Bombay High Court
Tresorie Traders Pvt Ltd vs Esteem Properties Pvt Ltd And 10 Ors on 26 July, 2022
Author: R.I. Chagla
Bench: R.I. Chagla
910-IAL-17448-22.doc
Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 17448 OF 2022
IN
SUIT (L) NO. 17446 OF 2022
Tresorie Traders Private Limited ...Applicant/
Plaintiff
Versus
Esteem Properties Private Limited & Ors. ...Defendants
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Dr. Virendra Tulzapurkar, Senior Counsel a/w Mr. Mandar Soman and
Mr. Madhu Hiraskar i/by Neha Choksi for the Plaintiff.
Mr. J.P. Sen, Senior Counsel, Ms. Rujuta Patil, Mr. Yohaan Shah i/by
Negandhi Shah & Himayatullah for the Defendant No. 1.
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CORAM : R.I. CHAGLA J.
DATE : 26 July 2022
ORDER :
1. Heard Dr. Virendra Tulzapurkar, learned Senior Counsel SHARAYU PANDURANG appearing for the Applicant/original Plaintiff and Mr. J.P. Sen, KHOT Digitally signed by SHARAYU learned Senior Counsel appearing for the Defendant No. 1. PANDURANG KHOT Date: 2022.08.04 10:42:26 +0530
2. The other Defendants have been served with notice of 1/10 910-IAL-17448-22.doc this Application being made as well as papers and proceedings in the Interim Application and the Plaint have been served upon the Defendants.
3. By this Interim Application, the Applicant is seeking an order of injunction restraining the Respondents/Defendants from entering upon the suit property described in Exh.D to the Plaint and/ or from disturbing the possession of the Applicant on the Suit property and/or from dispossessing the Applicant from the suit property.
4. Dr. Tulzapurkar has referred to certain paragraphs in the Plaint filed in the captioned Suit, in particular, paragraph 5 thereof, wherein it is stated that the Applicant/Plaintiff has purchased eight structures along with open space appurtenant to each structure situated on the larger property in the year 2006-07 from the respective structure owners of the flats by executing eleven separate Deed of Assignment with the respective structure owners. The particulars thereof have been set out in tabular form in paragraph 5 of the Plaint. The Plaintiff claims to have received possession of the eight structures along with open space appurtenant thereto from the 2/10 910-IAL-17448-22.doc erstwhile structure owners in 2006-2007 and put up their board mentioning that "this is a private property belongs to Tresorie Traders Private Limited".
5. Dr. Tulzapurkar has thereafter, referred to certain facts pertaining to structure No. 14 mentioned in paragraph 15 of the Plaint, wherein it is stated the structure No. 14 which was purchased by the Plaintiff under the Deed of Assignment dated 15th July 2006 was illegally demolished by Municipal Corporation Greater Mumbai ("MCGM") in the year 2008 and then reconstruction and restoration of structure No. 14 was permitted. The Defendant had initiated legal proceedings which had proceeded till the Supreme Court and the Supreme Court had confirmed the order to reconstruct and restore the said structure No. 14.
6. The proceedings were initiated by the Defendant No. 1 who challenged the action of MCGM permitting the erstwhile owner to reconstruct the demolished structure No. 14 by filing a Suit in City Civil Court at Dindoshi being Suit No. 1177 of 2008 against the MCGM and the erstwhile owner of the structurally No. 14. 3/10
910-IAL-17448-22.doc
7. Dr. Tulzapurkar has taken this Court through the documents annexed to the Plaint including the electricity bills which are from pages 174 to 212 of the Plaint at Exh.F colly. He has submitted that these electricity bills were issued in the name of the Applicant/Plaintiff pursuant to the purchase of the structures. He has also referred to the notice issued by the MCGM on 7th April 2022, which had been issued to the Applicant/Plaintiff with regard to unauthorised construction of the structure on the larger suit property. He has submitted that the Plaintiff was clearly in possession of the said structures since 2006-07. He has relied upon the decision of the Supreme Court in Krishna Ram Mahale (Dead) by his LRs. Vs. Mrs. Shobha Venkat Rao1 and in particular, paragraph 8 thereof. The Supreme Court has held that it is a well settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law.
8. Dr. Tulzapurkar has accordingly, submitted that the Plaintiff is in settled possession of the said structures and cannot be 1 (1989)4 SCC 131 4/10 910-IAL-17448-22.doc dispossessed except by recourse to law. He has submitted that the Defendants are obstructing the use of the Plaintiff from entering on the suit property and thereby disturbing the settled position of the Applicant of the suit property. Hence, the present Interim Application has been taken out.
9. Mr. J.P. Sen, learned senior Counsel appearing for the Defendant No. 1 has tendered an Affidavit in Reply on behalf of the Respondent No. 1 dated 26th July 2022 which is taken on record. He has in particular referred to paragraph 4 of the said Affidavit, wherein the judgment and order dated 30th July 2009 passed by this Court in AO No. 625 of 2009 has been mentioned and paragraphs 7 and 8 thereof has been extracted.
10. There are the same proceedings referred to by Dr. Tulzapurkar concerning structure No. 14 and Deed of Assignment dated 15th July 2006. In the said order, a prima facie finding has been arrived at that the legal owners of the said structure would be the heirs of Tipanna Vadari as the said Tipanna was occupying the suit structure having been issued the photo pass under the Slum Act. This Court had considered the Deed of Assignment executed by 5/10 910-IAL-17448-22.doc Defendant No. 4 wherein the Defendant No. 4/Plaintiff herein claimed to have purchased the suit structure from Defendant No. 3 (the said Tipanna Vadari). This Court had found that the Deed of Assignment is an unregistered document and Defendant No. 3 as a photo pass holder could not have transferred the structure in favour of Defendant No. 4 as contended by the Applicant/Plaintiff herein. Accordingly, this Court had directed the MCGM that the restoration work will be carried out on the structure to be carried out of the demolished structure only by the person to whom permission have been granted by the MCGM, namely the said Tipanna who continues to be the owner in the eyes of law.
11. Mr. Sen has submitted that the aforementioned proceedings went to the Supreme Court and restoration of structure was accordingly upheld.
12. Mr. Sen has further submitted that no case is made out by the Applicant/Plaintiff for the ad-interim relief sought apart from there being a dispute as to the title of the suit property. He has submitted that in paragraphs 12 and 13 of the Interim Application, it has been stated that the Respondent No. 1 is using the government 6/10 910-IAL-17448-22.doc machinery to demolish the structure of the Applicant which is situated on the suit property. There is only a bare statement of the Applicant/Plaintiff that Respondent No. 1 by other means is obstructing and disturbing the settled possession of the Applicant on the suit property. In paragraph 13 of the Interim Application, it is only an apprehension expressed that the Respondent is trying to evict the Applicant from the suit property by using illegal means. That appears to be the only reason for taking out the Interim Application. He has submitted that there is no merit in the Interim Application and the relief sought for be rejected.
13. Having considered the rival submissions, in my view, there is much merit in the submissions of Mr. Sen on behalf of the Defendant No. 1. It is apparent from the averments in the Interim Application that there is no real case made out for grant of ad- interim relief of injunction restraining the Respondents from entering upon the suit property and/or disturbing the possession of the Applicant of the suit property and/or from dispossessing the Applicant from the suit property. This is apparent from the averments in paragraphs 12 and 13 of the Interim Application. There is only an apprehension expressed by the Applicant that the Respondent is 7/10 910-IAL-17448-22.doc trying to evict the Applicant from the suit property by allegedly using illegal means.
14. It is necessary to note that the MCGM has issued a notice under Section 351 of the Mumbai Municipal Corporation Act, 1888 ("the Act") on 7th April 2022 to the Applicant/Plaintiff, on the ground that there is an unauthorised construction on the suit property. By no means can it be accepted that the Respondent No.1 is using government machinery to demolish the structure of the Applicant on the Suit property.
15. Further, submissions have been made as to the title of the Applicant/Plaintiff to the structures on the Suit property being in dispute. However, it is not necessary to go into the issue of title at present, considering the fact that in my view, no case has been made out for seeking ad-interim relief and that too based on a mere apprehension expressed by the Applicant/Plaintiff that the Respondent is trying to evict the Applicant from the Suit property. Further, there is a statutory notice issued by the MCGM under Section 351 of the said Act for demolition of the unauthorised structure. The orders which have been referred to by the learned Senior Counsel for 8/10 910-IAL-17448-22.doc the Plaintiff as well as by the Defendant No. 1 including the proceedings which have been mentioned in the Plaint as well as in the Affidavit in Reply filed by the Defendant No. 1 and which concern the Deed of Assignment dated 15th July 2006 and structure No. 14 which was claimed to be illegally demolished by MCGM and thereafter, restoration permitted, can be considered at the hearing of the Interim Application, when the title as well as possession of the Suit property can be prima facie determined.
16. There is no issue with regard to the well settled position of law that a person in settled possession of the property, cannot be dispossessed by the owner of the property except by recourse to law which has also been laid down by the Supreme Court in Krishna Ram Mahale (supra). The issue is as to whether the Applicant is in fact in settled possession of the Suit property which as aforementioned shall be prima facie determined at the hearing of the Interim Application and it is not necessary to go into this issue at this stage.
17. I do not find any merit in the ad-interim relief sought by the Plaintiff and the Application for ad-interim relief is 9/10 910-IAL-17448-22.doc accordingly, rejected.
18. Place the Interim Application (L) No. 17448 of 2022 as per CIS date for hearing.
[R.I. CHAGLA J.] 10/10