Case Details
Ms.Margerita Edward Desa Vs Atlas Copco India Ltd.
Case Details
![]() | TER |
![]() | 200555/2012 |
![]() | 200048/2012 |
![]() | 04-04-2012 |
![]() | 23-04-2012 |
16th June 2012 | |
27th February 2015 | |
Case Disposed | |
32-Judge C.R.No. 32; | |
Contested--Judgement; |
Petitioners & Respondents
Ms.Margerita Edward Desa, Dr. Ms. Geneve Edward Desa, ;
Ms.Margerita Edward Desa, Dr. Ms. Geneve Edward Desa Show Less
M.A. Chandan;
M.A. Chandan;
Atlas Copco India Ltd.;
Atlas Copco India Ltd.;

Ex Parte;
Ex Parte;
Order Details
Final Order Judgement
27-02-2015 | |
1 Presented on : 04.04.2012 Registered on : 16.06.2012 Decided on : 27.02.2015 Period required for disposal ….....2...Years..8......Months..11.days IN THE COURT OF SMALL CAUSES AT BOMBAY (BANDRA BRANCH) T.E. & R SUIT NO. 48 OF 2012 DR. MS. MARGERITTA EDWARD DESA (deleted since deceased) DR. MS. GENEVE EDWARD DESA Aged 40 Years, Occ: Doctor Residing at 101, Utopia, St. Andrews Road, Bandra (West), Mumbai 400 050 ...PLAINTIFF VERSUS ATLAS COPCO INDIA LTD a company registered under the Indian Companies Act, 1956 and having its Registered office at Sveanagar, Mumbai Pune Road, Dapoli, Pune, Maharashtra 411 012 and having its Regional Office at Mahatma Gandhi Memorial building, Netaji Subhash Road, Mumbai 400 002 and also having address at 301302, L. B. Shastri Marg, Mumbai 400 080 and having office at 1st Floor, Chemtex House, Main Street, Hiranandani Gardens, Powai, Mumbai 400 076 ..DEFENDANT M. A. Chandan Ld. Advocate for plaintiff. Defendant Exparte /home/court32/court32a/cr32-c/JT/FEB-15/TER-48-2012.odt 2 Coram: V. R. Jagdale, Judge Court Room No. 32 27th February, 2015 ORAL JUDGMENT 1. The plaintiff has sought vacant and peaceful possession of the premises i.e. Flat No. 2 admeasuring 420 sq.ft. carpet area on the ground floor of the building known as Kamla Bhuvan (now known as Joswil Apartment) at Plot No. 620, 14th Road, Khar (West), Mumbai 400 052 which is bounded as under : On or towards the North by : Staircase and Flat No. 1; On or towards the South by : Open space facing compound wall and adjoining building '' Asha Bhuvan'' On or towards the East by ; Open space facing garage, compound wall and building '' Durga Niwas''; On or towards the West by : Open space facing 14th Road (hereinafter referred to as ''Suit premises'' for the sake of brevity and convenience) and mesne profits. 2. Initially suit was filed by original plaintiff , who expired and her sister was impleaded as plaintiff being her legal representative by virtue of order dated 16th August, 2013. 3. It is further averred by the original plaintiff that Smt. Kamla Vishnu Nimbkar was owner of property previously known as 'Kamla Bhuvan' and presently known as Joswil Apartment, situated on plot No. 620, 14th Khar Road, Khar West, Mumbai. 4. In pursuant to Lease Dated 5th February, 1959, Smt. Kamla /home/court32/court32a/cr32-c/JT/FEB-15/TER-48-2012.odt 3 Vishnu Nimbkar had leased out four flats situated on ground floor and 1st floor of 'Kamala Bhuvan were leased out to predecessor in title of the defendant company M/s. Consolidated Pneumatic Tools Co. Ltd for a period of three years. In pursuant to the Indenture dated 14th November, 1973, plaintiff's Father Edward Crecencio Desa, proprietor of Joswil purchased the four flats from Trustees of Nimbkar Rehabilitation Trust. Thereafter, predecessor of the defendant company has paid rent to plaintiff's father. The plaintiff's father developed the property by constructing two additional floors and has disposed of additional floors on ownership basis. At that time, suit building which was known as Kamla Bhuvan was renamed as 'Joswil Apartment'. 5. It is further averred by the original plaintiff that her father expired on 16th September, 1982 leaving behind his widow and three children as heirs. On 3rd September, 1985, Letter of Administration was granted and in view of oral family arrangement , the four flats were distributed amongst the four heirs of the plaintiff's father. Accordingly, flat No.2 situated on the ground floor of Joshwil Apartment devolved upon the original plaintiff. Joswil CHS issued share certificate in favour of the original plaintiff of whom original plaintiff is the bonafide member. 6. The defendant company changed its name from Consolidated Pneumatic Tool Co. Ltd to M/s. Chicogo Pneumatic India Ltd and it got amalgamated in the defendant company. All the rights, title and interest were transferred in the name of defendant company /home/court32/court32a/cr32-c/JT/FEB-15/TER-48-2012.odt 4 and therefore, defendant company became entitled to use and occupy the suit premises. 7. It is further averred by the original plaintiff that after expiry of lease dated 5th February, 1959, the defendant company's predecessor in title M/s. Consolidated Pneumatic Tools Co. Ltd continued to occupy the suit premises. The defendant company and its predecessor company were paying rent to the plaintiff's father during his lifetime and thereafter to the original plaintiff. The defendant had paid the rent of the suit premises at the rate of Rs. 74. 84 per month upto 31st March, 1997. As the defendant company was in arrears of rent the tenancy was terminated in pursuant to the notice dated 14th March, 2011. The defendant company had tendered reply undated . After termination notice, the defendant company tendered false reply and failed to comply with the demand notice and has illegally retained the possession of the suit premises. However, since last 10 years, nobody is occupying the suit premises which is vacant. As the suit premises is vacant it is being used unauthorisedly by antisocial elements. Considering the aforesaid facts, the original plaintiff has sought vacant and peaceful possession of the suit premises and inquiry as to mesne profits. 8. The defendant was duly and properly served with suit summons. Inspite of service of suit summons the defendant failed to appear and suit proceeded exparte by virtue of order below exhibit 1. /home/court32/court32a/cr32-c/JT/FEB-15/TER-48-2012.odt 5 9. In view of the pleadings of the original plaintiff following points arise for my determination and I have recorded my findings for the reasons thereof. POINTS FINDINGS 1 Whether the plaintiff is entitled for the vacant and peaceful possession of the suit premises ? In the affirmative 2 Whether the plaintiff is entitled for mesne profit as prayed ? In the affirmative 3 What order ? Suit is decreed with costs R E A S O N S AS TO POINT NOS. 1 AND 2 10. The plaintiff has deposed vide Exhibit 19 and reiterated the contents of the plaint. The plaintiff has filed certified copy of Indenture of Lease deed dated 5th February, 1959. On perusal of the contents of the Indenture of Lease, it appears that Smt. Kamla Vishnu Nimbkar has leased out the entire building Kamla Bhuvan situated on Plot No. 620, 14th Khar Road to Consolidated Pneumatic Tool Ltd. for consideration of Rs. 280/ per month alongwith permitted increases thereof. On perusal of Indenture Agreement dated 14th November, 1973 Exhibit 23, it appears that Nimbkar Rehabilitation Trust had assigned all rights , title and interest to Plaintiff's father who was proprietor of M/s. Joswil Construction Co. in respect of building standing on Plot No. 620 admesuring 512 sq. yards situated on 14th Khar Road, for consideration of Rs. 1,10,000/ . On perusal of Exhibit 24, it is clear that in T. & I. J. Petition , Letter /home/court32/court32a/cr32-c/JT/FEB-15/TER-48-2012.odt 6 of Administration was issued in favour of mother of plaintiff which includes administration of four flats situated in Joswil Apartments. On perusal of Exhibit 26, it appears that original plaintiff is the member of Joswil Cooperative Housing Society. On perusal of Exhibit 40 i.e. Indenture dated 12th March, 1988, it appears that father of present plaintiff had constructed two additional floors on the previously known building Kamala Bhuvan and sold the aforesaid flats on ownership basis. On perusal of Exhibit 40, Agreement for sale dated 12th March, 1988, executed in between original plaintiff and Joswil CHS , it is clear that father of the original plaintiff has constructed two additional floors , which were agreed to be sold out to the tenants mentioned in Exhibit A annexed alongwith Agreement for Sale. It also appears that Flat No. 2 devolved upon the original plaintiff. It was also agreed that the land standing beneath Joswil Apartment will be conveyed to the Joswil CoOperative Housing Society by the mother of plaintiff alongwith other legal heirs of her husband. 11. On perusal of Exhibit 28, it is clear that on 14th March, 2011, notice of termination was issued to the defendant company , calling upon it to hand over the vacant and peaceful possession of the suit premises to the plaintiff within a span of one month. On perusal of Exhibit 29 i.e. Reply dated Nil, it is clear that the aforesaid notice was received by the defendant company. On perusal of the contents of the notice, it is admitted that initially M/s. Chicogo Pneumatic India Ltd., was tenant of the suit premises and the aforesaid /home/court32/court32a/cr32-c/JT/FEB-15/TER-48-2012.odt 7 company has been amalgamated in the defendant company by virtue of order dated 29th November, 2000 passed by the Hon'ble High Court. The defendant has not disputed the tenancy. The defendant company has only disputed the fact that the original plaintiff is not the owner and landlord of the suit premises. But the plaintiff has filed on record Indenture dated 14th November, 1973 to show that the Nimbkar Rehabilitation Trust along with Rasiklal Dave who is conforming party had assigned all the rights in respect of Kamla Bhuvan Building in favour of father of the original plaintiff. On perusal of exhibit 24, it is clear that the letter of Administration was issued to the original plaintiff by the Hon'ble High Court in which , four flats in Joswil apartment are also included. On perusal of copy of Exhibit 40 i.e. Agreement for Sale and list annexed alongwith it , it is clear that the four flats in Kamla Bhuvan building which was subsequently named as Joswil Apartment was standing in the name of family of the plaintiff and suit premises has devolved upon the original plaintiff. Therefore, it appears that the original plaintiff is owner and landlord of the suit premises. 12. The plaintiff has also examined one witness P. W. No.2 Kamladduin Choudhary vide Exhibit 38, who has stated that he is empowered to depose as per the Resolution Exhibit 39. He has further deposed that Deed of Conveyance dated 12th March, 1988 at Exhibit 40 was executed in between original plaintiff, her mother ,her sisters and Joswil Cooperative Housing. Therefore, it appears that original Plaintiff is the owner of the suit premises . On perusal /home/court32/court32a/cr32-c/JT/FEB-15/TER-48-2012.odt 8 of Exhibit 31 i.e. letter dated 18th February, 2012 issued by Joswil Cooperative Housing Society to the original plaintiff , it is clear that the suit premises which was in possession of the defendant company is vacant for last 10 years and it is being used by some anti social elements. On perusal of Exhibit 32, it is clear that the original plaintiff had lodged non cognizable complaint against Sushil Bijurani contending that he was initially employer of C.P. Tools. He has left the employment of C. P. Tools and inspite of the aforesaid facts , he is occupying the suit premises. 13. Therefore, it appears that even after issuance of termination notice, the defendant company has failed to hand over vacant and peaceful possession of the suit premises to the original plaintiff. As the present plaintiff is the legal representative of the original plaintiff, who was landlord and owner of the suit premises, she is entitled for vacant and peaceful possession of the suit premises. Also after issuance of termination notice as the defendant company failed to hand over vacant and peaceful possession of the suit premises to the original plaintiff, she is entitled for the mesne profits. But it is necessary to hold separate inquiry for mesne profits as contemplated under Order , 20 , rule 12 of the Civil Procedure Code. Hence, I answer point Nos. 1 and 2 in the affirmative. AS TO POINT NO.3 14. In the result , I am inclined to pass following order. /home/court32/court32a/cr32-c/JT/FEB-15/TER-48-2012.odt 9 O R D E R 1. Suit is decreed with costs. 2. Defendant to hand over vacant and peaceful possession of the suit premises i.e. Flat No. 2 admeasuring 420 sq.ft. carpet area on the ground floor of the building known as Kamla Bhuvan (now known as Joswil Apartment) at Plot No. 620, 14th Road, Khar (West), Mumbai 400 052 , more particularly mentioned in para No.1 of the judgment ,to the plaintiff within two months from the date of this order. 3. Separate inquiry be held under Order 20, Rule 12 of Civil Procedure Code for the determination of mesne profits. 4. Issue notice to the defendant before execution of the decree. 5. Decree be drawn up accordingly. (V. R. Jagdale) Judge Dt:27.02.2015 C.R. No. 32 Order dictated on :27.02.2015 Order transcribed on : 27.02.2015 Order checked &Signed on: 02.03.2015 /home/court32/court32a/cr32-c/JT/FEB-15/TER-48-2012.odt 10 /home/court32/court32a/cr32-c/JT/FEB-15/TER-48-2012.odt |
27-02-2015 | |
1 IN THE COURT OF SMALL CAUSES AT MUMBAI BANDRA BRANCH TE&R SUIT. NO.48 OF 2012. 1. DR. MS. MARGERITTA EDWARD DESA ) (deleted since deceased ) DR. MS. GENEVE EDWARD DESA ) Aged 40 years, Occ: Doctor ) Residing at 101, Utopia, ) St. Andrews Road, Bandra (West) ) Mumbai400 050 )....Plaintiffs V/s ATLAS COPCO INDIA LTD ) a company registered under the ) Indian Companies Act, 1956 and having ) its registered office at Sveanagar, ) Mumbai Pune Road, Dapoli, Pune, ) Maharashtra 411 012 and having its Regional ) Office at Mahatma Gandhi Memorial ) building, Netaji Subhash Road, ) Mumbai400 002 and also having address ) at 301302, L.B. Shastri Marg, ) Mumbai 400080 and having office at ) 1st floor, Chemtex House, Main Street, ) Hiranandani Gardens, Powai ) Mumbai 400 076. )...Defendants Coram : Shri V. R. Jagdale, Judge C.R. No. 32 (BB) Date of presentation of plaint : 04/04/2012 Date of disposal : 27/02/2015 Claim : Rs.898/ 2 DECREE This suit has been filed by the plaintiff against the defendant praying as follows : (a) The Defendant Company be ordered and decreed to handover to the Plaintiff, quiet, vacant and peaceful possession of the suit premises viz. Flat No.2 admeasuring 420 sq. ft. carpet area on the ground floor of the building known as Kamala Bhuwan (now known as Joswil Apartment), at Plot No.620, 14th Road, Khar (West), Mumbai 400 052 and which is bounded as under: On or towards the North by :Staircase and Flat No.1 On or towards the South by : Open space facing compound wall and adjoining building “Asha Bhuvan.” On or towards the East by : Open space facing garage, compound wall and building “Durga Niwas”. On or towards the West by : Open space facing 14th Road. (b) Inquiry be held for determination of mesne profits under Order 20 Rule 12 of C.P.C and a decree for mesne profits be passed thereafter for wrongful use and occupation of the suit premises by the Defendant Company from 1st May 2011 onwards till possession of the suit premises is handed over to the Plaintiff @ Rs.30,000/ per month or at such other rate as this Hon'ble court be deem fit and proper with interest thereon @ 18% p.a from the due dates, till payment. 3 ( c ) Hearing of the suit be expedited. (d) Interim and adinterim reliefs be granted in terms of prayers (b) and © (e) Cost of this suit be provided for. (f) Such other and further reliefs be granted as this Hon'ble Court deems fit and proper. This suit coming on the 27th day of February, 2015 before the Hon'ble Judge, Shri. V. R. Jagdale, presiding in Court Room No. 32 (BB) in presence of Ld. Advocate for Plaintiffs, M.A.Chandan and Ld.Advocate for Defendants,Exparte ORDER 1. Suit is decreed with costs. 2. Defendant to hand over vacant and peaceful possession of the suit premises I.e. Flat No.2 admeasuring 420 sq.ft. Carpet area on the ground floor of the building known as Kamla Bhuvan (now known as Joswil Apartment) at Plot No. 620, 14th Road, Khar (West), Mumbai400 052, more particularly mentioned in para No.1 of the Judgment, to the plaintiff within two months from the date of this order. 3. Separate inquiry be held under Order 20, Rule 12 of Civil Procedure Code for the determination of mesne profits. 4. Issue notice to the defendant before execution of the decree. Sd/ (Shri. V. R. Jagdale) Judge, C. R. 32 (BB) 27.02.2015 4 IN THE COURT OF SMALL CAUSES AT MUMBAI BANDRA BRANCH TE & R. SUIT. NO.48 OF 2012. BILL OF COST Plaintiffs Defendants Rs Ps. Rs Ps. 1 Stamp on Plaint 200 2 Stamp on V.P. 30 3 Stamp on Applications/ Exhs 51 4 Pleader's Fee 67 35 5 Commissioner's Fee 6 Subsistence of Witness 7 Service of Process 24 TOTAL 372 35 C.R.No.32 Given under my hand & seal of the Court This 27hday of February, 2015 (Mr. V. R. Jagdale,) Judge, C. R. 32 (BB) Judicial Clerk: Mr. S. G. Pethe Sign. of Plffs. Adv. M.A.Chandan Sign. of Deft.'s Adv. Exparte Prepared by: Ms. M.V.Pawar, 5 |
Similar Cases
Frequently Asked Questions
The Petitioner in case Ms.Margerita Edward Desa vs Atlas Copco India Ltd. is Ms.Margerita Edward Desa and 2 more.
The Respondent in case Ms.Margerita Edward Desa vs Atlas Copco India Ltd. is Atlas Copco India Ltd..
The case against Atlas Copco India Ltd.was filed on 04-04-2012 by Ms.Margerita Edward Desa.
The status of case Ms.Margerita Edward Desa against Atlas Copco India Ltd. is Case Disposed.