Bombay High Court
Devika Sunil Jamdar vs Serika Lal @ Sarika Aggarwal And 2 Ors on 16 September, 2021
Author: A. K. Menon
Bench: A. K. Menon
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.2037 OF 2021
IN
SUIT NO.1427 OF 2019
Dr. Devika Sunil Jamdar .. Applicant-Plaintiff
Vs.
Serika Lal @ Sarika Aggarwal and Ors. .. Defendants
Mr. G.S. Godbole, i/by Mr. Rahul Soman and Mr. Sohan D. Gadgil, for the
Applicant-Plaintiff.
Mr. Pratyush Ranjan, with Mr. Yash Jain, i/by Halai & Co., for Defendant No.1.
Ms. Pinaz Contractor for Defendant No.2.
Ms. Bhavi Vora, i/by Bharucha & Partners, for the Defendant No.3.
Ms. Rekha Rane, 2nd Assistant to Court Receiver, is present.
CORAM : A. K. MENON, J.
DATE : 16TH SEPTEMBER 2021. P.C. :
1. Pursuant to order dated 8 th September 2021, the Receiver held a meeting, as directed. At that meeting, the society was represented by its Manager. The grievance of the society appears to be that the society was unable to carry out structural repairs within the flat and that it was not able to gain access to the flat. An appointment was thus fixed on 15 th September 2021, which did not materialize since the contractor appointed by the society was unavailable.
1/6 25-IA-2037-2021.doc Dixit
2. The matter is thus listed today to consider the Receiver's submissions as to the proceedings at the meeting held on 14 th September 2021. The Receiver submits that she is in receipt of two letters from the society dated 14 th September 2021, in which the society complains that arrears of amounts due under the society's bills are not forthcoming. The second letter relates to the aspect of repairs and that the contractor having started demobilizing, work could not be completed, moreover only partial inspection of the flat was permitted. The contractor stated that inspection remained partial, because "there is a false ceiling in the flat, parts of which will required* 1 to be removed.........." and that was apparently not permitted. The contractor's estimate post inspection is that it will take about 10 days for mobilization of labour and about a month for the work to be completed. The society is apprehensive of whether or not the occupant-defendant no.1 will co-operate. The parties have been put to the notice of the aforesaid aspects today.
3. Mr. Ranjan on behalf of the 1st defendant states that both these issues can be easily resolved. Firstly, on the aspect of arrears, he submits that the amount which the defendant no.1 is said to be in arrears of is not in fact payable by virtue of earlier orders passed by this court, whereby the undisputed amount was directed to be paid to the society. He submits that those amounts have been paid regularly and he relies upon the society's tabulated statement in the letter dated 14 th September 2021, which sets out diverse amounts paid.
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4. As far as the arrears are concerned, Mr. Ranjan submits that the 1 st defendant has filed a dispute in the Co-operative Court and she is not liable to pay the amount of arrears. However, since the Receiver is appointed of the flat and on a query from the court, Mr. Ranjan states that defendant no.1 is agreeable to deposit the entire amount of arrears amounting to Rs.7,51,012/- for the period upto 30th September 2021 and the difference between what has been paid and the disputed amount up-to-date, with the Court Receiver. The defendant no.1 also agrees to continue to deposit monthly interest on the arrears as per bills raised by the society with the Court Receiver without default. This deposit is sought to be made entirely without prejudice to the rights and contentions of the 1 st defendant in the proceedings said to be pending in the Co-operative Court. In view thereof, he submits that the controversy as to non-payment of arrears must rest.
5. As far as the repairs are concerned, learned counsel for defendant no.1 submits, on instructions, of defendant no.1, who is present in court today, that the society will be given full, free and complete access to the entire flat with liberty to carry out all structural repairs, as they may be advised by the consultants and through the contractor of the society. The 1 st defendant will not cause any impediment in the repair work. Alluding to the aspect concerning inability to take inspection of part of the flat due to the false ceiling, Mr. Ranjan submits, on instructions, that the 1 st defendant has no objection to removal of the false ceiling, as may be required by the 3/6 25-IA-2037-2021.doc Dixit contractor-in-charge of repairs. Interim Application No.2037 of 2021 can be partially worked out as above. Mr. Ranjan, meanwhile, seeks extension of time to file reply to the present IA.
6. Mr. Ranjan now states that Interim Application (Lodging) No.20860 of 2021 has been filed, whereby defendant no.1 has sought condonation of delay in filing her written statement in the suit. Mr. Godbole states that he has instructions to oppose this IA for condonation of delay and seeks time to file a reply.
7. Defendant no.2 is represented today. The learned Advocate for defendant no.2 submits that her client had e-mailed a copy of the written statement to the earlier Advocate and the original was required to be filed in court, but the same has not been so filed. Her instructions today are that the e-mailed version of the written statement was not intended to be filed by her in court and hence she seeks leave to file the physically signed and correct written statement in court.
8. In the meantime, Ms. Sucheta Ghaisas, who was representing defendant no.2 and who is present in court today, submits that a written undertaking was given to the court to file the original written statement. She seeks to be relieved of the said undertaking. She points out that a scanned copy of the written statement on behalf of defendant no.2 was received by her via e-mail. It was dated 1st March 2020 and that copy was filed in the 4/6 25-IA-2037-2021.doc Dixit registry. She had then undertaken to file the original written statement within four weeks. She is no longer representing defendant no.2. Ms. Contractor has today submitted that defendant no.2 will file a fresh written statement duly affirmed before a Court Commissioner / Notary Public in the area of her residence.
9. In the circumstances, I pass the following order :-
(i) Ms. Sucheta Ghaisas is relieved from the aforesaid undertaking and from further appearance in this matter.
(ii) Defendant no.1 shall deposit with the Court Receiver the amount of interest on arrears, as determined by the society, within two weeks of the society intimating the Court Receiver and the 1st defendant of the amounts of interest on arrears to be deposited. Court Receiver shall comply at the earliest.
(iii) The amount of interest on arrears, if deposited within stipulated time, shall be invested by the Receiver in a fixed deposit of a nationalized bank initially for a period of one year and to be renewed from time to time till further orders.
(iv) In the event the amount is to be withdrawn prematurely, the 1st defendant shall not claim any special equities or compensation in respect thereof. The Receiver shall seek appropriate directions from time to time in that respect.
(vi) Defendant no.1 shall also deposit disputed arrears billed by the society every month with the Court Receiver 5/6 25-IA-2037-2021.doc Dixit without further orders from the court. However, these amounts shall be invested by the Receiver only once every six months in a nationalized bank, as aforesaid.
(vii) Written statement shall be filed by defendant no.2 on or before 6th October 2021, without fail.
(viii) Time to file affidavit-in-reply to the present IA, i.e. Interim Application No.2037 of 2021, is extended upto 21st September 2021.
(ix) Affidavit-in-rejoinder, if any, to the present IA to be filed by 22nd September 2021.
(x) Affidavit-in-reply to Interim Application (Lodging) No.20860 of 2021 shall be filed on or before 23 rd September 2021.
(xi) Affidavit-in-rejoinder, if any, to Interim Application (Lodging) No.20860 of 2021 to be filed by 28 th September 2021.
(xii) List the present IA, along with IA(L)/20860/2021, for hearing on 30th September 2021.
(A.K. MENON, J.) 6/6 25-IA-2037-2021.doc Digitally signed SNEHA by SNEHA ABHAY DIXIT ABHAY Date:
DIXIT 2021.09.18 16:02:34 +0530 Dixit