Bombay High Court
Moukesh Devchand Pala vs Dilip Devchand Pala And 8 Ors on 23 November, 2021
Author: N. J. Jamadar
Bench: N. J. Jamadar
35-IA1892-2021INS291-13.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 1892 OF 2021
IN
SUIT NO. 291 OF 2013
Moukesh Devchand Pala ...Applicant
In the matter between
Moukesh Devchand Pala ...Plaintiff
Versus
Dilip Devchand Pala & ors. ...Defendants
Mr. Shanay Shah, a/w Shashwat Rai and Anusha Guthi, i/b
SANTOSH Keystone Partners, for the Applicant/Plaintiff.
SUBHASH
KULKARNI Mr. D. J. Shejul, for Defendant no.5.
Digitally signed by
Mr. Vishal Kanade, a/w Shashikant Choudhari, i/b
SANTOSH SUBHASH
KULKARNI Maharashtra Law Asso., for Defendant nos.7 and 9.
Date: 2021.11.25
15:55:08 +0530 Mr. H. R. Patel, Master (Adm.), Court Receiver, Present.
CORAM: N. J. JAMADAR, J.
DATED : 23rd NOVEMBER, 2021
PC:-
1. Heard the learned Counsels for the parties.
2. This application is taken out by the original plaintiff - applicant seeking the following reliefs:
(a) that this Hon'ble Court be pleased to allow the Court Receiver, High Court, Bombay to break open and replace/substitute the locks to the Flat with the assistance of a locksmith, in order to enable access to the Flat thereto.
(b) that this Hon'ble Court be pleased to direct the Court Receiver, High Court, Bombay to permit the Society's Structural Consultants to enter upon and inspect the said Flat, so as to enable them to thereafter prepare a Structural Audit Report in respect thereof.
(c) that this Hon'ble Court be pleased to direct the Court Receiver, High Court, Bombay to permit the repairs (including water-proofing) to be carried out in the said Flat, 1/5 35-IA1892-2021INS291-13.DOC if any, as determined by the Society's Structural Consultants;
(d) that this Hon'ble Court be pleased to direct the Court Receiver, High Court, Bombay to permit the society to appoint an agency to undertake the pest-control and deep-
cleaning that may be necessary to be carried out in the Flat, in order to ensure the protection and preservation of the Flat."
3. The substance of the application is that the suit Flat no.17-D, Land End Cooperative Housing Society Ltd., Doongersi Road, Walkeshwar, Mumbai, is in a dilapidated and precarious condition and the Society is insisting for a structural audit of the premises so as to ascertain the extent of repairs required to be carried out. The said flat is custodia legis in terms of the order passed by this Court in the Notice of Motion (L) No.282 of 2013 dated 15th April, 2013. In the said order, while appointing the Court Receiver this Court had directed that defendant nos.7 to 9 shall not sell, transfer, alienate, encumber or create any third party rights in the suit flat pending the suit.
4. The Court Receiver has visited the site on 4 th March, 2020 and submitted a site inspection report. The Court Receiver has inter alia recorded that the inspection could not be carried out as the officer could not enter into the suit flat as few locks could not be opened and it was necessary to obtain the orders of the Court to break open the locks.
5. The affidavits-in-reply have been filed. 2/5
35-IA1892-2021INS291-13.DOC
6. An apprehension was expressed on behalf of defendant no.5 that in the event the application is allowed, the plaintiff - applicant may enter into the suit flat and create third party rights therein.
7. Mr. Kanade, the learned Counsel for defendant nos.7 and 9, in the backdrop of the condition of the suit flat, submitted that if the Court allows the structural audit of the suit flat, to protect the interest of the parties, it may be provided that none of the parties shall claim equities on account of the situation, which may arise post structural audit and repairs.
8. Mr. Shah, the learned Counsel for the applicant - plaintiff submitted that the applicant does not intend to use the direction for structural audit after opening the suit flat, to its advantage in any manner whatsoever. None of the parties may be permitted to enter into the suit flat and the entire exercise of structural audit, ascertainment of extent of repairs and the consequent repairs, may be carried out by the Court Receiver in coordination with the Society - Land End Cooperative Housing Society. The plaintiff - applicant would, however, incur the necessary expenses for the structural audit and the repairs, without prejudice to his rights and contentions.
9. The situation which thus obtains is that, indisputably, the suit flat is situated in a building which is more than 50 3/5 35-IA1892-2021INS291-13.DOC years old. The Society is in the process of repairing flats which are structurally depleted. The suit flat has been identified as one of such flats. As the society perceives the suit flat to be in a precarious condition, posing danger to the lives and properties, it is imperative to open the suit flat to ascertain the condition of its structural stability and the extent of repairs required. Structural audit and ascertaining of extent of repairs required to be made, will not prejudicially affect the rights of the rival parties. On the other hand, there is clear and present risk to the lives and properties of others, if the condition of suit flat is not ascertained and remedial action is not taken, in time. In this view of the matter, it may be expedient to allow the application in terms of prayer Clauses (a) and (b), for the present, which read as under:
(a) that this Hon'ble Court be pleased to allow the Court Receiver, High Court, Bombay to break open and replace/substitute the locks to the Flat with the assistance of a locksmith, in order to enable access to the Flat thereto.
(b) that this Hon'ble Court be pleased to direct the Court Receiver, High Court, Bombay to permit the Society's Structural Consultants to enter upon and inspect the said Flat, so as to enable them to thereafter prepare a Structural Audit Report in respect thereof.
10. The Court Receiver is at liberty to break open the locks and permit the Society's Consultants to enter into the suit flat and prepare a Structural Audit Report.
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11. The Structural Consultant(s) shall submit a report indicating the condition of suit flat, structural stability and the extent of repairs, which may be required to be carried out in the suit flat, to guard against risk to lives and property. The Court Receiver shall file his report along with the report of the Structural Consultant(s) within a period of four weeks.
12. By way of abundant caution, it is clarified that the aforesaid direction is passed without the prejudice to the rights and contentions of the parties and none of the parties shall have right to enter into the suit flat during the aforesaid exercise nor any of the parties shall claim any equity of whatsoever nature.
13. The expenses of the structural audit and consultancy fees etc. shall be borne by the plaintiff - applicant, subject to further order which may be passed in the suit.
14. List the application for consideration of further prayers on 4th January, 2022.
[N. J. JAMADAR, J.] 5/5