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      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.

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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  

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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.   

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     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  

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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  

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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  

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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  

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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

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