Bombay High Court
Prataprai Lallubhai Vasa And Ors vs M/S. Khodiyar Enterprises on 28 February, 2022
Author: Sandeep K. Shinde
Bench: Sandeep K. Shinde
(24)-IA-3087-2021 in FA-1205-2014.doc
Reserved-22.02.2022 : Pronounced-28.02.2022
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Interim Application No. 3087 / 2021
in
First Appeal No. 1205 / 2014
Prataprai Lallubhai Vasa and Ors. ... Applicants
Versus
M/S. Khodiyar Enterprises ... Respondent
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Ms. S.G. Deshmukh i/by Mr. Suraj Kudalkar, Advocate for the Applicants.
Senior Advocate Ranjit A. Thorat i/by Pankaj Shah, Advocate for
Appellant in FA-1205/2014 and for Respondent No.1 in IA No.
3087/2021.
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CORAM : SANDEEP K. SHINDE, J.
RESERVED ON : 22nd FEBRUARY, 2022.
PRONOUNCED ON : 28th FEBRUARY, 2022.
ORDER:
1. This application is taken out by the Original Defendant Nos. 1 to 6, seeking permission to carry out the redevelopment of the entire building i.e. Vasant Vihar, in view of the structural audit conducted pursuant to Najeeb 1/5 (24)-IA-3087-2021 in FA-1205-2014.doc Reserved-22.02.2022 : Pronounced-28.02.2022 notice under Section 353(B) of the Mumbai Municipal Corporation Act and report dated 13th July, 2021.
2. Factual Matrix :
Appellants - Plaintiffs instituted a suit for specific performance of agreement dated 3rd March, 1979. It was dismissed by judgment and order dated 20th April, 2014. The property in question was final plot no. 120 with an old building thereon, consisting of ground and one floor, of which Defendant No. 1 to 6 are the owners. Plaintiffs preferred First Appeal No. 1205 of 2014. Pending disposal of First Appeal, on 28 th March, 2019, a following order was passed. Paragraph No. 5 and 6 of the order reads as under :
"5. Learned Counsel for the Applicant submits that the Respondents filed their Affidavit-inReply dated 25.03.2019. He submits that in the said Reply the Respondents specifically made statement that they are not going to create any third party interest in respect of the suit property.
6. Considering the submission made by the learned Counsel for the Applicant and the statement made by the Respondents on solemn affirmation, I do not find any reason to pass any order in the present Najeeb 2/5 (24)-IA-3087-2021 in FA-1205-2014.doc Reserved-22.02.2022 : Pronounced-28.02.2022 Application. Hence the Civil Application stands rejected. "
3. The Respondent No. 1 to 6 - Original Defendants - the owners, of suit property /building are seeking permission to reconstruct the building
- Vasant Vihar, in wake of structural audit and test report, whereby the building has been classified as C2-A (to be evacuated and partial demolition/ requiring major structural repairs). Mr. Deshmukh, learned Counsel for the Applicants, contended as suggested by experts, it is absolutely necessary to reconstruct the building or else, it may collapse and cause injury and irreparable loss, not only to the occupants, but to by standers and neighbours. Mr. Deshmukh submitted that although the Defendants have assured this Court that they would not create third party interest in the suit property, but in the change scenario, Defendants were left with no alternative but to redevelop the building. Mr. Deshmukh argued that if the Appellants succeed in the appeal, they would be adequately compensated since the appeal arose from decree Najeeb 3/5 (24)-IA-3087-2021 in FA-1205-2014.doc Reserved-22.02.2022 : Pronounced-28.02.2022 refusing the specific performance of the agreement.
4. Refuting Appellants' submission, Mr. Thorat learned Senior Counsel for the Respondents, contended that if owners are permitted to redevelop the building, it would render the First Appeal infructuous. Mr. Thorat pointed out that this Court has expedited the hearing of the First Appeal and since record and proceedings have been received by the Court, it would be expedient and in the interest of justice, to hear the appeal on priority.
5. It may be noted that the date on which, Civil Application was heard i.e. 28th March, 2019, the Respondents (owners of the suit property) were aware of notice dated 12th April, 2017 issued under Section 353B of the MMC Act, pursuant to which, the structural audit of the building has been conducted. Therefore strictly speaking, there is no change in the circumstances. Even otherwise, building has not been classified in Najeeb 4/5 (24)-IA-3087-2021 in FA-1205-2014.doc Reserved-22.02.2022 : Pronounced-28.02.2022 category C-1. In the circumstances, I think it proper, to direct the Mumbai Municipal Corporation to conduct the structural audit of the building in question through its' Technical Advisory Committee and costs shall be borne by the Applicants. The Technical Advisory Committee shall submit the report to Registry of this Court on or before 31 st March, 2022. Yet, the Registry shall list the appeal for the final hearing on Daily Cause List commencing on 4th April, 2022.
6. Stand over to 4th April, 2022.
(SANDEEP K. SHINDE, J.) Digitally signed by MOHAMMAD MOHAMMAD NAJEEB NAJEEB MOHAMMAD MOHAMMAD QAYYUM QAYYUM Date:
2022.02.28 18:36:29 +0530 Najeeb 5/5