IN THE CITY CIVIL COURT AT DINDOSHI

GOREGAON DIVISON

S. C. SUIT NO. OF 2016

1. Mr. Jagdish Shah )

Age: _______ Occupation: ________ )

residing at Flat No. 515, Sejal Park, )

D Wing, Veena Apartments, Off Link Road, )

Goregaon West, Mumbai - 400104. ) ……….. Plaintiff

Versus

1. Raj Arcade Pvt. Ltd., a private limited )

company registered under The Companies )

Act, 1956 having its registered office )

address at C/101, Ratnakar, Gr. Floor, Opp. )

Natural Ice Cream, Mahavir Nagar, )

Kandivali (W), Mumbai- 400 067. )

2. Mr. Ashwin Madhusudan Mistry )

Age: Not Known Occupation: Not Known )

residing at 603, Smruti, M.G. Cross Road )

No. 4, Kandivali(W), Mumbai 400 067. )

3. Mr. Rajesh Dhanji Savla, )

Age: Not Known Occupation: Not Known )

having his office address at C/101, )

Ratnakar, 1st Floor, Opp. Natural Ice Crème, )

Mahavir Nagar, Kandivali(W), Mumbai- 400067 )

4. Mr. Jayesh Vrajlal Rami, )

Age: Not Known Occupation: Not Known )

office address at C/101, Ratnakar, 1st Floor, )

Opp. Natural Ice Crème, Mahavir Nagar, )

Kandivali(W), Mumbai 400 067. ) ………Defendants

THE PLAINTIFF ABOVENAMED STATE AS UNDER:

1. The Plaintiff is a senior citizen and presently residing at the address

mentioned in the cause title hereinabove. The plaintiff is a bonafide tenant

of Defendant No.2.

2. The Defendant No. 1 is a private limited company incorporated under

the Companies Act, 1956 carrying on business at the address mentioned in

cause title above of, inter alia, construction and redevelopment of

buildings. The Defendant No. 2 is the owner of the Plot No. 324
admeasuring 449.90 sq meters situated at Jawahar Nagar Road No. 17,

Goregaon(W), Mumbai 400062 bearing CTS No. 456 in the village Pahadi

Goregaon, Taluka Borivali/Goregaon, in the registration sub-district of

Borivali/Goregaon District (hereinafter reffered to as “the said plot”)

alongwith the building standing thereon known as “Raj-Baiju” (hereinafter

referred to as “the said Building”). The Defendant Nos. 3 and 4 are the

Directors of the Defendant No. 1.

3. The Plaintiff has filed the present suit against the Defendants inter alia

for an order and decree of this Hon’ble Court to direct the Defendants, its

Directors, servants, officers and agents to jointly and severally specifically

perform the Agreement for Providing Permanent Alternate

Accommodation dated 1st Januray, 2010 and to do all acts, deeds, matters

and things necessary including procuring all approvals sanctions, orders as

may be necessary for sanctioning the project and handing over the

possession of the Suit Flat to the Plaintiff within a reasonable time as

directed by the Hon’ble Court.

4. The Plaintiff states that Mr. Ashwin Madhusudan Mistry, Landlord has

seized and possessed of otherwise well and sufficiently entitled to Plot. No.

324 bearing CTS No. 456 together with building thereon known as “Raj-

Baiju” situated at Jawahar Nagar Road No. 17, Goregoan (W), Mumbai

400 062 admeasuring 449.90 sq. mtrs in the village Pahadi Goregaon,
Taluka Borivali/Goregaon in the registration sub-district of Borivali/

Goregaon together with building standing thereon (“said Property”).

5. The Plaintiff states that pursuant to the Development agreement

executed by and between the plaintiff and Mr Ashwin Madhusudan Mistry, the

defendant had agreed to redevelop the said Property together with tenancy

rights of the tenants in the said building on the terms and conditions set out

therein. The plaintiff is a bonafide tenant of the landlord Mr. Ashwin

Madhusudan Mistry. The plaintiff further states that accordingly the

Agreement for Providing Permanent Alternate Accommodation was executed

on 01.01.2010 on the terms and conditions set out therein.

6. Some of the relevant Clauses of the said Agreement are reproduced

hereinafter:

‘5. In lieu of the Tenant surrendering his tenancy rights in the said
existing premises as recited herein above including all his other rights, title, interest
(if any)and possession of the said existing premises, the Landlord/ Developers agree
to provide to the Tenant the premises by way of permanent alternate accommodation
on ownership basis and free of cost , carpet area measuring 449.90 Sq.ft. The said
permanent alternate accommodation is also hereinafter referred to as “the said flat”.

7. Till the time the Tenant is provided with the permanent alternate accommodation
as provided herein, the Tenancy rights of the Tenant to the existing premises shall
continue on the tenant paying monthly rent to landlord. On the Tenant being provided
with the Permanent Alternate Accommodation, the tenancy rights of the tenant to the
existing premises will ipso facto come to an end. The Landlords/Developers have
agreed to pay monthly compensation of Rs. 10,000/- P.M. to the tenants occupying
the Room. The developer hereby agree and undertakes to pay 6 months license
fees/compensation in advance as deposit to be adjusted against rent for 16 to 22
months to the tenants and balance 16 months shall be paid through post dated
cheques starting from the first month after vacating the existing premises at the time
the tenants vacating their existing premises. The tenant has executed a receipt
separately for the same.

10. The Developers landlord shall give possession of the permanent alternate
accommodation to the Tenant on or before 22 Months with grace period of 3 months
from the date of receipt of Work Commencement certificate and on tenants vacating
their respective existing premises. In the event developer fails to handover possession
of new flat in the building to be constructed together with occupation certificate duly
issued by the Bombay Municipal Corporation within 25 months as provided herein,
the developer/landlord agree and undertake to pay the said further monthly
compensation as agreed with

increase of 10% in monthly license fees/compensation for further period over and
above the said period of 22 months and so on as aforesaid till the completion of
construction of said premises as agreed and till the developer handover the vacant and
peaceful possession to the tenants and till the developer gives intimation to the tenant
to occupy and possess the new permanent alternate accommodation. The Tenant
hereby agrees that if the possession is delayed due to:-

A] Reason beyond the control of the Developers such as:-

a) Non-availability of steel and/or cement or any such building material or by reason

of war, civil, commotion or any act of God or any prohibitory order of any court
against development of property in which landlord or developer are not in default;

b) Any notice, order, rules, notifications of the Government and/or public or

competent authority;

c) Changes in any rules, regulations, bye-laws of various statutory bodies and

authorities affecting the development and the project;

d) Delay in grant of any NOC/permission/license/connection for installation of any

services, such as lifts, electricity and water connections and meters to the
 project/flat/road or completion certificate from appropriate authority in which
landlord or developer are not in default;

e) Delay or default in handing over peaceful and vacant premises by any of the
tenants of the said existing room/premises.

In that event the period of possession will automatically and accordingly stand
extended, however even for that period also rent with addition of 10% in monthly rent
as agreed shall be payable by the developer to the tenant.

7. The Plaintiff states that upon the execution of the Agreement for

Providing Alternate Accommodation on 01.01.2010, the plaintiff handed

over the possession of his premises to the Defendant sometime in March

2010.

8. The Plaintiff further states that accordingly, sometime in 2010, the

Defendant had initiated the construction on the said property.

9. The Plaintiff was shocked and surprised to note that the Defendants

had completely stopped the work at the plinth level since 2010. Despite

the Defendants had agreed to give the possession of the Permanent

Alternate Accommodation to the tenants on or before 22 months with the

grace period of 3 months from the date of receipt of Work Commencement

Certificate and on tenants vacating their respective existing premises. It is

pertinent to note that, “Time is the essence of all contracts” which is

patently mentioned in the Indian Contract Act, and also it forms an integral

part of the said Agreement wherein the possession of the Permanent

Alternate Accommodation was to be given within 25 months along with

obtaining full Occupation Certificate from the date of receiving quit, Vacant

and peaceful possession of the tenanted premise.

10. The Plaintiff states that as per clause 7 of the Agreement for Providing

Permanent Alternate Accomodation dated 01.01.2010; you had agreed to

pay monthly compensation of Rs. 10000/- per month to tenants occupying

the room. The plaintiff states that the defendant further undertook to pay

6 months licence fees/compensation in advance as deposit to be adjusted

against rent for 16 to 22 months to the tenants as balance 16 months shall

be paid through post dated cheques starting from the first month of

vacating the existing premises at the time of tenants vacating their existing

Premises.

11. The Plaintiff states that the Defendants had initiated the construction of

the said new building sometime in 2010 and till date the Defendants had

failed to hand over the possession of the Permanent Alternate

Accommodation in the new building to the Plaintiff. The Plaintiff states that

the Defendants had issued cheques to the Plaintiff for further period of

compensation for acquiring the temporary alternate accommodation but

cheques got bounced due to insufficiency of funds.

12. The Plaintiff states that the Defendant had failed to pay the rent/

compensation as set out herein below. The Plaintiff further states that the

rent of temporary accommodation has gone upto Rs. 23,580/- (Rupees

Twenty Three Thousand Five Hundred and Eighty only) and its not feasible

for some of the tenants to pay the same. Arrears of rent in favour of the

Plaintiff pending from 28.08.2017 to as of date are set out hereinbelow:

SR. Period of Monthly Total

NO. Rent Rent Outstanding
Pending Amount
28/08/2017 Rs. 19,487/- Rs. 155,896/-
1. to
27/04/2018
28/04/2018 Rs. 21,436/- Rs. 235,975/-
2. to
27/03/2019
28/03/2019 Rs. 23,580/- Rs. 23,580/-
3. to
27/04/2019
Total: Rs. 415,271/-

13. The Plaintiff states that the Defendants actions over the last several

years and in particular the Defendants willful refusal and/ or failure to even

communicate with the Plaintiff the actions, developments, commissions

omission undertook by the defendant and / or those in respect to the said

Agreement for Providing Permanent Alternate Accommodation

Demonstrates the Defendants mala fide intent and his wilful breach and

misuse of the authority, power and rights were vested in the Defendant by

the Plaintiff.

14. The Plaintiff states that the Defendants have thereby committed several

Civil and criminal offences including Cheating, Misappropriation of Property

and Criminal Breach of Trust. The Plaintiff reserves his right to initiate

appropriate legal proceedings against the defendant for commissions of the

offences above mentioned.

15. Therefore this Hon’ble Court be pleased to order and decree against the

Defendants it’s Directors, servants, officers and agents jointly and severally

by way of mandatory injunction calling upon the Defendants its directors,

servants, officers and agents to jointly and severally to commence and

complete the project and to procure all approvals and sanctions in a time

bound manner and consequently handover permanent alternate

accommodation to the Plaintiff or in the alternative to the above this

Hon’ble Court be pleased to appoint a Court Receiver having all powers

under O.40 of the Code of Civil Procedure, 1908 to take possession of the

said project and complete the same by handing over the project to another

Developer and/or Contractor and/or any other person, within a time bound
manner and/or in any other manner, so as to complete the construction of

the project and handover the Plaintiff over possession of the suit flat within

a reasonable time as directed by the Hon’ble Court with necessary

approvals and sanctions in a time bound manner.

16. Therefore it is necessary that during the pendency of the above matter,

Defendants, its directors, officers, agents, servants be directed by

mandatory injunction to pay the Plaintiff outstanding dues including rent,

brokerage and shifting charges to secure the ends of justice.

17. It is also necessary that the Defendants, its directors, partners, officers,

agents, servants, be restrained by a temporary order and injunction from

creating encumbrances or in any manner dealing with, disposing of,

transferring or creating any third party right or interest in respect of the

Flat No. 324 admeasuring 449.90 sq. meters bearing CTS No. 456 as

shown in the floor plan so as to prejudice the rights of the Plaintiff and the

Defendants, its Directors, officers, agents, servants be directed to disclose

on oath all documentation, approvals, sanctions and other

correspondences in respect of the said projects so submitted to various

authorities for approvals;

18. That pending the hearing and final disposal of the present suit, this

Hon’ble Court be pleased to direct the Defendants No. 1 to 3 its Directors,

Partners to disclose on affidavit, all the immovable properties as well as

interest therein, Bank accounts, shares, joint ventures, receivable, movable

properties held in the name of the Company or held personally/jointly with

with any other person;

19. The Plaintiff submit that in any event, the reliefs as prayed for are not

granted, irreparable loss, hardship and prejudice incapable of being valued

in terms of money shall be caused to the Plaintiff, whereas no prejudice

shall be caused to the Defendants, if the reliefs are so granted to the

Plaintiff. Therefore the balance of the convenience is clearly in favour of the

Plaintiff.

20. The Plaintiff submits that the suit Property is situated at Mumbai. The

Defendant No. 1 has their office in Mumbai and that the project is situated

in Mumbai. The entire cause of action has arisen in Mumbai and within the

Jurisdiction of this Hon’ble Court and that this Hon’ble Court has

jurisdiction to hear and entertain the present dispute.

21. The Plaintiff states that the suit is not barred by law of limitation as

cause of action is continuous.

22. The Plaintiff has not filed any other suit or Writ Petition in respect of the

Suit Premise except the present suit.

23. No caveat has been filed by the Defendants or anyone so far.

24. The Plaintiff undertakes to produce whatever original document in their

possession when this Hon’ble Court requires.

25. The Plaint is declared by Mr. Jagdish Shah as abovenamed.

26. Mr. Jagdish Shah the Plaintiff abovenamed who is personally aware of

the facts of the case and is able to depose to the same as signed, verified

and declared the Plaint.

27. The Plaintiff will rely upon the documents, a list whereof is hereto

annexed.

28. The Plaintiff craves leave to add, amend and alter the present suit with

the due permission of this Hon’ble Court.

29. The Plaintiff therefore pray:

(a)That the Hon’ble Court be pleased order and decree the Defendants,

its Directors, servants, officers and agents to jointly and severally

specifically perform the Agreement for Providing Permanent Alternate

Accommodation dated 01.01.2010 and to do all acts, deeds, matters

and things necessary including procuring all approvals sanctions, orders

as may be necessary for sanctioning the project and handing over the
possession of the suit Flat to the Plaintiff within a reasonable time

as directed by this Hon’ble Court.

(b) That this Hon’ble Court be pleased to order and decree against the

the Defendants its directors, servants, officers and agents, jointly and

severally by way of mandatory injunction calling upon the Defendants,

its Directors, servants, officers and agents to jointly and severally to

commence and complete the project and to procure all approvals and

sanctions in a time bound manner and consequently hand over to the

Plaintiff the permanent alternate accommodation that is Flat No. 324

admeasuring 449.90 sq.mt bearing CTS No. 456.

(c) That pending the hearing and final disposal of the suit. Defendants,

its Directors, officers, agents, servants be directed by to pay the

Plaintiff outstanding dues including rent, shifting charges and

brokerage charges since August, 2012.

(d) That pending the hearing and final deposit of the present suit, this

Hon’ble Court be pleased to direct the Defendants, No. 1 to 3 its

Directors, partners to disclose on affidavit, all the immovable

properties as well as interest therein, Bank accounts, shares, joint

ventures, receivable, movable properties held in the name of the

Company, or held personally/jointly with any other person and upon

its disclosure this Hon’ble Court be pleased to pass an attachment

before judgement on such properties disclosed on affidavit by the

Defendant Nos. 1 to 3.

(e) For ad-interim relief in terms of prayer clause (a) to (d) above;

(f) For cost of this suit and;

(j) For such further and other relief as this Hon’ble Court may deem

fit and proper in the nature and circumstances of the case.

 For M/s. Solicis Lex (Mr. Jagdish Shah)

Advocate for Plaintiff Plaintiff No. 1

VERIFICATION

I, Mr. Jagdish Shah, Indian Inhabitant, the Plaintiff abovenamed,

presently residing at Flat No. 515, D wing, Veena Apartments, Sejal Park,

Off link Road, Goregaon (West), Mumbai 400-104, solemnly declare that

what is stated in paragraphs Nos. ___ and ___ are true to my own

knowledge and that what is stated in the remaining paragraphs Nos. ___

and ____ are based on information and belief and I believe the same to

be true.

Solemnly declare at Mumbai )

this day of )
Before me,

For M/s. Solicis Lex

Advocates for Plaintiff