Bombay High Court
Relcon Infraprojects Limited vs Tripti Co-Operative Housing Society ... on 3 April, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
2024:BHC-OS:5845
(11)ARBPL-29957-2023.doc
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
ARBITRATION PETITION (L) NO.29957 OF 2023
Relcon Infraprojects Ltd. ] .. Petitioner
vs.
Tripti CHS Ltd. ] .. Respondent
Mr.Cyrus Ardeshir a/w Ranjeev Carvalho i/b Shriya Mehta for the Petitioenr.
Mr.Aseem Naphade i/b Rahul Tiwari for Respondent No.1. Ms.Aparna Vhatkar a/w Dinesh Gupta and R.K. Madgekar for Respondent No.2.
Mr.Anilkumar Patil, for Respondent No.3.
Mr.Kaushik Oza, son of Respondent No.3 present in Court. Mr.Dhiren Shah a/w Dhwani Rughani for Respondent Nos.4 to 10. Mr.Amogh Singh i/b Anita Adsul for Interveners. Mr.Girdhari Biyani, Shivshankar Biyani, Kapil Khandelwar, M. Dadia, Motilal Rathod, Kaushik Oza, Kanti Dedia and Kirit Shah, Members of Tripti CHSl present in person.
CORAM : BHARATI DANGRE, J DATE : 3rd April, 2024.
P.C. 1] As directed by the earlier order dated 22.03.2024, the learned counsel Mr. Ardeshir representing the Petitioner has placed before me request from 8 members, who are desirous of purchasing additional area from the Developer and have been allotted flats on distinct floors.
1/7 ::: Uploaded on - 06/04/2024 ::: Downloaded on - 17/04/2024 03:06:17 :::(11)ARBPL-29957-2023.doc Upon coming to know the cause put forth in the proceedings on behalf of Respondent No.2 for not vacating the premises, being that he shall be accommodated on higher floor, even 8 members have expressed that they should also be accommodated on higher floor.
All the 8 communications are taken on record and collectively marked as X- for identification.
Needless to state that in the wake of aforesaid, the whole calculations would go astray, as there would be a lot of displacement/ adjustments, which would be required to be undertaken, when the building plans are already sanctioned and new flats are already allotted to the respective members.
In the wake of this, I am not inclined to grant the relief sought by Respondent No.2, who shall now stick upto the flat allotted to him, on the first floor and the request made to accommodate him on 6th floor, do not deserve any consideration.
In the light of aforesaid order, Respondent No.2 shall now execute the PAAA.
2] The learned counsel Mr. Shah representing Respondent Nos.4 to 10, expect that, simultaneous with the execution of the PAAA, they should be made over the benefits under the Development Agreement and learned counsel Mr.Ardeshir make a specific statement, that in adherence to Clause 5(D) of the Development Agreement, he shall hand over to the Society, post-dated cheques for hardship compensation, monthly rent, brokerage and shifting charges for temporary alternative accommodation and this shall be simultaneous with the execution of the PAAA.
Pursuant thereto, the Society shall release the post-dated cheques to the members, who have executed the PAAA and shall hand 2/7 ::: Uploaded on - 06/04/2024 ::: Downloaded on - 17/04/2024 03:06:17 ::: (11)ARBPL-29957-2023.doc over the vacant and peaceful possession of their respective flats to the Developer.
3] Same apprehension is expressed on behalf of Respondent No.3, who is represented by Mr. Patil and since grievance is made by Mr. Ardeshir that despite repeated correspondence, Respondent has failed to collect PAAA, during the course of hearing the same is handed over to Mr. Patil in presence of his son, who has accepted and acknowledged the same.
With this conundrum being resolved, I see no difficulty in Respondent Nos.2, 3 and 4 to 10 vacating their premises on or before 18.05.2024 that is within 60 days from the date of issuance of notice to vacate.
4] During the course of hearing, Mr. Shah has presented before me a copy of the resolution passed by the Society in its SGBM held on 01.04.2024, which reads thus :
"Resolved that, the Developers should make full payment for full IOD that is premium covering the entire building potential of the said building including premium for fungible F.S.I. and pay all the Development charges and all other amounts required for full IOD immediately and purchase and acquire full TDR required for construction of the entire building before requiring the members to vacate their existing premises and should not avail of any differed payment scheme for payment of the premium or other amounts required for awaiting of the full development potential and/or development charges and/or full fungible F.S.I."
The background in which the resolution is passed is indicated in the 3/7 ::: Uploaded on - 06/04/2024 ::: Downloaded on - 17/04/2024 03:06:17 ::: (11)ARBPL-29957-2023.doc minutes of the meeting where, the agenda was indicated to the following effect:
"1. The Developer has informed the society that he has obtained Full IOD for the redevelopment of both buildings with the Deferred Payment Scheme, offered by MCGM to be paid in five equal annual installments along with interest of 8.5%.
2. The majority of society members want full IOD with full payment because the Builder has promised the society members that he would take full IOD with full payment and cancelled the bank guarantee of Rupees 8 Crores which he proposed in his offer letter.
The meeting was called by the Managing Committee because of the aforesaid emergent circumstances."
5] Though the Society remained unrepresented today, Mr. Girdhari Biyani, Shivshankar Biyani, Kapil Khandelwar, Manak Dadia, Motilal Rathod, Kausik Oza, Kanti Dedia, Kirit Shah- the members of the society would request for the brief accommodation.
Mr. Naphade who represented the society during the last hearing, however, makes a categorical statement that he has no instructions to represent the Society.
6] When confronted with the aforesaid resolution, the counsel for the Developer Mr Ardeshir specifically submit that insistence upon the full payment of full IOD is an unwarranted requisition, since the Corporation itself permit the Societies to make the payment towards IOD in installments and this is not the offer which is available to him but also to all other Developers in the city.
4/7 ::: Uploaded on - 06/04/2024 ::: Downloaded on - 17/04/2024 03:06:17 :::(11)ARBPL-29957-2023.doc In any case, according to him the first installment towards IOD is already parted with the Corporation and 4 installments shall be duly paid.
What is more relevant according to Mr. Ardeshir that he has obtained the full IOD and relevant clause in the development agreement cast an obligation upon the members to vacate the premises, as soon as the full IOD is obtained.
Whether the payment is made by the developer in installments or lumpsum is no way concern of the Society as long as the Corporation has agreed to accept the amount in installments and has granted full IOD.
7] Another grievance as regards the cancellation of the Bank Guarantee of Rs.8 crores, Mr Ardeshir has relied upon Annexure-S of the Development Agreement, which is to be read alongwith clause No.7 of the DA, as it offers details of the security in the premises and from the conjoint reading of the same, it is evident that the value of the 2 flats and 4 car parking spaces, incidental to the said flats is worked out to 9,32,00,000/- as against required value of Rs.8 Crores.
Annexure-S has also stipulated that the society shall release its charge on the aforesaid security premises proportionately to the extent of work completion as per the stages set out therein.
Thus, the concern of the society is taken care of and in fact as against bank guarantee of Rs.8 Crores, the Society has excess of security.
The apprehension expressed by the members of the Society, through the members who are present before me in person, is totally baseless.
The resolution is passed by majority, amd according to me it is 5/7 ::: Uploaded on - 06/04/2024 ::: Downloaded on - 17/04/2024 03:06:17 ::: (11)ARBPL-29957-2023.doc only an attempt to postpone the obligation, on their part to vacate the premises and this in my considered opinion, is not in the interest of the members.
Definitely, the society have assurance from the developer but I feel that it is fully secured with the annexure-S being part of the development agreement and similarly with full IOD having been obtained from the Corporation.
8] In the wake of the above, by resolving the dispute which has featured in the arbitration petition, since the respondent Nos. 2 to 10 were being referred to as the non-cooperative members and in the wake of the order which is passed in the earlier portion, where that dispute stands resolved, I do not think that the resolution passed by the society in its SGBM dated 1st April 2024 shall delay the petitioner from proceeding with the redevelopment.
Needless to state that all the members of the respondent society shall vacate the respective flats/units in their possession on or before 18th May 2024 i..e within 60 days of notice to vacate.
Needless to state that if any of the member of the respondent No.1 society fail to hand over the peaceful and vacant possession of his flat for the purpose of demolition and commencement of redevelopment of the building belonging to the society, Court Receiver, High court, Bombay with all the powers contained in Order XL of the Civil Procedure Code shall step in and shall take forcible possession of the flat/s, if necessary after securing the police assistance from the nearest police station.
The Court Receiver, Bombay High court shall initiate action upon communication being addressed by the Developer to him and within a period of 7 days, shall implement the above order.
6/7 ::: Uploaded on - 06/04/2024 ::: Downloaded on - 17/04/2024 03:06:17 :::(11)ARBPL-29957-2023.doc Needless to state that upon taking possession of the said flats from the individual members, handed over voluntarily on taking forcible possession, it shall be handed over to the Developer for the purpose of redevelopment.
Arbitration Petition stands disposed off in the above terms.
[BHARATI DANGRE, J] 7/7 ::: Uploaded on - 06/04/2024 ::: Downloaded on - 17/04/2024 03:06:17 :::