Bombay High Court
Shirish J. Sheth And Ila Shirish Sheth vs Rajnikanth J. Sheth And 2 Ors on 26 February, 2019
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
ppn 1 903.nms-1982.17.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.1982 OF 2017
IN
NOTICE OF MOTION NO.600 OF 2017
IN
SUIT NO.1268 OF 2011
Shirish J. Sheth & Anr. .. Applicants/Plaintiffs
Vs.
Rajnikant J. Sheth & Ors. .. Defendants
---
Mr.Ashish Kamat a/w Ms.Swati Singh and Ms.Madhu Gadodia I/by
Munir Merchant for the applicants/plaintiffs.
Mr.S.S. Desai a/w Mr.Sagar Pawar for S.K. legal & Associates I/by
Mr.Sagar Kasar a/w POA of defendant no.1 & Mr.Anupama Gawade
for the defendant nos.1 & 2.
Mr.M.P. Rege, Court Commissioner present.
---
CORAM : R.D. DHANUKA, J.
DATE : 26th February 2019 P.C.:
. Pursuant to the order dated 30th November 2018 passed by this Court, the learned Court Commissioner Mr.M.P.Rege conducted a sale in respect of residential flat bearing No.D-03 admeasuring about 956.36 sq.ft. carpet area on the 4th floor of Fariyas Building in Fariyas Co-operative Housing Society Limited on the terms and conditions of the sale duly approved by this Court.
2. learned Court Commissioner received only one offer from Mrs.Sudha Pravinchandra Shah and Mr.Pravinchandra Kodarlal Shah in respect of the said flat. There are no other offers received by the learned Court Commissioner. Since Mrs.Sudha Pravinchandra Shah and Mr.Pravinchandra Kodarlal Shah had complied with the order by ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 18:57:25 ::: ppn 2 903.nms-1982.17.doc depositing EMD in the sum of Rs.13,05,000/- aggregating to Rs.26,10,000/-, sale in favour of Mrs.Sudha Pravinchandra Shah and Mr.Pravinchandra Kodarlal Shah is confirmed.
3. The aforesaid successful bidders shall deposit 20% of the sale amount within 15 days from today by NEFT in favour of the Prothonotary and Senior Master of this Court with intimation to the learned Court Commissioner and the parties. The balance amount shall be deposited by these successful bidders with the office of the Prothonotary and Senior Master by NEFT within 15 days from the date of deposit of 20% amount without fail with intimation to the learned Court Commissioner and the parties.
4. Learned counsel appearing for the defendant nos.1 and 2 states that the original title documents in respect of the said flat will be handed over within one week from today to the learned Court Commissioner without fail. Statement made by the learned counsel is accepted as and by way of an undertaking to this Court.
5. Learned counsel for the defendant nos.1 and 2, on instructions from his clients who are present in Court, undertakes to hand over vacant possession of the said flat to the learned Court Commissioner on or before 15th March 2019 at or before 5.00 p.m. They shall remove all articles belonging to them which are lying in the said flat within one week from today. Undertaking is accepted.
6. It is made clear that the learned Court Commissioner shall hand over vacant possession of the said flat to these purchasers within ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 18:57:25 ::: ppn 3 903.nms-1982.17.doc three days from the date of those purchasers depositing the entire amount as directed aforesaid. Learned Court Commissioner, upon depositing the entire amount by these purchasers, shall issue a sale certificate in favour of these purchasers and shall execute such documents as would be necessary to effectuate transfer of the flat under the provisions of the Maharashtra Co-operative Societies Act, 1960 and bye-laws of the Societies in favour of these two successful bidders expeditiously. If any payments are required to be made by the flat purchasers to the Society for effecting the transfer of the said flat and the said shares including the stamp duty and registration charges, if any, shall be borne by the flat purchasers exclusively.
7. It is made clear that if the defendant nos.1 and 2 do not hand over vacant possession of the said flat to the learned Court Commissioner on or before 15th March 2019, the Court Receiver, High Court, Bombay shall stand appointed in respect of the said flat who shall dispossesses the defendant nos.1 and 2 along with any occupant if found in the said flat and if necessary, with the assistance of the local police and shall hand over the vacant possession thereof to the successful bidders. If any police assistance is required by the learned Court Receiver from the concerned police station, the same shall be provided to implement this order passed by this Court.
8. In so far as allotment of car parking space is concerned, the successful bidders who are present in Court state that according to the defendant no.3-society, a separate car parking space is allotted to each of the flat including the suit flat. The defendant no.3-society is accordingly directed to consider the application, if any, of the successful ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 18:57:25 ::: ppn 4 903.nms-1982.17.doc bidders in respect of the car parking space in accordance with the provisions of the Maharashtra Co-operative Societies Act, 1960 and bye- laws of the Societies and also the existing policy of the society.
9. In so far as the directions issued in paragraph (iv) of the order dated 30th November 2018 is concerned, learned counsel appearing for the plaintiff and the defendant nos.1 and 2 agree to comply with the statutory compliance including providing a certificate under Section 281 of the Income-tax Act, 1961 and would furnish such documents as would be necessary as pointed out by the learned Court Commissioner within ten days from today.
10. In so far as issue of Tax Deducted at Source (TDS) from the amount required to be deposited by the successful bidders is concerned, learned Court Commissioner agrees to ascertain the amount required to be deducted from the payment and required to be deposited by the successful bidders and would inform this Court as well as parties on or before the next date. The successful bidders shall deduct the amount towards TDS only after this issue is sorted out by this Court on the next date.
11. It is made clear that upon deposit of the entire amount by the successful bidders in this Court and upon issuance of sale certificate by the learned Court Commissioner in favour of the successful bidders, learned Prothonotary and Senior Master shall make payment of Rs.21,17,908/- in favour of the defendant nos.1 and 2 upfront from out of the sale proceeds towards expenses incurred by these defendants for maintenance and upkeep of the suit flat. Learned Prothonotary and ::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 18:57:25 ::: ppn 5 903.nms-1982.17.doc Senior Master shall also to pay the balance amount equally to the plaintiff on one hand and the defendant nos.1 and 2 on the other hand in compliance with the order dated 30th November 2019 and more particularly the directions issued in paragraph (iv) thereof within two weeks from the date of compliance of the aforesaid directions.
12. It is made clear that the Prothonotary and Senior Master shall also pay the fees and expenses of the learned Court Commissioner appointed by this Court out of the said deposit that would be made by the successful bidders and disburse the balance amount as directed aforesaid only thereafter. Fees and expenses of the learned Court Commissioner would be quantified by this Court on the next date after hearing both the parties and the learned Court Commissioner and paid to the learned Court Commissioner.
13. Place the matter on supplementary board for 'Directions' on 5th March 2019. Parties, Society and the learned Prothonotary and Senior Master to act on the authenticated copy of this order.
R.D. DHANUKA, J.
::: Uploaded on - 01/03/2019 ::: Downloaded on - 21/03/2019 18:57:25 :::