Interim Order 2

Order Details: Order below exhibit
Pdf Text: O.B.Exh. 15 in
Execution Appl. No.3/2020. 1 Order.
MHCC010136352019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY.
ORDER BELOW EXHIBIT NO.15
IN
EXECUTIVE APPLICATION NO. 03 OF 2020
IN
CASE NO. CC/II/41 OF 2011
(On the file of Co-operative Court No. III, Mumbai)
Mr. B.S.Rath ...Decree Holder
(Org Disputant)
V/s.
The Jai Ganesh CHSL and Ors.
Thru Secretary Anthony Rodricks
... Judgment Debtors
(Org. Opponents)
CORAM : HIS HONOUR JUDGE
SHRI N.G.SHUKLA
CITY CIVIL COURT, GR.BOMBAY
(C.R. NO.63).
DATE : 21-11-2023
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O.B.Exh. 15 in
Execution Appl. No.3/2020. 2 Order.
Appearance:-
Ld. Advocate Miss. Joyce Rath for the Decree Holder/Org Disputant.
Ld. Advocate Shri. Ankush Saraf for Judgment Debtors/ Org.
Opponents.
ORDER
1. The Decree Holder has filed this submission/application for
interim relief directing Judgment Debtors to pay Rs.11,00,000/- as
interim compliance of the Award dtd. 13-02-2019. The Judgment
Debtor filed reply affidavit at Exh.16 and opposed the
submission/application.
2. I have heard Ld. Advocate Miss. Joyce Rath for the Decree
Holder/Org Disputant and Ld. Advocate Shri. Ankush Saraf for
Judgment Debtors/ Org. Opponents.
3. Ld. Advocate for the Decree Holder submitted that, the
Decree Holder have filed present Execution Application for executing
the Award dtd. 13-02-2019 passed by the Co-operative Court No.3,
Mumbai against the Judgment Debtor society. In the said Award, the
society was directed to provide temporary/alternative accommodation
to the Decree Holder for the purpose of repairs of the Decree Holder’s
Flat No. 4-B in the society. The society was also directed in the said
Award to provide shifting costs of the alternative accommodation to the
Decree Holder and to pay certain charges. Judgment Debtor had not
complied the said Award. Decree holder is residing in the another
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O.B.Exh. 15 in
Execution Appl. No.3/2020. 3 Order.
premises on leave and licence basis and as per the award, the Judgment
Debtor had not paid any single pai in respect of the alternative
accommodation and other charges. Now the Decree Holder is unable to
bear the licence fees of the said alternative accommodation and the
outstanding amount to be paid by Judgment Debtor is approximately
Rs.11,00,000/- from 4th July 2022 to 23rd October, 2023.
4. Ld. Advocate further argued that, the Writ Petition No.
13619 of 2023 filed by Judgment Debtor society has been dismissed by
the Hon’ble High Court and Award has attained finality. Now the Decree
Holder is unable to pay the further licence fees of the alternative
accommodation as well as interim relief. The Judgment Debtor be
directed to pay amount of Rs.11,00,000/- to the Decree Holder.
Judgment Debtor continued to file various proceedings before the Co-
operative Court and the Hon’ble High Court and also delaying the
present Execution Application Petition and thereby abusing the process
of law. Ld. Advocate for the Judgment Debtor relied upon following
rulings:
a. Rahul S. Shah V/s. Jinendra Kumar Gandhi and Others (2021)
6 SCC 418 ;
b. Dilip Singh V/s. State Of Uttar Pradesh and Others, (2010) 2
SCC 114.
5. Per contra, Ld. Advocate Shri. Saraf for the Judgment
Debtor submitted that, Exh.15 is not in the form of application and
there is no any prayer in it. Therefore, Exh.15 having title “submission”
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O.B.Exh. 15 in
Execution Appl. No.3/2020. 4 Order.
is not maintainable. The Award dtd. 13-02-2019 has not attained
finality, as Judgment Debtor can challenge the said Award before the
Hon’ble Appellate Court. The Decree Holder cannot claim any relief or
interim relief on the basis of said Award. The Decree Holder has not
discharged the burden of proof about repairs of the disputed flat and
alternative accommodation availed by the Decree Holder. Through leave
and licence agreement is placed on record, but the Decree Holder has
not placed on record bank statement of licence fees. Ld. Advocate for
the Decree Holder placed on record copy of one S.C. Suit No. 1078 of
2017 filed by present Decree Holder and his sister and argued that
decree holder is the owner of plot of land and building standing
thereon. Hence, there is no substance in the submission of Ld. Advocate
for the Decree Holder that, if the amount of licence fee is not paid,
Decree Holder will come on street. The submission/application Exh.15
cannot be allowed for want of prayer. Hence, he prayed to reject the
Exh.15. Ld. Advocate relied upon following rulings :
a. Akella Lalitha V/s. Konda Hanumantha Rao and Another,
2022 SCC OnLine SC 928;
b. Bharat Amratlal Kothari V/s. Dosukhan Samadkhan Sindhi &
Ors. AIR 2010 SC 475:
c. Messrs. Trojan & Co. V/s. RM. N. N. Nagappa Chettiar, AIR
1953 SC 253.
6. I have considered the submissions and perused the record.
The Award has been passed against the Judgment Debtor society by Co-
operative Court on 13-02-2019, wherein society was directed to carry
out repairs of flat of Decree Holder at the costs of society and to pay
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O.B.Exh. 15 in
Execution Appl. No.3/2020. 5 Order.
Architect Fees of Rs.15,000/-, Consultant Engineer’s Fees of
Rs.11,800/-, Water Pipeline Repair Charges of Rs.1615/- and Pest
Control Treatment Charges of Rs.2472/- total Rs. 30,887/- to the
Decree Holder forthwith. It may be noted that, Judgment Debtor society
has not paid any of the said charges to the Decree Holder, at least there
is no any document placed on record by Judgment Debtor that said
dues are paid to the Decree Holder.
7. In the same award, Judgment Debtor society was directed
to provide temporary /alternative accommodation to the Decree Holder
for the purpose of repairs to be carried out in his flat. As per contention
of the Decree holder, society had not provided any such alternative
accommodation and he himself has taken flat in Sairam Apartment Co-
op Society bearing Flat No. 102 for the initial licence fees Rs.48,000/-
for the first 12 months and licence fees of Rs. 50,400/- for next 24
months starting from 5th July, 2022. Thus, now he has to pay licence
fees of Rs. 50,400/- to the licensor.
8. The Decree Holder is praying for interim relief by way of
filing Exh.15. Though Exh.15 is nomenclated as “Submission” by the
advocate for the Decree Holder, but contents thereof and particularly
Para 11 is showing prayer to pay the aggregate amount of
Rs.11,00,000/- to the Decree Holder in compliance of Award passed by
Co-operative Court. Even para-12 of Exh.15 shows that, Decree Holder
sought to pass order for urgent relief to meet the ends of the justice and
to stop the victimization of the Decree Holder. Though there is no
prayer in specific words at the end of Exh.15, but the contents thereof
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O.B.Exh. 15 in
Execution Appl. No.3/2020. 6 Order.
more particularly contents of Para-11 and 12 would suggest that it is
the application by Decree Holder for interim relief. Hence, contention of
Ld. Advocate for Judgment Debtor that Exh.15 is not maintainable for
want of prayer, is not acceptable. Considering contents of Para -11 and
12 of Exh.15, the rulings relied upon by Ld. Advocate for Judgment
Debtor is not helpful as there is implied prayer to grant interim urgent
relief in the monitory form. appears in Para -11 and 12 of
submission/application of Exh.15.
9. Ld. Advocate for Judgment Debtor argued on the finality of
award. However, it is evident that, society had challenged the order dtd.
18-07-2023 passed by Maharashtra State Co-operative Appellate Court
thereby rejecting Delay Condonation M.A. No. 12 of 2021 before the
Hon’ble High Court in Writ Petition No.13619 of 2023. The Judgment
Debtor could not get any relief as Writ Petition is dismissed conforming
the rejection of application for condoning delay and the Award attained
finality. Ld. Advocate for the Judgment Debtor has not placed any copy
of petition filed in the Hon’ble Supreme Court challenging the order in
the Writ Petition No. 13619 of 2023 and thereby impliedly challenging
the order dtd. 13-02-2019. Hence, at this stage award has attained
finality and it can be very well executed by this court as executing court.
10. It is argued that, the Decree Holder has not discharged
burden of proof to prove that he had acquired alternative
accommodation and the expenses for repairs and the bank statements
regarding the payment of licence fee is not filed. So far as charges of
repairs are concerned, the Award clearly discloses that repairs are to be
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O.B.Exh. 15 in
Execution Appl. No.3/2020. 7 Order.
carried out by the society and the Judgment Debtor is directed to pay
Architect Fees and Consultant Engineer’s Fees total of Rs. 30,887/-. The
Decree Holder also placed on record copy of leave and licence
agreement. In my view, this document is sufficient to hold that Decree
Holder has acquired the alternative accommodation on his own as
Judgment Debtor failed to comply clause 5 and 6 of the award. The
Decree Holder is pressing the execution of the Award and not expected
to conduct trial. This is not a second round of trial. Decree Holder is not
expected to prove the contention of acquiring alternative
accommodation on leave and licence basis. The copy of leave and
licence agreement is sufficient to hold that Decree Holder has acquired
alternative accommodation and he is required to pay licence fee of Rs.
50,400/- per month for second year .
11. In view of clause 5 and 6 of the Award, Judgment Debtor
society is bound to pay fees of the alternative accommodation acquired
by Decree Holder. It is the contention of Decree Holder that, Judgment
Debtor society has not paid any amount of licence fees and other
charges as directed in the award dtd. 13-02-2019. It appears that
instead of complying the Award, Judgment Debtor engaged himself in
filing various proceedings i.e application for condoning delay and Writ
Petition. Even after not getting any relief in the said proceedings, the
Judgment Debtor is not ready to pay any amount to the Decree Holder.
The dispute before the Co-operative Court was of the year 2011 and the
Award is passed in the year 2019. Even after laps of four years,
Judgment Debtor is not willing to pay any amount to the Decree Holder
and to carry out the repairs of the flat. The Decree Holder is Senior
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O.B.Exh. 15 in
Execution Appl. No.3/2020. 8 Order.
Citizen and seems to be handicapped person.
12. Though Ld. Advocate for Judgment Debtor pointed out one
immovable property of Decree Holder which is subject matter of S.C.
Suit No. 1078 of 2017, but it is in litigation, moreover by showing such
property, the Judgment Debtor can not escape from liability imposed by
Award dtd. 13-02-2019. I have gone through the ruling relied by
Judgment Debtor. As this court is executing court and therefore, it the
duty of this court to execute the award and to grant relief to the Decree
Holder. The objection raised by the Judgment Debtor has no substance.
In view of peculiar facts of the execution of the Award in the instant
case, the said rulings are not helpful to the Judgment Debtors. In view
of this, I am of the opinion that Decree Holder is entitled for interim
relief as granted by the Co-operative Court in award dtd. 13-02-2019.
Judgment Debtor is liable to pay Rs.5,76,000/- as a licence fees for the
first year and amount of Rs.3,02,400/- for six months of the second year
for the alternative accommodation acquired by Decree Holder. So also,
Judgment Debtor is liable to pay other charges of Rs. 30,887/- as per
clause -8 of Award dtd. 13-02-2019. The Judgment Debtor is liable to
pay total amount of Rs.9,09,287/- to the Decree holder as interim relief
in execution of award dtd. 13-02-2019. The Judgment Debtor is also
liable to pay Rs.50,400/- per month licence fees for remaining period
of six months. Hence, I pass following order:
- ORDER
1. The Submission/application (Exh.15) is allowed.
2. Judgment Debtor is directed to pay Rs.9,09,287/- to Decree
Holder within three weeks from today. The Judgment Debtor is
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O.B.Exh. 15 in
Execution Appl. No.3/2020. 9 Order.
directed to continue to pay Rs.50,400/- per month for further
period of six months from 05-12-2022 till 04-07-2024.
(N.G. Shukla)
Judge
City Civil Court,
Date :21-11-2023 Gr. Bombay.
1. Dictated on : 21-11-2023
2. Transcribed on : 21-11-2023
3. Checked and Signed on : 22-11-2023
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O.B.Exh. 15 in
Execution Appl. No.3/2020. 10
Order.
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
22-11-2023 5.00 p.m. Miss K.M.Rana .
Name of the Judge HHJ Shri N.G. Shukla
(Court Room No.63).
Date of Pronouncement of Judgment/Order 21-11-2023
Judgment/Order signed by P.O. on 22-11-2023
Judgment/Order uploaded on 22-11-2023
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