
Business: P.O. is on leave. Matter adjd to
Next Purpose: NM FOR HEARING
Next Hearing Date: 07-02-2022

Date: 07-02-2022
Business: As per Office Order No. ''27 of 2022'', to mourn the sad demise of veteran singer Bharat Ratna Lata Mangeshkar and pay respect to the departed soul, this office has declared holiday today, therefore matter is adjourned.
Next Purpose: NM FOR HEARING
Next Hearing Date: 06-04-2022

Date: 06-04-2022
Business: P. O. is on leave.
Next Purpose: NM FOR HEARING
Next Hearing Date: 25-07-2022

Date: 25-07-2022
Business: None present for plff.
Adv Anjali Mishra for deft no.1 and 2 is present.
The matter is adj for hearing on NM as a last chance.
Matter adjd to 10.10.2022 for NM Hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 10-10-2022

Date: 10-10-2022
Business: Adv. Jain for plaintiff is present.
None present for defendant.
By way of last chance, the plaintiff is directed to tender original NM on record, else appropriate order will be passed.
Matter adjd to 03.11.2022 for tender original NM.
Next Purpose: NOTICE OF MOTION
Next Hearing Date: 03-11-2022

Date: 03-11-2022
Business: Adv. A. A. Jain for plaintiff is present.
Adv. Sawant for defendant Nos.1 and 2 is present.
The ld. Adv. for plaintiff has filed an application for reconstruction of N/M 4965/2019, TOR and marked as Exh.6. Copy supplied to other side.
Matter adjd to 04/01/2023 for say and hrg.
Next Purpose: HEARING
Next Hearing Date: 04-01-2023

Date: 04-01-2023
Business: None present for plaintiff.
Adv. Thorat for defendant nos. 1 and 2 is present and filed say on Exh.6.
Matter adjd to 01.03.2023 for hearing on Exh.6.
Next Purpose: HEARING
Next Hearing Date: 01-03-2023

Date: 01-03-2023
Business: P.O.is on leave. Matter adjd to
Next Purpose: HEARING
Next Hearing Date: 17-04-2023

Date: 17-04-2023
Business: None present for plaintiff.
Adv. Anjali Mishra for defendants no. 1 and 2 is present.
Matter adjd to 26.06.2023 for hearing on Exh.6.
Next Purpose: HEARING
Next Hearing Date: 26-06-2023

Date: 26-06-2023
Business: None present for plaintiff.
Adv. Remedias h/f Adv. R.D. Thorat for defendant nos.1 and 2 is present.
Matter adjd to 09.08.2023 for hearing on Exh.6.
Next Purpose: HEARING
Next Hearing Date: 09-08-2023

Date: 09-08-2023
Business: P.O. is on leave. Matter is adjourned to
Next Purpose: HEARING
Next Hearing Date: 06-09-2023

Date: 06-09-2023
Business: Adv. A. A. Jain for plaintiff is present.
Adv. Thorat for defendant no. 1 and 2 is present.
Order below Exh. 6
Perused the application heard both sides.
The plaintiff has filed present application for reconstruction of notice of motion no. 4965/19 on the ground that it has misplaced or lost. The Ld. Advocate for def asked to passed suitable order. Hence, considering this aspect the application stands allowed. The plaintiff has directed to file the reconstructed notice of motion on or before next date.
Matter adjd to 23.10.2023 for compliance.
Next Purpose: COMPLIANCE
Next Hearing Date: 23-10-2023

Date: 23-10-2023
Business: Adv. A. A. Jain for plaintiff is present and filed reconstructed Notice of Motion No. 4965/19 along with affidavit in support. TOR.
Adv. Shruti Chavan h/f R. D. Thorat for defendant no. 1 and 2 is present.
Matter adjd to 11.12.2023 for NM reply.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 11-12-2023

Date: 11-12-2023
Business: Adv. A. A. Jain for plaintiff is present.
Adv. Shruti Chavan h/f R. D. Thorat for defendant is present.
On oral request of Ld. Adv. for defendant matter is adjourned for filing reply.
Matter adjd to 19.02.2024 for NM reply.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 19-02-2024

Date: 19-02-2024
Business: adjd to 20.02.2024.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 20-02-2024

Date: 20-02-2024
Business: Not on board taken on board
Due to declare holiday on 19.02.2024.
Matter adjd to 19.03.2024.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 19-03-2024

Date: 19-03-2024
Business: P.O is on official duty at Small Causes Court in 2nd session.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 29-04-2024

Date: 29-04-2024
Business: None present for plaintiff.
Adv. Remedios for defendant no. 1 is present and seek time. O- Time granted.
Matter adjd to 01.07.2024 for NM reply.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 01-07-2024

Date: 01-07-2024
Business: None present for plaintiff.
Adv. Remedios for defendant no.1 and 2 is present and seek time to file reply. O- Time granted as last chance.
Matter adjd to 30.07.2024 for NM reply.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 30-07-2024

Date: 30-07-2024
Business: Adv. Gajanan Shinde for plaintiff is present.
Adv. Jitendra Patel h/f R. D. Thorat for defendant no.1 and 2 is present and seek time to file reply. O- Time granted as last chance.
Matter adjd to 03.09.2024 for NM reply.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 03-09-2024

Date: 03-09-2024
Business: Adv. Prashant Yadav present for plaintiff.
Adv. Shruti Chavhan h/f. Adv. R. D. Thorat present for defendant no. 1 and 2 and seek time.
O- Time granted by consent.
Matter adjd to 05/11/24 for NM reply on the request of both advocate.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 05-11-2024

Date: 05-11-2024
Business: Adv. A. A. Jain for plaintiff is present.
Adv. Shruti Chavan h/f Adv. Thorat for defendant no.1 and 2 is present and seek time. O- Time granted with consent.
Matter adjd to 14.01.2025 for NM reply.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 14-01-2025

Date: 14-01-2025
Business: None present for plaintiff.
Adv. Thorat for defendant no.1 and 2 is present and tendered draft NM a/w affidavit in support.
O-Leave granted to register draft NM. Copy be served on other side.
He also tendered written statement. Taken on record subject to order in notice of motion.
Matter adjd to 04.02.2025 for service.
Next Purpose: SERVICE
Next Hearing Date: 04-02-2025

Date: 04-02-2025
Business: None present for plaintiff.
Adv. Shruti Chavan h/f R. D. Thorat for defendant no.1 and 2 is present and tendered registered notice of motion no.282/2025. TOR. Copy be served on other side.
Matter adjd to 15.04.2025 for service.
Next Purpose: SERVICE
Next Hearing Date: 15-04-2025

Date: 15-04-2025
Business: None present for plaintiff.
Adv. Remedios h/f D. A. Thorat for defendant no.1 and 2 is present and filed service affidavit. TOR. She made statement that service is completed on plaintiff and defendant no.3.
None present for plaintiff and defendant no.3.
NM no.282/2025 to proceed further without reply.
Matter adjd to 08.07.2025 for NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 08-07-2025

Date: 08-07-2025
Business: Adv. A. A. Jain for plaintiff is present.
Adv. Jitendra Patel h/f R. D. Thorat for defendant no.1 and 2 is present.
Matter adjd to 12.08.2025 for NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 12-08-2025

Date: 12-08-2025
Business: Adv. A. A. Jain for plaintiff is present and seek time to file reply. O- Time granted as last chance.
Adv. Shruti Chavan h/f R. D. Thorat for defendant no.1 and 2 is present.
Matter adjd to 22.09.2025 for NM reply.
Next Purpose: NM REPLYREJOINDER
Next Hearing Date: 22-09-2025

Date: 22-09-2025
Business: None present for plaintiff.
Adv. Shruti Chavan h/f R. D. Thorat for defendant no.1 and 2 is present.
Plaintiff failed to file reply to NM no.282/2025. Hence, NM to proceed further without reply.
Matter adjd to 26.11.2025 for NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 26-11-2025

Date: 26-11-2025
Business: None present for plaintiff.
Adv. Shruti Chavan h/f R. D. Thorat for defendant no.1 and 2 is present.
Last chance granted to plaintiff to work out notice of motion, on failure hearing of motion will proceed further.
Matter adjd to 21.01.2026 for NM hearing.
Next Purpose: NM FOR HEARING
Next Hearing Date: 21-01-2026

Date: 21-01-2026
Business: Adv. Bhagyalaxmi Racha h/f Anant Jain for plaintiff is present and seeks time to file her reply on NM.
Adv. Thorat for defendant is present and submits that the notice of motion has already proceeded without the reply of the plaintiff. The NM cannot be heard unless the no reply order is set aside.
Matter adjourned to 23.03.2026 for taking steps by the plaintiff.
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 23-03-2026

Date: 23-03-2026
Business: Adv. Sujay h/f Anant Jain for plaintiff is present and seeks time to file reply on the NM.
None present for defendant.
Matter adjourned to 29.06.2026 for taking steps by the plaintiff.
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 29-06-2026

Date: 29-06-2026
Business: PO is on leave.
Next Purpose: FOR TAKING STEPS
Next Hearing Date: 20-07-2026

Date: 20-07-2026
Business: Matter transferred from C.R.1
Adv. Sujay h/f Adv. Anant Kumar Jain for the plaintiff present.
None for the defendant.
Plaintiff has not filed to file reply.
The NM 282/2025 proceeded futher without reply of the plaintiff
Matter adjourned for Hearing on NM.  03/08/2026
Next Purpose: NM FOR HEARING
Next Hearing Date: 03-08-2026

Date: 03-08-2026
Business: PO is attending orientation training at Uttan.
Next Purpose: NM FOR HEARING
Next Hearing Date: 29-09-2026

NOTICE OF MOTION/100282/2025
NOTICE OF MOTION/104965/2019

Registration Number: 103360/2019
Transfer Date: 29-06-2026
From Court: 1 - COURT 01 ADDL SESSIONS JUDGE
To Court: 12 - COURT 12  ADDL SESSIONS JUDGE

Filing Number: 113989/2019
Filing Date: 17-12-2019
First Hearing Date: 20th December 2019
Court Number And Judge: 12-COURT 12  ADDL SESSIONS JUDGE