1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1259 OF 2008 WITH CIVIL APPLICATION NO.1546 OF 2008 Mrs.Kumud Ashok Jaikar and Anr. : Appellants versus Sophia Prashant Sawant and ors. : Respondents. Shri. N.V.Walawalkar, Senior Counsel i/by Shri R.A.Thorat and Mr.P.J.Thorat for the Appellants. Shri.N.H.Seervai, Senior Counsel with F.P.Poonawala i/by Shri Yatin R Shah for Respondent Nos.1 to 33. CORAM : R.M.SAVANT, J. DATED : JANUARY 12, 2009 P.C. :- 1. The above appeal arises out of the order dated 19th November 2008 passed by the learned Judge of the City Civil Court in the Notice of Motion filed by the Plaintiffs by which order the following relief was granted in favour of the Plaintiffs, who are the Respondent Nos.1 to 33 herein :- “Defendants No.5 and 6 are restrained by way of temporary injunction from obstructing Plaintiffs' using the suit premises as access / entrance until the disposal of the suit or completion of the project, whichever is earlier. 2 2. The parties would be referred to as per their status in the trial Court. The Plaintiffs are the occupants of `B' Wing of Building No.29 of Tilak Nagar Bharat Co-operative Housing Society Limited, Tilak Nagar, Chembur, Mumbai – 400 089. They have filed Long Cause Suit Stamp No.2284 of 2008 inter-alia seeking a declaration against the Defendant Nos.5 and 6 i.e the Appellants herein that they are trespassers of Shop No.10, admeasuring 217 sq.feet in the `B' wing of Building No.29 of the said Society. A declaration is also sought that the said Shop No.10 is unauthorised and illegal and liable to be demolished. The Plaintiffs have also sought a perpetual injunction in the said Suit restraining the Defendants from entering and using the suit premises. 3. In the said suit, the Plaintiffs had filed Notice of Motion – Exhibit-2 seeking temporary injunction restraining the Defendant Nos.5 and 6 from entering the suit premises. It is the case of the Plaintiffs that the Defendant No.3 - the Developer has provided them a temporary access from two sides, one being a narrow passage between `C' and `D' Wings and the second is from the suit property i.e 3 the Shop No.10. It is the case of the Plaintiffs that the Defendant No.3 has assured to provide a permanent access after completion of entire project. 4. The Defendant Nos.5 and 6 are the mother and daughter respectively. The Defendant No.6 has entered into an agreement of sale in respect of the suit property i.e. Shop No.10 with the Defendant No.3 i.e the Developer. It is the case of the Plaintiffs that the Defendant Nos.5 and 6 took law into their hands and sought to take illegal possession of the suit premises and are obstructing the access given by the Defendant No.3 to the Plaintiffs. The Plaintiffs have relied upon a Memorandum of Understanding dated 10th July 2008 entered into between themselves and the Defendant No.3. Clause 8 thereof reads as follows :- “The party of the Second Part will provide a temporary entrance to the residents of `B' Wing till the completion of construction of the `C' & `D' Wings.” 5. It is the case of the Plaintiffs that the Defendant No.3, who is the Developer, has not given any consent to the Defendant Nos.5 4 and 6 to use and occupy the said Shop No.10. The Plaintiffs have relied upon a letter dated 10th September 2008 addressed by the Defendant No.3 to one of the Plaintiffs. It is the further case of the Plaintiffs that the Defendant Nos.5 and 6 cannot obstruct the access of the Plaintiffs through the suit property in an unlawful manner. 6. On the other hand it was the case of the Defendant Nos.5 and 6 that the Plaintiffs had absolutely no right to access from the suit property and that the suit property was an authorised structure constructed pursuant to the plan approved by the competent authorities and which plan was placed on record in the trial Court by the Defendant Nos.5 and 6. 7. The trial Court on the basis of the agreement entered into between the Defendant No.3 and Defendant No.6 and especially clause 11 thereof, wherein it is mentioned that the Defendant No.3 would give possession of the unit i.e the suit property to the Defendant No.6 on completion of entire project as it was going to be used as an entrance as also the fact that the Defendant No.6 was well aware that 5 she would be getting possession of the suit property only after the entire project is completed and in the meanwhile it is for the use of entrance of the Plaintiffs as a temporary measure, granted relief in the motion as reproduced herein above. As indicated above, it is the said order which is impugned in the present Appeal. 8. I have heard the learned senior counsel for the Appellants i.e the Original Defendant Nos.5 and 6 and the learned senior counsel for the Respondent Nos.1 to 33 i.e the Original Plaintiffs. 9. It is contended by the learned senior counsel for the Appellants/Defendant Nos.5 and 6 that if, as per the case of the Plaintiffs, they were obstructed in March and September 2008 by the Defendant Nos.5 and 6, it would have to be accepted that the Defendant Nos.5 and 6 are in possession of the suit property. The Defendant Nos.5 and 6, therefore, according to the learned senior counsel for the Appellants, cannot be ousted from the suit property by ingeniously claiming the relief of access to their wing in the above suit and the notice of motion. According to the learned senior counsel, if 6 the Defendant Nos.5 and 6 are to be ousted, then the Plaintiffs would have to follow the due process of law. It is further submitted by the learned senior counsel for the Appellants/Defendant Nos.5 and 6 that, though the declarations have been sought as regards the suit property being an authorised construction, there is no averment in the plaint to support such a contention. It is further submitted that the suit itself could not have been entertained by the City Civil Court as there is a defect in the valuation clause. It is submitted by the learned counsel for the Appellants/Defendant Nos.5 and 6 that the Plaintiffs have not valued the reliefs sought by them. According to him, since the value of the suit property is around Rs.Six lakhs, the said suit, filed before the City Civil Court, is not maintainable. It is lastly submitted by the learned senior counsel for the Appellants/Defendant Nos.5 and 6 that both in the plan annexed to the agreement of the Defendant No. 6 and the plan annexed to the Agreement of each of the Plaintiffs, the said shop has not been shown as an access to the said `B' Wing. In so far as clause 11 of the agreement between the Defendant No.3 and the Defendant Nos.5 and 6 is concerned, it is submitted by the learned senior counsel for the Appellants/Defendant Nos.5 and 6 that the said 7 agreement is in between the Defendant No.3 and the Defendant Nos.5 and 6 and the Plaintiffs have nothing to do with the said agreement. It is for the Defendant No.3 to enforce the said clause 11 against the Defendant Nos.5 and 6. The learned senior counsel relied upon the minutes of order filed in Writ Petition No.474 of 2008. Relying upon clause 1 of the said minutes of order, it is sought to be contended on behalf of the Defendant Nos.5 and 6 that the Defendant No.3 would be obliged to provide access to the Plaintiffs on a permanent basis. The learned senior counsel, therefore, submitted that the case for grant of any reliefs in the said Notice of Motion was made out. 10. On the other hand, the learned senior counsel for the Respondent Nos.1 to 33 drew my attention to clause 11 of the said Agreement. The said clause 11 of the said agreement is reproduced herein under :- “The Builders shall give possession of the unit to the Purchasers on completion of entire project including NDR-I as it will be used as entrance 8 provided that the purchaser does not commit any default in payments agreed in clause (5) Sr.No.(1) to (10) of this agreement. If the Builders fail or neglect to give possession of the unit to the purchaser their control as per the provision of section 8 of the Maharashtra Ownership Flats Act, by the aforesaid date or the date or dates prescribed in Section 8 of the said Act, then the Builders shall be liable, on demand the refund to the purchasers the amount already received by them in respect of the unit with simple interest at nine percent per annum from the date of the Builders received the sums till the date, the amounts and interest thereon is repaid, provided by mutual consent if section 8 have been satisfied or not will be referred to the Competent Authority who will act as an Arbitrator. Till the entire amount and interest thereof is refunded by the Builders to the Purchasers the same shall be subject to prior encumbrances, if any, be a charge on the portion of the property as well as the construction of building which the unit is situated or was to be situated. Provided that the Builders shall be entitled to reasonable extension of time for giving delivery of unit on the aforesaid date, if the 9 completion of building in which the unit is to be situated is delayed on account of; i) Non availability of building materials, water or electricity supply; ii) War, civil commotion or act of god; iii) any notice, or order rule, notification of the Government and/or other or competent authority; iv) any other cause beyond the control of the Builders. 11. The learned senior counsel for the Plaintiffs submitted that in view of the said Clause 11, the Defendant Nos.5 and 6 are now estopped from contending to the contrary. He further submitted that right from the time, each of the Plaintiffs had purchased the flat in question and have occupied the said flat, up to March 2008 the Plaintiffs have used the suit property as an access. The learned senior counsel further submitted that taking advantage of the Writ Petition No.474 of 2008 being on board on 13th March 2008 in this Court the Defendant Nos.5 and 6 sought to put iron grills so as to 10 enclose the suit property which did not have any walls. The learned senior counsel for the Plaintiffs, in support of his submission that the Plaintiffs have used the said suit property as an access relied upon the report of the Court Commissioner dated 13th March 2008 who was appointed in the said Writ Petition No.474 of 2008. The learned senior counsel for the Plaintiffs lastly submitted that the Defendant Nos.5 and 6 have taken the law into their hands and though the Defendant No.3 has not given possession of the suit property, in view of the fact that it is to be used as an access, the Defendant Nos.5 and 6 have illegally tried to occupy the suit property. The learned senior counsel for the Plaintiffs in support of his submission that the Defendants were never in possession of the suit property relied upon the electricity bill as also the endorsement made by the Municipal Corporation on the Shops and Establishment Licence, which endorsement is to the effect that there are no premises in existence. As regards valuation, the learned senior counsel for the Plaintiffs submitted that the Defendant Nos.5 and 6 have only paid an amount of Rs.11,000/- as evidenced by a receipt and also the letter dated 10th September 2008 of the Respondent No.3. The learned senior counsel 11 for the Plaintiffs, therefore, submitted that the suit lies within the jurisdiction of the City Civil Court and, therefore, no case for interference with the impugned order is made out. 12. I have considered the rival contentions of the parties. Though it is the case of the Defendant Nos.5 and 6 that they are in continuous possession, as according to them, it is the case of the Plaintiffs themselves that, the Defendants obstructed them in March 2008 and September 2008, the said contention of the Defendant Nos.5 and 6 cannot be accepted in the teeth of clause 11 of the agreement of Defendant No.6 which specifically stipulates that the possession of the said shop would be handed over to the Defendant No.6 after the project is completed. It would be pertinent to note that the Defendant No.3 had filed an Affidavit in Reply in the said Notice of Motion wherein in Para 9 it has been specifically averred by the Defendant No.3 as follows :- “I say and submit that we have entered into an Agreement between M/s.Paradise & Bhoomi Developer and Defendant No.6 Miss 12 Poonam A Jaykar dated 26th September 2005. In para 11 on page No.14 of the said Agreement it is clearly stated as follows that : the Builder shall give possession of the unit to the purchaser of the unit on completion of entire project including NDR-1 Plot as it will be used as entrance.: therefore we had taken only Rs.11,000/- as token money for the said premises, till date we have neither accepted balance amount nor we have given possession letter to the Defendant No.6 because we have provided the said unit to the occupant of `B' wing for temporary entrance till the completion of `C' and `D' wing. We will commence the balance construction work of `C' and `D' wing very soon after approval of the concerned Authorities. Hence we have addressed a letter under reply of the letter of the Plaintiff dated 8th September 2008, that we have not carried out any alleged construction work of the suit Shop No.l0 of `B' wing of building No.29. The same is annexed in the Plaint by the Plaintiffs and marked as Exhibit `I'.” The Defendant Nos.5 and 6 did not contravert the said statement by filing any reply and therefore have occepted the said position. 13 13. Apart from the said documents, the Report of the Court Commissioner dated 13th March 2008 is also very relevant in the context of the claim of the Defendant Nos.5 and 6 that they are in possession.. The Court Commissioner had visited the site on 13th March 2008. In the course of said visit and in view of what had been stated by the Secretary Shri Pednekarof the said Society, that the Defendant No.6 was running her business from Shop No.10 and the grills fixed on shop No.10 were in existence from the last four months, the Court Commissioner had inquired with the owner of the adjoining shop, being Shop No.11, Mr.Milan Mehta, who had stated that the said grill was fixed in the morning and that the said entrance was blocked on the very same day. The said finds place in Para 8 of the said Report of the Court Commissioner. The Court Commissioner was further informed that the Residents of “B” were using the said shop as entrance till 13th March 2008 when they were obstructed. 14. The electricity bills and the papers relating to the issuance of the certificate issued under the Bombay Shops and Establishment 14 Act by the Municipal Corporation also disprove the case of the Defendant Nos.5 and 6 that they were in continuous occupation of the suit premises. The electricity bills for the relevant period show consumption as “Nil” whereas on the paper relating to the Shop and Establishment licence there is an endorsement on back side that no premises were in existence as admittedly the suit premises did not have any walls. In my view, it, therefore, cannot be said that the Defendant Nos.5 and 6 were in continuous possession and, therefore, the reliefs sought by the Plaintiffs as claimed in the Notice of Motion could not have been granted. 15. In so far as clause 11 of the agreement entered into between the Defendant No.3 and the Defendant Nos.5 and 6 is concerned, there is merit in the submission of the learned senior counsel for the Plaintiffs that the Defendant Nos.5 and 6 are now estopped from contending to the contrary and are bound by the said clause. In so far as valuation of the suit is concerned, in view of the 15 fact that the Defendant Nos.5 and 6 have only paid an amount of Rs.11,000/- as handing over of the shop premises was contingent upon the project being completed. There is, therefore, no substance in the submission advanced by the learned senior counsel for the Defendant Nos.5 and 6 that the suit would not lie before the City Civil Court. In my view, considering the material placed on record, the Plaintiffs have made out a strong prima facie case, and balance of convenience is also in favour of the Plaintiffs. 16. Having perused the impugned order dated 19th November 2008 and in view of clause 11 of the said Agreement which specifically states that the Defendant No.3 would give possession of the unit i.e the suit premises to the Defendant No.6 on completion of the entire project as it would be used as an access and the Defendent Nos.5 and 6 being bound by the said clause, in my view, no interference is called for with the impugned order dated 19th November 2008. Hence the following order is passed :- 16 :ORDER: The above Appeal from Order is dismissed. In view of the fact that the suit premises is being used as an access, the prayer for continuing the status quo made on behalf of the Appellants is rejected. In view of the dismissal of the above Appeal, the Civil Application No.1546 of 2008 does not survive and the same is disposed of as such. [R.M.SAVANT, J]