Decided on March 06,2017

Beach Towers Condominium And Anr. Appellant
Bombay Dyeing And Manufacturing Company Ltd. And Ors. Respondents


G.S. Patel, J. - (1.) On 28th March 2015, Mrs R.S. Dalvi J framed this preliminary issue on a limitation plea raised by Defendants Nos. 1 and 2: whether the Suit is within time? Since this is an issue of limitation, though taken as a jurisdictional bar, I will proceed on the basis that the question to be answered is whether any of the reliefs sought in the plaint are barred by limitation. Had this jurisdictional bar been pleaded on account of a statutory prohibition or territorial limitation, the question might have been whether the suit as a whole is barred. When it comes to limitation, however, it is always possible that one or more of the reliefs are within time, while others are beyond limitation. All have proceeded on this basis.
(2.) On 28th March 2014, all three parties agreed that no evidence was necessary and that they would proceed on the available documents.
(3.) The 1st Plaintiff is a condominium of flat owners in a building known as Beach Towers. The 2nd Plaintiff is the President of the condominium and owns one of the flats in Beach Towers. The apartment tower, with two wings, was constructed in the late 1970s. The location is important: it stands towards very nearly the end of a P Balu Marg, a lane that runs east-west perpendicular to the arterial Old Cadell Road (Veer Savarkar Marg), Prabhadevi, Mumbai. The suit concerns four plots of land here, all of the Mahim Division, all contiguous: Plot Nos. 1286-A (2,176.43 sq mtrs); 1286-C (4,677.29 sq mtrs); 1287-C (671.40 sq mtrs); and 1287-D (672.24 sq mtrs). Beach Towers stands on plot No 1286-C. To the south of this plot is Plot 1286-A. On this stands an old bungalow, Beach House, owned by the 1st Defendant, Bombay Dyeing, a company controlled by the Wadia family. Beach House is the Wadia's family home. Due west of the Beach House plot is a narrower strip of land, Plot 1287-C. On this, there is a swimming pool. It overlooks the sea front. To the north of the swimming pool plot (and therefore west of the Beach Towers plot) is another smaller strip of land, also overlooking the sea, and on this there is a garden. Thus, Beach House is fronted to its west by the swimming pool and garden plots, and on the seaward (western) side there is, I am told, an embankment or promenade just above the beach, but this is not motorable. Beach House, the swimming pool and the garden all existed as on 29th March 1980, a date of some consequence. East of the Beach House plot is Plot No. 1286-B, on which stands the Deep Lakshmi Cooperative Housing Society; we are not concerned with this plot. Access to Beach House is from an extension of Hatiskar Marg, a lane to the south. Hatiskar Marg also runs in a north-south direction to the east of the Beach Towers plot and intersects P Balu Marg. Beach Towers thus has access from P Balu Marg and Hatiskar Marg.;

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