RATNAKAR D PATADE Vs. SMITA PANDURANG DALVI

JUDGEMENT

(1.) APPEAL from Order No. 196 of 1995 is preferred by the original plaintiff from the order passed on 21st December, 1994 by Judge Shri P. M. Joshi of the City Civil Court at Bombay on Notice of Motion No. 5954 of 1994 taken out in Suit No. 442 of 1993 pending in the City Civil Court at Bombay. Appeal from Order No. 195 of 1995 is preferred also by the original plaintiff from the order dated 10th February, 1995 passed also by Judge Shri P. M. Joshi on Notice of Motion No. 582 of 1995 taken out in the suit. Both these appeals are being disposed of by this common order.

(2.) THE appellant has filed the suit in the City Civil Court at Bombay, inter alia for an order of perpetual injunction against the respondents herein, who are defendants in the suit, restraining them from disturbing the appellants use, occupation, possession and enjoyment of the suit land, including the building and/or forcibly dispossessing the appellant therefrom as also for an order of permanent injunction restraining the respondents from in any manner disturbing the appellant, his architect, contractors, engineers and workmen from carrying on and completing the work of construction of three buildings. In the suit, the appellant took out a Notice of Motion No. 1052 of 1992 for interim reliefs in terms of perpetual injunction sought in the suit. Some of the respondents took out a Motion No. 2037 of 1992 in the suit for appointment of Court Receiver, High Court, Bombay, as Receiver and for other reliefs prayed for therein. Both these Notices of Motion were disposed of by Judge Shri Gangurde of that Court as per the order passed on 1st July, 1992. The appellant was directed to continue the construction work in respect of the suit premises which was then left incomplete to the extent of 20% and to complete the same by 31st October, 1992 and to hand over possession to each of the respondents of the respective flats for which agreements were entered into by and between the appellant and those respondents. It was ordered that if the appellant for any reason failed to complete the construction work by 31st October, 1992, the respondent would be at liberty to take over completion of the then incomplete construction work on and from 1st November, 1992. Further directions were also given by the learned Judge while disposing of the said Notices of Motion. On 7th September, 1992 the appellant entered into an agreement with one Messrs. Deshmukh and Associates for completion of the balance construction work in respect of the suit premises. According to the appellant though the appellant had completed the balance construction work as per the said order dated 1st July, 1992, the respondents failed and neglected to pay the balance amount payable by them to the appellant. Since according to the respondents, the appellant did not complete the balance construction work as per the said Order dated 1st July, 1992, the respondents took out a Notice of Motion No. 6965 of 1992 for holding the appellant in contempt of the Court and for appointment of the Court Receiver, High Court, Bombay, as Receiver and Court Commissioner as prayed for therein. Though an application for grant of ad-interim relief in the said Notice of Motion No. 6965 of 1992 was made on behalf of the respondents, as per the order passed on 18th December, 1992 by Judge Shri Gangurde, no ad-interim relief was granted to the respondents. An appeal from Order No. 1366 of 1992 was therefrom preferred by the respondents wherein Shri N. N. Shrikhande was appointed Commissioner to submit report about incomplete items of construction, if any.

(3.) A report dated 9th January, 1993 was submitted by the said Shri N. N. Shrikhande of Messrs. Shrikhande Consultants Pvt. Ltd, Engineering Management and Software Consultants, showing that construction work was practically completed and that the flats were ready for occupation. On 25th January, 1993, the said appeal from Order No. 1366 of 1992 was dismissed by Patankar, J,. However the hearing of the said Notice of Motion No. 6965 of 1992 was expedited.