Interim Order 2

Order Details: Order Below EX 1
Pdf Text: C. C. NO.154/DV/2022
Riddhima V/s. Boniface
ORDER BELOW APPLICATION (EXH.-9)
The applicant has filed the present application for issuance of
direction to the respondent to sign possession letter and other various
documents issued by builder and also sought direction to pay demurrage
charges. According to the applicant, she has purchased the flat in the year
2018 from Piralmal Developer, flat No. H802, Casa Estela, 8th Floor, H
Wing, Acqua Wille, Taloja Bypass Road, Dombivali, Dist. Thane, in the
joint name of respondent and solely paid entire consideration amount.
The applicant also paying EMI of I.27,391/- p.m. in respect of said flat.
The applicant has now been approached by the builder via e-mail for
taking possession of the said flat. The applicant as well as the respondent
needs to sign possession letter and other various documents, but despite
of constant request the respondent denied to sign possession letter.
2. It is contended further that, the builder has sent demurrage
notice to the applicant and claimed I.43,539/- from the applicant for
delaying in taking possession of the said flat. Therefore, the applicant
constrained to file the present application. Lastly, the applicant prayed for
application be allowed and the respondent be directed to sign the
possession letter and other relevant documents and direct him to pay
demurrage charges.
3. The respondent by filing his say at (Exh.-11) resisted the
application and contended that, there are no averments in respect of said
flat in the main proceeding. Therefore, application is not tenable.
Therefore, applicant cannot go behind the scope of application. Therefore,
question of issuance of direction to sign the possession letter and other
documents should not arise. Lastly, it is contended that, the application is
false one therefore, be rejected.
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C. C. NO. 154/DV/2022 ORDER BELOW APPLICATION (Exh.-9)
4. I have heard elaborated arguments of Ld. Advocate Shri M. A.
Khan for the applicant and Ld. Advocate Shri A. S. Patel for the
respondent. I have also perused the written notes of argument, which is at
(Exh.-15).
5. Ld. Advocate Shri Khan submits that, the applicant and the
respondent jointly have purchased the flat No.H802, Casa Estela, 8th Floor,
H Wing, Acqua Wille, Taloja Bypass Road, Dombivali, Dist. Thane and
entire consideration amount is paid by the applicant and now the said flat
is ready to handover the possession to the applicant. However, in the
agreement the respondent is also shown to be the co-owner of the said
flat. Now the said flat is ready to deliver the possession to the applicant by
the builder and e-mail to that effect has been sent by the builder. But the
respondent despite of several requests denied to sign the possession letter
and relevant documents.
6. He further submits that, the builder approached to the
applicant for giving possession after filing the present complaint.
Therefore, no such averments in respect of said flat have been made in the
complaint. Therefore, the contention of the respondent can not taken into
consideration. He further submits that, the applicant is aggrieved person
and due to non co-operation of the respondent she is not able to take the
possession of the said flat. Therefore, direction be issued to that effect and
also awarded amount of demurrage from the respondent.
7. Per contra, in written notes of arguments it is contended that,
the said flat is not at all subject matter in the complaint. Therefore, no
such direction can be issued, as sought against the respondent.
8. Perused the record. The complaint under section 12 of
Domestic Violence Act came to be filed by the applicant/complainant
against the respondent. The respondent has resisted the contention of
applicant by filing his reply. Thereafter, present application came to be
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C. C. NO. 154/DV/2022 ORDER BELOW APPLICATION (Exh.-9)
filed. The applicant in support of her contention filed on record the copy
of letter issued by the builder and the format of possession receipts,
wherein the builder on 27/09/2022 issued the notice and intimated her
after payment of final dues the possession of flat will be handed over and
called the applicant and the respondent for final payment of due amount
in respect of the said flat.
9. I have gone through the contention of entire complaint. It
appears that, there is no dispute in respect of said flat between the
applicant and the respondent mentioned in the complaint. Further, no
relief has been sought by the applicant in respect of said flat against the
respondent and the said flat is not at all the shared household of the
applicant. It is to be noted that the complainant has remedy under the
provision Specific Relief Act, if the respondent is not ready to co-operate
and sign the possession letter. Therefore, by giving colour of domestic
violence to the dispute in respect of said flat applicant cannot claim relief
in the domestic violence proceeding. The applicant has to knock the door
of Civil Court for getting relief in respect of the said flat.
10. Further, there is no direct provision under the domestic
violence Act in respect of property which is not at all the subject matter of
domestic violence proceeding or the property is not at all the shared
household. Therefore, no case is made out for issuing the direction, as
sought against the respondent. Hence, I proceed to pass following order.
ORDER
1 The application is rejected.
Mumbai.
Date : 12/06/2024.
SRD.
Sd/-
Metropolitan Magistrate,
71st Court, Bandra, Mumbai.
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C. C. NO. 154/DV/2022 ORDER BELOW APPLICATION (Exh.-9)
Dictated on :- 12/06/2024.
Transcribed on :- 13/06/2024.
Checked on :- 15/06/2024.
Signed on :- 15/06/2024.
SRD
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