Bombay High Court
Kamla Homes And Lifestyles Private ... vs Borivali Rajesh Co-Operative Housing ... on 8 September, 2022
Bench: G.S. Patel, Gauri Godse
3-OSCOMAP-62-2022 IN CARBP-241-2022+.DOC
Ashwini
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL APPELLATE DIVISION
COMMERCIAL APPEAL NO. 62 OF 2022
IN
COMM ARBITRATION PETITION NO. 241 OF 2022
WITH
INTERIM APPLICATION (L) NO. 25385 OF 2022
IN
COMMERCIAL APPEAL NO. 62 OF 2022
WITH
INTERIM APPLICATION NO. 2833 OF 2022
IN
COMMERCIAL APPEAL NO. 62 OF 2022
Kamla Homes and Lifestyles Pvt Ltd & Ors ...Appellants
Versus
Borivali Rajesh Co-operative Housing Society Ltd ...Respondents
& Ors
ASHWINI
HULGOJI Mr Ashish Kamat, with Vishal Kanade & MP Vora, i/b Pramodkumar
GAJAKOSH
Digitally signed by
& Co, for the Appellant.
ASHWINI HULGOJI
GAJAKOSH Ms Ankita Singhania, i/b PV Dhopatkar, for the Intervenor/Applicant
in IAL/25385/2022.
Date: 2022.09.12
13:35:24 +0530
Mr S Murthy, i/b Abhishek Patil, for Respondent No. 1.
Mr Shivakant Dubey, Secretary, is present.
Mr Yogesh Shah, Committee Member, is present.
Mr Ketki Ajmera, Committee Member, is present.
Page 1 of 8
8th September 2022
3-OSCOMAP-62-2022 IN CARBP-241-2022+.DOC
Mr Dwarkesh Sheth, Director of Appellant, is present.
CORAM G.S. Patel &
Gauri Godse, JJ.
DATED: 8th September 2022 PC:-
1. We have heard Mr Kamat for the developer, Mr Murthy for the Society, and Ms Singhania for five individual members this morning. Present in Court are the secretary of the Society and two committee members.
2. During the hearing this morning, we made certain suggestions after hearing all three counsels. Broadly speaking, our suggestions were as follows:
(a) That while we were not inclined to sit in appeal over a decision of the Society's General Body, and which we do not have the jurisdiction to do any way, we nonetheless felt that some protection for Society members was required.
(b) We explained to all concerned that there are two broad aspects to any such agreement. The first is the question of construction and of preparing the redeveloped building with new homes for Society members. The second, and equally important, is the aspect of the developer meeting its financial obligations to the members.Page 2 of 8
8th September 2022 3-OSCOMAP-62-2022 IN CARBP-241-2022+.DOC
(c) We expressed our reservation that a general default clause might not adequately protect the Society's members' financial entitlements. We explained that this concern came from our past experience, where arrears, especially of transit rent, mount and accumulate for months and even years together. During the period of ongoing default, Society members are in transit accommodation and have to meet the cost of that (license fees or rent) out of their own pockets. We have seen cases where entire families have been forced into ever mor squalid accommodation, and of being able to afford reasonable accommodation by reducing themselves to a single meal a day for the entire family. This is an aspect with which all are only too familiar, and, before us, it is a concerned shared by all.
(d) Consequently, we suggested that the clause for breach by the developer, the arbitration clause, and the clause for payments of transit rent be slightly modified. Mr Kamat expressed some concern that a financial default could inadvertently be triggered if an individual member changed his bank account without prior intimation. For this reason. we suggested that the monthly compensation be paid by the developer not to individual members but to a special account to be set up by the Society. It would then be for the office bearers to distribute the monthly compensation to individual members from that central account. Mr Murthy for the Society said that Society would set up a Page 3 of 8 8th September 2022 3-OSCOMAP-62-2022 IN CARBP-241-2022+.DOC new, dedicated bank account, and would not change that account for the duration of the contract without sufficient prior intimation to the developers.
(e) We also suggested that to allay any concerns of a developer of an abrupt termination without sufficient cause, there should be a contractual provision for a fallback position. Thus, if the developer missed a contractually stipulated deadline for payment of any monthly instalment, the developer would have a cure period of seven bank days to rectify that default and make payment. Mr Murthy for the Society agreed and Ms Singhania herself also had no objection to such a provision. Of course, if both the original time schedule and the extended cured period were not met, there would be a resultant Event of Default.
(f) Mr Kamat's concern was that even this would conceivably throw the developer into an unnecessary and expensive litigation. It is for this reason that we suggested that the parties may consider an alternative by which the developer provides a bank guarantee of a scheduled bank covering three months' transit rent (for the whole Society, i.e., all members' transit rent entitlement aggregated). The default would run like this: if transit rent for any three months was unpaid, i.e., that the transit rent for any month plus its extended period went unpaid three times, then the Society could invoke the bank guarantee. The bank guarantee would also be constantly replenished as long Page 4 of 8 8th September 2022 3-OSCOMAP-62-2022 IN CARBP-241-2022+.DOC as the developer was obliged to pay transit rent; the bank guarantee obligation would end when the developer's liability to pay transit rent ended. A failure to replenish would also be an Event of Default.
3. In the course of the day, all have agreed to these suggestions and these have been incorporated in the draft. We have been shown a reworked draft. We have indicated suggested changes to clause 6(b), removing the word 'consecutive', that the whole of clause 6 be taken above clause 3 and that there be a clarificatory change in present clause 6(b) as well. Mr Kanade for the developer and Mr Murthy for the Society agree that the present revised draft may be taken on record and marked "X" for identification with today's date. So ordered. A soft copy will also be annexed to end of this order.
4. Mr Murthy clarifies that all members will be required to sign this revised agreement incorporating the changes indicated above. We understand that this will necessarily include Ms Singhania's clients and having heard all parties we now do not expect them to raise any objections to this. Their concerns have now been adequately addressed. We had even earlier made it clear that these five members would not be entitled to any special privileges. We entertained them only because we believe, and Ms Singhania agreed, that their only concern was to ensure that the agreement with the developer was not to the detriment of the Society and its members. This has now been addressed.
Page 5 of 88th September 2022 3-OSCOMAP-62-2022 IN CARBP-241-2022+.DOC
5. Mr Murthy points out that there are some Society members who are not in India and there are others who are not in Mumbai. We have no objection to this agreement being executed in multiple counterparts if that is more logistically convenient. rather than awaiting all signatures on a single document. Mr Murthy and the developer will have to take care that stamp duty is not charged multiple times and the necessary application will have to be made for that purpose.
6. By way of clarification to the Collector of Stamps, we clarify that if the agreement as rectified according to our order today is submitted in multiple counterparts because different people have signed at different times, this will be treated as a single transactional document in multiple counterparts, and that each counterpart shall not be assessable to stamp duty on every separate document. All counterparts will be treated as a single document. This will be treated as a positive direction and order to the stamp authorities, and they will act on it when required on production of an authenticated copy of this order.
7. Mr Murthy points out that the draft that was first shown to us this morning was approved by the general body. Many members have already signed. The suggestions that we have made today are not because of a rethink or a reconsideration but follow suggestions that came from us. We do not think a fresh general body meeting is required in the facts and circumstances of this case. Indeed, if the interests of the Society are alleged to insufficiently safeguarded by Mr Murthy, then they are undoubtedly protected by Ms Singhania Page 6 of 8 8th September 2022 3-OSCOMAP-62-2022 IN CARBP-241-2022+.DOC and her clients. Thus, there is no one who can complain, object, obstruct or refuse to sign.
8. The MCGM will proceed to process the Developers' application for an IOD and a CC on the basis of this order and will act on production of an authenticated copy of this order. The MCGM will not, in the facts and circumstances of the case, insist on the signature of every member of the Society. This will be treated as a positive direction and order to the MCGM.
9. We also note that to leave no room for doubt the fresh supplementary agreement has its own arbitration clause. All confirm that the supplementary agreement's arbitration clause is now that will govern.
10. It is clarified that the present supplementary agreement is not in substitution of the original development agreement but modifies it to the extent provided in the supplementary agreement.
11. Mr Murthy states that if the developer requires an additional, supplementary or special power of attorney the Society through his office bearers will issue this in consonance with the supplementary agreement.
12. The statements and commitments in the supplementary agreement shown to us today will obviously be accepted as undertakings to the court.
Page 7 of 88th September 2022 3-OSCOMAP-62-2022 IN CARBP-241-2022+.DOC
13. The impugned order is, without any assessment on merits, and since this order settles the disputes between the parties, by consent set aside.
14. For completeness, we will keep the matter next week so that we can take on record the final agreement as signed on behalf of the developer and on behalf of the Society as also by Ms Singhania's clients and such other members who are able to sign by that date.
15. In view of this order the Section 9 Petition itself will not survive. We are formally disposing of the Appeal today, but we keep the matter on Tuesday, 13th September 2022 to take on record the corrected supplementary agreement.
(Gauri Godse, J) (G. S. Patel, J)
Page 8 of 8
8th September 2022
J' C0RAM:SHRf6.S.PATHJ&
SUPPLEMENTARY AGREEMENT
This SUPPLEMENTARY AGREEMENT is made at Mumbai on the - day
of September, 2022.
BETWEEN
BORIVLI RAJESH CO- OPERATIVE HOUSING SOCIETY LTD,, a Co- operative Housing Society, duly registered under the provisions - of The Maharashtra Co-operative Societies Act, 1960, having Registration No.BOM/HSG/R-9633/83 on 02-06-1983 having its office at Borivli Rajesh Apartment, Eksar Road, Near Royal Complex, Borivali (W), Mumbai - 400 092"THE SOCIETY" (which expression shall unless, it be repugnant to the' Subject or context or meaning thereof, be deemed to mean and include its office Bearers, members and authorized representative of the FIRST PART;.
AND BORIVLI RAJESH CO-OPERATIVE SOCIETY LTD., a Co-operative Housing Society, duly registered under the provisions of The Maharashtra 9 of 43 9 • I Co-operative Societies Act, 1960, having Registration No. BOM/HSG/R- 9633/83 on 02-06-1983 having its office at Borivli Rajesh Apartment, Eksar Road, Near Royal Complex, Borivali (W), Mumbai - 400 092, hereinafter called "All The Members" and represented by all the members of the society (which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to mean and include the members for the time being and the Successors of the Society) of the SECONDPART;
AND M/S. KAMLA HOMES & LIFE STYLES LTD, (through its Director), a company registered under the company Act, 1956, vide incorporation deed No. U45202MH2008PTC184854 dated 21-07-2008 haying registered office at 101, Mayur Tower, Junction of Chandavarkar Road & Eksar Road, Borivali (West), Mumbai - 400 092, herein referred to as "THE DEVELOPERS" (which expression shall unless it be repugnant to the Subject or context or meeting thereof, be deemed to mean and include the said company and its Directors, Mr. Pravin C. Jain, Mr. Dwarkesh D. Sheth and Mr. Ajaypal B. Rawal of the THIRD PART;
WHEREAS la. Pursuant to the further negotiations between the parties hereto and as per the decision of the special general body meeting held on 9^^^ May 2022 and pursuant to the consent terms/minutes filed in the Hon'ble High Court in Commercial Appeal No. 62 of 2022 the parties hereto now agreed to grant and take development of the Society Property earlier granted under DA dated 8* October 2010.
lb. The parties agree as under that the termination of Development Agreement dated 8* October, 2010 stands withdrawn and the said Development Agreement dated 8* October, 2010 and Power of 10 of 43 3 Attomey dated 26^^ October, 2010 is valid and subsisting and continued with modified terms that are re-negotiated between the parties which are main and modified and will have binding effect.
Ic. The Society and its members and the Developer shall endeavour to register the present Supplementary Agreement before the concerned Sub Registrar of Assurances at Borivali (West), within 10 working days of obtaining the Adjudication Order from the concerned authority. The Society and its members shall extend all necessary co-operation for due registration of the Supplementary Agreement;
Id. The Developer shall bear the amount of stamp duty and the.
registration fees payable for the registration of aforesaid Supplemental Agreement, as and when applicable;
le. The Developer agreed to incorporate the name of the Society in the Property Register Card within six month from the date of Commerxiement Certificate;
If. Agreed that the Developers will not deal or encumber with/sell the premises to be earmarked for members of the Society pursuant to the Development Agreement dated SthOctober 2010 readwith these presents;
Ig- In the project/the building to be constructed, the Developers shall provide to the Society/its members all the amenities and facilities, as listed in the Development Agreement dated 8'^' Cttober, 2010;
Ih. Agreed that tire possession/of the permanent alternate accommodation shall be offered by the Developers only after Occupation Certificate (for Residential Premises) and Part Occupation Certificate (for Commerdal Members);
2. TEMPORARY TRANSIT COMPENSATION Clause No.12 of the Development Agreement dated 8^^ October, 2010 stands amended to the extent as enumerated below in this paragraph;-
11 of 43 I 4 i. Agree and confirm that the Developer will provide Monthly Compensation at the rate of Rs.63/- per sq ft; to the Residential Premises and Rs.150/- per sq. ft to the Commercial Premises of-the' society with 10% escalation after every 12 months. Hereto annexed is the schedule for payment of Monthly Compensation.
ii. Agree and confirrri that the monthly compensation payable by the Developers to all the members shall be paid by the Developers to the Society by NEFT/RTGS on monthly basis on or before 5^^ of every month in advance. By any chance, the same is not paid, it will be positively done within next 7 (seven) bank working days and if the payment is done as above, the same shall not be considered as a default, the above payment shall be in its turn paid over by the Society to its members.
iii. If for any reason, the Developer fails to pay the monthly compensation of any month, the Developer shall in the subsequent month pay together with. the arrears (i.e. current month and also the earlier month); iv. It is agreed that Society shall have a designated, bank account in which the Developer shall transfer the above said monthly transit compensation. It is agreed that the Society shall not close this account without at least 14 days prior intimation to the Developer. In the event of closure of the designated account, the society shall intimate the details of new designated account well in advance and at. least 2 (Two) weeks before any due date.
12 of 43 5 V. Agree and confirm that the Developer will be paying Monthly rent from 1st August 2022 subject to signing of the Consent Terms and the Supplementary Agreement. vi. Shall escalate the monthly compensation 10% every year till expiry of notice period to offering possession of the permanent alternate accommodation with Occupation Certificate (for Residential Members) and Part Occupation Certificate (for Commercial Members).
vii. Agree and confirm that on and from the expiry of 36^^ month from the date of obtaining Plinth Commencement Certificate there shall be an escalation of 12% every year in the monthly compensation till expiry of notice period offering possession with Occupation Certificate/Part Occupation Certificate (for Residential Members) and Part Occupation Certificate (for Commercial Members).
3. HARDSHIP COMPENSATION Agree and confirm that the Developer has already paid an amount of Rs.- Rs.64,00,000/- (Rupees Sixty-Four Lakhs only) towards part Hardship Compensation Fund considering the hardship faced by the Society due to the Municipal Corporation demolishing the building pending the execution of this deed. The same shall be distributed amongst the members of the society in proportion of their respective areas. The balance Hardship Compensation Funds will be provided as follows:
i. Balance amount of Rs.43,00,000/- (Rupees Forty Three Lakhs only) shall be paid on repossession of new flat to the respective member. However as agreed the same shall be initially paid by the 13 of 43 6 Developers-to the Societ}^ by NEFT/RTGS and the Socieh' shall in its turn pay the same to each of the members.
ii. New members of the society after redevelopment will contribute to the sinking fund as per following formula;
(Total sinking fund divided by new carpet area of existing members multiplied by carpet area of the flat of new member)
4. BROKERAGE CHARGES Will provide to each of the members One-month monthly, compensation as brokerage charges for the first llmonths on execution hereof and Second payment of Brokerage Charges equivalent to One-month monthly compensation will be provided on 9* month along with payment of temporary transit compensation. However as agreed the same shall be initially paid by the Developers to the Society by NEFT/RTGS and the Society shall in its turn pay the same to each of the members.
5. SHIFTING AND RE-SHIFTING CHARGES Will provide to each of the members Rs.15, 000/-as Shifting Charges on obtaining lOD and also Rs.15,000/- for re-shifting on submitting application to BMC for occupation certificate. However as agreed the same shall be initially paid by the Developers to the Society by NEFT/RTGS and the Society- shall in its turn pay the same to each of. the members.
6. SECURITY AND DEFAULTIN PAYMENT OF MONTHLY TRANSIT COMPENSATION a. In order to secure the payment of monthly transit compensation, the developer shall furnish to the Society aj^ank guarantee of Rs.55,00,000/- (Rupees Fifty Five Lakhs Only) of any Scheduled 14 of 43 1 Bank, which shall be caused to be issued by the Developer within 30(Thirty) days of issuance of Commencement Certificate.
b. In. the event, the Developer fails to pay the monthly, transit compensation for 3 (Three) months, the Society shall be entitled to invoke the said Bank Guarantee. In such an event of invocation of Bank Guarantee, a'fresh Bank Guarantee-of Rs.55,00,000/ - shall be provided by the Developer to the Society immediately within 14 (fourteen) days of invocation, for the purpose of securing the monthly transit amount for subsequent period.
c. If such Bank Guarantee is not caused to be issued by the Developer within the above stipulated period, the same shall be considered as an event of "Default". .
d. As agreed within 7 (Seven) days of the Developer offering to the Society possession of permanent alternate accommodation with Occupation Certificate in respect of the residential members, the Society shall handover to the Developer the original Bank Guarantee documents, for its due cancellation/withdrawal.
7. ADDITIONAL AREA 7a. Clause No. 4 of the Development Agreement dated 8* October, 2010 stands amended to the extent as enumerated below in this paragraph;-
7b. .The Developer will provide 27% Additional MOFA carpet Area to Residential Premises holder and 20% Additional MOFA Carpet 15 of 43 8 Area to Commercial Premises holder as per the tabular statement Annexed hereto.
8. PERFORMANCE GUARANTEE/ SECURITY FOR PERFORMANCE.
8a. Clause No.22 of the Development Agreement dated 8* October, 2010 stands amended to the extent as enumerated below in this paragraph;
8b. The parties hereto agrees that Bank Guarantee is completely waived off since the project will be registered under the ambit of MAHA RERA Act, 2016, which will securitize the safety of the members of the society, however as the security the Developer will provide Lien of the following premises from an out of their sale component to the society;
8c. 600 Sq.ft. Commercial Premises on Is* Floor and 650 sq.ft.
Residential premises on 22^^ floor bearing Flat No.2204.
8d. This premise earmarked shell not be dealt with by.Developer or create interest of any nature with anybody other than with Society and the sarhe will be released in the following manner.
A) 600 Sq.ft, commercial premises of floor will be released by the Society on complication of RCC work upto 13* Floor roof that is 14* Floor slab.
B) 650- sq.ft, residential premises of Flat No.2204 will be released only on occupation certificate in respect of the proposed building.
C) In case on breach of any of the terms of this agreement the society shall have the right to create third party right is respect of the commercial shop as mentioned above 16 of 43 9 without the consent of Developer after giving him 15 days' notice.
9. MEMBERS INTENDING TO TAKE ADDITIONAL AREA A) 10% of such Additional Area on confirmation by both parties, B) On sanctioning of the plan and. while confirming the booking 15% of such total value of such Area payable.
C) 15% on completion of plinth.
D) Balance as per progress of the construction work.
10. TIME FOR SUBMISSION OF FLAN/OBTAINING lOD/CqOC 10a. Clause No.lO of the Development Agreement dated 8* October, 2010 stands amended to the extent as enumerated below in this paragraph;-
i. Developer is entitled to consume, utilize and approve plan from BMC by consuming 3.24 FSI and as per the revised agreed area of the: said property by utilizing all F.S.I., required T.D.R., fungible F.S.I., Set back F.S.L/benefit, Road Width F.S.I. or any premium F.S.I. on payment or without payment of premium and/or all or any other F.S.I. under 33 (7) B regulations or under any other rule available in accordance with and under any sections/provisions of regulations, of Development Control and Promotion Regulations, 2034 (DCPR, 2034) and the Developer is entitled to consume and utilize incentive FSI available under 33 (7) regulation towards the Developers saleable component. Any
-increase in FSI, due to revision in the Government policies after execution of this Supplementary Agreement during the pendency of the project shall be shared equally by both 17 of 43 10 parties hereto after deducting all the expenses in relation to such increased FSl.
ii. The Developer shall construct the proposed building on the said property consisting of Ground plus 1st commercial floor, plus three floor podium car parking plus 18 upper floors for Residential i.e. up to 22*^^ Floor. The first floor will be for commercial use subject to separate entry. The Developer shall use commercial area for office. Banquet Hall, Dormitory, Nursing' Home for Eye Clinic, Dentist and Orthopaedic Surgeon etc. for the prospective purchasers except Liquor shop, Dance Bar,. Meat Shop, massage parlour, X-Ray and CT scan laboratory. Hospital.
iii. The plan which is being approved by the society which cannot be changed without obtaining prior written consent of the Society (particularly area pertaining to the Members area) which will not be unreasonable withheld beyond 7 (Seven) days otherwise the time limit for compliance of the Developers shall proportionately extended. iv .. The Developer shall pay all the premium and shall obtain upto 3500 sq.mt. lOD.
V. Shall comply with the condition of the lOD required for plinth CC within 60 days from the obtaining lOD. vi. Shall obtain Plinth Commencement Certificate within 30 days from obtaining lOD (save and except force majeure event).
vii. Will execute Permanent Alternate Accommodation Agreement with each members of the claimant Society within 15-days from obtaining lOD. The entire stamp duty and registration charges on Permanent Alternate 18 of 43 11 Accommodation Agreement shall be paid by Developer. It is further clarified that if any penalties are levy's due to deficit of stamp duty and shall be payable by developer. viii. Shall purchase required Transferable Development Right (TDR) and obtain Development Right Certificate in the name of society of entire project shall be obtain within 9 months from obtained first Commencement Certificate. ix. Shall make payment of the premiums due and payable to MCGM in respect of entire project within 9 months from obtaining CC as per MCGM norms.
X. Upon obtaining Commencement Certificate within 15 days shall register the present redevelopment project under the provision of MahaRERA. The Developer also assured that only after registering the project under MahaRERA the Developer shall start promotional activity of marketing and sales in respect of the present project.
xi. Shall complete the entire building in a complete habitable condition including electricity and water supply along with total finishing and elevation work and obtain Occupation Certificate within 36 (thirty six) months with a grace period of 6 (six) months from obtaining plinth Commencement Certificate.
xii. Will obtain Part Occupation Certificate for the commercial premises and handover the possession of the Commercial Premises within 18 (eighteen) months from obtaining plinth Commencement Certificate.
xiii. The Developer shall continue to pay such Monthly compensation/rent till expiry of notice period to take the 19 of 43 iz possession of the residential premises upon obtaining Occupation certificate.
xiv; Shall regularly get the construction activities verified and submit necessary report to the Building Proposal department and based on which the Developer shall get the Commencement Certificate (CC) revalidated from time to time for carrying out further constructions. XV. The Developer shall proceed to redevelop the Society property, in terms of their respective obligations as envisaged and contemplated under the terms and conditions of the Development Agreement and Supplemental Agreement, to be read together.
xvi. Within 5 years from the date of handing over possession of the new flat any defect in the said new Premises will be rectified particularly for leakage subject to no deviation from occupation plan.
xvii. Agreed that they will not directly or indirectly transfer or . assign except inter-se Associates the Development Contract and shall develop the said property themselves/its Associates.
xviii. Agreed to provide certified copy of all the documents which are sanctioned by MCGM pertaining to development of the said suit property at the time of possession or OC. xix. The period stipulated above shall be subject to force majeure and beyond the control of the Developers.
11. FORCE MATEURE "Force Majeixre" shall mean any circumstances beyond the reasonable control of either of the Parties including (a) war, riot, civil war, acts of 20 of 43 13 hostile army(nation or enemy) or state/national emergency; (b) flood, fire, storm, lightning, earthquake, accident, natural catastrophes or other Acts of'God; (c) epidemic, pandemic, lockdown situation;(d) acts or orders passed by Government and other authorities, courts, tribunals which hinder the course of or stop, thwart, prevent, interrupt or breach the supply and/or provision of any material and/or power which is instrumental to the project; (e) While excavating the Property finding any hazardous, dangerous, perilous, unsafe chemical substance, material or property, which endangers the health and safety of either Party or the general public; (f) any preventive/restrictive order, notification, regulation or legislation due to which construction activity is put to a stand-still position (g) Litigation caused by existing members of the society or any person/s leading to stay or stoppage of entire work.
12. REGISTRATION OF SUPPLEMENTARY AGREEMENT AND PAA AGREEMENT:
The Developer shall lodge this Supplementary Agreement and also the fresh Power of Attorney for registration by paying required Stamp Duty if required. (Those members who do not sign this Agreement or consent for , this Supplementary Agreement they shall alone be responsible for ^ny Stamp Duty registration and to bear expenses of their respective Permanent Alternate Accommodation Agreerrient/litigation).
13. The Society shall, subject to payment by new acquirers of premises, proportionate sum in addition to payment of the amount towards the registration fee and cost of shares, admission Fees but no other amount, admit these acquirers of premises from the Developers as members of the Society.
I-
21 of 43 14
14. That the Developer is entitled to avail loan/finance from any Bank, Non-Banking Finance companies by way of creating charge/mortgage on the saleable -component only or enter into joint venture with associate for joint development and the Society hereby consenting, for mortgaging the said Developers component to avail finance for the development of project from Bank/Non-Banking Finance companies to speed up project of redevelopment and society hereby agrees to provide separate letter or NOC if required by such Bank/Non-Banking Finance company.
15. Subject to the clause agreed and Modified hereunder the Original Agreement dated 8* October 2010 is revalidate with the mutate changes. Since the Building is already demolished and no member is an occupation or possession, the Developer shall commence work I immediately on execution of this Agreement and payment of amount agreed hereunder with a view to sincerely honestly re-house this housed members.
16. CAR PARKING Agree, confirm and declare out of the sanctioned car Parking 50% area shall belong to the Society and 50% of the car parking will belong to developer plus 4 (four) car parking and all car parking shall be surface Car Parking only in the. said redevelopment project (ON PODIUM LEVEL).
17. TAXES AND GST The Developer will henceforth pay all the taxes including GST in request of members rehab area. The. members purchasing additional area shall be liable to pay GST/stamp duty for the additional area purchased by the members.
22 of 43 15
18. Developer should pay to the Society as additional hardship and compensation fund of Rs.12,00,000/- (Rupees Twelve Lakh Only) which shall be paid in the following manner;-
a) Rs.2,00,000/- (Rupees Two Lakh Only) on obtaining Plinth C.C.
b) Rs.3,00,000/- (Rupees Three Lakh Only) on completion of RCC work of the proposed building.
c) Rs.7,00,000/- (Rupees Seven Lakh Only) on handing over possession of the newly constructed flats to the members of the society. -
d) All plans and revalidation and other documents and extra copy will be furnished to Society on handing over possession of the , newly constructed flats to the members of the Society.
19. STATUTORY DUES The Developers shall bear and pay hereafter payable all the statutory dues in respect of the property/project including property tax, LUC, any premium payable to the corporation etc., till the date Occupation Certificate and thereafter the same shall be borne and paid by the Society.
20. BREACH OF OBLIGATION AND TERMS BY THE DEVELOPER:
Since, the Building is fully demolished and all the members are out of the respective premises and that there is no obligation on the members to vacate, the Developer is put to notice that compliance of their obligation is an essential part of this agreement; breach of any terms in the said agreement will entitle the Society , to take action including for performance or termination by giving 90 (Ninety)days' notice to rectify the breach.
23 of 43 16
21. Agree and confirm that the reference of the Development Agreement as well as the present Supplementary Agreement shall be given, by the Developers in the RERA Agreements to be executed by them in favour of the prospective purchasers and the same shall form part of the individual sale agreement.
22. ARBITRATION 22a. That any dispute or difference that may arise at any time in connection with or incidental to the Development Agreement read with the present Supplementary Agreement shall be referred to Arbitration under the Arbitration and Conciliation Act 1996 (including amendment, if any).
" 22b. The Society shall.be entitled to invoke Arbitration for performance or termination of the Development Agreement read with the present Supplementary Agreement in the event of the Default as contemplated in Clause No.. 6(c) above and/or non-completion of the building / project within the period as stipulated in clause lO(xi) of this Agreement, such events being subject to force majeure.
22c. The above arbitration clause/agreement shall be binding on all the members of the Society.
THE SCHEDULE OF THE PROPERTY ABOVE REFERRED TO:
All that piece or parcel.of land or ground situate lying and being at Eksar Road, Borivali (West) in greater Mumbai, together with the building standing 24 of 43 15 there on bearing Survey No. 31-C, formerly being a part of Survey No.6/Hissci No.5, admeasuring 2404 sq. yards equivalent to 2009,6 sq.intrs. Situated at Village Eksar, Taluka Borivali Mumbai Suburban District.
• SIGNED SEALED AND DELIVERED ] The within named "THE SOCIETY BORIVALI RAJESH CHS LTD. ]
have hereunto been affixed in the presence of all ] the members who in token thereof, have here ] unto Set & subscribed their respective hands ] Photo & sign of Bina M. Shah (Chairperson) Photo & sign of Shivakant J. Dubey (Secretary) 25 of 43 !&,._ I 16 Photo & sign of Yogesh B. Shah (Committee Member) SIGNED SEALED AND DELIVERED ] the within named "ALL THE MEMBERS ] BORIVALI RAJESH CS LTD. ] have hereunto been affixed in the presence of all ] the members who in token thereof, have hereunto] set & subscribed their respective hands ] Photo & sign of Nirmala C. Chiieda Photo & sign of Chandrakant H, (A-IOI) Chheda .
26 of 43 22^ J.
i7 Photo & sign of Nandish B. Sanghavi Photo & sign of Dharam B. Sanghavi (A-1Q2) Photo & sign of Pravina B. Sanghavi Photo & sign of Bhupendra C. Sanghavi ■. I Photo & sign of Ayub Umarkhan (A
103) ■ .
Photo & sign of Yogesh B. Shah (A-201) Photo &: sign of Bharati Y. Shah Photo & sign of Jaswant R. Bagadia Photo & sign of Nayna J. Bagadia 27 of 43 18 (A-20'2) • Photo & sign of Shalini S, Biscuitwala NA---
(A-203)
Photo & sign of Suresh N. Jain (HUF) Photo & sign.of Kanta S. Jain
(A-301)
Photo & sign of Sliriram G. Patil (A NA
302)
|- .
28 of 43
■
■ 19
Photo & sign-of Uma K. Banore (A-303)' NA
Photo & sign of Ashwin S. Mehta Photo & sigil of Trishula A. Mehta
(A-40I)■ :
Photo & sign of Sunil 13. Parmar (A- Photo & sign of Sunita S. Parmar ' 7
402) -
Photo & sign of Jyoti S.Mahyavanshi NA
(A-403)
29 of 43
20
Photo & sign of Hemlata N. Kapadia"" NA-
(B-104) -
Photo & sign of Jayvadan N. Kapadia NA
(B-105)
Photo & sign of Anil P. Deshmukh •NA---
(B-204) .
Photo & sign of Hasmukh C. Satra Photo & sign of Asha H. Satra
(B-205)
30 of 43
2i
Photo & sign of Shivakant f. Dubev NA
(B-304) '
Photo & sign of Manish R. Mehta . •NA
(B-305)
Photo & sign of Chitra V. Jain (B-404) - NA
Photo & sign of Sameer S. Chawathe NA.
.(B-405)■
31 of 43
Photo & sign of Vishnubhai B. Darji Photo & sign of Bhavesh V, Darji
(C-1Q6) -
Photo & sign of Sanjay 5. Sheth (C-1Q7) Photo &'sign of Anjali S. Sheth - • Photo &: sign of Navinchand N. Mehta Photo & sign of Usha N. Mehta (C-108)' (C-108) Photo & sign of Jasbhai C. Patel Photo & sign of Hansaben J. Patel (C-206) 32 of 43 23 Photo & sign of Rajkumar S. Bhambhavani (C-207) Photo & sign of Ismail D. Lakdawala NA (C-208) Photo & sign of Khayalilal N. Jain (C-3Q6) Photo & sign of Premji B. Dedhia Photo & sign of Dhara H. Dedhia 33 of 43 iM 24 ■■'"1---------------
(C-3Q7)
Photo & sign of Hitesh P. Dedhia NA-
(C-3Q7)
Photo & sign of Ratna P. Bathia (C-308) Photo & sign of Paras K. Bathia
Photo & sign of Vikas D. Bapat (C-4Q6) -NA-
Photo & sign of Ketki H. Ajmera -NA---
(C-407) ,
34 of 43
2?
Photo & sign of Suvarha R. Patil -NA-
(C-4Q8)
Photo & sign of Chiragkumar T. Shah NA
(P-9) ■
P-.
Photo & sign of Sunita N. Agrawal ----- NA----
(D-10)
Photo & sign of Tarun M, Pagaria --NA-
(P-H) - . ■
35 of 43
26
Photo & sign of Surendra M. Wadia Photo & sigh of Rekha S. Wadia
(0-109) -
Photo & sign of Suvarna R. Patil NA
(P-110) .
Photo & sign of Bina Mukesh Shah Photo & sign of Mukesh M. Shah
(D-111)
Photo & sign of Ketki H.Ajmera NA
(D-209)
36 of 43
27
Photo & sign of Manish Ashokkumar NA-
Shah (P-210)-
Photo sign of Kantaben K. Satra NA
(D-211)
Photo & sign of Nina Nitin Bendre ■NA
(D-309)
1
Photo & sign of Lalit K. Gosar (D-31Q) Photo & sign of Kalpana L, Gosar
•I ■
37 of 43
. 28
Photo & sign of Ram Anand Bhat Photo & sign of Sudha Ram Bhat
'(P-311)-
Photo & sign of Santosh M. Patwa Photo & sign of Manoj H. Patwa
(D-410)' : '
Photo &i: sign of Suresh M. Khimavat NA.
(S-Ol/A)
Photo & sign of
(S-Ol)
38 of 43
.29 .
Photo & sign of Kirit B. Gandhi-(S-.02) '?
Photo &: sign of Brijesh K. Gandhi Photo & sign of Karan K. Gandhi
(5-03) ■
Photo & sign of Idris Umar Kojar (S-Q4) NA---
Photo & sign of Priti Inder Rajpal (S-Q5) •NA
39 of 43
■ ■
30
Photo «Sc sign of Jayesh M. Modi r--NA-----
(S-Q6).
Photo & sign of Vijay G. Paleja (S-07) ,..NA---
Photo & sign of Hemanshu K. Mody NA .1
(HUP) (S-08)
Photo & sign of Rajan R. Chavan (S-09) NA-
40 of 43
*
J
I
Photo & sign of. Nitin D. Chaudhary Photo &'sign of Nisha N. Chaudhaiy
(5-10)
Photo & sign of Umerdin Mansoori NA
(5-11)
Photo & sign of Hemaram K. Muleva Photo & sign of Pratap K. Muleva
(5-12)
Photo &: sign of Ramesh K. Vartak Photo & sign of Damodar K. Vartak
(S-13)
41 of 43
■32 ■
Photo & sign of Laxmi Shankar NA-
Chettiar (5-14)
Photo & sign of Pravin G. Dedhia, NA
(S-15)
Photo & sign of Vaishali Prashant Patil Photo & sign of Asha Prabhakar Patil
(S-16)
Photo & sign of Rashid D. Lakdawala NA-
(5-17) - - ■
42 of 43
Photo & sign of Pravin C. Jain (HUF) Photo & sign of Dwarkesh D. Sheth
(S-18) (HUF) . - ■ •
Photo & sign of Ajaypal B. Rawal
(HUF) (S-18)
SIGNED, SEALED AND DELIVERED by the).
Within named DEVELOPERS )
KAMLA HOMES & LIFESTYLES PVT. LTD)
Through its Directors )
PAN : AADCK4563C )'
Mr.Pravin C. Jain ) t
Mr.Dwarkesh D. Sheth )
)
)
. Mr.Ajaypal B. Rawal )
In the presence of )
43 of 43