1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3376 OF 2008 IN SUIT NO. 2049 OF 2000. Jaya Ramji Makwana & ors. : Plaintiffs. Versus Aajubai Mitha Makwana & ors. : Defendants. And Lalji Premji Parmar : Applicant. And The Court Receiver, High Court, Mumbai : Respondent. Shri.Prakash Mahadik for the Plaintiffs. Shri.Deepak Lulia for Applicant Defendant No.3. Shri J.B.Patel for Defendant Nos.1 and 2. Mrs.R.S.Gulekar, Section Officer, from the office of Court Receiver, High Court Bombay present in Court. CORAM : R.M.SAVANT, J. DATED : OCTOBER 20, 2008 P.C. 1. The above Notice of Motion has been filed by the Defendant No.3 to the suit i.e Savgan Co-operative Housing Society Ltd inter alia for the following reliefs :- 2 (a) The Court Receiver, High Court Bombay may be directed to handover the actual, vacant and peaceful possession of the suit Flat No.A-11, Savgan Co-op Hsg.Soc. Ltd., RTO road, Four Bunglaows, Andheri (West), Mumbai – 400 053 to the Defendant No.3 to enable their developers to demolish the building to reconstruct new building to provide new alternate accommodation on the same property to the Court Receiver, High Court Bombay; (b) The Court Receiver, High Court Bombay may be directed to execute and/or issue all necessary letters/documents in favour of the Defendant No.3 and/or the Developer to enable them to start the redevelopment of the building wherein Flat No.A-11 is situated; (c) The Court Receiver, High Court may be directed to accept 472 sq.fts. carpet area of self contained flat consisting of two bed rooms, Hall, Kitchen, two toilets cum bathrooms in the newly 3 constructed building along with Rs.3,00,000/- (Rupees Three lacs only) as and by way of Corpus fund, Rs.1,44,000/- as advance compensation for alternate accommodation for 18 months at the rate of 8,000/- per month vide post dated cheques; (d) that the Court Receiver, Bombay High Court may be directed to grant necessary assistance, co-operation and help to the Defendant No.3 in Redevelopment of society building; 2. The above Suit has been filed by the original Plaintiffs inter alia for a declaration that the Plaintiffs are entitled to the suit flat and are exclusively entitled to use, occupy and possess the suit flat at Savgan Co-operative Housing Society Ltd., Room No.A-11, 2nd Floor, RTP Road, Four Bungalows, Andheri (West), Mumbai 400 053. The bone of contention in the said suit being the said Flat No.A-11. The dispute is in between the Plaintiffs and the Defendant Nos.1 and 2 who are the mother and sister of the husband of Plaintiff No.1. In the Notice of Motion filed by the Plaintiffs being Notice of Motion No.3344 4 of 2000, this Court by an order dated 26th June 2002 allowed the said motion and appointed the Court Receiver, High Court Bombay as a Receiver in respect of the said flat. By the same order, the Court Receiver was granted permission to invite bids to let the said flat on leave and licence basis. It appears that pursuant to the bids invited by the Court Receiver, one Ram Mishra was given a licence to occupy the said flat as his bid was the highest. The said Ram Mishra occupied the said flat, but it appears that he committed a default in payment of licence fees in respect of the said flat. It further appears that the Defendant Nos.1 and 2 thereafter let out the said flat to one Kanitkar, which was without approval and sanction of the Court Receiver appointed by this Court. The Court Receiver, accordingly, filed his report, on which an order came to be passed on 13th September 2007 by a learned Single Judge of this Court directing the Court Receiver to take possession of the flat in question. The Court Receiver accordingly took the possession of the said flat and presently the said flat is lying unoccupied and in possession of the Court Receiver. 5 3. Since the building, in which the suit flat is situated, being old and in a dilapidated condition, the members of the Defendant No.3-Society (48 in number), excluding the member of the suit flat, have accepted the said redevelopment scheme and have appointed one Shree Krishna Sai Dev. Corporation as a Developer for redevelopment of the property in question wherein the suit flat is situated. In terms of the Redevelopment Agreement, each member of the Defendant No.3-Society is to get 472 sq.fts. of carpet area in the redeveloped property. This would apply also to the suit flat. The Defendant No.3-Society, therefore, has filed the instant Notice of Motion claiming reliefs which are re-produced herein above. 4. On behalf of the original Plaintiffs the learned counsel Shri Prakash Mahadik very fairly stated that he has no objection to the redevelopment scheme propounded by the Applicant/Defendant No.3. 5. In so far as Defendant Nos.1 and 2 are concerned, they have filed an Affidavit in Reply to the above Notice of Motion of the 6 Defendant No.2 – Kanta Mitha Makwana. The sum and substance of the objection of the said Defendants in the said Affidavit is as regards payment of rent in the interregnum that is still the redevelopment fructifies. It is sought to be contended on behalf of the said Defendants that though a sum of Rs.12,000/- is being paid to each of the other members of the Society, in respect of the suit flat only a sum of Rs.8,000/- is sought to be paid and the same appears to be without justification. 6. In rejoinder to the said affidavit in reply, the Applicant – Defendant No.3 has filed an affidavit of one Pithabhai Parmar, the Chairman of the Society – Defendant No.3 wherein in para 3 a categorical statement is made to the effect that “I say that the amount of compensation which will be paid to Court Receiver will be Rs.12,000/-” The learned counsel Shri Patel, appearing for the Defendant Nos.1 and 2, in the light of the said statement made in para 3 of the affidavit of said Pithabhai Parmar, has fairly conceded that the Defendant Nos.1 and 2 would now have no grievance in respect of the redevelopment scheme. 7 7. In the light of the stand taken by the Plaintiffs and the Defendant Nos.1 and 2, as also the Representative of the Court Receiver, in my view, the above Notice of Motion would have to be allowed in terms of the prayer clauses (a) to (d). 8. Hence the above Notice of Motion is accordingly made absolute in terms of the prayer clauses (a) to (d). In addition, the Defendant No.3 to file an undertaking in this Court that the Defendant No.3 would hand over the vacant and peaceful possession of the suit flat admeasuring 472 sq.fts. of carpet area consisting of two bed rooms, Hall, Kitchen, two toilets cum bathrooms in the newly constructed building along with Rs.3,00,000/- (Rupees Three lacs only) and by way of Corpus fund, Rs.2,16,000/- as advance compensation for alternate accommodation for 18 months at the rate of Rs.12,000/- per month vide post dated cheques. The said undertaking to be filed within four weeks from date.. On the building being completed under the redevelopment scheme, the Defendant No.3 would accordingly inform the Office of the Court Receiver. 8 [R.M.SAVANT, J]