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2012 Supreme(Bom) 1743

High Court of Judicature at Bombay
R.G. KETKAR
Skygourmet Catering Private Limited & Another
Versus
Mars Hotels and Resorts Private Limited & Another
WRIT PETITION NO.6586 OF 2012
Decided On : 13-09-2012

Advocate Appeared:
For the Petitioners:P.K. Dhakephalkar, Senior Advocate i/b. Bharat Joshi a/w. Mehul Shah & Kersi Dastoor, Advocates i/b. Phoneix Legal, Advocates.
For the Respondents:Aspi Chinoy, Senior Advocate a/w. R.N. Narula a/w. A. Dasgupta, Advocates i/b. Jhangiani Narula & Associates, Advocates.

Headnote:Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act (1963), S.12A - If the Court has power to grant final relief, it has also power to grant interim relief unless the provisions of the particular Statute expressly say otherwise---Court can grant interim relief pending adjudication of main proceedings for final relief---While considering the application under Section 12-A of MOFA, the Court has jurisdiction to grant interim relief pending the main application. (Para 38)

Judgment

Heard Mr. P. K. Dhakephalkar, learned Senior Counsel for petitioners and Mr. Aspi Chinoy, learned Senior Counsel for respondents at length.

2. Rule. M/s. Jhangiani Narula and Associates waive service for the respondents. By consent of the parties, rule is made returnable forthwith and the Petition is taken up for final hearing.

3. By this Petition under Article 227 of the Constitution of India, Skygourmet Catering Private Limited, petitioner No.1 (original applicant No.1), hereinafter referred to as SKY and WAH Restaurants Private Limited (earlier known as Mars Restaurants Private Limited) (original applicant No.2), hereinafter referred to as Mars or M.R.P.L, as the case may be, have challenged the judgment and order dated 13.12.2011 passed by the learned Judge of Small Causes Court at Bombay, Bandra Bench in R.E.S. Application No.8/RES/2011 as also the judgment and order dated 10.07.2012 passed by the Appellate Bench of Small Causes in Revision Application No.234 of 2011. By these orders, the Courts below refused to grant the interim order in terms of prayer clauses (d) and (e) of the R.E.S. Application No.8 / RES / 2011. SKY and Mars / M.R.P.L. instituted the said application against respondent No.1 -Mars Hotels and Resorts Private Limited (original opponent No.1), hereinafter referred to as M.H.R.P.L. and respondent No.2 – Mars Enterprises (original opponent No.2), hereinafter referred to as M.E. for an order directing M.H.R.P.L. and M.E., theirs directors, partners, servants, officers, agents and representatives, and persons claiming through them to restore the essential supplies of water under K/East-Ward, water meter and Ward No.KE@0213029 and electricity under electric meter No.RI-SH951203 and consumer No.2003890 as also to direct them to allow the access to lifts and stair cases and remove blockage of lifts in the suit building situate at Off International Approach Road, Marol, Andheri (East), Mumbai -400 059. The parties shall hereinafter referred as per their status before the trial Court. The relevant and material facts that are necessary for the disposal of the present Petition briefly stated, are as under:

4. SKY is a company registered and incorporated under the Companies Act, 1956 and is the owner of ground floor, upper basement and lower basement in the building constructed on a plot admeasuring 4,713.79 sq.mtr. (for short 'suit property') situate in the midst of a piece and parcel of land admeasuring in aggregate 45,104.70 sq.mtr. situate at Village Marol, Andheri, Mumbai (for short 'larger plot'). Mars / M.R.P.L. is the owner of first floor of the building called as 'AOH building'. They jointly have 56.80% undivided shares, rights and title in respect of the suit property and balance 43.20 undivided shares, rights and title in respect of the suit property is held by M.H.R.P.L. and M.E. jointly. Sky is engaged in the business of providing in flight catering services to various airlines (air catering) at Mumbai and other places of India and is one of the leading air caterers in India, providing services to all the leading domestic airlines including Jet Airways and Kingfisher Airlines and international airlines such as Malaysian Airlines and Saudi Arabian Airlines. M.H.R.P.L. is also a company registered and incorporated under the provisions of the Companies Act, 1956 and M.E. is a partnership firm registered under the Indian Partnership Act, 1932.

5. It is the case of the applicants that the respondents are the owners of the remaining floors of AOH building and are in management and control of essential supplies in the AOH building of the applicants. The applicants have purchased the lower basement, upper basement, ground floor and first floor in the AOH building by virtue of four sale deeds namely, (i) Indenture dated 06.10.2005, (ii) Indenture dated 01.07.2006, (iii) Indenture dated 01.02.2008 and (iv) Indenture dated 06.02.2008. The applicants have purchased these premises for the purpose of using
































































































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