Order 1

Order Details: Order Below EX 1
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IN THE COURT OF METROPOLITAN MAGISTRATE,
32ND COURT, BANDRA, MUMBAI.
C.C. NO. 267/SW/2019
ORDER BELOW EXH1
1. Perused the complaint, affidavit of the complainant.
Heard advocate Anandini Fernandes for complainant. Perused
documents filed alongwith the complaint.
2. The accused No.1 is the company of which accused No.2
to 5 are the promoters, directors, chief executive officers and office
bearers respectively. The complainant is also a registered company
and the complaint has been filed through the authorized signatory.
The complainant owned and in possession of 4th Floor and 6th Floor of
the building RNA Corporate Park. The accused No.1 is the Developer
of the said building and the accused No.2 & 3 are directly responsible
for maintenance and management of all the flats and common areas
of the said building. The accused No.4 & 5 are the officers and
connected with and aware of the management of the essential
supplies and services in the said building. The complainant has
narrated all the facts as to the ownership & possession of the flats in
the said building and also the alleged withholding of essential
supplies i.e. the lifts, electricity and water connection by the accused
No.1 to 5. The complaint allegations appears well founded showing
intentional withholding of essential supplies in contravention of
provisions of section 12A of the Maharashtra Ownership of Flats and
Apartments (Regulation of the promotion of construction, sale,
management and transfer) Act, 1963 (in short the MOFA Act).
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3. The complainant sought direction to register FIR and to
investigate further. It is specifically argued that though offence
primafacie shown committed and discloses from documents on
record, the investigation in other aspects on the basis of the email
and massages exchanged between the parties and mischief
committed by the accused is to be conducted. So also, the necessary
documents are in the custody of accused.
4. The complainant company has also preferred civil suit
before Small Causes Court seeking restoration of essential supplies.
The complainant has also produced on record the copy of interim
order dt. 12.12.2019 in RES No.16/2019 passed by the Hon'ble Small
Causes Court No.36. Whereby, the respondents therein i.e. the
present accused primafacie hold responsible being
promoters/directors and the office bearers of the accused No.1
company. Accordingly, the accused persons have been directed to
take all necessary steps to cause the complete restoration and timely
operation of each and every lift and take all necessary steps to ensure
uninterrupted electricity supply.
5. The order also record the enforcement of MOFA Act
even after promulgation of the Real Estate (Regulation &
Development) Act, 2016. In these circumstances, the offence being
cognizable, it is just and proper to direct the concern police to
register FIR and thoroughly investigate the allegations made in the
complaint, as per law. Hence, following order :
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ORDER
i) The complaint be sent to the Kherwadi police station and
the Sr. PI directed to register FIR and to investigate in
accordance with law vide section 156(3) of Cr.P.C.
ii) The complainant to supply additional set of documents
and copy of complaint for forwarding the same to the
police.
iii) Complaint be kept pending, awaiting final report, if any.
Date: 24.12.2019 (Sudhir N. Shinde),
Metropolitan Magistrate, 32nd Court,
Ssl. Bandra, Mumbai.
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