Bombay High Court

Hansa Holdings And Trading Co. Pvt. Ltd. ... vs Golden Medows Properties (Pvt.) Ltd on 1 December, 2023

Author: Nitin B. Suryawanshi

Bench: Nitin B. Suryawanshi

2023:BHC-AS:35604

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION

INTERIM APPLICATION NO.1342 OF 2023
IN
FIRST APPEAL NO. 236 OF 2023
IN
SUIT NO. 10640 OF 1991
(HIGH COURT SUIT NO. 3772 OF 1991)

Golden Medows Properties (Pvt. Ltd.) ...Applicant

In the matter between :

Golden Medows Properties (Pvt. Ltd.) ...Appellant
vs. (Original Defendant No.1)
Hansa Holdings And Trading
Co. Pvt. Ltd. And Ors. ...Respondents

WITH
INTERIM APPLICATION NO.15051 OF 2023
IN
FIRST APPEAL NO. 236 OF 2023
IN
SUIT NO. 10640 OF 1991

Hansa Holdings And Trading
Co. Pvt. Ltd. And Ors. ...Applicant

In the matter between :

Golden Medows Properties (Pvt. Ltd.) ...Appellant
vs. (Original Defendant No.1)
Hansa Holdings And Trading
Co. Pvt. Ltd. And Ors. ...Respondents

Mr. Vinit Naik, Senior Counsel a/w Mr. Vishal Kanade a/w Ms.
Pearl Majithia i/b FZB Associates for Applicants in IA 15051 of
2023 and for Respondent No.1 in FA 236 of 2023.

Chaitanya

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Mr. Sukand Kulkarni with Mrs. Chhaya Parab i/b M/s. Shah &
Sanghavi for Appellant in FA 236 of 2023 and for Respondent
No.1 in IA 15051 of 2023.

CORAM : NITIN B. SURYAWANSHI, J.

RESERVED ON : 3RD NOVEMBER, 2023
PRONOUNCED ON : 1ST DECEMBER, 2023

P. C. :

1. Interim Application No. 1342 of 2023 is filed by

Original Defendant No.1/Appellant for stay to the Judgment and

Decree dated 9th January, 2023, passed by City Civil Court,

Greater Mumbai, in Suit No. 640 of 1991 filed by Plaintiff

No.1/Respondent. Appeal is admitted on 14th March, 2023 and

considering the fact that there was no interim relief granted in

favour of plaintiff during the pendency of suit, ad-interim relief

staying the execution implementation and operation of the

impugned Judgment and Decree granted in favour of Appellant

vide Order dated 14th February, 2023 is continued to operate

until further Orders.

Interim Application No.15051 of 2023 is filed by

Plaintiff No.1 for restraining the Appellant/occupants of Ambuj

Annexe Building from obstructing the occupants of Ambuj Main

Building for enjoyment of the amenities constructed at the

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ground floor of Ambuj Annexe Building.

2. Original Plaintiffs filed suit for declaration that

Indenture of Conveyance dated 16th February, 1991 is null and

void and to cancel the said Indenture. Prayer for permanent and

mandatory injunction demolishing the additional construction

constructed by Defendant No.1 was also made. Trial Court after

hearing the parties partly decreed the suit, thereby restraining

defendant No.1, their agents, servant or any person claiming on

their behalf from obstructing the occupants of Ambuj Main

Building in the enjoyment of the amenities constructed in the

common area of the ground floor of Ambuj Annexe Building,

without following due process of law.

3. Heard Mr. Vinit Naik, learned Senior Counsel for

Appellant/Defendant No.1 and Mr. Vishal Kanade learned

Advocate for Applicant.

4. Defendant No.1 in written statement has made

following averments ;

"The Plaintiffs are still having access to the amenities

on the ground floor and there is no restrain to

them.... The residents of Ambuj Building and Ambuj

Annexe are provided with the water from the suction

Chaitanya

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tank with the help of pump which is maintained in

good order and condition by defendant No.1. Also the

servant of the occupants of main buildings are having

access to the servant room. Their right and

enjoyment is not restrained or denied by errection of

the Gate on the entrance of Ambuj Annexe.

5. On Perusal of Indenture of Conveyance dated 16th

February, 1991 it prima-facie appears that, amenities on the

ground floor of Ambuj Annexe Building of common areas are for

the benefit of respective owners of the flats constructed on the

land of Ambuj Limited. Residents of Ambuj Main Building are

entitled to enjoy the amenities on the ground floor of Ambuj

Annexe Building.

6. In the Judgment impugned in the First Appeal, Trial

Court has held ;

"Admittedly the ground floor area is consisting of the

amenities of the water tank suction, pump house,

servant room.

It also seems that, the amenities on the ground floor

of the Ambuj Annexe Building and common area and

benefit of the same are to be enjoyed by all the

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respective owners of the flat constructed on the land

of whole Ambuj Limited.

It therefore seems that even occupants of Ambuj

Main Building are entitled for the said amenities

erected on the ground floor. ....... There is no dispute

that, plaintiffs are also the co-owners/tenants in

common to the extent of the area purchased by

them."

7. From the photographs annexed with the Interim

Application, it appears that repairing work is being carried out at

Ambuj Annexe Building. Photographs also indicate that certain

articles are stored in the common W.C. due to which, it can not

be used. Therefore there appears substance in the contention of

original Plaintiff that they are prevented from using the common

area and because of the dumping of articles they are unable to

utilize common W.C. at the ground floor of Ambuj Annexe

Building.

8. Prima-facie it is clear that Respondent No.1/plaintiff

and occupants of Ambuj Main Building are entitled to access the

common area and the facilities on the ground floor of Ambuj

Annexe Building. Plaintiff has made out a prima-facie case and

Chaitanya

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balance of convenience lies in favour of plaintiff. Plaintiff would

suffer irreparable loss if the injunction granted in favour of

Defendant No.1 is continued. If the ad-interim relief is vacated

and plaintiff and/or their servants, workers are permitted to

utilize the common area including the common W.C., no

prejudice is likely to be caused to the Appellant/Defendant No.1.

9. For the aforestated reasons and since the Trial Court

has partly allowed the suit filed by Plaintiffs, though since the

year 1991 Plaintiffs and occupants of Ambuj Main Building were

not permitted to utilize the common area and amenities at the

ground floor of Ambuj Anexe Building, this Court is inclined to

vacate ad-interim relief granted in favour of Appellant. Hence

the following Order :