Allowed

Intercon Real Estate Developers Pvt. Ltd. v. Municipal Corporation of Greater Bombay

Bombay HC15 Apr 2013FA/87/2013

Case brief

AI extract

What is this about?

The High Court allowed the appeal, setting aside the trial court's judgment which dismissed a suit challenging a show cause notice. The Court found the trial court's decision erroneous due to non-consideration of a final order passed by the authority, remanding the suit for fresh disposal.

What did the court decide?

Judgment and decree impugned set aside; Suit No.3916 of 2007 remanded to the trial Court for hearing and disposal in accordance with law.

Intercon Real Estate Developers Pvt. Ltd. Vs… — Civil Procedure and Limitation | Bombay HC (2013)

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FA 87.13

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sbw

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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FIRST APPEAL NO.87 OF 2013 WITH CIVIL APPLICATION NO.283 OF 2013 IN FIRST APPEAL NO.87 OF 2013

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Intercom Real Estate Developers Pvt. Ltd., having registered office at 89 Ararat N. Road, Fort, Mumbai-400 023. Through Shri Amit Dholakia, Director.

...Appellant

(Original Plaintiff)

vs.

Municipal Corporation of Greater Bombay, A statutory body Corporation incorporated under the Bombay Municipal Corporation act, 1988 and having its office at Mahapalika Bhavan, Mahapalika Marg, CSG, Mumbai.

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...Respondent

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(Original Defendant)

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Mr. Vineet B. Naik, Senior Advocate with Mr. I. J. Nankani i/b. M/s. Nankani & Asso., Advocate, for the Appellant. Ms. Geeta Joglekar, Advocate, for the Respondent- B.M.C.

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CORAM : A. H. JOSHI, J.

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DATE : 15^th APRIL, 2013

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JUDGMENT

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1] Taken up for final hearing.

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2] Heard both sides.

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3] The challenge in the Suit was to the show cause notice issued under Section 351 of Mumbai Municipal

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FA 87.13

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2/4

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Corporation Act. The prayer as originally stood (A-1) which

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reads as follows:-

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“A-1. That this Honourable Court be pleased to grant a declaration that the Defendants are not entitled to take action under Notice bearing No.D/Bldg/JE-2/351/2190/BP dated 01.04.2006 issued to the Plaintiffs by the Defendants under Section 351 of the Municipal Corporation of Greater Mumbai Act in view of the fact that though the Plaintiffs have replied, no order has been passed and/or communicated in any manner whatsoever and the said notice is not enforceable in law.”

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(quoted from plaint page 13 of additional compilation).

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4] The learned Trial Judge dismissed the Suit without following observations:-

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“16. AS TO POINT NO.4: As I have already held that the suit itself is pre-mature and no any order u/sec. 351(2) of MMC Act is passed, so there is no any apprehension of demolition. As I have already also held that the notice issued by BMC u/s. 351 of MMC Act is legal, therefore it cannot be quashed or set aside and no any relief of declaration or injunction, as claimed by the plaintiff can be granted. As such, the suit deserves to be dismissed. So I record my finding to point no.4 in the negative. In result, I proceed to pass following order:-

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ORDER

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Suit No.3916/2006 is dismissed with costs.

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FA 87.13

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3/4

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(quoted from judgment in LC Suit No.3916 of 2006 page-23)

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5] The Respondent Corporation has come with the statement that the competent authority had already passed final order thereby passing final order and making the notice absolute. Copy of the said order is placed on record as Exhibit-1.

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6] The copy at Exhibit-1 also shows that some one has signed it to make an acknowledgment. It is claimed by respondent that the signature on acknowledgment was made by representative of the plaintiff on 10^th September 2004 on the date on which the order was passed. said acknowledgment is disputed by present appellant. It is not clear nor it is shown that the said order was separately communicated/served.

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7] It is an admitted position that the suit was proceeded without written statement of the Corporation and the fact that the final order, after considering reply to notice was passed was not brought to the notice of the Court either by the plaintiff or by the defendants.

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8] The foundation on which the suit has been decided turns to be erroneous. In the premises that the order is passed on the foundation which is contrary to the record, and

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4/4 13. FA 87.13

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a fact, present is a fit case to set aside impugned judgment and decree and remand the suit for hearing and final disposal in accordance with law.

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9] Learned Senior advocate for the appellant states that application for amendment would be tendered either on the due date or even before the due date by taking appropriate motion.

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10] Parties agree that they would appear in the City Civil Court Room No.5 and they shall appear before the Court on 17^th June, 2013, without waiting issue of summons and notice etc. Hence following order.

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ORDER

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(A) Appeal is allowed.

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(B) Judgment and decree impugned is set aside and Suit No.3916 of 2007 is remanded to the trial Court for hearing and disposal in accordance with law.

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(C) Ad interim protection as in operation during pendancy of suit shall continue to operation subject to modifications if any.

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(D) Decree be drawn accordingly.

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(E) In view of order in First Appeal, Civil Application No.283 of 2013 does not survive and is disposed of.

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( A. H. JOSHI, J.)

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wadhwa

Intercon Real Estate Developers Pvt. Ltd. v. Municipal Corporation of Greater Bombay

Case brief

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What did the court decide?

Intercon Real Estate Developers Pvt. Ltd. v. Municipal Corporation of Greater Bombay

Case brief

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What the court decided

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