Bombay High Court
Manorama Jayantilal Shah And 3 Ors vs Aarsh Developers And 2 Ors on 29 December, 2022
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
Digitally signed
by LAXMI
ial 32136-22. speaking to the minutes.docx
LAXMI SUBHASH
SUBHASH SONTAKKE
SONTAKKE Date:
2022.12.29
16:08:40 +0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 32136 OF 2022
IN
SUIT NO. 442 OF 2022
Manorama Jayantilal Shah & Ors. ..Applicants/Plaintiffs
Vs.
Aarsh Developers & Ors. ..Defendants
Mr. Naresh Chheda i/b. Dhruve Liladhar & Co., for the Applicants/Plaintiffs.
Ms. Leena Shah i/b. M/s. Shah & Furia Associates for the Defendants.
CORAM:- B. P. COLABAWALLA,J.
DATE :- DECEMBER 29, 2022.
P. C.:
1. The above matter has been moved for speaking to the minutes of the order dated 19th December 2022.
2. Firstly, I must mention that a draft of the order dated 19th December 2022 has been mistakenly uploaded on the High Court website. The final order, and which is also signed by me, is in the original record and has remained to be uploaded.
3. The learned Advocate appearing for the Plaintiffs as well as Laxmi page 1 of 17 ial 32136-22. speaking to the minutes.docx the learned Advocate appearing for the Defendants have gone through the final order and have pointed out that there are minor typographical mistakes even in the final order that need to be corrected.
4. In the order dated 19th December 2022, the following corrections shall be carried out:
a) In paragraph 5 of the said order, the words "700 sq.ft." shall be substituted with the words "750 sq.ft.".
b) Again, in paragraph 5, in the last two lines, after the words "FSI", the following shall be inserted "[above 2 FSI]"
c) In paragraph 7, for the words "FSI of 3.35", the words "FSI of 3.375" shall be substituted.
d) In paragraph 9, in the 3rd line, after the words "two Flats", the words "[of 750 sq.ft. each]" shall be added.
e) In paragraph 11, after the words "in the year 2014", the words "to 2016" shall be added.
f) In paragraph 14(a), after the words "two Flats", the words "[of Laxmi page 2 of 17 ial 32136-22. speaking to the minutes.docx 750 sq.ft. each]" shall be added.
5. No other correction is sought. The correction shall be carried out in the original order as well as in the copy uploaded on the server.
6. It is also directed that the draft order uploaded on the High Court website shall be deleted and the final order dated 19th December 2022 shall be uploaded on the website of this Court.
7. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
( B. P. COLABAWALLA, J. ) For the sake of convenience, the order dated 19th December 2022 as corrected today is reproduced hereunder:
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INTERIM APPLICATION (L) NO. 32136 OF 2022 IN Laxmi page 3 of 17 ial 32136-22. speaking to the minutes.docx SUIT NO. 442 OF 2022 Manorama Jayantilal Shah & Ors. ..Applicants/Plaintiffs Vs. Aarsh Developers & Ors. ..Defendants Mr. Sanjay Jain a/w Anosh Sequira a/w Naresh Chheda, Rishab Murali & Sakina Electricwala i/b. Dhruve Liladhar & Co., for the Applicants/Plaintiffs.
Mr. Simil Purohit a/w Ranjeev Carvalho, Leena Shah & Dipen Furia i/b. M/s. Shah & Furia Associates for the Defendants.
Mr. Dharmindra J. Shah, Representative of the 1st Defendant is present.
Mr. Tushar J. Shah, Plaintiff No.2 is present.
CORAM:- B. P. COLABAWALLA, J.
DATE :- DECEMBER 19, 2022.
P. C.:
1. The above Suit is filed inter-alia seeking a declaration that the Agreement for Sale dated 14th December 2009, the Irrevocable General Power of Attorney dated 15th December 2009, and the Deed of Rectification dated 6th July 2017 executed between the Plaintiffs and Defendant No. 1 in relation to the Suit Property described at Exhibit-A to the Plaint, is validly terminated. The other consequential relief sought is Laxmi page 4 of 17 ial 32136-22. speaking to the minutes.docx for delivering up the said documents for cancellation. In the alternative, and if the termination is held to be not valid, then a prayer seeking specific performance of the Agreement for Sale dated 14th December 2009 read with the Deed of Rectification dated 6th July 2017 is sought. In the above Suit, the Plaintiff has filed the above Interim Application seeking various interim reliefs.
2. Mr. Jain, the learned Advocate appearing on behalf of the Plaintiffs, has pressed the above Interim Application for ad-interim reliefs in terms of prayer clauses (a) (b), (g), (h) and (n) which read thus:
"(a) that pending the hearing and final disposal of the Suit, this Hon'ble Court be pleased to issue an order and injunction restraining the Defendants by themselves, their respective partners, servants and agents or any person claiming through or under them from in any manner dealing with, disposing of, selling, transferring, alienating or encumbering or attempting to induct any party in the Suit land or creating third party rights in the Suit Property or any part thereof as described in Exhibit "A" to the Plaint;
(b) that pending the hearing and final disposal of the Suit, this Hon'ble Court be pleased to pass an order of injunction restraining the Defendants by themselves, their respective partners, servants and agents or any person claiming through or under them from in any manner demolition and/or changing and/or relocating the Garage and Temple of Goga Bapa and/or interfering with the Laxmi page 5 of 17 ial 32136-22. speaking to the minutes.docx possession/access of the Plaintiffs to the Temple of the Goga Bapa existing on the Suit Property or any part thereof as described in Exhibit "A" to the Plaint;
(g) that pending the hearing and final disposal of the Suit, this Hon'ble Court be pleased to pass an order of injunction restraining the Defendants by themselves, their respective partners, servants and agents or any person claiming through or under them from making any proposal/application to MCGM and/or any Planning Authorities, for obtaining any approval/ consent / permission from any of the Planning Authorities in respect of redevelopment of the Suit Property or nay part thereof as described in Exhibit "A" to the Plaint, and further, issue an order of status quo on the approval /consent /permission already issued by the Planning Authorities in respect of the Suit Property or any part thereof;
(h) that pending the hearing and final disposal of the Suit, this Hon'ble Court be pleased to pass an order of injunction restraining the Defendants by themselves, their respective partners, servants and agents or any person claiming through or under them from in any manner commencing any construction activity on the approval/consent/permission from any of the Planning Authorities;
(n) without prejudice and in addition to prayer (m) above, that pending the hearing and final disposal of the Suit, this Hon'ble Court be pleased to order and direct the Defendants to jointly and/or severally pay to the Plaintiffs, further amount of Rs. 1,00,000/- per month as and by way of license fees towards temporary alternate accommodation from October 2022 till delivery of possession of the two Flats [admeasuring 1500 sq. ft. carpet area (viz. Each admeasuring 750 sq. ft. carpet area) on the top floor Laxmi page 6 of 17 ial 32136-22. speaking to the minutes.docx of the New Building with Terrace admeasuring 250 sq. ft. carpet area] to the Plaintiffs as per terms of the Suit Agreement dated 14th December 2009;"
3. The Suit Property which is the subject matter of the present Suit is a piece and parcel of land admeasuring about 2189 square yards or thereabouts bearing Survey No. 67, Hissa No. 4 (part) corresponding to CTS No. 385, 385/1, 385/2 and 385/3, Village Andheri, Taluka, Andheri situate lying and being Andheri West, Mumbai - 400 058 together with buildings/structures standing thereon known as "Tushar Park" with A, B, and C wings (now demolished) along with two garages and a temple constructed on the said land (for short the "Suit Property"). As on today the aforesaid CTS numbers have now all been merged and have been given a single CTS No. 385A.
4. It is not in dispute that the Plaintiffs are the lessees of the Suit Property and by an Agreement dated 14th December 2009, agreed to assign their leasehold rights therein to the 1st Defendant firm. Defendant Nos. 2 and 3 are partners of Defendant No.1. The assignment of the leasehold rights was as per the terms and conditions set out in the said Agreement dated 14th December 2009.
5. Under the aforesaid Agreement, certain consideration was Laxmi page 7 of 17 ial 32136-22. speaking to the minutes.docx payable to the Plaintiffs as more particularly set out in clause (2) of the said Agreement. To put it in a nutshell, the Plaintiffs would assign their rights to the 1st Defendant on (i) being paid a sum of Rs. 3.40 crores (ii) Plaintiff Nos. 1 and 2 being allotted two flats having carpet area of 750 sq.ft. each, one of these flats being with an attached terrace of 250 sq.ft., in the new building/s to be constructed by the 1st Defendant on the Suit Property. This Agreement specifically recorded that the said two flats are to be allotted in lieu of the premises on the 3rd floor of the C-Wing (Flat C-14) in the existing building and which was in occupation of Plaintiff Nos. 1, 2 and 3. This Agreement further provided that the two new flats to be allotted (with the attached terrace) to Plaintiff Nos. 1 and 2 would be on the top floor of the new building/s and the location of the same was to be selected by Plaintiff No.2. In addition to this, the 1st Defendant would also allot to the Plaintiffs, free of cost, four stilt car parking spaces under the stilt of the said new building/s. Mr. Jain, the learned Advocate appearing for the Plaintiffs, submitted that apart from the aforesaid consideration, in the event there was an increase in FSI [above 2 FSI], that would be consumed of the Suit Property, the same was also to be shared by the 1st Defendant with the Plaintiffs.
6. According to Mr. Jain, the Plaintiffs vacated their tenements on the 3rd floor of the C-Wing (Flat C-14) in the year 2012. Apart from Laxmi page 8 of 17 ial 32136-22. speaking to the minutes.docx these premises, Plaintiff No.2 was also a tenant of another premises being Room No. 11 on the 2nd floor of the C-Wing (Flat C-11) of which possession was handed over to Defendant No.1. According to Mr. Jain, Flat C-11 did not form the subject matter of the Agreement dated 14th December 2009.
7. Thereafter, the old building known as "Tushar Park"
standing on the Suit Property was demolished in the year 2018. Mr. Jain submitted that it is the case of the Plaintiffs that one Mr. Jethalal Shah being a partner of Defendant No.1 expired on 28th August 2020 and thereafter, on 2nd November 2020, the Plaintiffs addressed a letter to Defendant No.1 wherein the Plaintiffs inter-alia set out some of the issues that needed to be resolved between the Plaintiffs and the 1st Defendant.
There was no response to this letter. Be that as it may, in May 2022, the Plaintiffs learnt that Defendant No.1 have got building plans approved with FSI of 3.375 by amalgamating certain properties. Considering that the 1st Defendant had breached the terms and conditions of the Agreement dated 14th December 2009, the Plaintiffs, after setting out the said breaches, by their letter dated 30th September 2022, terminated the said Agreement. The 1st Defendant responded to the said termination and denied that they were in breach. It is in these circumstances that the present Suit is filed in which the above Interim Application is taken out Laxmi page 9 of 17 ial 32136-22. speaking to the minutes.docx inter alia to restrain the 1st Defendant from inducting anybody in the Suit Property, and/or carrying out any construction thereon. Mr. Jain submitted that though the building is demolished in the year 2018, the IOD [Intimation of Disapproval] was obtained by the 1st Defendant [from the MCGM] only on 25th May 2022 and no Commencement Certificate (CC) has been issued by the MCGM till date. He, therefore, submitted that until the 1st Defendant amends the building plans with the approval of the Plaintiffs, and in consonance with the Agreement dated 14th December 2009, no construction should be allowed. In the alternative, Mr. Jain submitted that purely as a concession, if this Court is inclined to allow the construction to carry on, the same can be permitted, provided adequate safeguards are put in place to secure the rights of the Plaintiffs.
8. On the other hand, Mr. Purohit, the learned counsel appearing on behalf of Defendant Nos. 1 to 3, submitted that the plaintiff is not entitled to any relief whatsoever. He submitted that firstly, the reliefs sought in the above Suit are itself mutually destructive. Mr. Purohit submitted that one cannot seek termination of the Agreement dated 14th December 2009, and then, in the same breath, also seek its specific performance. If the prayers in the Suit itself are defective, no relief can be granted in the above Interim Application, was the submission of Mr. Purohit.
Laxmi page 10 of 17 ial 32136-22. speaking to the minutes.docx
9. Despite this objection, Mr. Purohit stated that without prejudice to the rights and contentions of the Defendants, as per the Agreement dated 14th December 2009, two flats [of 750 sq.ft. each] on the top floor of the newly developed building/s (which is yet to be constructed on the Suit property) with one of these flats having an attached terrace of 250 sq. ft., along with 4 stilt car parking spaces, shall be kept available for the Plaintiffs. He submitted that if the building plans need to be amended for this purpose, the 1st Defendant shall take the necessary action. As far as Flat C-11 is concerned, [which Plaintiff No. 2 claims was in his occupation/possession], Mr. Purohit submitted that though it is the case of the Defendants that Plaintiff No. 2 is not entitled to any premises in lieu of Flat C-11, the Defendants shall keep one flat vacant and unencumbered of an equivalent area in the newly developed building/s on par with the other tenants of the Suit property.
10. In answer to the aforesaid submissions of Mr. Purohit, Mr. Jain submitted that there was also an oral agreement for purchasing two additional flats of 1350 sq. ft. each for an aggregate consideration of Rs.1.62 crores. Mr. Jain submitted that admittedly, this amount of Rs. 1.62 crores has been paid by the Plaintiffs to the Defendants. Mr. Jain submitted that this also ought to be secured in the present order.
Laxmi page 11 of 17 ial 32136-22. speaking to the minutes.docx
11. On the other hand, Mr. Purohit submitted that there was no agreement for purchase of any additional flats and in fact the amount of Rs. 1.62 crores was paid by the Plaintiffs to the 1st Defendant ostensibly to purchase immovable properties only to avoid payment of Capital Gains Tax. Mr. Purohit submitted that this was nothing but an accommodation entry and that is why no flats were identified and no written agreement was entered into with the Plaintiffs. He submitted that the Defendants vehemently deny that any oral agreement was reached between the Plaintiffs and the 1st Defendant to purchase any additional flats. He submitted that this is further fortified by the fact that the 1st Defendant refunded a sum of Rs. 62 lakhs (out of 1.62 crores) to the Plaintiffs as far back as in the year 2014 to 2016 and the same has been duly accepted by the Plaintiffs without making any grievance whatsoever, until the filing of the present Suit. Mr. Purohit submitted that if the Plaintiffs are willing to give up their claim for the alleged purchase of additional two flats, the Defendants are willing to refund the balance amount of Rs. 1 crore to the Plaintiffs within a period of four weeks from today.
12. The next grievance canvassed by Mr. Jain was that the Agreement dated 14th December 2009 also contemplated that the existing temple on the Suit Property shall be retained even when it goes for Laxmi page 12 of 17 ial 32136-22. speaking to the minutes.docx redevelopment. Mr. Jain submitted that the building plans sanctioned by the MCGM, as on date, do not reflect any temple on the Suit Property. In answer to this grievance, Mr. Purohit, on taking instructions, stated that as far as the temple is concerned, the 1st Defendant shall get the building plans amended to ensure that the temple is retained, as far as possible, at the same location where it was initially located. This, however, would be subject to the MCGM approving the location of the temple and subject to other planning constraints, was the statement of Mr. Purohit.
13. The last grievance made by Mr. Jain was the non-payment of transit rent. As far as the non-payment of transit rent is concerned, it is the case of the Plaintiffs that the Plaintiffs have been out of possession of Flat C-14 (on the 3rd Floor) since the year 2012. On the other hand, it is the case of the 1st Defendant that the Plaintiffs are out of possession of Flat C-14 not since 2012, but when the building was demolished in the year 2018. The other dispute is about the area of Flat C-14. According to the Plaintiffs, the area is 1500 sq.ft. as set out in the Agreement dated 14th December 2009. According to the 1st Defendant, the area is only 400 sq.ft. and which has been duly certified by the MCGM vide its letter dated 26th May 2018. Mr. Purohit submitted that if one was to calculate market rent on 400 sq.ft., the same would come to approximately Rs. 30,000/- per month which the 1st Defendant is willing to pay to the Plaintiffs from 1st Laxmi page 13 of 17 ial 32136-22. speaking to the minutes.docx June 2018 till 31st December 2022, within a period of three weeks from today. In other words, for the period 1st June 2018 to 31st December 2022, the 1st Defendant is willing to pay to the Plaintiffs a sum of Rs.16,50,000/- towards transit rent. Mr. Jain submitted that without prejudice to the rights and contentions of the Plaintiffs, the said amount shall be accepted by them. He has further stated that it is agreed between the Plaintiffs that the said amount shall be paid to Plaintiff No.2.
14. I have heard the learned Counsel for the parties at some length at the ad-interim stage. I have already noted the statements made by Mr. Purohit and which are accepted as undertakings given to the Court. Therefore, at this stage, the following order is passed:-
(a) In lieu of Flat C-14, the 1st Defendant shall keep available and unencumbered, two flats [of 750 sq.ft. each] on the top floor [one of these flats will be with an attached terrace of 250 sq.ft.] of any new building/s being developed on the Suit Property. Additionally, Defendant No.1 shall also keep available and unencumbered, four stilt car parking spaces in consonance with the Agreement dated 14th December 2009.
It is ordered that the 1st Defendant shall not create any third- party rights, title and/or interests in the said two flats or the Laxmi page 14 of 17 ial 32136-22. speaking to the minutes.docx four stilt parking spaces. In order to comply with the aforesaid directions, the 1st Defendant shall also have the building plans amended, if necessary.
(b) As far as Flat C-11 is concerned, the 1st Defendant shall keep one flat vacant and unencumbered in the newly developed building/s which is of equivalent area and on par with the other tenants of the Suit Property. It is ordered that the 1st Defendant shall not create any third-party rights, title and/or interests in the said flat.
(c) As far as the temple is concerned, the statement of Mr. Purohit recorded earlier is accepted as an undertaking given to the Court. As far as possible, the 1st Defendant shall try and locate the temple in the exact same location where it was earlier, subject to the MCGM granting such permission and subject to other planning constraints. For ensuring that a temple is constructed/retained on the Suit Property, the 1st Defendant shall have the building plans amended, if necessary.
(d) As far as transit rent is concerned, without prejudice to the Laxmi page 15 of 17 ial 32136-22. speaking to the minutes.docx rights and contentions of the parties, the 1st Defendant shall pay a sum of Rs.16,50,000/- to the Plaintiffs towards transit rent for the period 1st June 2018 to 31st December 2022, within a period of three weeks from today. Additionally, the 1st Defendant shall pay transit rent to the Plaintiffs at the rate of Rs.30,000/- per month for the period commencing from 1st January 2023, on or before the 15th day of each month. This transit rent shall be payable till (i) the 1st Defendant obtains an Occupation Certificate and offers possession of the two flats on the top floor [one of these flats will be with an attached terrace of 250 sq.ft.], along with four stilt car parking spaces; or (ii) the hearing and final disposal of the above Interim Application; whichever is earlier.
15. To my mind, at the ad-interim stage, the aforesaid reliefs will adequately protect the interest of the Plaintiffs. At this stage, I am not inclined to grant any relief in relation to the alleged oral agreement for purchase of two additional flats of 1350 sq.ft each for the alleged price of 1.62 crores, as the same is seriously disputed by the Defendants. It is clarified that by this order, I have not restrained the 1st Defendant from carrying on any construction activities. Those, if carried out, shall be done strictly in accordance with law and without violating anything that is Laxmi page 16 of 17 ial 32136-22. speaking to the minutes.docx stipulated in this order.
16. It is needless to state that this order is passed without prejudice to the rights and contentions of both parties and only till the hearing and final disposal of the Interim Application.
17. The parties are directed to complete pleadings within a period of six weeks from today. Place the above Interim Application for hearing and final disposal as per its turn.
18. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
( B. P. COLABAWALLA, J. )
Laxmi page 17 of 17