*1* nms.2494.2462.2530.2532.10 kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2494 OF 2010 IN SUIT NO.2408 OF 2010 Mayfair Housing Private Limited. ..Plaintiff -Versus- Hawah Khanum Hussaini and another. ..Defendants .......... Mr.Shailesh Shah with Ms.Manorama Mohanty, Mr.Gunjan Shah i/b S.K.Srivastav and Company, for the Plaintiff. Mr.A.S.Karwande, for the Defendant Nos.1 and 2. Dr.B.B.Saraf i/b Kalpesh Nansi, for the Defendant No.3. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 30th September, 2010. P.C. 1 The prayer in this Notice of Motion is for appointment of the Court Receiver, High Court of Bombay of the premises/ immovable property admeasuring about 130 sq.ft. carpet area situated on the ground floor of Ganga Vihar Co-operative Housing Society Limited, 28th Road, Opposite Gurunanak Park, Bandra (W), Mumbai-400050. 2 The Plaintiff is a company incorporated under the Companies Act, 1956 and carrying on business as builder and developer. The Defendant No.1 is member of the Defendant No.3 Co-operative Housing Society. The Defendant No.1 is occupying the flat No.13 on third floor of the building. The Defendant No.2 is son of the Defendant No.1. The Defendant No.3 Society is owner of the land and building as particularly *2* nms.2494.2462.2530.2532.10 described in paragraph-2 of the plaint. 3 It is stated that the building was constructed in or around 1965 which consists of ground and two upper floors and third floor (part), having 13 flats and two garages. It is stated that the general condition of the building particularly the RCC framework is in weak condition. Since the construction is fairly old the building developed cracks and is in dilapidated condition. Therefore, the Defendant No.3 Society decided to redevelop the property by demolishing the existing building and for that purpose it issued a letter of intent in favour of the Plaintiff. 4 It is stated that the letter of intent lists out the conditions. One of the conditions was that the Plaintiff must deal with owners of the flat Nos.4, 6, 9 and 13, so also with Ashoka Traders who are also members of the Society in respect of the garage in the compound of the building “Ganga Vihar”. It is stated that the name of Ashoka Traders was shown in the first schedule in the Letter of Intent dated 24.04.2006. It is by virtue of the statements made in paragraph No.5 of the plaint, on the last occasion, I directed impleadment of the Defendant No.3 Society. 5 It is stated that there is another garage in the compound of the building owned by Ms.Tasmeen Alekar and Mr.Aslam Alekar but the same is not part of the present suit and is covered by the agreement for sale dated 04.03.2008 between the Plaintiff and the said Alekars. The Plaintiff is in use, occupation and enjoyment of this garage. 6 It is stated in paragraph No.7 of the plaint that the Plaintiff started negotiations with Ashoka Traders for acquiring the suit garage. The garage was acquired by the registered agreement for sale dated 23.02.2007 from Ashoka Traders for total consideration of Rs.7,50,000/-. The copies of the agreements are annexed to the plaint and it is categorically stated in paragraph No.7 that the Plaintiff took possession of *3* nms.2494.2462.2530.2532.10 the suit garage in pursuance to this agreement of sale. 7 Ultimately, it is stated that the Defendant No.3 approved the Plaintiff’s proposal of redevelopment at general body meeting held on 03.06.2007 and further executed the development agreement dated 07.11.2007. 8 In the meanwhile, the Plaintiff lost original share certificate No.13 in respect of the suit garage and therefore, issued a public notice calling for objections for issuance of duplicate share certificate. The Plaintiff did not receive any claim or objection, therefore, the Defendant No.3 Society issued a duplicate share certificate No.24 in respect of the suit garage. The Society also raised bills in respect of the garage to the Plaintiff and the Plaintiff has been regularly paying the maintenance charges in respect of the suit garage. 9 It is stated that since the owners of flat Nos.4, 6 and 13 were not co-operating with the Plaintiff and the Society for redevelopment of the property, the Plaintiff on or about 19.03.2010 filed Suit No.997/2010 in this Court and took out the Notice of Motion No.1066/2010 therein. This Court was pleased to appoint the Court Receiver in respect of the flat Nos.4, 6 and 13 with a direction to take formal possession. Thereafter, it is stated that in the said suit, the Defendant No.1 to the present suit filed Counter Claim on 07.06.2010 and claimed that the garage is property of the Defendant No.1. The Defendant No.1 also sought review of the order passed by this Court in Notice of Motion No.1066/2010. That review application was rejected and thereafter, this Court observed that the Defendant No.1 is not entitled to any ad-interim relief in his favour so far as the counter claim is concerned. 10 It is stated that with a view to harass the Plaintiff and with mala-fide intention, the Defendant Nos.1 and 2 broke open the locks of *4* nms.2494.2462.2530.2532.10 the garage and put their locks and forcibly took possession of the garage and dispossessed the Plaintiff without their consent and without due process of law. It is in such circumstances, the instant suit under Section 6 of the Specific Relief Act, 1963 is filed and the present motion is moved pressing for appointment of the Court Receiver of the said garage. Reliance is placed upon Annexure “P” being a copy of the complaint made to the Police about Plaintiff’s forcible dispossession by Defendant Nos.1 and 2. The complaint is dated 26th June, 2010. 11 On the earlier occasion, since there was doubt raised about existence of the garage itself and physical possession of the Plaintiff in respect thereof, I had permitted impleadment of the Defendant No.3 Society and the Society has accordingly filed an affidavit of it’s Chairman and Secretary, so also, Treasurer in which it has been stated that Ashoka Traders were the owners of flat No.13 on third floor and the said garage admeasuring 130 sq.ft. carpet area on the ground floor. It is stated that on or about 02.03.1968 the share certificate No.13 was issued in respect of the said garage to the Ashoka Traders. It is stated that Ashoka Traders sold the flat No.13 to the Defendant No.1 and the share certificate No.13 was issued to the Defendant No.1 in respect of the flat No.13 on 09.10.1968. It is stated that Ashoka Traders were regularly paying the maintenance charges and the copies thereof are annexed as Annexure-D-1 to D-8 to this affidavit. It is stated that Banker’s cheque was forwarded by Ashoka Traders towards the dues of the Society for the period 1995 to 2002 and the stamped receipt has been issued by the Society. It is stated that Ashoka Traders was not repairing the garage, therefore, the Defendant No.3 Society addressed letters in August, 2002 and September & October, 2003 stating that if they fail to do needful, they will be held responsible for the loss of property and life and requested them to demolish the garage *5* nms.2494.2462.2530.2532.10 immediately. 12 Thereafter, by letter dated 23.12.2003, a partner of the Ashoka Traders was informed by the Society that they are considering TDR development and they have received several proposals but before they finalize the same, they would like to have demolition of the garage so that the property can be redeveloped. By letter dated 14.07.2004 it was also informed to the Ashoka Traders that the top slab (roof) of garage has already fallen, the front rolling shutter has been broken and same may also damage other property. The Society also enclosed the photographs of the garage along with the said letter. It is stated that Ashoka Traders gave their no objection for demolition of the garage and the copies of these letters are also annexed as Annexures-J and K to the affidavit. 13 Thus, in this affidavit it has been stated that there was a garage admeasuring 130 sq.ft. carpet area as described in the suit and Ashoka Traders are owners of the said garage, that share certificate in respect thereof was issued in their favour and that Ashoka Traders were in physical possession and therefore, were called upon to repair the garage. In such circumstances, the Society states that when Ashoka Traders approached the Society seeking No Objection for transfer of the garage, it was permitted to be transferred to the Plaintiff. The details of the said transfer and manner in which the Society approved it, are also set out on affidavit by the Defendant No.3 Society. 14 It is in such circumstances, it is asserted that according to the Society, the Plaintiff is in possession of the garage and the maintenance bills were raised and the Plaintiff was paying the maintenance bills. It is at the instance of the Plaintiff that a public notice has been issued. The Defendant No.1 and the owners of the flat Nos.4, 6 and 13 are not co- operating with the Plaintiff. It is stated that at no time prior to the order *6* nms.2494.2462.2530.2532.10 dated 06.05.2010 passed by this Court in the suit filed by the Plaintiff, did the Defendant No.1 assert any right in respect of the suit garage nor claimed to be in physical possession thereof. 15 It is upon this affidavit which is filed after the reply of the Defendant Nos.1 and 2, that I have heard Mr.Shah, learned counsel appearing for the Plaintiff, Mr.Karwande, learned counsel appearing for the Defendant Nos.1 and 2 and Mr.Saraf, learned counsel appearing for the Defendant No.3. 16 In a suit under Section 6 of the Specific Relief Act all that I am concerned with is physical possession of the suit premises/garage. I am not concerned with the claims or counter claims in relation to the right, title and interest of the parties. It may be that the counter claim is made in Suit No.997/2010 and that is pending and it may be that the Society is accused by the Defendant Nos.1 and 2 of colluding with the Plaintiff in this suit so as to deprive them of their right, title and interest in the immovable property, but that would not restrain me in considering the request of the Plaintiff in the present suit filed under Section 6 of the Specific Reliefs Act, 1963. In a suit of the present nature the only ingredients that are required to be satisfied by the Plaintiff are that there is dispossession without their consent, such dispossession is of immovable property and that such dispossession is by otherwise than in due course of law. In the present case, the alleged dispossession is of 26th June, 2010 and the present suit is filed within the period prescribed by Section 6(2) (a) of the Specific Relief Act. 17 It is not necessary to set out scope and object of the section. The object is to discourage people from taking law into their own hands, however, good their title may be. Further the word “dispossession” has not been used in narrow sense of actual physical possession of the immovable *7* nms.2494.2462.2530.2532.10 property, it would include within its sweep actual physical dispossession as well as violation of other forms of possession contemplated by law. 18 The Court is not concerned in this case with the title of the parties to the suit property. In a decision reported in 2004(1) SCC 769 (Rame Gowda (Dead) by Lrs. Vs. M.Varadappa Naidu (Dead) by Lrs. and another) in relation to the claim for possession, this is what the Supreme Court as held:- “8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” 19 Since the property was being redeveloped and since the *8* nms.2494.2462.2530.2532.10 structure is stated to be very old and in dilapidated condition, that I had directed that the Defendant No.3 Society should be impleaded as a party to the suit. This was because the Court wanted to enquire whether the claim of the Plaintiff being in physical possession is supported by the Society or not. Further that claim being disputed by the Defendant Nos.1 and 2 and they stating that the garage is not forming a part of the ownership rights of the Ashoka Traders nor Ashoka Traders were ever in possession thereof, that I have called upon the Society to file an affidavit. After the affidavit has been placed before me with all annexures thereto, I am satisfied that the Plaintiffs have made out a prima facie case of they being in physical possession of the suit garage. Moreover, prima facie, I am satisfied that the Society has recognized that possession and has been calling upon the Plaintiff at least from 2007 to pay the regular monthly maintenance charges in respect of the garage. Further it is demonstrated, prima facie, from the affidavit of the Defendant No.3 that there was an independent structure and that is how that was claimed to be in possession by the Ashoka Traders and thereafter, handed over to the Plaintiff. 20 As against this material, Mr.Karwande invited may attention to the counter claim of the Defendant No.1 in Suit No.997/2010 and urges that Ashoka Traders and the Plaintiff, so also the Defendant No.3 Society are in collusion with each other so as to deprive the first Defendant of his structure which is independently possessed by her. My attention is invited to several documents which are forming part of the counter claim and it is urged that this Court should not appoint the Court Receiver unless it is clear that the Plaintiffs have come into physical possession of the suit garage and that it has been demonstrated by them by producing the relevant documents including sketch map. In other *9* nms.2494.2462.2530.2532.10 words, identity of the property as garage and that it being a distinct immovable property then the flat, is something which the Court must be satisfied in the peculiar facts of the case. In any event, it is stated that Defendant Nos.1 and 2 are in physical possession of the premises and they are parking their car so also storing furniture and other materials therein. 21 It is clear from arguments of Mr.Karwande that he places in the forefront, rights of the Defendant Nos.1 and 2 in relation to the flat that is used and occupied by them and further that they even got the rights in the suit garage. As stated above, that is matter which should not be of any consequence and cannot be decided in these proceedings which are essentially summary in nature. Having prima facie found that the suit garage is in existence and that the Plaintiffs were in physical possession thereof and further they were dispossessed therefrom otherwise than by due process of law, so also bearing in mind the conduct of the Defendant Nos.1 and 2 who are obstructing redevelopment at site, the Court Receiver having already been appointed in respect of the flat of the Defendant Nos.1 and 2; it is just and convenient that the Court Receiver is appointed as Receiver of the suit garage which is more particularly described in prayer (a) of the Notice of Motion and identified by a sketch map as stated therein. 22 Mr.Shah urged that in order to facilitate redevelopment of the property, the Court Receiver should not only take physical possession of the suit garage but the Plaintiff be permitted to proceed to demolish the same. To my mind, that is an aspect which can be taken care of after the Court Receiver takes possession of the suit garage. Accordingly, it is directed that the Court Receiver shall take physical possession of the suit garage by removing locks and seal placed on it and shall carry out inventory thereof. This inventory be carried out by him in presence of the *10* nms.2494.2462.2530.2532.10 representatives of the Plaintiff and the Defendant Nos.1 to 3. After inspecting the suit garage and carrying out the inventory, the Court Receiver shall submit a report to this Court with regard to the present status and condition of the garage so that the Court can pass an order in accordance with law. 23 Notice of Motion is heard finally by consent of the parties and made absolute in the above terms. The Defendant No.3 wavies service of writ of summons. 24 All concerned to act on authenticated copy of this order. No costs. (S.C. Dharmadhikari, J) *11* nms.2494.2462.2530.2532.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2530 OF 2010 AND NOTICE OF MOTION NO.2462 2020 IN SUIT NO.2408 OF 2010 AND SUIT NO.997/2010 ALONG WITH COURTER CLAIM NO.12 OF 2010 Mayfair Housing Private Limited. ..Plaintiff -Versus- Hawah Khanum Hussaini and another. (Suit No.2408/10) Mohindar Kaur Koacher and others. (Suit No.997/10) ..Defendants .......... Mr.Shailesh Shah with Ms.Manorama Mohanty, Mr.Gunjan Shah i/b S.K.Srivastav and Company, for the Plaintiff. Mr.A.S.Karwande, for the Defendant Nos.1 and 2 in Suit No.2408/2010. Dr.B.B.Saraf i/b Kalpesh Nansi, for the Defendant No.3 in Suit No. 2408/2010 and for Defendant No.4 in Suit No.997/2010. Mr.P.S.Anand, for the Defendant No.1 in Suit No.997/2010. Mr.R.M.Vasudeo, for the Defendant No.2 in Suit No.997/2010. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 30th September, 2010. P.C. 1 These Notice of Motions are for clubbing the matters namely Suit No.2408 of 2010 and Suit No.997 of 2010 and the Counter Claim therein. 2 In my view, the suits and the counter claim can be consolidated as there is no objection to this course. However, the controversy in a suit under Section 6 of the Specific Relief Act, 1963 is *12* nms.2494.2462.2530.2532.10 bound to be restricted. Therefore, the consolidation is permitted bearing in mind this distinction and only because parties are common to both suits. 3 Notice of Motions are allowed accordingly. (S.C. Dharmadhikari, J) *13* nms.2494.2462.2530.2532.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2532 OF 2010 IN SUIT NO.2408 OF 2010 Mayfair Housing Private Limited. ..Plaintiff -Versus- Hawah Khanum Hussaini and another. ..Defendants .......... Mr.Shailesh Shah with Ms.Manorama Mohanty, Mr.Gunjan Shah i/b S.K.Srivastav and Company, for the Plaintiff. Mr.A.S.Karwande, for the Defendant Nos.1 and 2. Dr.B.B.Saraf i/b Kalpesh Nansi, for the Defendant No.3. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 30th September, 2010. P.C. 1 As far as the prayers in this motion are concerned, the same cannot be considered at this stage as the Plaintiff and the Society will have to be given reasonable opportunity to place their version. Hence, this Notice of Motion be heard along with the suit. (S.C. Dharmadhikari, J)