1 25 nms 135.10 .doc srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 135 OF 2010 IN SUIT NO. 77 OF 2010 M/s Ashish Developers .. Plaintiff -versus M/s Navkar Developers & 4 Ors. .. Defendants. Mr. Bipin Joshi and Bhavin R. Bhatia for the Plaintiff. Mr. Prakash P Parkar for the Defendant nos.1 to 3. Mr. Yogeshwar S. Bhate for the Defendant no.5. CORAM: S.C.DHARMADHIKARI, J. DATED: 4TH OCTOBER, 2010 P.C. 1 The Plaintiff claims to be a partnership firm duly registered under the Indian Partnership Act, 1932. It has filed the suit for the following relief: “(a) This Honourable Court be pleased to declare that the purported Licence agreement 2 25 nms 135.10 .doc dated 1.5.2008 being Exhibit C annexed hereto, and purported Lease Deed dated 12.2.2009 being at Exhibit D annexed hereto, in respect of the suit land viz. land ad-measuring 12 feet by 8 feet equivalent to 96 square feet, and equivalent to 9.10 square metres, is forming portion of bigger plot of land ad-measuring 2106 square metres lying and being situated at C.T.S. No. 741/B, Village Malad North, Taluka Borivali, Bombay Suburban District, extension of Ramchandra Lane, Malad (West), Mumbai – 400 064, more particularly described in Exhibit B annexed hereto and more particularly shown in Exhibit A in the Plan annexed hereto and delineated thereon with red coloured boundary line, be cancelled and/or delivered up and be further pleased to direct concerned officers of Sub-registrar to record cancellation of aforesaid documents.” 2 It is stated that the structure is identified in the documents referred to in prayer clause (a) of the Plaint. 3 25 nms 135.10 .doc 3 The Notice of Motion is filed for interim relief and particularly to protect the structure. 4 The Plaintiff is yet to prove its case and particularly in relation to the declaration claimed. In other words, the documents produced with regard to the license created and the lease in favour of defendant no.1 are yet to be proved. 5 In the affidavit filed on behalf of the defendant nos. 1 to 3, it is stated that this is an interse dispute between the partners of the Plaintiff firm and defendant nos. 1 to 3 are dragged into suit. It is stated that defendant no.4 through its proprietary concern has transferred the development right in relation to a piece or parcel of land ad-measuring 444.2 square meters bearing Survey no.61, Hissa no.5, corresponding CTS No.741-A situated at Malad, Mumbai. The conveyance deed dated 19th November 2008 is relied upon. 6 The plans in relation to construction on the CTS has been approved. It is stated that defendant no.4 prior to selling/transferring this property to defendant nos. 2 and 3 was developing his plot of land and in order to get access i.e. use as passage, defendant no.4 has approached the defendant no.5 for permitting him to provide access through the suit land and 4 25 nms 135.10 .doc therefore, the indenture of licence dated 15th May, 2008 was entered into between the defendant no.5 and defendant no.4. The undertaking mentioned by the plaintiff and given by defendant no. 4 in writing, is to defendant no.5. 7 It is stated that the defendant nos. 1 to 3 have not in any manner disturbed the structure and they are developing their property under the documents and deeds referred to in their affidavit-in-reply. 8 A Rejoinder affidavit was filed on 25th February, 2010 by the plaintiff. 9 After considering all affidavits, this court passed an order on 25th March, 2010 directing defendant nos. 1 to 3 to maintain status-quo as prevailing on 25th March, 2010 as regards the structure pertaining to which the suit is filed. 10 This court recorded in the order the claim of the Plaintiff. 11 In my view, considering the nature of the claim and the dispute with regard to the identity of the structure, which was at 5 25 nms 135.10 .doc one time termed as a watchman cabin, the order passed at the ad-interim stage sufficiently protects the plaintiff. Therefore, the ad interim order dated 25th March, 2010 shall continue without prejudice to the rights and contentions of parties. 12 Notice of Motion is disposed of in these terms. (S.C.DHARMADHIKARI, J.)