Bombay High Court
Ramesh Madhukar Apte vs Majid Ahmed Oomerbhoy And 10 Ors on 7 May, 2021
Author: S.C. Gupte
Bench: S.C. Gupte
sg 5. ia2541-20.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.2541 OF 2020
IN
SUIT NO.4913 OF 2000
Ramesh Madhukar Apte ...Applicant
IN THE MATTER OF
Majid Ahmed Oomerbhoy ...Plaintiff
vs.
Rashid Sattar Oomerbhoy & Ors. ...Defendants
AND
Majid Ahmed Oomerbhoy & Ors. ...Respondents
.....
Mr. Jaideep Mitra, i/b. Mr. Bimal Bhabhda, for the Applicant.
Mr. K.G. Munshi, a/w. Mr. Z.A. Jariwala and Mr. Ganesh Ambedkar, i/b.
Thakore Jariwala & Associates, for the Plaintiff.
Mr. Rahul, Singh, for Respondent Nos. 2, 3 and 4(a).
Ms. Nandini H. Joshi, a/w. Mr. Dhruv Joshi, i/b. Harish Joshi & Co., for
Respondent No.9.
Mr. Sarosh E. Bharuha, i/b. Ms. Kanchan Pandare, for Respondent No.10.
Ms. Kanchan M. Rane, 2nd Assistant to Court Receiver present.
....
CORAM : S.C. GUPTE, J.
DATED : 7 MAY 2021 P.C. :
. Pursuant to the orders passed by this Court so far in the matter, M/s. Shashank Mehendale & Associates, who were appointed as Structural Pg 1 of 4 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 16:32:04 ::: sg 5. ia2541-20.doc Consultants for considering the necessary repairs, both external and internal, to Flat Nos. 11 and 12A at Nariman Building, Maharshi Karve Road, Nariman Point, Mumbai- 400 021, have submitted a structural audit report. The Consultants have suggested various repairs, time line of such repairs, as also the costs thereof. Respondent No.9-co-operative housing society has filed its response to the structural audit report.
2. Respondent No.9 has taken a fair approach in the matter, by suggesting inter alia that from the remedial measures suggested by the structural consultants, certain preliminary measures would have to be undertaken before the onset of monsoons to prevent further damage to the two flats. Such measures include providing and fixing of metal props to support the structures of Flat Nos.11 and 12A as recommended in the structural auditor's report and also covering the external sides of both flats and the terrace above Flat No.12A with tarpaulin to prevent entry of water from external openings of the flat. At the hearing of this application, learned Counsel for Respondent No.9 fairly accepts that a further measure such as sealing of the open portions (open to sky) on the south side of Flat No.12A, which was possibly to be covered by a French window, with an appropriate medium such as plastic sheet or otherwise, after consultation with the contractors. Respondent No.9 society has also agreed to appoint contractors/workers to undertake these preliminary remedial measures and have the same completed by 31 May 2021. The society has agreed to bear all costs for the same. The society, however, requires an unhindered access, both from the Applicant and Respondent No.10, to the respective flats. The Applicant and Respondent No.10 have agreed to do so. Learned Counsel for Respondent No.10, offers on behalf of his client, every co-operation that may be necessary for accomplishing the repairs proposed by Respondent No.9 society, including removal of box grills outside the wall of Flat No.12A.
Pg 2 of 4 ::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 16:32:04 ::: sg 5. ia2541-20.doc Respondent No.9 society, for its part, has offered to give a reasonable notice of about 48 hours to the parties for both access as well as other works to be done in respect of the two flats. The statements of all concerned parties, which are without prejudice to the rights and contentions of all parties, are accepted.
3. So far as final remedial measures suggested by the Structural Engineers are concerned, Respondent No.9 has offered to appoint its own contractor to execute these remedial measures to the extent such measures relate to external work outside the two flats. The society has offered to bear all costs of these final remedial measures in respect of all work carried out externally in respect of Flat Nos. 11 and 12A. The society has also indicated in its response the time-line to do so. The statements are accepted.
4. So far as the costs of internal works relating to the two flats, i.e. Flat Nos. 11 and 12A, as suggested in the structural audit, are concerned, it is the society's case that these would have to be borne solely by Respondent No.10, since these internal works would not come within the purview of the society. Learned Counsel for Respondent No.10 has offered to submit his client's response to the stand taken by Respondent No.9 society. Learned Counsel submits that the external work, both preliminary and final remedial measures as proposed by Respondent No.9 society, may go ahead in the meantime, whilst this Court is seized of the matter and considers the responsibility of either of the parties to bear the costs of internal repairs of Flat Nos. 11 and 12A. Learned Counsel for the Applicant also has no objection to the repairs being carried out in the manner proposed by Respondent No.9 society.
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5. Accordingly, the following order is passed:
(i) The structural auditor's report submitted by M/s. Shashank Mehendale & Associates is accepted by this Court;
(ii) As suggested in paragraph 4 of its affidavit dated 5 May 2021, Respondent No.9 society shall carry out both preliminary and final remedial measures, so far as the external portions of Flat No.11 and 12A are concerned, in the manner suggested by it;
(iii) Respondent No.10 shall file a response to the suggestion of Respondent No.9 society that all costs of proposed final remedial measures concerning internal works to be done in Flat Nos.11 and 12A, may be borne by Respondent No.10; such affidavit may be filed within a period of two weeks from today, and response, if any, from the other side/s may be filed within one week thereafter;
(iv) The interim application to appear on board for further directions on 14 June 2021;
(v) Liberty to the parties to apply in the meanwhile.
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