Bombay High Court
Dimple Realty Llp vs Malad Sundaram Co-Operative Housing ... on 4 October, 2022
Author: R.I. Chagla
Bench: R.I. Chagla
5-2-COMS-137-21.doc
Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL SUIT NO. 137 OF 2021
WITH
COUNTER CLAIM (L) NO. 22478 OF 2021
IN
COMMERCIAL SUIT NO. 137 OF 2021
M/s. Dimple Realty LLP ...Plaintiff
Versus
Malad Sundaram Co-operative Housing
Society Limited & Anr. ...Defendants
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Mr. K.P. Shah for the Plaintiff in COMS/137/21 and for Defendant in
CCL/22478/21.
Mr. D.S. Jain for the Defendant No. 1 in COMS/137/21 and for the
Plaintiff in CCL/22478/21.
Mr. Ajay Rao for the Defendant No. 2.
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CORAM : R.I. CHAGLA J
DATE : 4 October 2022
SHARAYU
PANDURANG
ORDER :
KHOT Digitally signed by SHARAYU PANDURANG KHOT
1. The parties have settled their disputes. Consent Terms Date:
2022.10.11 17:45:34 +0530 bearing today's date are tendered. The Consent Terms are taken on record and marked 'X' for identification. 1/7
5-2-COMS-137-21.doc
2. By a separate order, the Defendant No.2 has been added as party Defendant in the Suit. The Consent Terms have been signed by the partner of the Plaintiff as well as by the Advocate for the Plaintiff and by the Chairman of Defendant No.1 and partner of Defendant No.2 as well as the Advocates for the Defendant Nos.1 & 2.
3. Documents of identification of the Plaintiff as well as partner of the Plaintiff is appended to the Consent Terms. The Resolution passed in the Special General Body Meeting of Defendant No. 1 on 20th September 2022 authorising the signatory to the Consent Terms, who is the Chairman of the Defendant No. 1-Society to execute the Consent Terms is also appended to the Consent Terms. Further, the documents of identification of partner of the Defendant No. 2 as well as the letter of authority of Defendant No. 2 authorising the partner of the Defendant No. 2 for executing the Consent Terms is also appended to the Consent Terms.
4. I am satisfied that the Consent Terms are in order, not contrary to law and have been drawn by the parties of their own volition in reflection of their true intentions. 2/7
5-2-COMS-137-21.doc
5. The undertakings, if any, in the Consent Terms being accepted as undertakings to the Court.
6. As per Clause 4 of the Consent Terms, the Defendant No. 2 has been granted redevelopment rights of the said property to construct, reserve and handover to the Plaintiff free of cost two shop premises admeasuring about 322 sq.ft. (MOFA carpet area) in addition to loft, if permitted free of FSI and permitted under DCPR 2034 and admeasuring about 378 sq.ft. (MOFA carpet area) in addition to loft, if permitted free of FSI and permitted under DCPR 2034 total tentatively admeasuring about 700 sq.ft. at MOFA carpet area plus loft areas, if permitted free of FSI and permitted under DCPR 2034 on the ground floor of the proposed buildings/plans, which shall be adjoining to each other to be constructed by Defendant No. 2 on the said property, hereinafter called "the commercial premises".
7. It is agreed in Clause 6 of the Consent Terms that save and except the right for an allotment of the said commercial premises, the Plaintiff, its agents, successors and assigns shall have no rights, title or interest, claim, demand of any nature whatsoever 3/7 5-2-COMS-137-21.doc either in law or equity in the said property or in respect to the proposed redevelopment project, its present and future FSI, planning, amendments, elevation, features and/or other rights, title and interest, entitlements of the Defendants in the said property which shall be subject to the Development Agreement between the Defendants.
8. It is further in Clause 7 of the Consent Terms that within 45 days of receipt of vacant possession of the said property by the Defendant No. 1 to Defendant No. 2 in terms of the Development Agreement, both the Defendant No. 1 and Defendant No. 2 shall execute and register an Agreement for Allotment of the said commercial premises in favour of the Plaintiff wherein the Defendant No. 2 shall join in the said Agreement as developer/confirming party who will develop the said property on behalf of the Defendant No. 1.
9. Further in Clause 8 of the Consent Terms, the Defendant No. 1 has agreed and undertaken to admit the Plaintiff as a member of the society upon completion of the redevelopment project. Certain other agreements have been recorded including in Clause 13 of the Consent Terms that the Defendant No. 1 has agreed and allowed the 4/7 5-2-COMS-137-21.doc Plaintiff and its licensee to use two cars parking during day time from 9 a.m. to 9 p.m. in the open space of the Defendant No. 1, which will be earmarked by the Defendant No. 1 (inadvertently written as Plaintiff in clause 13 of the Consent Terms). This correction shall be carried out in the Clause 13 of the Consent Terms forthwith.
10. Plaintiff has in Clause 17 of the Consent Terms agreed undertaken to pay Rs. 7,50,000/- towards outstanding corpus fund/hardship compensation payable to the members of the Defendant No. 1 on execution of these Consent Terms. The Plaintiff has agreed to forfeit the sum of Rs. 10,00,000/- payable to the Defendant No. 1 towards liquidated damages.
11. In Clause 18 of the Consent Terms, parties have agreed that the entire claims of the Plaintiff are settled to their satisfaction and there shall be no claims or demand of any nature whatsoever in law or equity against the said property or Defendant No. 1, its members and the Defendant No. 2 in any manner whatsoever, save and except for the allotment of the said commercial premises.
5/7
5-2-COMS-137-21.doc
12. The Suit is disposed of and decreed in accordance with the Consent Terms.
13. The Written Statement cum Counter Claim also stands disposed of in terms of the Consent Terms.
14. Interim Applications, if any, filed in the captioned Commercial Suit does not survive, in view of the disposal of the Suit and are disposed of.
15. Drawn up decree/ order is dispensed with unless the parties seek drawn up decree/ order, in which case they are entitled to apply.
16. A soft copy of the Consent Terms will be uploaded as the second order in the matter.
17. The Registry is to ensure that the hard copy of the signed Consent Terms is permanently retained on file as part of the record and is not sent for destruction in the ordinary course.
18. Court fees in the Commercial Suit as well as in the 6/7 5-2-COMS-137-21.doc Counter Claim are to be refunded in accordance with the Rules. For the purposes of Section 43 of the Maharashtra Court Fees Act and the proviso to that Section, today's date is the date of making a claim for repayment. The Prothonotary & Senior Master will issue a certificate for a refund of Court Fees computed according to the Rules. He will act on production of an authenticated copy of this order without requiring a separate application.
[R.I. CHAGLA J.] 7/7