1 nm 1762-2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1762 OF 2009 IN SUIT NO. 1323 OF 2009 Mrs.Barbara Philomena Pinta & Ors. ...Plaintiffs vs. Mr.Vernon Aranha & Ors. ...Defendants Mr.A.Y. Sakhare i/b. Mr.N.G. Raut for the Plaintiffs. Mr.O.W. Menezes i/b. Mr.Johnson John for Defendant No.1. CORAM : S.C. DHARMADHIKARI, J. DATED : OCTOBER 20, 2010 P.C. :- 1 This is a Notice of Motion filed in a suit wherein the principal relief is that the Court must declare that the plaintiffs are entitled to get assignment of their respective undivided leasehold rights pertaining to a plot of land more 2 nm 1762-2009 particularly described in prayer clause (a) of the plaint and that the first defendant be ordered and decreed to pay to the Bombay Municipal Corporation all arrears of taxes, premiums, etc. as developer and original lessee of the suit plot till the said assignment is made in favour of the plaintiffs. 2 The plaintiffs state that they are residing at the address more particularly mentioned in the cause title. They are owners of their respective flats in the building The Nest at Bandra, Mumbai. 3 The first defendant is residing at the address mentioned in the cause title and also in Goa. He is a lessee in respect of this plot which is admeasuring 516 square yards. This is a plot in the scheme of the third defendant society. In other words, it is the third defendant which is a registered co-operative society and the first defendant is a lessee of a plot of land which is allotted to him by the society. The second defendant 3 nm 1762-2009 is the mother-in-law of the first defendant. 3 The defendant no.1 claims to be owner of Flat No.301 situated on the third floor of the building referred to above. 4 In his capacity as a member of the third defendant society, the first defendant has by an agreement with the first plaintiff dated 22nd August, 1995 agreed to transfer a part of the ground floor admeasuring 741 sq.ft. for the consideration more particularly mentioned in para 5 of the plaint. This is an agreement dated 22nd August, 1995. It is stated that the construction of the additional floor has been completed sometime in the year 2001-002. There is an agreement between the defendant no.1 and defendant no.3 which is apart from the individual agreement. It is stated that this agreement would partake the character of an obligation under the Maharashtra Ownership Flats Act, 1963. It is stated that in the building, there are five flats out of 4 nm 1762-2009 which three are held by the plaintiffs and two are held by defendant nos.1 and 2. Defendant No.1 had agreed to execute or cause to be executed a Deed of Assignment in respect of plot in favour of the proposed society, if formed, or to the owners of the flat in the said building as tenants, in the event, it is not possible to form a cooperative society. Reliance is placed on clauses 28 and 31 of the agreement in that behalf. 5 It is stated that there was encumbrance on the property which was not disclosed by defendant no.1 and the details thereof are mentioned in para 15 of the plaint. It is then contended that there is an agreement with the defendant no.3 dated 17th June, 1998 wherein it has been stated that the defendant no.1 would register a Co-operative Housing Society of the flat purchasers and obtain an assignment in favour of the society to be incorporated. 6 In para 18 of the plaint, several breaches 5 nm 1762-2009 of the terms and conditions of the individual agreement have been pointed out and it is then alleged that there is also violation of the terms in so far as clearance of taxes and payment of charges and other dues of the BMC. The completion certificate and the occupation certificate have not been obtained and on account of breaches, the present suit has been filed for the above declaration and in furtherance of which relief the notice of motion for interim relief is taken out. 7 Mr.Sakhare, learned Senior Counsel appearing for the plaintiffs submits that at this stage, this court should pass mandatory orders and directions with regard to payment of taxes and clearance of arrears, if any, by the first defendant. Furthermore, this Court should also direct the first defendant at his costs to procure the Occupation Certificate and Completion certificate in respect of this building. 6 nm 1762-2009 8 Mr.Sakhare complains that the additional floor which has been put up by the first defendant is unauthorized and illegal. He submits that on account of the encumbrance of the property, non payment and withholding of statutory dues and putting up of construction without any FSI or TDR, what has been noticed is that the property is not being conveyed to the plaintiffs as agreed. There is an impediment in implementation of an agreement which dates back to 1995. Shri Sakhare submits that on account of these breaches, it is difficult for the plaintiffs to manage the affairs in relation to the property and there are difficulties in putting up a compound wall. All this has resulted in the plaintiffs occupying flats but without any proper authorization or permission. 9 There is a reply filed by defendant no.1. It is submitted by Mr.Menezes appearing on behalf of defendant nos.1 and 2 that the flat no.301 had been given on leave and licence for two years with a 7 nm 1762-2009 lock in period for one year. However, there is no intention to transfer this flat in favour of any third party. Further, Mr.Menezes pointed out that the first defendant has paid Rupees Nine Lakhs to the BMC but he has disputed the liability of Rs.18 lakhs and odd as demanded. Further, he submits that it is false to suggest that there are breaches of the terms and conditions but it is the plaintiffs who have gone ahead and occupied the flats without any occupation certificate. It is in such circumstances the defendant no.1 has paid Rs. 9,29,700/- to the BMC, he has cleared off the dues of the Co-operative Bank and there are no encumbrances on the property and that it is false to suggest that the defendant no.1 is not serious in complying with the terms and conditions of both the agreements. 10 After this matter was placed before me and extensively argued, I had passed an order on 13th October, 2010 recording the statement of Shri 8 nm 1762-2009 Menezes that the first defendant will file an affidavit-cum-undertaking in terms of the said order. 11 Accordingly, affidavit-cum-undertaking dated 20th October, 2010 of the first defendant is filed with advance copy to the Advocate for the plaintiffs. In para 1 of this affidavit, first defendant has undertaken to pay to the BMC the amount towards arrears of his contribution within four weeks from today. It is stated to be Rs.4950/- per month and outstanding since February, 2010. Further, the first defendant has undertaken that he will make payment of his contribution regularly hereafter. 12 As far as the obligation in the individual agreements with the plaintiff and with the parent society, Mr.Menezes submits that subject to all legal rights and remedies of the first defendant, he will obtain the occupation certificate in respect of 9 nm 1762-2009 the flats in the building The Nest within a period of six months from today. This undertaking is given by the first defendant in addition to his statements recorded in the affidavit. First Defendant is present before this court and confirms the contents of the affidavit-cum-undertaking. He gives an undertaking to this court that he will obtain occupation certificate and completion certificate within six months from today. The said undertaking is accepted. Mr.Menezes, on instructions from the first defendant clarifies that loan of Citizen Credit Co-operative Bank Ltd. is a personal loan and he has secured it by mortgaging his personal flat No.301 in the building. It is clarified that the land and/or rights and benefits attached thereto is in no way mortgaged nor is a security in respect of this loan. 13 To my mind in the light of these undertakings of the first defendant which are accepted, there is no necessity of passing any 10 nm 1762-2009 interim orders and particularly, in terms of prayer clauses (a) and (b) of the Notice of Motion. As far as the apprehension that flat no.301 would be disposed of so also the plot of land on which the building is situated, Mr.Menezes states that there is no such apprehension and apart from the licensee of defendant no.1 no one else is in possession nor any third party rights have been created or will be created in respect of flat no.301 till the pendency of the suit. However, this will not prevent the first defendant from inducting anybody as licensee in respect of the flat. Further, no third party rights will be created nor the suit property/land will be transferred in any manner till the suit is disposed off. Both statements are accepted as undertakings to this court. 14 Notice of Motion is disposed of in the aforesaid terms but without any order as to costs. 15 In the light of the order passed on this 11 nm 1762-2009 Notice of Motion, Notice of Motion No.1356/2010 does not survive and stands disposed of. (S.C. DHARMADHIKARI, J.)