Bombay High Court
Smita Umesh Gandhi And Another vs Kamla Shanti Developers Pvt. Ltd. And 4 ... on 14 September, 2022
Author: Gauri Godse
Bench: G.S. Patel, Gauri Godse
901-APP514-2019-IN-NMS-929-2019+.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 514 OF 2019
IN
NOTICE OF MOTION NO. 929 OF 2019
IN
SUIT NO. 539 OF 2016
WITH
INTERIM APPLICATION NO. 944 OF 2020
IN
APPEAL NO. 514 OF 2019
SHEPHALI
SANJAY Smita Umesh Gandhi & Anr ...Appellants
MORMARE
Digitally signed by
Versus
SHEPHALI
SANJAY
MORMARE
Kamla Shanti Developers Pvt Ltd & Ors ...Respondents
Date: 2022.09.15
11:28:53 +0530
Mr Mayur Khandeparkar, with Jinal Shah, Hafeez Patanwala, i/b
Juris Corp, for the Appellant.
Mr Bipin Joshi, for Respondent No. 1.
Mr Aman K, with Samruddhi Sonar, i/b Dhruve Liladhar & Co, for
Respondent No. 5.
Mr SK Dhekale, Court Receiver, is present.
Mr Jitendra Jain, present in Court.
CORAM G.S. Patel &
Gauri Godse, JJ.
DATED: 14th September 2022
PC:-
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14th September 2022
901-APP514-2019-IN-NMS-929-2019+.DOC
1. To bring a quietus to the disputes, Mr Joshi makes a statement on instructions from Mr Jitendra Jain, Respondent No 6 who is now personally present in Court. The statement is that within three months from today, i.e., by 13th December 2022, the 6th Defendant will arrange for the Appellants/Original Plaintiffs to be repaid the full amount of Rs 2.82 crores.
2. Mr Joshi also agrees that, in the meantime, the Receiver may be appointed to take symbolic possession of Flat No. 501, 5th floor of about 910 sq ft along with the open terrace and one car parking space in the building known as Nirav at Plot No 9, Gulmohar Road No 1, Vile Parle (West), Mumbai 400 049. We accept the statement. Mr Joshi however on instructions from Mr Jain says that there is no car parking space. We find this exceedingly peculiar, but we are not surprised. The premises' description is one that we have taken from what Jitendra Jain claims is his document of title. That document starts at page 86, and it is between Vijay Shankar Gupta, Defendant No. 8, and Jitendra Jain, who claims to be in possession. That deed of transfer is both undated and un-stamped. It is simply on Rs. 100 non-judicial stamp paper. It has never been registered. Yet Mr Jain claims that good and valid title has passed to him. At page 103 is the receipt clause and this has the description of the property we have mentioned above. The same description appears in a definition of the premises at page 94 where also there is a mention of the car parking space as also the terrace.
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3. Mr Jain is no stranger to this Court. Regrettably, he is also no stranger to State Government-provided accommodation, namely the jails in and around the city. He has been there before, and if he continues playing ducks and drakes with Courts, as indeed he has done in this very matter, we will have not the slightest hesitation in initiating suo motu contempt proceedings against him. The case against him is that he has persistently cheated and defrauded the Plaintiffs. Flats for which consideration has been admittedly received have found to be encumbered. Other flats have been promised although these were sold to third parties. This story of constant prevarication goes on and on to the end of the chapter with no end in sight.
4. Mr Joshi has attempted to assail the transaction in question by contending that it is not credible that a flat at Khar could be sold at this price. We are making it clear that we will not allow Mr Jain (or Mr Joshi on his behalf ) to advance any such argument because the simple fact is that Mr Jain has received the Plaintiffs' money and has signed a document. In any case, as Mr Khandeparkar points out, the very flat that Mr Joshi says was sold to the Plaintiffs at an alleged undervaluation and is therefore a bogus transaction, was sold by Jitendra Jain himself at an even lower price and that document is on record as well.
5. We need not get into all of this. We are only recording our reiteration of the same view that previous Benches have taken that Mr Jain cannot be trusted to keep his word given to a Court. Several Courts have passed adverse comments and strictures. We can set Page 3 of 5 14th September 2022 901-APP514-2019-IN-NMS-929-2019+.DOC them out later if necessary. Nothing seems to affect Mr Jain and he continues in his merry way as if all these orders of Courts are so much dust. They are not, and the sooner he realises this, the better.
6. Therefore, by consent, the Court Receiver will proceed to take formal or symbolic possession of flat No 501. And copy of this order will be intimated to the company that owns the building, Respondent No 9.
7. Mr Jain has between now and 13th of December to do whatever needs to be done to complete and perfect his title to flat No. 501.
8. Mr Jain also instructs Mr Joshi to say that if the amount of Rs. 2.82 crores is not paid before the end of banking hours on 13th December 2022, the Court Receiver will immediately proceed to take actual and physical possession with the assistance of the local Police at Khar/Bandra. Those authorities will act on production of an authenticated copy of this order and will not demand a certified copy. The Court Receiver will then place the Plaintiffs in actual physical possession of the flat in question as the agents of the Receiver but without requiring any security or royalty. The Court Receiver will then make a report to the Court seeking appropriate directions for authorisation to complete the necessary documentation to transfer good and proper title to the Plaintiffs in the Suit. These are a consequence of a default by Mr Jain, to which he consents.
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9. Since we are accepting the statement by Mr Jain, in the event of default by him in compliance of this order by 13th December 2022, we will issue suo motu contempt notice to Mr Jain. That notice is being ordered today but with an effective date of 14th December 2022, conditionally, to be issued and served thereafter in event of default. If there is compliance the notice will stand discharged.
10. This order is passed in the presence of Mr Joshi and Mr Jain both of whom agree that there will be no default by Mr Jain and these consequences will follow if there is any default.
11. Mr Joshi is correct, however, in saying that on compliance, the present suit will stands disposed of with no order as to costs. But in the event of default, in addition to the consequences above, there will be an executable decree in favour of Plaintiffs entitling the Plaintiffs to title and possession of the flat No. 501. All costs attached to perfecting the title will be recoverable from Mr Jain.
12. List the matter on 14th December 2022 for compliance.
(Gauri Godse, J) (G. S. Patel, J)
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14th September 2022