Allowed

Gawda Constructions Private Limited v. Sandeep Gajanan Devarukhar

Bombay HC1 Sept 2009NMS/1332/2008

Case brief

AI extract

What is this about?

Court appointed a receiver to evict respondent from an unsuitable temporary first-floor flat and directed him to accept a larger permanent ground-floor non-residential accommodation agreed in a development contract.

What did the court decide?

Appointment of Court Receiver to evict respondent from temporary premises; handing over possession of permanent premises to respondent via Court Receiver.

Gawda Constructions Private Limited Vs Sandeep Gajanan… — Property and Title | Bombay HC (2009)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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NOTICE OF MOTION NO. 1332 OF 2008 IN

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SUIT NO. 1042 OF 2008

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Gawde Constructions Private Limited...Plaintiff
vs.
Sandeep Gajanan Devarukhar...Defendant

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Mr.Ajit Karwande for the Plaintiff.
Mr.D.K. Mishre for the Defendant.

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CORAM : V.M. KANADE, J.

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DATED : SEPTEMBER 1, 2009

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P.C. :-

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1Heard.

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2The plaintiff is a developer and is

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carrying on business under the name and style of
�Gawde Constructions Pvt.Ltd.�. The plaintiff had

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taken the rights of development of a building known

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as �Satyavati Bhuvan situated at Sakharam Keer Road,

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Mahim, Mumbai. The defendant was occupying an area
of about 60 sq.ft. under the staircase of the

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building and the defendant was using it for

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commercial purpose and was carrying on his business
under the name and style of �M/s.Bhagyashree Alankar

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Mandir�.

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3The defendant received a notice in respect

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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

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of the premises which were in occupation as per
Section 473 of the Act.

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4In the meantime, the landlord of the

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building had entered into the development agreement

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with the plaintiff dated 31.10.2002. As per the said

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agreement, the plaintiff had agreed to provide
permanent alternate accommodation to the tenants of

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the landlord and a separate agreement, therefore,

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was executed with the defendant on 10.2.2003 which

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was registered with the Officer of the Sub-Registrar
of Assurances, Mumbai. The plaintiff by the said

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agreement agreed to provide to the defendant a non-
residential self-contained premises on ownership

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basis free of cost admeasuring about 80 sq.ft.

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carpet area on the ground floor in the building

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which was to be constructed. It is the case of the

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plaintiff that though the defendant was entitled to

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get only 60 sq.ft., as per the provisions of the
MHADA Act, the plaintiff agreed to give him 80

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sq.ft. in order to ensure that the work is
completed in time. On execution of the agreement,

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the plaintiff started the development of the

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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

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alternate accommodation on the first floor in one

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room of flat no.102. There was a clear understanding

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between the parties that on completion of the
construction of the building, the defendant would

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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

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him. He, however, filed the suit in the City Civil

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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

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that he was ready and willing to perform his
obligation and had prayed that the decree may be

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passed on admission. However,the suit is still
pending since the defendant kept on taking

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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

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from the premises which was given to him on the
first floor and to direct him to accept the

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permanent alternate non-residential accommodation on

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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

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the plaintiff as agent of the Court Receiver of the
room which is occupied by the defendant and further

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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.

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5At the hearing of the ad-interim stage of

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the notice of motion, the learned Counsel for the
defendant submitted that the area of the permanent

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alternate accommodation which was given to him was
less than the area which was promised to be given to

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him under the agreement executed between the

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parties. He submitted that the area which was being
offered was only 60 sq.ft. carpet area and what was

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promised to him was 80 sq.ft. It was further
submitted that the said premises was at the rear

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side of the building. This Court, therefore, by
order dated 25.7.2008 appointed an officer of this

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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

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report dated 14.8.2008. In the said report, he has

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stated that the net carpet area of the premises

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comes to 86.72 sq.ft. The said shop was on the

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ground floor at the south-east corner of the
building. The Commissioner has further observed that

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the said shop was as per clause 5 of the agreement

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between the parties. The Commissioner has also
prepared an inventory of the shop and has given the

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particulars of amenities which are provided in the
said shop. Perusal of the said Commissioner�s report

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clearly indicates that the shop is ready for

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occupation and has all the amenities which were
agreed to be given by the plaintiff to the
defendant.

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6Counsel for the defendant Shri Mishra again

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made same submission that the area of the shop is

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less than 80 sq.ft. carpet area. He also submitted
that the shop was at the rear side of the building.

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He was unable to point out as to how the said shop
was not in accordance with the flat which was agreed

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to be given to him as per clause 5 of the said

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agreement. He also could not dispute that the
amenities which were to be provided by the plaintiff

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to the defendant were not provided by the plaintiff.

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Under the circumstances, there is much substance in

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the submission made by the plaintiff that the

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defendant has been illegally occupying the first

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floor of the premises which is earmarked for use by

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the society as its office. The said premises,
according to him, were given to the defendant on

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temporary basis and he has no legal right to occupy
the said premises. The permanent alternate

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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.

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7Under normal circumstances, at the interim

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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

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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

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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.

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8Accordingly, Court Receiver is appointed to

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take possession of the premises on the first floor
of flat no.102 after removing the defendant from the

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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

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handover the possession of the shop on the ground
floor to the defendant which is offered by the

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plaintiff as per clause 5 of the agreement executed
between the parties. The Court Receiver may take

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help of the police if the defendant does not

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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.

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9Notice of Motion, accordingly, is disposed

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of in the aforesaid terms.

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10At this stage, learned Counsel for the
defendant seeks stay of this order for a period of
three weeks.

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11This order is stayed for a period of three
weeks in order to enable the defendant to file an
appeal against this order.

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(V.M. KANADE, J.)

Gawda Constructions Private Limited v. Sandeep Gajanan Devarukhar

Case brief

What is this about?

What did the court decide?

Gawda Constructions Private Limited v. Sandeep Gajanan Devarukhar

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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