Calcutta High Court (Appellete Side)
Forum Projects Pvt. Ltd vs Gaurav Karnani & Ors on 25 February, 2025
Author: Soumen Sen
Bench: Soumen Sen
25.02.2025
Sl No.4
Court No.12
(gc)
FMAT (ARBAWARD) 11 of 2025
CAN 1 of 2025
Forum Projects Pvt. Ltd.
Vs.
Gaurav Karnani & Ors.
Mr. Abhrajit Mitra, Sr. Adv.,
Mr. Jishnu Chowdhury, Sr. Adv.,
Mr. S.K. Singhi,
Mr. Ritoban Sarkar,
Ms. Riti Basu,
Ms. Piyali Pan,
Ms. Jhanvi Jain
... For the Petitioner/Appellant.
Mr. S.N. Mookerjee, Sr. Adv.,
Mr. Ranjan Bachawat, Sr. Adv.,
Mr. Anirban Ray, Sr. Adv.
Mr. Sounak Mitra,
Mr. Sarosij Dasgupta,
Mr. Soumava Mukherjee,
Mr. Saptarshi Banerjee,
...for the Respondents.
1. By consent of the parties, the appeal and the application are taken up together and disposed of by this common order.
2. The petitioners are the allottees/unit holders of flats in a residential complex known as "Atmosphere". It is a luxurious condominium complex consisting of two towers with simplex apartments, duplex apartments and sky villas together with several amenities. The dispute arose when the appellant-developer started making construction in respect of two 2 penthouses and E-Deck as described in Schedule B of the Arbitration and Conciliation Act, 1996.
3. The learned Counsel for the parties have made extensive arguments with regard to the scope and effect of the purchase deeds, the sanction plan as well as the modified sanction plan. Having considered the said submission, it appears that the present respondents purchased the property with the knowledge of a modified plan sanctioned on 5th November, 2018 on the basis of which certain constructions have been undertaken. The pictures produced before this Court have shown that substantial construction has taken place with regard to the construction of the penthouses.
4. Mr. S.N. Mookerjee, learned Senior Counsel appearing on behalf of the respondents has contended that the respondents were under the belief that it was constructed for the benefit of the residents and in any event they were under the impression that their access to the roof would not be affected by the said construction. Mr. Mookerjee, however, has contended that their access to the roof has not been affected by the construction of the penthouses.
3
5. In view of the fact that substantial construction has already taken place and the modified building plan has not yet been revoked, prima facie, the appellant has right to make construction of the penthouses. This, however, is subject to any proceeding that the KMC might initiate or contemplate and any such construction shall abide by the result of the arbitration proceeding. In the event, the penthouses so constructed is transferred and/or alienated the transferee shall not be entitled to claim any equity in the event ultimately it is contended and held that such construction is unauthorized or not permissible on a true construction of the sale deeds executed in favour of the respondents.
6. Insofar as the E-Deck is concerned, the positive averment of the petitioner was that approximately 4,000 sq.ft. out of 37,500 sq.ft.
have been utilized by the
appellant/respondent by making
unauthorized construction.
7. Mr. Abhrajit Mitra, learned Senior Counsel appearing for the appellant has submitted that the construction made was beyond the said area and, in fact, one of the constructed flats have been sold in favour of Ambica Beri being house/apartment no.E-101 of 9th 4 February, 2024. It is needless to mention that in the event it is ultimately found that such construction was beyond the agreement or the sanctioned plan or the modified sanction plan, as the case may be, the petitioner shall be entitled to seek such relief as may be advised in the arbitration proceeding or before any other appropriate forum. The order passed by the learned Trial Court is modified to the aforesaid extent.
8. By consent of the parties, Mr. Ajoy Krishna Chatterjee, learned Senior Advocate is appointed as Arbitrator.
9. Mr. Chatterjee shall fix his remuneration commensurate with his position in consultation with the parties at the first sitting. It is needless to mention that all costs, charges and expenses in connection with arbitration proceeding shall be borne by the parties in equal measure. The learned Arbitrator shall be entitled to appoint a personal staff and a stenographer, whose expenses are also to be borne by the parties in equal measure.
10. The learned Arbitrator shall make a declaration in terms of Section 12(5) read with VII Schedule of the Arbitration and 5 Conciliation Act, 1996 before commencement of the arbitration proceeding.
11. Accordingly, the appeal and the application are disposed of.
12. However, there shall be no order as to costs.
13. Urgent Photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.
(Soumen Sen, J.) (Biswaroop Chowdhury, J.)