Bombay High Court
Pravina Kiran Jain And Anr vs Lokhandwala Kataria Construction Pvt ... on 13 March, 2023
Author: R.I. Chagla
Bench: R.I. Chagla
Darshan Patil 51-ia-5252-22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 5252 OF 2022
WITH
INTERIM APPLICATION NO. 3066 OF 2022
IN
SUIT NO. 198 OF 2022
Pravina Kiran Jain and Anr. ..Applicants/Plaintiffs
VS.
Lokhandwala Kataria Construction
Pvt. Ltd. And 2 Ors. ..Defendants
Mr. Sharan Jagtiani, Senior Advocate a/w Mr. Karl Tamboly
a/w Mr. Mayur Khandeparkar a/w Mr. Dipen Furia a/w Ms.
Rahda Ved i/b Mrs. Leena Shah for the Plaintiffs.
Adv. Tahir P. i/b Anil R. for the Defendants.
------------
CORAM : R.I. CHAGLA, J
DATED : 13 MARCH 2023
P.C. :
1. These Interim Applications were on board and
mentioned at 10.30 a.m. and placed at 2.30 p.m. in the
afternoon session. A notice has been given to the
respondent who at any event would be aware that the
matters have been listed today before this Court. The
urgency for having the matters placed at 2.30 p.m. is that
the relief sought is in terms of the amended prayer in the
Interim Application viz. (mm) which is for the appointment
of the Court Commissioner to carry out the physical
1/7
::: Uploaded on - 15/03/2023 ::: Downloaded on - 16/03/2023 08:17:53 :::
Darshan Patil 51-ia-5252-22.odt
verification of the Suit Flat Nos. 7101 and 7201 on the
71st/72nd floor of Wing A-1, Minerva building, including but
not limited to measurement, construction status and to
verify and demarcate at site the Suit Flat Nos. 7101 and
7201 on the 71st/72nd floor in Wing A-1, Minerva building
and to submit the report before this Court.
2. An amendment had been allowed by order dated
14/02/2023 upon this Court noting that there was an
apprehension expressed by the Applicant that the
Respondents have sold all the other flats on the 71st/72nd
floor and may have changed the area and/or made further
alterations to the Applicant's flats without any notice to the
Applicants, thereby causing prejudice to the Applicants and
preventing them from applying for Ad-Interim relief to
secure the flats on the same floor to cover the deficit in the
area of the flats constructed.
3. This Court had noted that by the original allotment
letter dated 04/11/2010 which is the only allotment letter
confirmed by the Applicants, the total area of the two flats
i.e. flat no. 7101 and 7201 on the 71st/72nd floors ad-
measured 5680 sq. ft. each i.e. 4300 sq. ft. carpet area
2/7
::: Uploaded on - 15/03/2023 ::: Downloaded on - 16/03/2023 08:17:53 :::
Darshan Patil 51-ia-5252-22.odt
within each flat and 1480 sq. ft. balcony/terrace area.
4. The matter had come up before the vacation Court on
10/05/2022 wherein the learned senior counsel for the
Applicants submitted that the applicants had admittedly
paid an amount of Rs.5,72,00,240/- (in words Five Crore
Seventy Two Lakh Two Hundred Forty) out of which an
amount of Rs.5,62,00,237/- (in words Five Crore Sixty Two
Lakh Two Hundred Thirty Seven) had been admitted by the
Respondent No. 1 as seen at page no. 309 of the Plaint.
This is out of total consideration of Rs.11,61,00,000/- (in
words Eleven Crore Sixty One Lakh) in respect of the
allotment of the subject two flats till date as per the
allotment letter. However, the agreements had not been
entered into till date. The contentions of the Applicants were
that the area of the subject two flats now offered had been
reduced and accordingly objected to. This Court was
apprised that there is a dispute in respect of the area of the
subject flats. Accordingly, the Defendants were directed to
file a comprehensive affidavit explaining the dispute with
regard to the area of the subject two flats.
5. Mr. Jagtiani learned senior counsel appearing for the
3/7
::: Uploaded on - 15/03/2023 ::: Downloaded on - 16/03/2023 08:17:53 :::
Darshan Patil 51-ia-5252-22.odt
Applicant has submitted that till date the Defendants have
failed to file a comprehensive affidavit explaining the
dispute in the area of the subject two flats agreed to be
sold. He has submitted that the urgency for seeking the
appointment of the Commissioner as prayed for in prayer
clause (mm) of the Interim Application is that the occupancy
certificate has been issued only upto the 51st floor.
Leaving, it open for Defendants to make further alterations
in respect of the subject two flats on the 71st/72nd floor.
6. In the additional affidavit in reply filed to the Interim
Application, the Defendants have mentioned in paragraph
10(g) that subject flat no. 7101 admeasures 2019 sq. ft. in
accordance with the floor plan dated 02/11/2017. It is
mentioned that the details are uploaded on the Rera
Website. Further, there is no mention with regard to the area
of the subject flat no. 7201.
7. Mr. Jagtiani has submitted that according to the
applicants, the present area of the subject flat on the 71st
floor is 1674 sq. ft. Further, he has referred to the third
allotment letter dated 03/04/2017 which has not been
accepted by the Applicants and where the area of the
4/7
::: Uploaded on - 15/03/2023 ::: Downloaded on - 16/03/2023 08:17:53 :::
Darshan Patil 51-ia-5252-22.odt
subject flat no. 7201 on the 72nd floor is shown
cumulatively to have an area of 2750 sq. ft., which includes
the terrace area. He has submitted that the first allotment
letter dated 04/11/2010, which as mentioned is the only
allotment letter accepted by the Applicants and which is at
Exhibit "A" to the Plaint, the Defendants had agreed to allot
the subject two flats on the 71st/72nd floors having a
sellable area of 5680 sq. ft. It is submitted that the
Defendants have reduced the areas and are in a position to
further reduce the area as the occupancy certificate has not
been obtained with respect to the two floors i.e. 71st and
72nd floors. Accordingly, he has submitted that this Court
appoint a Commissioner to carry out the exercise mentioned
in the prayer clause (mm) of the Interim Application.
8. At this stage, the learned Advocate appearing for the
Defendants states that the matter should be kept back, in
view of the arguing counsel being before the Supreme
Court. I am not inclined to adjourn the matter, particularly
in view of the matter being on board and known to the
counsel on the previous Friday evening when the board had
come out.
5/7
::: Uploaded on - 15/03/2023 ::: Downloaded on - 16/03/2023 08:17:53 :::
Darshan Patil 51-ia-5252-22.odt
9. Accordingly, I have considered the submissions on
behalf of the Applicants/Plaintiffs as well as taken note that
the area of the two subject flats have continuously
diminished, as from the allotment letter which was issued
on 04/11/2010. Further, I have taken note of the fact that
the occupancy certificate is not yet been obtained in respect
of 71st/72nd floors, thus leaving it open to the Defendants
to make further changes. Accordingly, it would be
appropriate for the appointment of a Court Commissioner as
prayed in prayer clause (mm). Hence, the following order is
passed.
ORDER
(a) M/s Shetgiri and Associates are appointed as Court Commissioner to carry out physical verification of Suit flat nos. 7101 and 7201 on the 71st/72nd floors in Wing-A, Minerva Building, including but not limited to the measurement as well as determining the construction status and further verifying and demarcating the current areas of the Suit flat nos. 7101 and 7201 on the 71st/72nd floors in Wing-A, Minerva building.
6/7 ::: Uploaded on - 15/03/2023 ::: Downloaded on - 16/03/2023 08:17:53 :::
Darshan Patil 51-ia-5252-22.odt
(b) Advocates of the Applicants, as well as the
Defendants, shall cooperate with Mr. Shetgiri of M/s. Shetgiri and Associates for carrying out the physical verification of the subject flats including providing him with upto date plans of the subject flats.
(c) A report shall be prepared by M/s. Shetgiri and Associates after carrying out the physical verification of the aforementioned Suit flats and the same shall be submitted before this Court by 27/03/2023 at 2.30 p.m.
(d) M/s. Shetgiri and Associates shall give prior notice of the site visit to the Advocates for the Applicants and the Defendants and the representatives of the Applicants and Defendants may remain present during the said physical verification of the subject flats.
(e) The cost of M/s. Shetgiri and Associates shall be borne by the Applicants/Plaintiffs.
10. List the Interim Applications at 02.30 p.m. on 27/03/2023.
[R.I. CHAGLA J.] 7/7 ::: Uploaded on - 15/03/2023 ::: Downloaded on - 16/03/2023 08:17:53 :::