Prataprai Lallubhai Vasa And Ors vs M/S. Khodiyar Enterprises
2022 Latest Caselaw 2064 Bom

                                                          (24)-IA-3087-2021 in FA-1205-2014.doc
                                                    Reserved-22.02.2022 : Pronounced-28.02.2022



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION

                         Interim Application No. 3087 / 2021
                                           in
                             First Appeal No. 1205 / 2014

         Prataprai Lallubhai Vasa and Ors.                         ... Applicants

              Versus

         M/S. Khodiyar Enterprises                                 ... Respondent


                                          ****
         Ms. S.G. Deshmukh i/by Mr. Suraj Kudalkar, Advocate for the Applicants.
         Senior Advocate Ranjit A. Thorat i/by Pankaj Shah, Advocate for
         Appellant in FA-1205/2014 and for Respondent No.1 in IA No.
         3087/2021.
                                             ****

                                     CORAM           : SANDEEP K. SHINDE, J.
                                     RESERVED ON      : 22nd FEBRUARY, 2022.
                                 PRONOUNCED ON : 28th FEBRUARY, 2022.


         ORDER:

1. This application is taken out by the Original Defendant Nos. 1 to 6,

seeking permission to carry out the redevelopment of the entire building

i.e. Vasant Vihar, in view of the structural audit conducted pursuant to

Najeeb 1/5 (24)-IA-3087-2021 in FA-1205-2014.doc Reserved-22.02.2022 : Pronounced-28.02.2022

notice under Section 353(B) of the Mumbai Municipal Corporation Act

and report dated 13th July, 2021.

2. Factual Matrix :

Appellants - Plaintiffs instituted a suit for specific performance of

agreement dated 3rd March, 1979. It was dismissed by judgment and

order dated 20th April, 2014. The property in question was final plot no.

120 with an old building thereon, consisting of ground and one floor, of

which Defendant No. 1 to 6 are the owners. Plaintiffs preferred First

Appeal No. 1205 of 2014. Pending disposal of First Appeal, on 28 th

March, 2019, a following order was passed. Paragraph No. 5 and 6 of

the order reads as under :

"5. Learned Counsel for the Applicant submits that the Respondents filed their Affidavit-inReply dated 25.03.2019. He submits that in the said Reply the Respondents specifically made statement that they are not going to create any third party interest in respect of the suit property.

6. Considering the submission made by the learned Counsel for the Applicant and the statement made by the Respondents on solemn affirmation, I do not find any reason to pass any order in the present

Najeeb 2/5 (24)-IA-3087-2021 in FA-1205-2014.doc Reserved-22.02.2022 : Pronounced-28.02.2022

Application. Hence the Civil Application stands rejected. "

3. The Respondent No. 1 to 6 - Original Defendants - the owners, of

suit property /building are seeking permission to reconstruct the building

- Vasant Vihar, in wake of structural audit and test report, whereby the

building has been classified as C2-A (to be evacuated and partial

demolition/ requiring major structural repairs). Mr. Deshmukh, learned

Counsel for the Applicants, contended as suggested by experts, it is

absolutely necessary to reconstruct the building or else, it may collapse

and cause injury and irreparable loss, not only to the occupants, but to

by standers and neighbours. Mr. Deshmukh submitted that although the

Defendants have assured this Court that they would not create third

party interest in the suit property, but in the change scenario, Defendants

were left with no alternative but to redevelop the building. Mr.

Deshmukh argued that if the Appellants succeed in the appeal, they

would be adequately compensated since the appeal arose from decree

Najeeb 3/5 (24)-IA-3087-2021 in FA-1205-2014.doc Reserved-22.02.2022 : Pronounced-28.02.2022

refusing the specific performance of the agreement.

4. Refuting Appellants' submission, Mr. Thorat learned Senior

Counsel for the Respondents, contended that if owners are permitted to

redevelop the building, it would render the First Appeal infructuous. Mr.

Thorat pointed out that this Court has expedited the hearing of the First

Appeal and since record and proceedings have been received by the

Court, it would be expedient and in the interest of justice, to hear the

appeal on priority.

5. It may be noted that the date on which, Civil Application was heard

i.e. 28th March, 2019, the Respondents (owners of the suit property)

were aware of notice dated 12th April, 2017 issued under Section 353B

of the MMC Act, pursuant to which, the structural audit of the building

has been conducted. Therefore strictly speaking, there is no change in

the circumstances. Even otherwise, building has not been classified in

Najeeb 4/5 (24)-IA-3087-2021 in FA-1205-2014.doc Reserved-22.02.2022 : Pronounced-28.02.2022

category C-1. In the circumstances, I think it proper, to direct the

Mumbai Municipal Corporation to conduct the structural audit of the

building in question through its' Technical Advisory Committee and costs

shall be borne by the Applicants. The Technical Advisory Committee

shall submit the report to Registry of this Court on or before 31 st March,

2022. Yet, the Registry shall list the appeal for the final hearing on Daily

Cause List commencing on 4th April, 2022.

6. Stand over to 4th April, 2022.

(SANDEEP K. SHINDE, J.)

Digitally signed by MOHAMMAD MOHAMMAD NAJEEB NAJEEB MOHAMMAD MOHAMMAD QAYYUM QAYYUM Date:

2022.02.28 18:36:29 +0530

Najeeb 5/5