Bombay High Court
Fancy Builders Private Limited vs Leonard Raymond Pereira And 2 Ors on 28 April, 2022
Author: R.I. Chagla
Bench: R.I. Chagla
Digitally signed
by JITENDRA
JITENDRA SHANKAR
SHANKAR NIJASURE
Date:
NIJASURE 2022.04.29
17:46:25 +0530
913-ial-12179-2022.doc
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.12179 OF 2022
IN
SUIT (L) NO.12176 OF 2022
Fancy Builders Pvt. Ltd. ...Applicant/
Plaintiff
Versus
Leonard Raymond Pareira & Ors. ...Defendants
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Mr. Aspi Chinoy, Senior Counsel with Mr. Sunip Sen i/b. Sutapa Saha for
the Applicant / Plaintiff.
Snehal Shah, Senior Counsel with Rishir Daulat, Ayush Khandelwal,
Siddharth Nunes and Abhijit Nair i/b. TRD Associates for the Defendant
Nos.1 and 2.
Mr. Karl Tamboly, i/b. Ms. Nazaqat Lal for the Defendant No.3.
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CORAM : R.I. CHAGLA J.
DATE : 28TH APRIL, 2022
ORDER :
1. By this Interim Application, the Applicant has sought restoration of possession to the Applicant / Plaintiff of the plot being all that piece and parcel of land or ground situated at Hill Road, Bandra in the registration District of Bombay and sub-district of Bandra, bearing Plot No.3, CTS No. B/593/3, village Bandra admeasuring about 756.7 sq.yards equivalent to 632.8 sq. mtrs. ("suit property") by and under an order of 1/10 913-ial-12179-2022.doc injunction. Further, consequential relief has been sought with regard to order of injunction restraining Defendants from interfering with the peaceful enjoyment of possession of the Applicant / Original Plaintiff of the suit property. An injunction has also been sought against Defendant from creating any third party rights, title and interest in the suit property and / or constructing any structure thereon and / or to attempt to redevelop the same and / or creating any right, title and interest therein or otherwise altering the current status of the Suit property. There are consequential relief for appointment of a Court Receiver of the Suit property.
2. At this stage ad-interim relief has been sought restraining the Defendants from any manner dealing with the Suit property. Mr. Aspi Chinoy, learned Senior Counsel for the Plaintiff has drawn reference of this Court to the Indenture of Lease dated 26th August, 1949 between Domnic Pereira, the predecessor of Defendant Nos.1 and 2 who is described as lessor of the Suit property and the Tee Beam Structures India Ltd. who is described as Lessee. It is provided for in the Indenture that Domnic Pereira as Lessor of the Suit property had leased the Suit property to the lessee for a period of 50 years. Under Clause 12 of the Indenture of Lease it is provided that, on the expiration of the term of the lease, the Lessor shall have a right to purchase the building standing on the demised premises at a price that may be agreed to between the parties and in case of disagreement at a price 2/10 913-ial-12179-2022.doc to be fixed by the Arbitrators, one to be appointed by the Lessor and another by the Lessees and in the case of their disagreement by an umpire whom the arbitrators may select before entering on the reference. In the event of the purchase price so fixed on the arbitration being such that the Lessor is not prepared to pay, the Lessor shall be bound to renew the lease and the Lessees shall take a new lease of the demised premises for a further period of 50 years from the expiration of the term at the revised rent of Rs.104/- per month to be paid in manner provided for the payment of rents every quarter or otherwise on the same terms and conditions as are provided in the Indenture save and except this covenant for renewal. At the end of this further period of 50 years that is to say on or from the last day of January, 2049 the building will become the property of the Lessor without any compensation having to be paid by the Lessor to the Lessees for the same and the Lessees will give possession of the demised premises and the building in the state in which the same will be two years before the expiration of the said further term of 50 years.
3. Mr. Chinoy has further referred to the Deed of Assignment of Lease dated 2nd March, 2009 entered into between the assignor Jehanara Begum Aladatkhanji Malik to whom the leasehold rights of the Suit property had been transferred by the original lessee Beam Structures (India) Ltd. by an Indenture dated 11th June, 1954 and the assignee who is the 3/10 913-ial-12179-2022.doc Plaintiff herein. By the Deed of Assignment of Lease, the assignor assigned her leasehold property rights in respect of the subject land and separately assigned her ownership of the tenanted building known as Gulnar standing on the Suit property. It is the contention of Mr. Chinoy that by virtue of this Deed of Assignment of Lease the Plaintiffs stepped into the shoes of the lessee with regard to the the leasehold property rights of the subject land as well as becoming owner of the tenanted building on the Suit property. He has submitted that the under the Deed of Indenture dated 26th August, 1949, it was for the predecessor of Defendant Nos.1 and 2 as lessor under the Indenture of Lease to have purchased the building from the lessee who was the owner and not having done so, by Deed of Assignment of Lease, the then lessee sold the subject building to the Plaintiff.
4. Mr. Chinoy has further submitted that the Defendant Nos.1, 2 and 3 have demolished the subject building on 18th March, 2022, which came to the knowledge of the Plaintiff on 26th March, 2022. By virtue of demolition of the subject building the Plaintiff herein has been dispossessed from the Suit property. He has submitted that the Plaintiff had prior to the demolition, being in possession of the Suit property filed eviction proceedings against the tenants who were occupying the subject building on the Suit property and thereby exercised rights as owner of the subject building. He has submitted that by virtue of the subject building having 4/10 913-ial-12179-2022.doc been demolished, necessary ad-interim relief be passed by this Court for protecting the Suit property as the Defendants will construct a building thereon thereby permanently dispossessing the Plaintiff from the Suit property which had been assigned to the Plaintiff by Deed of Assignment dated 2nd March, 2009.
5. Mr. Snehal Shah, learned Senior Counsel for the Defendant Nos.1 and 2 has vehemently opposed any ad-interim relief being granted. He is supported by Mr. Karl Tamboly, the learned Counsel for Defendant No.3. They have submitted that there has been gross delay and laches on the part of the Plaintiff herein to exercise any right as purported owner of the subject building which stood on the Suit property. In fact the Defendant No.3 had way back on 3rd August, 2019 issued public notice making enquiries with regard to ownership of the Suit property in capacity as the developer of the Suit property. An IOD has also been issued in favour of Defendant No.1 and 2, which is also annexed to the Affidavit in Reply of Defendant No.3 opposing ad-interim relief and which is tendered to this Court and taken on record. He has submitted that Defendant No.3 had been appointed as developer of the Suit property by Defendant Nos.1 and 2 pursuant to notice issued by MCGM under Section 354 of the MMC Act on the ground that the building was in dilapidated condition. 5/10
913-ial-12179-2022.doc
6. An Affidavit in Reply opposing ad-interim relief is tendered by Mr. Shah for Defendant Nos.1 and 2 which is taken on record. He has drawn reference to the financial accounts of the Plaintiff herein including balance sheets as well as auditors report for year 2009 when the Deed of Assignment of Lease was executed and for the financial years 2019 and 2020 wherein there is no mention of the subject building on the Suit property being part of the fixed assets of the Plaintiffs herein. It is mentioned in the auditors reports for the aforementioned financial years that the Plaintiff company does not have immovable property under the head of fixed assets.
7. Mr. Shah has further referred to the Memorandum of Understanding dated 5th January, 2020 and 7th December, 2020 entered into between the consenting tenants and the Defendant Nos.1 and 2 as owners and Defendant No.3 as developer for redevelopment of the Suit property. There is a subsequent Development Agreement dated 4th February, 2020 between Defendant Nos.1 and 2 and Defendant No.3 for redevelopment of the Suit property. He has submitted that the Plaintiffs herein is claiming to be dispossessed of the subject land and this is apparent from the prayers made in the Plaint where the Plaintiff has sought restoration of the Plaintiffs possession of the subject land. He has submitted that in so far as subject building is concerned it could never have been sold 6/10 913-ial-12179-2022.doc to the Plaintiff by the erstwhile lessee considering the fact that the erstwhile lessee had surrendered the leasehold rights to the lessor on expiry of the Indenture of Lease dated 26th August, 1949, which expired in 1998. He has submitted that there is nothing to show that the Plaintiff herein was in possession of the Suit property and / or that the Plaintiff herein was at all times in possession of the subject building. He has accordingly submitted that this does not warrant any ad-interim relief being granted.
8. Having considered the rival submissions, it does appear from Clause 12 of the original Indenture of Lease dated 26th August, 1949 that on expiration of term granted by the lease, the lessor had a right to purchase the subject building standing on the demised premises at the price that were to be agreed upon and upon disagreement at a price to be fixed on arbitration. It is further made clear that in the event the Lessor is not prepared to pay the purchase price of the subject building fixed by the arbitrators, the Lessor shall be bound to renew the lease and the lessees shall take a new lease of the demised premises for a further period of 50 years. At the end of that further period of 50 years i.e. on or from the 1st January, 2049, the building will become the property of the Lessor without any compensation having to be paid by the Lessor to the Lessee.
9. It is noted that there is nothing on record to show that the 7/10 913-ial-12179-2022.doc lease was in fact renewed by the predecessor of Defendant Nos.1 and 2, namely the Lessor. However, on 2nd March 2009, a Deed of Assignment of Lease had been entered into between the assignor Jehanara Begum Aladatkhanji Malik who is claimed to have been transferred the leasehold of the Suit property by the original lessee and the Plaintiff herein, described as assignee, by which the assignor had assigned the leasehold property rights in respect of the subject land as well as ownership of the tenanted building on the Suit property to the Plaintiff. Consideration of Rs.25 lakhs has been mentioned in Deed of Assignment for the assignment of the leasehold rights in respect of the subject land and a sum of Rs.15 lakhs for sale of the subject building. However, it is required to be noted that this was under Deed of Assignment of Lease. There is nothing on record to show that there has actually been a conveyance of the subject building by the purported owner in favour of the Plaintiffs herein. Nevertheless in so far as restoration of possession under Section 6 of the Specific Relief Act is concerned, title is not a relevant factor to be considered, provided that the Plaintiff is able to show that the Plaintiff was in possession of the subject building and has been unlawfully dispossessed.
10. It appears from the record that the Defendant No.3 was appointed as the developer by the Defendant Nos.1 and 2 - described as owners of the Suit property under a Memorandum of Understanding dated 8/10 913-ial-12179-2022.doc 5th January, 2020 for redevelopment of the subject building on the Suit property. The tenants were also parties to the said Memorandum of Understanding and their consent was obtained. It is also pursuant to the MoU and subsequent Development Agreement for redevelopment of the Suit property that the subject building had been demolished on 18th March, 2022.
11. The Defendant No.3 as the developer had issued a public notice way back on 23rd August, 2019 with regard to making inquiries as to the owners of the subject building for the purpose of its redevelopment. This public notice would in my prima facie view have certainly been of significance in so far as the Plaintiff herein was concerned, considering that they claim to be the owners of the subject building. It is also necessary to note that an IOD has also been issued by the MCGM in favour of the Defendants, for redevelopment of the Suit property. However, the present Suit as well as Interim Application have been filed only as recent as on 12th April, 2022. Thus, there is much delay in applying for ad-interim relief. In the financial accounts of the Plaintiff i.e. the balance sheet of 31st March, 2009 as well as the subsequent balance sheets and auditors reports of the Plaintiffs there is no mention of the Plaintiffs having as part of its fixed assets the subject building.
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913-ial-12179-2022.doc
12. In my prima facie view, the Plaintiff cannot claim to be entitled to ad-interim relief in respect of the Suit property, and / or claim to be dispossessed from the Suit property particularly when there is nothing on record to show that the Plaintiffs had been in possession of the Suit property other than asserting that the Plaintiff had initiated eviction proceedings against the tenants of the subject building. Further, there has been much delay in filing the Interim Application and applying for ad- interim which would disentitle the Plaintiff to any ad-interim relief as this would be prejudicial to the Defendants who have taken steps to redevelop the Suit property faced with a notice issued by the MCGM under Section 354 of the MMC Act. Accordingly, ad-interim relief is not granted.
13. The pleadings shall be completed. The Defendants shall file additional Affidavits in Reply to the Interim Application on or before 7th June, 2022.
14. The Applicants / Plaintiffs are at liberty to file Affidavit in Rejoinder, if any, on or before 21st June, 2022.
15. Place the Interim Application for hearing at 2.30 p.m. on 23rd June, 2022.
[R.I. CHAGLA J.] 10/10