NM Order in Comm. Suit No.

631/2021

MHCC040057432021

IN THE CITY CIVIL COURT AT MUMBAI, BORIVALI DIVISION,

DINDOSHI, GOREGAON, MUMBAI.

NOTION OF MOTION No.2231 OF 2021

IN
COMMERCIAL SUIT No.631 OF 2021
(CNR No.MHCC0­4005743­2021)

One BKC Realtors Pvt. Ltd. … Applicant

In The Matter Between

One BKC Realtors Pvt. Ltd. … Plaintiff

V/s

Frost International Limited. … Defendant

CORAM: H.H.JUDGE SHRI S. N. SALVE

(C.R. No.03)
DATE : 08th December, 2021.

Ld. Advocate Karan Hasnali for Plaintiff.

Ld. Advocate Saurabhi Waknis for the Defendant.

ORDER

This Notice of Motion is taken out by the plaintiff's seeking

interim relief in terms prayer clause (a) to (c) of the Notice of Motion
which reads as follows:­
 NM Order in Comm. Suit No.631/2021

a) Pending the hearing and final disposal of the suit, the

defendant be ordered and directed to deposit a sum of
Rs.47,91,730.90/­ (Rupees Forty Seven Lakhs Ninety One
Thousand Seven Hundred and Thirty and Paise Ninety only)
with this Hon'ble Court or such other amount as this Hon'ble
Court deems fit and proper;
b) Pending and hearing and final disposal of the suit, this
Hon'ble Court be pleased to direct the Defendant to pay
monthly CAM Charges towards the said unit;
c) Pending and hearing and final disposal of the suit, this
Hon'ble Court be pleased to restrain the defendant from
alienating, transferring or creating any interest or right in
respect of the said unit.

2. In short, it is the contention of plaintiff that M/s.

Raghuleela Builders Pvt. Ltd. constructed the said building “ONE BKC”.
The said Raghuleela entered into agreement for sale thereby selling,
transferring the said Units in the said building to the defendant. Vide
Agreement for sale dtd 21.07.2015 executed between the defendant
said Raghuleela in respect of premises, Unit No. 709 Admeasuring
97.83 sq. mtrs equivalent to 1053 sq. ft. situated in C­Wing of the
building was purchased by the defendant from the said Raghuleela.
According to plaintiff, under the terms of the Sale Agreement,
defendant was contractually obligated and liable to pay maintenance
charges, bill and other charges in respect of said Unit. It is further
contention of the plaintiff that by and under Agreement dtd 13.09.2019
 NM Order in Comm. Suit No.631/2021

the plaintiff was appointed as Property Manager of the said building. It

is further contention of the plaintiff that for the services provided by the
plaintiff to the occupant of the said building towards management and
maintenance of the said building, each occupant/owner of the said Unit
including the said defendant is required to pay Common Area
Maintenance Charges to the plaintiff unactul cost basis and applicable
taxes every month. It is further contention of the plaintiff that
defendant has been in arrears of Common Area Maintenance Charges
(for short 'CAM'). In spite of repeated reminders, defendant has failed
to pay CAM charges. The defendant was called upon by issuing legal
notice to pay an amount of Rs. 27,60,628/­ In spite of receipt of legal
notice by the plaintiff received sum of Rs.5,40,179/­ from Defendant
against the total outstanding of Rs 31,36,236/­. It is further contention
of the plaintiff that plaintiff has issued legal notice to the defendant to
clear the CAM charges. However, the defendant denied the liability
towards the CAM Charges. According to plaintiff, plaintiff has made
out prima facia case, balance of convenience also lies in favour of the
plaintiff and plaintiff would suffer irreparable loss in case of refusal of
interim relief. Lastly, the plaintiff prayed to allow the Notice of Motion.

3. Defendants resisted the Notice of Motion by filing Affidavit­

in­reply. It is submitted by the defendant that the Notice of motion as
taken out by the plaintiff is not maintainable. It is suffered from non
disclosure of material and relevant facts and documents, therefore,
same ought to be dismissed. It is further contention of defendant that it
has paid all monies that were required to be paid to the plaintiff i.e sum
 NM Order in Comm. Suit No.631/2021

of Rs 5,40,179/­ and no monies are payable by the defendant to the

plaintiff. Lastly, the defendant prayed to dismiss the Notice of Motion.

4. I have heard the learned advocate for the plaintiff and

learned advocate for the defendant.

5. On hearing the learned advocate for the plaintiff and

learned advocate for the defendant, I have gone through the Notice of
Motion, Affidavit in Support, Affidavit­in­reply filed by the defendant,
documents annexed with the reply and documents annexed with the
plaint.

6. It is not in dispute that plaintiff has been appointed as

Property Manager of the said building viz ONE BKC. It is also not in
dispute that the defendant is the owner of the Unit No.709, situated on
7th Floor, C Wing, of the said building ONE BKC. It is the contention of
that plaintiff defendant has been arrears of CAM charges to tune of Rs.
26,85,334/­. The defendant by filing affidivit in reply has denied the
liability contending that defendant has paid sum of Rs. 5,40,179/­ and
no monies are payable. Whether the defendant has been in arrears of
CAM charges as alleged by the plaintiff, it will have be decided at the
time of the trial after the evidence is led by the parties. Therefore, at
this stage no relief in terms of the prayer clause (a) of the Notice of
Motion can be granted.

7. in so far as, prayer clause (b) of the Notice of Motion is

 NM Order in Comm. Suit No.631/2021

concerned, as stated herein above, plaintiff has been appointed as

Property Manager of building ONE BKC wherein the defendant is
having Unit No.709, situated on 7 th Floor, C Wing, of the said building
ONE BKC. The defendant is therefore, liable to pay monthly CAM
Charges to the plaintiff as per the Agreement.

8. The plaintiff is also pressing for interim relief in terms

prayer clause (c) restraining the defendant from creating third party
interest in respect of Unit No.709, situated on 7 th Floor, C Wing, of the
said building ONE BKC. The defendant placed on record documents
showing that the said Unit No.709, situated on 7th Floor, C Wing, of the
said building ONE BKC has been attached by Directorate of
Enforcement. Therefore, question of creating third party interest by the
defendant does not arise. Therefore, the plaintiff is not entitled for
interim relief in terms prayer clause (c).

In the result, following order is passed :­

[

ORDER

1) Notice of Motion No.2231 of 2021 is made absolute in

terms of prayer clause (b).

2) Defendant directed to pay monthly CAM Charges

regularly.

3) Prayer Clause (a) and (c) of the Notice of Motion No.

 NM Order in Comm. Suit No.631/2021

2231 of 2021 are refused.

4) Accordingly, the Notice of Motion No. 2231 of 2021 is
disposed of.

(S. N. Salve)
Judge, City Civil Court,
Borivali Div. Dindoshi, Mumbai.

Date of dictation on computer : 08/12/2021

Date of order signed by HHJ : 08/12/2021
Date of delivery to CC
 NM Order in Comm. Suit No.631/2021

“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL

SIGNED JUDGMENT/ORDER.”

UPLOAD DATE A. S. Sugdare

AND TIME : 08/12/2021 at 5.55 p.m. NAME OF STENOGRAPHER
Name of the Judge (with Court Room No.) HHJ Shri S. N. Salve
(Court Room No.03)
Date of Pronouncement of Judgment/Order 08/12/2021
Judgment/Order signed by P.O. on 08/12/2021
Judgment/Order uploaded on 08/12/2021