CHANDRIKA CHUNILAL SHAH Vs ORBIT FINANCE P.LTD..
Bench: P. SATHASIVAM,B.S. CHAUHAN
Case number: C.A. No.-003630-003630 / 2012
Diary number: 25829 / 2011
Advocates: V. RAMASUBRAMANIAN Vs
LAWYER S KNIT & CO
Page 1
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3630/2012 (Arising out of SLP(C) No. 29620 of 2011)
Chandrika Chunilal Shah …..Appellant
Versus
Orbit Finance Pvt. Ltd. & Ors. …..Respondents
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1. Leave granted.
2. This appeal has been preferred against the judgment and order
dated 27.4.2011 passed in Appeal (Lodging) No. 247 of 2011 by the
High Court of Bombay confirming the order dated 21.3.2011 of the
learned Trial Judge passed on application for interim relief with certain
modifications.
Page 2
3. Facts and circumstances giving rise to this appeal are that:
A. Appellant entered into an agreement dated 3.4.1998 with
respondent no. 1 for alternate accommodation whereby the appellant
was allotted Unit No. 401 i.e. Suit premises ad-measuring 2680 Sq.fts.
built up area subject to payment of Rs.13.50 lacs, nominal fee in lieu of
appellant’s occupational rights in the godown i.e. the original property.
The said agreement was registered on 2.3.2000. The inter-se agreement
between the respondent No.1 on one hand and respondent Nos. 2 and 3
dated 7.8.2006 regarding the sale of the part of the accommodation in
the same building was served upon the appellant. By that time, the
respondent no. 1 had not made any demand from the appellant in terms
of the agreement dated 2.3.2000.
B. The appellant filed Short Cause Suit No. 3703 of 2007 seeking
reliefs under the provisions of Maharashtra Ownership of Flats Act,
1963 (hereinafter referred as `MOF Act’) before the City Civil Court at
Bombay, wherein the respondent nos. 2 and 3 raised a preliminary
issue/objection regarding the pecuniary jurisdiction of the City Civil
Court which was decided in their favour vide judgment and order dated
20.9.2010, wherein it was held that the said court did not have
2
Page 3
pecuniary jurisdiction to try the said suit and, thus, the plaint was
returned to the appellant/plaintiff with a direction that it may be
presented before the appropriate court as required under Order 7 Rule
10 of the Code of Civil Procedure, 1908.
C. Appellant instituted the Suit No. 259 of 2011 before the High
Court of Bombay on Original Side alongwith the application for interim
relief. The application was contested by the respondent Nos. 2 and 3
and the trial Judge after considering the matter at length rejected the
prayer for appointing the Receiver but considering the fact that the
respondent Nos. 2 and 3 had invested a huge amount to the tune of
Rs.11.5 crores and having regard to other factors particularly that they
tried to find out the encumbrance position from the Sub-Registrar’s
office but the record was not available, passed certain orders,
particularly, permitting the respondent nos. 2 and 3 to create a licence
in respect of the built up area, admeasuring 2680 Sq. Fts. (suit property)
with a further direction that the third party interest would not be
created. The premises could be given on leave and licence for a period
not exceeding eleven months at a time subject to the conditions that the
licensee would be informed of the pendency of the Suit and no interest
shall be created in the premises in favour of the licensee.
3
Page 4
Further, the court with the consent of the parties appointed an
Architect to identify the built-up area admeasuring 2680 Sq. fts.
D. Aggrieved, appellant preferred Appeal (Lodging) No. 247 of
2011 before the Division Bench against the said order dated 21.3.2011
which has been disposed of with certain modifications in the order of
the learned Trial Judge, i.e. the licence fee received from the licensee in
respect of the built up area admeasuring 2680 Sq. Fts. on the fourth
floor, to be identified by the Architect as directed by the learned Trial
Judge, shall be deposited with the Prothonotary and Senior Master of
that court. Such an amount was further directed to be deposited in the
recurring account in a nationalised bank and the subsequent payments
would be deposited directly in the said account under intimation to both
the parties as well to the Prothonotary and Senior Master of the Court.
It was further clarified that in case of any default, it would be open to
the parties to move the court for further directions.
Hence, this appeal.
4. Mr. Krishnan Venugopal, learned senior advocate appearing for
the appellant, has submitted that the respondent nos. 2 and 3 did not
make proper inspection of the records of the Registrar Office regarding
4
Page 5
encumbrance etc. More so, even if the record of the encumbrances etc.
in respect of the suit premises was not available in the Sub-Registrar’s
office, there was no occasion for the learned trial Judge to grant relief
as in such a fact-situation, it cannot be presumed that the respondent
nos. 2 and 3 had no notice of agreement between Appellant-Plaintiff
and respondent No.1. Their agreement with respondent no.1 itself is in
respect of the fifth floor in the building and not for the fourth floor
where the suit property is situated. Appellant could not pay a sum of
Rs.13.50 lakhs in terms of the agreement between the appellant and the
respondent no.1 as she had never been asked to deposit the same. The
construction of the building is not yet completed and the Completion
Certificate has not been issued by the Statutory Authority. Thus, the
interim relief as asked by the appellant ought to have been granted.
More so, the Architect appointed by the learned trial Judge has
identified the appellant’s built up area, admeasuring 2680 Sq. Fts. in a
corner which is not suitable to the requirement of the appellant. So, the
appeal deserves to be allowed and the impugned orders are liable to be
set aside.
5. On the contrary Shri K.K. Venugopal, learned senior counsel
appearing for the respondent nos. 2 and 3, has vehemently opposed the
5
Page 6
appeal contending that it is merely an interim arrangement. The issues
including the issue as to whether the respondent nos. 2 and 3 are
bonafide purchasers for consideration are yet to be determined. While
deciding the application for interim relief only a prima facie view has
been taken; the Architect has submitted a report before the learned trial
Judge. The appellant has a right to file objections to the same in all
respects. The case is yet to be determined by the learned trial Judge
thus, no indulgence be granted by the court. Facts and circumstances of
the case do not warrant any interference against the impugned orders.
The appeal is liable to be dismissed.
6. We have considered the rival submissions made by the learned
counsel for the parties and perused the record.
7. Admittedly, there is nothing on record to show that the
construction of the building is complete in all respects and Completion
Certificate has been issued by the statutory authority in favour of the
respondents. More so, it is nobody’s case that the respondent no. 1 had
ever applied before the statutory authority for issuance of the
Completion Certificate. The issues raised herein are factual in nature
and would be determined only after conclusion of the trial and
6
Page 7
appreciation of evidence on record. Appellant has agreed before the
learned Trial Judge for appointment of an Architect to identify as which
area ad-measuring 2680 Sq. Fts. on the fourth floor would be allotted to
her. The Architect has submitted the report and the appellant is at
liberty to file objections to the said report, if not already filed and the
learned Trial Judge would examine/consider the report as well as the
objections of the parties and pass appropriate orders. The courts below
have not passed any order permitting the respondent nos.2 and 3 to
create any third party rights. They have been permitted to grant leave
and licence in respect of the suit premises so far as the area 2680 Sq.
Fts. is concerned and protected the interest of the appellant directing
that licence fee for the premises would be deposited in recurring
account with a nationalised bank.
8. In view of the above, the facts and circumstances of the case do
not warrant interference by this Court. The appeal lacks merit and is,
accordingly, dismissed. However, as the Suit had originally been
instituted in the year 2007, we request the learned Trial Judge to
conclude the trial expeditiously preferably within a period of one year.
We further clarify that the appellant shall be at liberty to raise all his
grievances before the appropriate forum at an appropriate stage as this
7
Page 8
order is being passed only on an application for interim relief. No order
as to costs.
………………………J. (P. SATHASIVAM)
………………………..J. (Dr. B.S. CHAUHAN)
New Delhi, April 19, 2012
8