Bombay High Court
Kotak Mahindra Bank Ltd vs Kamla Landmarc Properties Pvt. Ltd. Cin ... on 28 March, 2023
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
UTKARSH
2023:BHC-OS:2099
KAKASAHEB
BHALERAO
Digitally signed by
UTKARSH KAKASAHEB
BHALERAO 15.ia(l).20499.2022.doc
Date: 2023.03.30
10:20:44 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.20499 OF 2022
IN
COMPANY PETITION NO.65 OF 2016
Ashok Shewakramani .. Applicant
In the matter between:
Kotak Mahindra Bank Limited .. Petitioner
Versus
Official Liquidator, Bombay High Court .. Respondent
Mr.Siddha Pamecha a/w Mr. Kunal Parekh i/b Dua & Associates, Advocates for the Applicant.
Ms. Sneha Goyal, Advocate for Official Liquidator. Mr.Rohan Rajadhakshya a/w Mr. Mitansh Shah i/b AZB & Partners, Advocates for Respondent No.2(Sicom Ltd).
CORAM : B. P. COLABAWALLA, J
DATE : MARCH 28, 2023
P. C.
1. The above Interim Application is filed seeking leave of this Court to institute a Suit against the Liquidator and any other person to protect the Applicant and his co-owner Mrs.Neetu Ashok Shewakramani's rights in respect of the Unit described in paragraph 7 of Page 1 of 6 MARCH 28, 2023 Utkarsh ::: Uploaded on - 30/03/2023 ::: Downloaded on - 30/03/2023 19:52:57 :::
15.ia(l).20499.2022.doc the application. The Unit mentioned in paragraph 7 of the application is Unit No.401, admeasuring 3,590 sq. ft. on the 4 th floor of the building called 'Executive Enclave 9' with 5 car parking spaces (for short "Unit No.401").
2. It is the case of the Applicant that initially he had purchased Unit No. 402 on the 4 th floor of the said building against the total agreed sale consideration of Rs. 2,18,97,000/-. This was pursuant to a allotment letter dated 3rd April, 2007. It is the case of the Applicant that the Applicant had already paid an advance amount of Rs.1,53,50,000/- to the company (in liquidation) for purchase of the said Unit No.402 and only a balance of Rs.65,47,000/- was due and payable in respect thereof. It is thereafter the case of the Applicant that as mutually agreed by and between the parties, the said initial allotment of Unit No.402 was cancelled, and in lieu thereof, the Applicant was allotted Unit No.401 vide allotment letter dated 3rd February, 2012. Thereafter, with reference to Unit No.401, a registered Agreement dated 31st December, 2012 was also entered into between the Applicant and the Company (in liquidation). It is to seek specific performance of this allotment letter dated 3rd February, 2012 and the registered Agreement dated 31st December, 2012, that the Applicant wants to file a Suit Page 2 of 6 MARCH 28, 2023 Utkarsh ::: Uploaded on - 30/03/2023 ::: Downloaded on - 30/03/2023 19:52:57 :::
15.ia(l).20499.2022.doc interalia seeking possession of Unit No.401; payment of Rs.5 Crores to the Applicant as damages for delayed possession; or in the alternative, forthwith refund the monies paid by the Applicant to the Company (in liquidation), with interest @18% p.a. from the date of receipt till payment and/or realization.
3. The aforesaid application is vehemently opposed by Mr. Rajadhakshya, learned advocate appearing on behalf of the Sicom Limited. The ground on which this application is opposed, is that there is already a mortgage created in favour of Sicom Limited on 27 th September, 2011 and which is a registered mortgage. This mortgage is of the entire building including Unit No.401. Once this is the case, there was no question of the Company (in liquidation) allotting/selling Unit No.401 to the Applicant. It is therefore submitted that there is no question of the Applicant ever being able to succeed in getting specific performance in relation to Unit No.401, considering that on the date when the letter of allotment dated 3rd February, 2012 was issued by the Company (in liquidation) to the Applicant, the only right left in the Company was the right of redemption. It is submitted that this would ex-facie show that the Suit proposed to be filed by the Applicant, at least qua their prayer for specific performance, has absolutely no merit and is Page 3 of 6 MARCH 28, 2023 Utkarsh ::: Uploaded on - 30/03/2023 ::: Downloaded on - 30/03/2023 19:52:57 :::
15.ia(l).20499.2022.doc a frivolous Suit. If this be the case, then the prayer for damages, or in the alternative, for refund with interest, can be agitated before the Official Liquidator. In these circumstances, there is no requirement to grant any leave as sought for by the Applicant, was the submission.
4. The learned advocate appearing on behalf of the Official Liquidator also opposed the aforesaid application for leave on the same ground as canvassed by Mr.Rajadhakshya.
5. I have heard the learned counsel appearing for the parties at some length and perused the papers and proceedings in the above Interim Application. I find considerable force in the arguments canvassed by Mr. Rajadhakshya as well as the learned advocate appearing on behalf of the Official Liquidator. The record clearly indicates that a mortgage is created in favour of Sicom Limited in relation to the entire building (including Unit No.401) prior to any allotment letter being issued to the Applicant [for Unit No.401]. This being the case, the chances of the Applicant succeeding in seeking specific performance of the letter of allotment dated 3 rd February, 2012 or the registered agreement dated 31st December, 2012 [in relation to Unit No.401] are extremely remote, to say the least. Page 4 of 6
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15.ia(l).20499.2022.doc
6. Considering these circumstances, I had on the last occasion, asked the Applicant's advocate to take instructions as to whether he is seriously pursuing the relief of specific performance, and if so, then, how will he secure the costs of the Liquidator for the purpose of defending the Suit he proposes to file. The learned advocate appearing on behalf of the Applicant has informed the Court today that a conditional order can be passed whereby the quantum of costs can be decided by the Court and only on depositing the aforesaid costs, leave can be granted. He has made this statement on the basis that his client, and who is residing in Poland, has not agreed to any quantum that ought to be deposited in this Court for securing the costs of the Liquidator in defending the Suit the Applicant proposes to file.
7. In these circumstances, and after hearing the parties I am of the view that leave can be granted to the Applicant as asked for in prayer clause (a), subject to the Applicant depositing with the Liquidator a sum of Rs.8 Lakhs to secure the Liquidator for the costs to be incurred by him for defending the Suit the Applicant proposes to file. It is needless to clarify that until the aforesaid amount is deposited with the office of the Official Liquidator there is no question of granting any Page 5 of 6 MARCH 28, 2023 Utkarsh ::: Uploaded on - 30/03/2023 ::: Downloaded on - 30/03/2023 19:52:57 :::
15.ia(l).20499.2022.doc leave or them being allowed to institute any Suit against the Liquidator. It is also made clear that the amount of Rs.8,00,000/- shall be deposited with the office of the Liquidator within a period of 4 weeks from today, failing which the above Interim Application shall stand dismissed without further reference to the Court.
8. The above Interim Application is disposed of in the aforesaid terms.
9. This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
[ B. P. COLABAWALLA, J ].
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