Bombay High Court
Clyde Archie Varel vs Shri Krishnakumar K Ashar on 11 August, 2023
Author: Abhay Ahuja
Bench: Abhay Ahuja
906-IA-19237-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.382 OF 2020
IN
CIVIL REVISION APPLICATION NO.752 OF 2014
SHRI. KRISHNAKUMAR K ASHAR )...APPLICANT
V/s.
MR. ARCHIE JOHN VAREL AND OTHERS )...RESPONDENTS
WITH
INTERIM APPLICATION NO.19237 OF 2022
WITH
INTERIM APPLICATION NO.383 OF 2020
WITH
INTERIM APPLICATION NO.1279 OF 2020
WITH
INTERIM APPLICATION NO.1277 OF 2020
WITH
CIVIL APPLICATION NO.318 OF 2019
WITH
CIVIL APPLICATION NO.130 OF 2019
IN
CIVIL REVISION APPLICATION NO.752 OF 2014
WITH
CIVIL REVISION APPLICATION NO.752 OF 2014
Mr.Kailash Dewal i/b. Mr.Mohit Bhansali, Advocate for the Revision
Applicant in in CRA and for the Applicant in IA 382/2020.
Mr.Amol Raut i/by Mr.Manoj Mhatre, Advocate for the Respondents
No.2/2, 2/4 to 2/6 and for the Applicants in IA 1279/2020 and CAC
130/2019.
Mr.Kunal Bhanage i/by Mr.Akshay Pawar, Advocate for the Respondents
no.1-c and for the Applicant in IA/19237/2022.
Ms.Anusha Amin, Advocate for the Respondents No.1/1 and 1/2.
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906-IA-19237-2022.doc
CORAM : ABHAY AHUJA, J.
DATE : 11th AUGUST 2023 P.C. :
1. Pursuant to order dated 21st June 2023, M/s.Shetgiri & Associates carried out the physical/visual inspection of the suit premises and submitted a report on 2 nd August 2023, copies whereof were given to counsel for both the parties.
2. Today, when the matter is called out, Mr.Dewal, learned Counsel for the Interim Applicant, referring to the report would submit that M/s.Shetgiri & Associates had inspected the suit premises and observed that there is structural distress in many of the RCC elements like columns, beams and slabs and that some of the RCC elements depict severe structural cracks, especially on the first floor unused premises which requires immediate attention. Mr.Dewal has taken this Court through the entire report with respect to the first floor as well as the ground floor of the suit premises and submits that M/s.Shetgiri & Associates has on page 11 clearly opined that structural repairs should be carried out on urgent basis before carrying out any tenantable repairs or interior as per the directions and under the supervision of a avk 2/6 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 09:00:10 ::: 906-IA-19237-2022.doc registered Structural Engineer as carrying out tenantable repairs especially the interior aesthetics or ambience improvement works would not add any fresh lease of life to the building structure but on the contrary exert additional live loads onto the structural frame causing further damage, distress and deterioration of the RCC framework. The structural report also requires that before initiation of any repair works, structural audit of the building with non-destructive tests should also be carried out, so as to ascertain the internal condition of the RCC elements, especially of the concrete and steel to get inputs on the feasibility of the repairs on the structure. It has finally been suggested by the Structural Engineer that only after completion of the structural repairs, restoration and retrofitting works including strengthening of all the RCC elements, the tenantable repair works as indicated in the report may be carried out thereafter. The following three paragraphs on page 11 of the report are pertinent and quoted as under :
"Taking into consideration the tenantable repairs proposed to be carried out by the Applicants as indicated above, we are of the opinion that structural repairs should be carried out on urgent basis before carrying out any tenantable repairs or interiors as per the directions and under the supervision of registered structural engineer since carrying out tenantable repairs especially the Interior aesthetics or ambience improvement works would not add any fresh lease of life to the building structure and on the contrary exert additional avk 3/6 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 09:00:10 ::: 906-IA-19237-2022.doc live loads onto the structural frame causing further damage, distress and deterioration of the RCC framework especially the slabs, beams and the columns and ultimately to the foundations of the building without the initiation & execution of the structural repairs & restoration works which the suit premises is in need of.
Further before initiation of any repair works to be carried out under the directions and under the supervision of the registered structural engineer, in case if felt necessary to the structural engineer, the Structural audit of the said building with Non-destructive tests should be carried out so as to ascertain the internal condition of the RCC elements especially the concrete & steel and to get more inputs on the structure which could be repaired on the basis of the structural audit report, if feasible.
Post completion of the structural repairs, restoration & retrofitting works including strengthening of all the RCC elements, the tenantable repair works as per our opinion as indicated in the table herein-above maybe carried out thereafter."
3. Mr.Dewal would submit that, therefore, this Court may permit the Interim Applicant to urgently take steps in the matter for structural repairs which the learned Counsel submits, he has instructions from his client, that they would pay for it.
4. On the other hand, Mr.Bhanage, learned Counsel for the Respondents in the Interim Application, would draw the attention of this Court to the order dated 21st June 2023 which refers to paragraph 3 of the order dated 20th July 2015 in Civil Application No.228 of 2015 where it has been recorded that the Applicant was restrained from avk 4/6 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 09:00:10 ::: 906-IA-19237-2022.doc carrying out any repairs, renovations or structural changes to the suit premises and if at all there was any occasion for effecting tenantable repairs, the Applicant was granted liberty to apply to this court. Learned Counsel would submit that it is only for tenantable repairs that the liberty was granted and not for the structural changes to the suit premises. However, he has instructions to state that the structural repairs, as indicated in the report of M/s.Shetgiri & Associates can be carried out at the cost of the Interim Applicant.
5. Having heard the learned Counsel and having perused the report with their able assistance, this Court is of the view that the suit premises definitely requires the structural repairs as suggested by M/s.Shetgiri & Associates. It is only after structural repairs that tenantable repairs referred to therein can be carried out.
6. Both the learned Counsel agree that the structural repairs as well as the tenantable repairs thereafter, can be carried out under the able guidance and supervision of M/s.Shetgiri & Associates. Let M/s.Shetgiri & Associates guide, advice and supervise the structural repairs as well as the subsequent tenantable repairs. The fees and charges of M/s.Shetgiri & Associates has been agreed to be paid by the avk 5/6 ::: Uploaded on - 11/08/2023 ::: Downloaded on - 12/08/2023 09:00:10 ::: 906-IA-19237-2022.doc Interim Applicant. Both the learned Counsel to instruct their clients to co-operate with M/s.Shetgiri & Associates.
7. As far as the entire lis is concerned, the learned Counsel for the Interim Applicant submits that the same can be amicably settled. Let Mr.Bhanage take instructions.
8. List the matter for further consideration on 25th August 2023.
INTERIM APPLICATION NO.19237 OF 2022
9. Mr.Bhanage, learned Counsel for the Respondents in the Revision Application and for the Applicant in this Interim Application would submit that since monies have already been deposited in this Court, Prayer clause (a) has been worked out. However, with respect to Prayer clause (b), learned Counsel would submit that, if his client, applicants therein, are permitted to withdraw the said amount deposited, then even this Interim Application could be disposed and even the Civil Revision Application could be worked out.
10. Mr.Dewal seeks some time to take instructions in the matter. Accordingly, list on 25th August 2023.
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