Shah Vs. Orbit Finance Pvt. Ltd. & Ors.
[Civil Appeal No.
3630/2012 arising out of SLP (C) No. 29620 of 2011]
J U D G M E N T
Dr. B.S. CHAUHAN, J.
appeal has been preferred against the judgment and order dated 27.4.2011 passed
in Appeal (Lodging) No. 247 of 2011 by the High Court of Bombay confirming the order
dated 21.3.2011 of the learned Trial Judge passed on application for interim relief
with certain modifications.
and circumstances giving rise to this appeal are that:
A. Appellant entered into
an agreement dated 3.4.1998 with respondent no. 1 for alternate accommodation whereby
the appellant was allotted Unit No. 401 i.e. Suit premises ad-measuring 2680 Sq.fts.
built up area subject to payment of Rs.13.50 lacs, nominal fee in lieu of appellants
occupational rights in the godown i.e. the original property. The said agreement
was registered on 2.3.2000. The inter-se agreement between the respondent No.1 on
one hand and respondent Nos. 2 and 3 dated 7.8.2006 regarding the sale of the part
of the accommodation in the same building was served upon the appellant. By that
time, the respondent no. 1 had not made any demand from the appellant in terms of
the agreement dated 2.3.2000.
B. The appellant filed Short
Cause Suit No. 3703 of 2007 seeking reliefs under the provisions of Maharashtra
Ownership of Flats Act, 1963 (hereinafter referred as `MOF Act) before the City
Civil Court at Bombay, wherein the respondent nos. 2 and 3 raised a preliminary
issue/objection regarding the pecuniary jurisdiction of the City Civil Court which
was decided in their favour vide judgment and order dated 20.9.2010, wherein it
was held that the said court did not have pecuniary jurisdiction to try the said
suit and, thus, the plaint was returned to the appellant/plaintiff with a direction
that it may be presented before the appropriate court as required under Order 7
Rule 10 of the Code of Civil Procedure, 1908.
C. Appellant instituted the
Suit No. 259 of 2011 before the High Court of Bombay on Original Side along with
the application for interim relief. The application was contested by the respondent
Nos. 2 and 3 and the trial Judge after considering the matter at length rejected
the prayer for appointing the Receiver but considering the fact that the respondent
Nos. 2 and 3 had invested a huge amount to the tune of Rs.11.5 crores and having
regard to other factors particularly that they tried to find out the encumbrance
position from the Sub- Registrars office but the record was not available, passed
certain orders, particularly, permitting the respondent nos. 2 and 3 to create a
licence in respect of the built up area, admeasuring 2680 Sq. Fts. (suit property)
with a further direction that the third party interest would not be created. The
premises could be given on leave and licence for a period not exceeding eleven months
at a time subject to the conditions that the licensee would be informed of the pendency
of the Suit and no interest shall be created in the premises in favour of the licensee.
Further, the court with the consent of the parties appointed an Architect to identify
the built-up area admeasuring 2680 Sq. fts.
D. Aggrieved, appellant preferred
Appeal (Lodging) No. 247 of 2011 before the Division Bench against the said order
dated 21.3.2011 which has been disposed of with certain modifications in the order
of the learned Trial Judge, i.e. the licence fee received from the licensee in respect
of the built up area admeasuring 2680 Sq. Fts. on the fourth floor, to be identified
by the Architect as directed by the learned Trial Judge, shall be deposited with
the Prothonotary and Senior Master of that court. Such an amount was further directed
to be deposited in the recurring account in a nationalised bank and the subsequent
payments would be deposited directly in the said account under intimation to both
the parties as well to the Prothonotary and Senior Master of the Court. It was further
clarified that in case of any default, it would be open to the parties to move the
court for further directions. Hence, this appeal.
Krishnan Venugopal, learned senior advocate appearing for the appellant, has submitted
that the respondent nos. 2 and 3 did not make proper inspection of the records of
the Registrar Office regarding encumbrance etc. More so, even if the record of the
encumbrances etc. in respect of the suit premises was not available in the Sub-
Registrars office, there was no occasion for the learned trial Judge to grant relief
as in such a fact-situation, it cannot be presumed that the respondent nos. 2 and
3 had no notice of agreement between Appellant-Plaintiff and respondent No.1. Their
agreement with respondent no.1 itself is in respect of the fifth floor in the building
and not for the fourth floor where the suit property is situated. Appellant could
not pay a sum of Rs.13.50 lakhs in terms of the agreement between the appellant
and the respondent no.1 as she had never been asked to deposit the same. The construction
of the building is not yet completed and the Completion Certificate has not been
issued by the Statutory Authority. Thus, the interim relief as asked by the appellant
ought to have been granted. More so, the Architect appointed by the learned trial
Judge has identified the appellants built up area, admeasuring 2680 Sq. Fts. in
a corner which is not suitable to the requirement of the appellant. So, the appeal
deserves to be allowed and the impugned orders are liable to be set aside.
the contrary Shri K.K. Venugopal, learned senior counsel appearing for the respondent
nos. 2 and 3, has vehemently opposed the appeal contending that it is merely an
interim arrangement. The issues including the issue as to whether the respondent
nos. 2 and 3 are bonafide purchasers for consideration are yet to be determined.
While deciding the application for interim relief only a prima facie view has been
taken; the Architect has submitted a report before the learned trial Judge. The
appellant has a right to file objections to the same in all respects. The case is
yet to be determined by the learned trial Judge thus, no indulgence be granted by
the court. Facts and circumstances of the case do not warrant any interference against
the impugned orders. The appeal is liable to be dismissed.
have considered the rival submissions made by the learned counsel for the parties
and perused the record.
there is nothing on record to show that the construction of the building is complete
in all respects and Completion Certificate has been issued by the statutory authority
in favour of the respondents. More so, it is nobodys case that the respondent no.
1 had ever applied before the statutory authority for issuance of the Completion
Certificate. The issues raised herein are factual in nature and would be determined
only after conclusion of the trial and appreciation of evidence on record. Appellant
has agreed before the learned Trial Judge for appointment of an Architect to identify
as which area ad-measuring 2680 Sq. Fts. on the fourth floor would be allotted to
her. The Architect has submitted the report and the appellant is at liberty to file
objections to the said report, if not already filed and the learned Trial Judge
would examine/consider the report as well as the objections of the parties and pass
appropriate orders. The courts below have not passed any order permitting the respondent
nos.2 and 3 to create any third party rights. They have been permitted to grant
leave and licence in respect of the suit premises so far as the area 2680 Sq. Fts.
is concerned and protected the interest of the appellant directing that licence
fee for the premises would be deposited in recurring account with a nationalised
view of the above, the facts and circumstances of the case do not warrant interference
by this Court. The appeal lacks merit and is, accordingly, dismissed. However, as
the Suit had originally been instituted in the year 2007, we request the learned
Trial Judge to conclude the trial expeditiously preferably within a period of one
year. We further clarify that the appellant shall be at liberty to raise all his
grievances before the appropriate forum at an appropriate stage as this order is
being passed only on an application for interim relief. No order as to costs.
(Dr. B.S. CHAUHAN)