1 NMS2795.08.sxw JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 2795 OF 2008 IN SUIT NO. 3173 OF 2002 Narendra Yashwantrai Fadia. ... Plaintiff. V/s. Kanaiyalal Yashwantrai Fadia & Ors. ... Defendants. And Vrindavan Vatika Co-op. Hsg. Soc. Ltd. ... Respondents. Mr. Ketan Parekh a/w. Ms. Kunjal Sanghavi i/b. M/s. K.R. Parekh & Co. for the Plaintiff. Mr. B.B. Shroff with Ashok Varma i/b. Tejpal & Co. for Defendants 1,2 and 3. Mr. A.V. Jain for Defendant 4. Mr. Chetan V. Shah, Member of Managing Committee present. CORAM : R.Y. GANOO, J. DATED : 24th JANUARY 2011. P.C. :- Affidavit in rejoinder filed by the Plaintiff is taken on record. 2. Heard learned Counsels on both sides. By consent it is agreed that this Motion is to be restricted to Flat No.12 situate 2 NMS2795.08.sxw in Vrindavan Vatika Co-op. Hsg. Society Ltd, J. Adukiya Road, Kandivali (West), Mumbai – 400 067. 3. The Plaintiff has instituted the Suit in regard to two flats viz. Flat Nos.11 and 12 more particularly described in Exhibit ‘A’. As indicated earlier, this Motion is restricted to Flat No.12. Learned Counsels on both sides agree that as of today, the Plaintiff is occupying the said flat No.12 subject of course to the result of this litigation. 4. The Court is informed that development activity of the entire building including Flat No.12 is in progress and consequently, the Plaintiff is required to vacate Flat No.12 and hand it over to the builder. The representative of the Society Mr. Chetan Vinodbhai Shah, a member of the Managing Committee of the Respondent – Society is present. He informs the Court that M/s. K.T. Group are appointed as the developers and he informed the Court that substantial number of members have handed over possession to M/s. K.T. Group and possession of all the flats are to be handed over by 31st January 2011 for going ahead with the development in a smooth manner. This will go to show that flat No.12 presently occupied by the Plaintiff is required to be given to M/s. K.T. Group. It is understood that after the development, the flat will be delivered to the concerned person. The present Suit is filed in 2002. As of today, we do not know as to when the Suit will be decided and who will be entitled to occupy the flat. In view of this, it is to be taken that if the development activity 3 NMS2795.08.sxw would be complete before disposal of the Suit, the developer M/s. K.T. Group or other person who will be developing the flat give possession of course to the result of the Suit to the Plaintiff. 5. With the aforesaid observation, I am inclined to dispose of the Motion by passing the following order :- (i) The Plaintiff is permitted to hand over the vacant and peaceful possession of the aforesaid flat No.12 to M/s. K.T. Group for development. Such handing over of the flat shall be subject to the result of the Suit. The Plaintiff would be able to get benefit from M/s. K.T. Group as regards alternate accommodation or compensation in lieu of present accommodation as may be available to all other members of the Society. (ii) After the development is complete and flat is ready for occupation and if the Suit at the relevant time is pending, the developer shall hand over vacant and peaceful possession of the newly constructed flat which is to be allotted in lieu of aforesaid flat No.12 to the Plaintiff. (iii) Accordingly, the developer will put the Plaintiff in possession of the said flat and putting the Plaintiff in possession of the said flat shall be subject to the 4 NMS2795.08.sxw result of the Suit and without prejudice to the rights and contentions of all the parties to the Suit. The Plaintiff by virtue of such allotment and possession will not be able to claim any specific right in regard to the said flat. Rights of the Plaintiff and other Defendants shall be decided in the Suit. If the Plaintiff is put in possession of the newly constructed flat, the Plaintiff shall pay the outgoings and other dues in accordance with the bills raised by the developer or by the Society from time to time and payment of such charges will not enable the Plaintiff to claim superior right over the other Defendants. It is clarified that this arrangement is arrived at only to see that the construction activity should not be hampered and other members of the society should not suffer. 6. After the aforesaid order is passed, the learned Counsel for the Plaintiff states that he shall hand over possession of the flat to M/s. K.T. Group on or before 31st January 2011 and shall inform the Defendants’ Advocate in writing about handing over possession for their information. Undertaking is accepted. (R.Y. GANOO, J.)