1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3008 OF 2008 IN SUIT NO. 2880 OF 2007 Vishwanath Y. Sarmalkar ...Plaintiff Vs. M/s. Sheth Developers Pvt. Ltd. ...Defendant Mrs. S.A. Dhamale for Plaintiff Mr. Shekhar Sheteye with Mr. Ramesh Gajaria i/b. Gajaria & Co., for Defendant CORAM: SMT.ROSHAN DALVI, J. DATED: 17 TH NOVEMBER, 2008 P.C. 1. This is a second Notice of Motion in the Suit. The Notice of Motion has been served upon the Defendant on 15th October, 2008. No affidavit in reply was filed until today. The affidavit in reply affirmed today is taken on record and a copy is given to the Plaintiff's Advocate. Plaintiff is allowed to proceed on the basis of denial. 2. The Defendant is the developer of the suit property. The Plaintiff and his brother had 2 shops in the suit property. The Plaintiff was the occupant of one of those shops. The Defendant had to offer alternate accommodation to the 2 Plaintiff to be able to develop. An agreement for such alternate accommodation came to be executed between the parties on 26 th August, 2004. The Plaintiff surrendered his right, title and interest in the shop. The Plaintiff handed over vacant possession of the shop and the Defendant demolished the same. The Defendant was to construct the building thereupon and provide a shop of 120 sq. ft. carpet area in the shopping Mall to be constructed on the suit plot. 3. Until such alternate premises is given, the Defendant additionally agreed to pay Rs.84,000/- in advance at the rate of Rs.7000/- p.m towards the annual rent payable by the Plaintiff for the hire of other temporary accommodation to be hired by him for conducting his business. The Defendant was to continue to pay this until he provided the shop of 120 sq. ft. carpet area to the Plaintiff. 4. The Plaintiff handed over possession of his occupied premises and removed himself from the suit premises. The Defendant paid only the first installment of Rs.84,000/- , which was to be the rent payable by the Plaintiff for obtaining any other temporary accommodation in that behalf. 5. The agreement has been entered into on 26 th August, 3 2004. The amount has been paid on 26th August, 2004. That amount which was to be paid in advance would therefore, constitute payment for one year from August, 2004 to July, 2005. 6. The Plaintiff's premises has been demolished. No other shop has been constructed. The liability of the Defendant to pay Rs.7000/- to the Plaintiff continued. No other payment has been made by the Defendant. The Defendant has defaulted entirely though the possession of the Plaintiff's shop has been taken over and demolished by the Defendant for construction. 7. It may be mentioned that for taking over such possession, the Defendant could have paid a lumpsum consideration. The Defendant instead agreed to pay and paid consideration in installments. Those installments were @ of Rs.7000/- p.m being Rs.84,000/- per year. 8. It is seen that though the possession is taken, the consideration is not paid. Even the consideration by installments in the form of rents/compensation is not paid. It is the Defendant's case that this was to be paid as annual rent for the temporary accommodation, which the Plaintiff was to take until the permanent alternate accommodation of 4 the shop of 120 sq. ft. carpet area was provided to the Plaintiff. The defence is dishonest. The agreement speaks nothing of the sort. The agreement only shows the consideration payable for the property taken. The agreement does not show the enjoinment of the Plaintiff to take up any other temporary accommodation on hire. The agreement also does not show the requirement of the Plaintiff to prove such taking of alternate premises. The agreement also does not show the verification which the Defendant would be entitled to make. 9. This agreement is, like millions of other like agreements, entered into with occupants of premises, legally or illegally constructed, which are required to be demolished if the construction as per sanctioned plans is to commence and proceed. Judicial notice is required to be taken of such agreements which are entered into by parties who are to develop properties. 10. The execution of the agreement is admitted. The fact that the payment of Rs.7000/- per month is to be made is also admitted. The only defence is that the Plaintiff must show the temporary accommodation taken by the Plaintiff and if that is not shown the Defendant's liability ceases. That argument is completely misconceived. The Defendant has to 5 continue to make payment of Rs.7000/- until a shop of 120 sq. ft. carpet area is provided to the Plaintiff as permanent alternate accommodation in the premises to be constructed in the suit property. 11. The payment has not been made from August, 2005. Correspondence in that behalf is not heeded. Hence the suit has been filed for recovery of such amount as also for possession of the shop agreed to be given to the Plaintiff by way of specific performance of the agreement dated 26th August, 2004. The suit is also for injunction restraining the Defendant from allotting the shop to any other person. In fact, the suit is further for the declaration that if the alternate shop is not provided, the Plaintiff would be entitled to the open plot of land where his shop was, and is entitled to compensation and construction expenses for putting up the shop since demolished by the Defendant. 12. I am told that though the suit is filed by only the Plaintiff, the Plaintiff as well as his brother were in occupation of 2 shops and the Defendant was to provide the monthly compensation of Rs.7000/- each to both of them and alternate premises by way of 2 shops - one each to the Plaintiff and his brother. Consequently, the suit is in respect of reliefs for 2 shops. It is seen that the plaint is not happily 6 worded. The Plaintiff would be entitled only to his shop and the compensation for the temporary accommodation to be provided to the Plaintiff. 13. However the Plaintiff has paid Court fees calculated on the basis of the construction cost of the 2 structures, one of himself and one of his brother. 14. The Plaintiff's brother has expired. The Plaintiff has taken out the Chamber Summons to bring his heirs on record. That Chamber Summons is pending. 15. It is argued on behalf of the Defendant that since the Plaintiff has applied for the relief of seeking payment of Rs.7000/- for the Plaintiff and Rs.7000/- on behalf of the brother of the Plaintiff in the Suit the same relief in the Notice of Motion cannot be granted as it would be the final relief in the Suit. 16. It is seen that the suit is essentially for the decree of possession of the 2 shops and specific performance of the agreement. The relief of payment of amount of Rs.7000/- per month is only in respect of the temporary accommodation to be availed of by the Plaintiff until the final accommodation is granted to the Plaintiff as per the 7 agreement dated 26 th August, 2004. 17. After filing the suit the Plaintiff took out the Notice of Motion for injunction against construction on the suit plot of land. On 31 st October, 2007 the Defendant made a statement that the commencement certificate is not obtained and hence no construction would be carried on. Consequently the injunction was not granted to the Plaintiff. 18. However now the Defendant contends that on 24 th October, 2007 a week prior to making the aforesaid statement ) the original owner leased the entire property to one Athithi Builders, which Lease Deed the Defendant confirmed as the confirming party. That fact was suppressed from the Court at the time of making the statement. The order of 31 st October, 2007 distinctly shows that the Defendant alone claimed to be in possession, control and charge of the suit property and made statement in that behalf. Therefore, the Plaintiff could not be granted the relief of appointment of Court Receiver or the relief of injunction or any other mandatory order with regard to the permanent alternate accommodation in the suit property. Hence, until permanent alternate accommodation is given, the Plaintiff would be entitled to be compensated for his premises which had already been admittedly demolished. 8 19. The right of the Plaintiff to claim the agreed compensation is essentially against the Defendant alone. That compensation is payable by the Defendant until the permanent alternate accommodation is given to the Plaintiff. The rights of the Plaintiff cannot be jeopardized by any other subsequent lease or agreement with the 3rd party since the Defendant has got the premises demolished and obtained possession of the premises in occupation of the Plaintiff. To allow the Defendant not to make payment on any of the aforesaid technical pleas would be to allow the Defendant to take possession of a premises admittedly in occupation of a party without payment of any consideration to that party. That would tentamount to depriving the Plaintiff of his property without authority and without consideration. 20. Consequently the Plaintiff has made out prima- facie case for grant of prayer clause (a) with regard to the agreed payment for one shop to be made to the Plaintiff. 21. Hence, following order: (i) The Defendant shall forthwith make payment of the admittedly agreed amount of Rs.7000/- per month which has remained in arrears from August, 2005 till today. 9 (ii) The Defendant shall continue to make payment of the said amount in advance for each year, thereafter until the Defendant, or his successors- in-title to whom the Defendant has confirmed the lease, gives permanent alternate accommodation to the Plaintiff. (iii) This is a fit case for settlement through negotiation. In fact, all such cases of occupants of structures in properties to be developed are always paid off before possession of this structures is taken by Developers and before such structures are demolished. Hence, parties may consider options for such one- time payment by Mediation. (iv) This order is stayed for 2 weeks. (SMT. ROSHAN DALVI, J.)