Bombay High Court
Kolte Patil Developers Limited vs Golden Pebbles Co Operative Housing ... on 11 October, 2022
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
Digitally signed 30 carbpl 25910-22..docx
by LAXMI
LAXMI SUBHASH
SONTAKKE
SUBHASH Date:
SONTAKKE 2022.10.27
13:16:17
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMMERCIAL ARBITRATION PETITION (L) NO. 25910 OF
2022
Kolte Patil Developers Ltd. ..Petitioner
Vs.
Golden Pebbles CHSL & Ors. ..Respondents
Dr. Birendra Saraf, Senior Counsel a/w Vaibhav Charalwar, Zaid Ansari,
Mangesh Kokare, Bilal Qureshi & Kaushal Dhonde i/b. Zaid S. Ansari &
Associates, for the Petitioner.
Mr. Amrut Joshi a/w Phiroze Merchant & Kaushal Dhande i/b. Kanga & Co.
for the Respondent No.1.
Mr. Nitesh Acharya a/w Rohan Surve & Norbert D'souza i/b. V. Shukla &
Associates for Respondent No.2.
Mr. Rajesh Kanojia i/b. Fayzan Khan for Respondent No.5.
CORAM:- B. P. COLABAWALLA,J.
DATE :- OCTOBER 11, 2022.
P. C.:
1. This is yet another unfortunate matter where out of 109 members of the 1st Respondent Society, 105 members have vacated their respective tenements and only four members are holding up the entire redevelopment project by not vacating their respective tenements. The Respondents who are not vacating their tenements are as under:
Laxmi page 1 of 11
30 carbpl 25910-22..docx
Respondent No.2 Flat No.E2
Respondent Nos. 3(A) to 3(F) Flat No. D4
Respondent Nos.4(A) to 4(D) (i), (ii) & (iii) Flat No.G9
Respondent No.5 Flat No.E3
2. As far as Respondent Nos. 3(A) to 3(F) are concerned [who lay a claim on Flat No.D4], they are the legal heirs of original Respondent No.3 who was a member of the 1st Respondent Society. They have been duly served as evidenced by the affidavit of service dated 23rd September 2022. Despite service, none have appeared on behalf of Respondent Nos.
3(A) to 3(F) and no affidavit in reply is filed controverting what is stated in the above Petition. It is also stated before me that possession of Flat No.D4 is with Respondent No.3(E).
3. As far as Respondent Nos. 4(A) to 4(D) (i), (ii) and (iii) are concerned [who lay a claim on Flat No.G9], they are the legal heirs of original Respondent No.4 who was a member of the 1st Respondent Society. They have also been served as evidenced by the affidavit of service dated 23rd September 2022. Despite service, they have chosen not to appear before the Court and neither have they filed any affidavit in reply controverting what is stated in the Petition.
4. Respondent Nos. 2 and 5 have appeared before the Court Laxmi page 2 of 11 30 carbpl 25910-22..docx through Advocates. They are not against the redevelopment per se. They have stated that they are agreeable to vacate their respective flats on the condition that certain safeguards are put in place. They have submitted that under the provisions of the Development Agreement read with Regulation 31(3) of the Development Control and Promotion Regulations, 2034 (for short "DCPR, 2034"), Respondent Nos. 2 and 5 are entitled to 35% fungible area over and above the 30% additional carpet area that they are entitled to under the Development Agreement. According to Respondent Nos. 2 and 5, the Petitioner Developer is not complying with these obligations, and it is for this reason that Respondent Nos. 2 and 5 have refused to vacate their premises. The second contention is that even under the provisions of the Development Agreement, Respondent Nos. 2 and 5, along with all the other Members of the Society, were to vacate their respective tenements within a period of 75 days after issuance of the IOD. Over and above this, under the Development Agreement, the Society and atleast 98 Existing Members were to execute and register their respective Permanent Alternate Accommodation Agreements (for short "PAAAs") within a period of 30 days from the date of the vacation notice. In this regard, the learned Advocate has brought to my attention Clause 7 of the Development Agreement. The learned Advocates submitted that admittedly till date this has not been complied with by the Petitioner Developer and therefore Laxmi page 3 of 11 30 carbpl 25910-22..docx Respondent Nos. 2 and 5 cannot be asked to vacate their respective flats until these compliances are done by the Petitioner Developer.
5. The last contention canvassed by the learned Counsel for Respondent Nos.2 & 5 is that the relief claimed by the Petitioner Developer, being in the nature of interim relief, can only be granted in aid of a final relief and therefore Respondent Nos. 2 and 5 cannot be ousted from the respective flats under the provisions of Section 9 of the Arbitration Act. For all the aforesaid reasons, Respondent Nos. 2 & 5 submitted that no relief be granted in favour of the Petitioner and the above Petition be dismissed with costs.
6. I have heard the learned Counsel appearing on behalf of Respondent Nos. 2 and 5 respectively. I find absolutely no merit in the contentions canvassed by them. As far as the issue of 35% fungible area is concerned, and which Respondent Nos. 2 and 5 claim that they are entitled to, is a dispute on merits which would have to be agitated in appropriate proceedings. This contention cannot be a justifiable ground to not vacate their respective premises and delay the entire redevelopment project. In the facts of this case, for every month that the project is held up, the Petitioner Developer is incurring approximately Rs. 40,00,000/- per month just by way of transit rent. Respondent Nos. 2 Laxmi page 4 of 11 30 carbpl 25910-22..docx and 5 are certainly not in a position to compensate this loss to the Petitioner Developer in the event they are incorrect in their submissions. On the other hand, if Respondent Nos. 2 and 5 are able to convince the appropriate Court/authority about their entitlement to the additional 35% fungible area, they can certainly be compensated either in additional area, if the same is available, or in terms of money. This in my opinion, cannot withhold the entire redevelopment project. Prima facie it appears that Respondent Nos. 2 and 5 are trying to arm twist the Petitioner Developer into giving into their demands. This certainly cannot be permitted as this would be unfair to the other 105 members who have accepted the Development Agreement and have vacated their respective premises in or around February 2022.
7. The second argument canvassed by Respondent Nos. 2 and 5 is that they cannot be asked to vacate their premises because no PAAA has been executed with them. I find no merit in this contention either. Though Clause 7 of the Development Agreement contemplates that a vacation notice shall be given within a period of 75 days from the date of obtaining the IOD, in the facts of this case, the Society itself has passed a resolution in their Special General Body Meeting held on 19th December 2021 where the Society has inter-alia agreed to vacate the premises before the Petitioner Developer obtained the IOD. Taking this General Laxmi page 5 of 11 30 carbpl 25910-22..docx Body Resolution forward, 105 members have vacated their respective tenements in or around February 2022. Respondent Nos.2 & 5 challenged this resolution without any success. In these facts, I do think that Respondent Nos. 2 and 5 are correct when they place reliance on Clause 7 of the Development Agreement. This apart, it is an admitted position that the IOD was received on 15th July 2022 and today we are on 11th October, 2022, which is more than 75 days from obtaining the IOD as contemplated under Clause 7 of the Development Agreement. In these circumstances, even assuming that clause 7 was to apply, Respondent Nos. 2 and 5 would have to vacate their respective tenements because the stipulated period has come and gone. What is also important to note, and as correctly pointed out by the learned Advocate appearing on behalf of the 1st Respondent Society, under Clause 8(iii) of the Development Agreement, no Member can refuse to vacate their respective tenement on the ground of failure to execute and register the PAAA. The learned Advocate correctly submitted that in many cases the parties who have vacated their premises want to purchase additional area. It is only once the plans are sanctioned and/or amended as the case may be, would the Petitioner Developer be in a position to execute the individual PAAAs with the individual members of the 1st Respondent Society.
8. The last contention raised by Respondent Nos.2 & 5 was that Laxmi page 6 of 11 30 carbpl 25910-22..docx under Section 9 of the Arbitration Act, any relief that is to be granted is only in aid of a final relief. In the facts of the present case, the Petitioner nowhere states, what is the final relief that the Petitioner would seek against the dissenting Members. It is, therefore, the contention of Respondent Nos. 2 and 5 that no relief can be granted in Section 9 Petition. I find this argument to be ludicrous to say the least. There is no requirement in law that in the Section 9 Petition, the Petitioner has to crystallize the claim that he wants to make against the dissenting Members. There are innumerable number of orders that have been passed by this Court directing dissenting Members to vacate their respective tenements starting from the case of Girish Mulchand Mehta & Anr. Vs. Mahesh S. Mehta & Anr. [2010(1) Bom. C.R. 31] all the way up to and as late as in the case of Chirag Infra Projects Pvt. Ltd. Vs. Vijay Jwala CHSL & Anr. [2021 (3) Bom. C.R. 271]. In fact, the learned Single Judge of this Court (Mr. G. S. Patel, J.) in the matter of Chirag Infra Projects Pvt. Ltd. Vs. Vijay Jwala CHSL & Anr. (supra) relied upon the Judgment in Girish Mulchand Mehta & Anr. Vs. Mahesh S. Mehta (supra) and has opined that the General Body of the Society is supreme when it comes to taking a decision regarding redevelopment of its property or for appointing a Developer for that purpose. The decision and acts of the Society would bind the dissenting members unless the resolutions were quashed and set Laxmi page 7 of 11 30 carbpl 25910-22..docx aside by a forum of competent jurisdiction, was the finding of the Court. Hence, I do not find any merit in this contention either and the same is rejected.
9. As far as Respondent No.3(A) to 3(F) and Respondent Nos. 4(A) to 4(D)(i), (ii), (iii) are concerned, as stated earlier, they have not appeared before the Court despite being duly served and no affidavit in reply is filed controverting what is stated in the Petition.
10. In view of the foregoing discussion, the following order is passed:
(a) Respondent No. 2 [occupant of Flat No. E2];
Respondent No.5 [occupant of Flat No. E3]; Respondent Nos. 3(A) to 3(F) [who lay a claim on Flat No. D4]; and Respondent Nos. 4(A) to 4(D)(i), (ii), (iii) [who lay a claim on Flat No. G9], are directed to vacate and handover vacant and peaceful possession their respective flats to the Petitioner Developer on or before 10th November, 2022.
(b) In the event any of the aforesaid Respondents fail to Laxmi page 8 of 11 30 carbpl 25910-22..docx comply with the above direction, then, the Court Receiver, High Court, Bombay shall stand appointed forthwith with all powers under Order 40 Rule 1 of the Code of Civil Procedure, 1908 including the power to take physical possession of the said Flat No.E2 and/or Flat No.E3 and/or Flat No.D4 and/or Flat No.G9, as the case may be, from the concerned Respondents and/or any other person found in occupation thereof. The Court Receiver shall have the power to break open the locks if necessary, to take physical possession of the said flats and vacate whoever is found therein. The Senior Police Inspector of the local Police Station shall give all necessary assistance (including providing adequate number of police personnel) to the Court Receiver to ensure compliance of this order, failing which, the said Senior Police Inspector shall be liable for contempt.
(c) Once the Court Receiver takes physical possession of the said Flat No.E2 and/or Flat No.E3 and/or Flat No.D4 and/or Flat No.G9, as the case may be, he shall hand over the same to the Petitioner. The Court Laxmi page 9 of 11 30 carbpl 25910-22..docx Receiver shall thereafter stand discharged without taking accounts but on the payment of his costs, charges, and expenses. The costs, charges and expenses of the Court Receiver shall be paid by the Advocate for the Petitioner within a period of one week of the Receiver raising his bill in that regard.
(d) If the Court Receiver finds any articles in the said Flat No.E2 and/or Flat No.E3 and/or Flat No.D4 and/or Flat No.G9, as the case may be, the Court Receiver shall hand over the same to the concerned Respondent/s. If for any reason, the concerned Respondent/s refuse to take away their articles from their respective flats, the Petitioner shall make arrangements to have the same stored, at its costs in the first instance, and shall be subject to any further orders passed by this Court in that regard. Before handing over the said articles to the Petitioner, the Court Receiver shall prepare an inventory of the same.
11. The above Arbitration Petition is disposed of in the aforesaid terms. However, there shall be no order as to costs.
Laxmi page 10 of 11
30 carbpl 25910-22..docx
12. It is needless to clarify that all the observations made herein are only prima facie and shall not be binding on the Arbitral Tribunal (as and when constituted) whilst deciding the lis between the parties.
13. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
( B. P. COLABAWALLA, J. )
Laxmi page 11 of 11