1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1332 OF 2008 IN SUIT NO. 1042 OF 2008 Gawde Constructions Private Limited ...Plaintiff vs. Sandeep Gajanan Devarukhar ...Defendant Mr.Ajit Karwande for the Plaintiff. Mr.D.K. Mishre for the Defendant. CORAM : V.M. KANADE, J. DATED : SEPTEMBER 1, 2009 P.C. :- 1 Heard. 2 The plaintiff is a developer and is carrying on business under the name and style of Gawde Constructions Pvt.Ltd. . The plaintiff had taken the rights of development of a building known as Satyavati Bhuvan situated at Sakharam Keer Road, Mahim, Mumbai. The defendant was occupying an area of about 60 sq.ft. under the staircase of the 2 building and the defendant was using it for commercial purpose and was carrying on his business under the name and style of M/s.Bhagyashree Alankar Mandir . 3 The defendant received a notice in respect of the said premises sometime in the year 2001-2002 under Section 155 of the Municipal Corporation of Greater Mumbai Act asking him to furnish the details of the premises which were in occupation as per Section 473 of the Act. 4 In the meantime, the landlord of the building had entered into the development agreement with the plaintiff dated 31.10.2002. As per the said agreement, the plaintiff had agreed to provide permanent alternate accommodation to the tenants of the landlord and a separate agreement, therefore, was executed with the defendant on 10.2.2003 which was registered with the Officer of the Sub-Registrar of Assurances, Mumbai. The plaintiff by the said 3 agreement agreed to provide to the defendant a non- residential self-contained premises on ownership basis free of cost admeasuring about 80 sq.ft. carpet area on the ground floor in the building which was to be constructed. It is the case of the plaintiff that though the defendant was entitled to get only 60 sq.ft., as per the provisions of the MHADA Act, the plaintiff agreed to give him 80 sq.ft. in order to ensure that the work is completed in time. On execution of the agreement, the plaintiff started the development of the building by demolishing the existing dilapidated structures. The Architect of the plaintiff applied for part occupation certificate and since the defendant was insisting that he should be given temporary accommodation in the new building which was being completed. He was given temporary alternate accommodation on the first floor in one room of flat no.102. There was a clear understanding between the parties that on completion of the construction of the building, the defendant would 4 handover the accommodation which was given to him on the first floor and accept the permanent alternate accommodation which was to be given to him on the ground floor. Accordingly, the plaintiff and the defendant executed an agreement dated 16.6.2004 in addition to the agreement which was already executed between the parties. The plaintiff thereafter informed the defendant by letter dated 12.4.2005 to occupy the premises which was to be given to him since it was ready, yet he did not come forward to take possession of the room which was allotted to him. He, however, filed the suit in the City Civil Court against the plaintiff for a specific performance of the agreement dated 10.2.2003 and for a declaration that the said agreement is valid, subsisting and binding. The plaintiff herein filed his written statement in the said suit and contended that he was ready and willing to perform his obligation and had prayed that the decree may be passed on admission. However,the suit is still pending since the defendant kept on taking 5 adjournments in the said matter from time to time. The plaintiff, therefore, has filed a present suit seeking a mandatory order of evicting the defendant from the premises which was given to him on the first floor and to direct him to accept the permanent alternate non-residential accommodation on the ground floor. In this suit, the plaintiff took a notice of motion in which he is seeking a relief of appointment of Court Receiver and for appointing the plaintiff as agent of the Court Receiver of the room which is occupied by the defendant and further order directing the Court Receiver to put the defendant in possession of the room which has been allotted to the defendant of the ground floor of the suit premises. 5 At the hearing of the ad-interim stage of the notice of motion, the learned Counsel for the defendant submitted that the area of the permanent alternate accommodation which was given to him was less than the area which was promised to be given to 6 him under the agreement executed between the parties. He submitted that the area which was being offered was only 60 sq.ft. carpet area and what was promised to him was 80 sq.ft. It was further submitted that the said premises was at the rear side of the building. This Court, therefore, by order dated 25.7.2008 appointed an officer of this Court as a Court Commissioner to inspect the premises and to submit a report regarding the location and carpet area of the premises within two weeks. The Commissioner, accordingly, submitted his report dated 14.8.2008. In the said report, he has stated that the net carpet area of the premises comes to 86.72 sq.ft. The said shop was on the ground floor at the south-east corner of the building. The Commissioner has further observed that the said shop was as per clause 5 of the agreement between the parties. The Commissioner has also prepared an inventory of the shop and has given the particulars of amenities which are provided in the said shop. Perusal of the said Commissioner s report 7 clearly indicates that the shop is ready for occupation and has all the amenities which were agreed to be given by the plaintiff to the defendant. 6 Counsel for the defendant Shri Mishra again made same submission that the area of the shop is less than 80 sq.ft. carpet area. He also submitted that the shop was at the rear side of the building. He was unable to point out as to how the said shop was not in accordance with the flat which was agreed to be given to him as per clause 5 of the said agreement. He also could not dispute that the amenities which were to be provided by the plaintiff to the defendant were not provided by the plaintiff. Under the circumstances, there is much substance in the submission made by the plaintiff that the defendant has been illegally occupying the first floor of the premises which is earmarked for use by the society as its office. The said premises, according to him, were given to the defendant on 8 temporary basis and he has no legal right to occupy the said premises. The permanent alternate accommodation is being made available to him by the plaintiff and the plaintiff has issued his readiness and willingness to specifically perform the agreement which is specifically performed between the parties. As a result of the attitude of the defendant, the plaintiff is unable to handover the first floor of the premises which are earmarked for allotment to the society. 7 Under normal circumstances, at the interim stage, interim reliefs which are in the nature of final reliefs are not normally granted in favour of the plaintiff. However, if a case is made out that no prejudice is caused to the defendant if these reliefs are granted at the interim stage, then in such circumstances, the court is competent to pass such interim orders which are prayed by the plaintiff in the Notice of Motion. In the present case, the Commissioner s report clearly indicates 9 that the area of the room is more than 80 sq.ft. carpet area. No plausible reason is given by the defendant in not shifting on the ground floor non- residential premises and therefore, under these circumstances, in my view, prima facie case is made out by the plaintiff for grant of reliefs which are claimed by him in the Notice of Motion. 8 Accordingly, Court Receiver is appointed to take possession of the premises on the first floor of flat no.102 after removing the defendant from the said premises along with his belongings and thereafter, shall appoint the plaintiff as agent of the Court Receiver without royalty and security deposit and with liberty to the plaintiff to hand over possession of the flat to the Secretary of the Co-operative Society. The Court Receiver shall handover the possession of the shop on the ground floor to the defendant which is offered by the plaintiff as per clause 5 of the agreement executed between the parties. The Court Receiver may take 10 help of the police if the defendant does not handover the possession of the said suit premises and shall also break open the lock if the said premises found to be locked. The Court Receiver shall prepare an inventory of the articles belonging to the defendant and shall put the said articles in the shop on the ground floor which is being offered to the defendant by the plaintiff. 9 Notice of Motion, accordingly, is disposed of in the aforesaid terms. 10 At this stage, learned Counsel for the defendant seeks stay of this order for a period of three weeks. 11 This order is stayed for a period of three weeks in order to enable the defendant to file an appeal against this order. (V.M. KANADE, J.)