Bombay High Court
Generic Engineering Construction And ... vs Sharifabai Kutubuddin Waff-Ul-Aulad ... on 24 March, 2022
Author: G.S. Patel
Bench: G.S. Patel
2-IA-744-2022 IN COMS-198-2021.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION NO. 744 OF 2022
IN
COMMERCIAL SUIT NO. 198 OF 2021
Generic Engineering Construction and Projects ...Applicants
Ltd
In the matter between
Generic Engineering Construction and Projects ...Plaintiffs
Ltd
Versus
Sharifabai Kutubuddin Waff-ul-aulad Trust & Ors ...Defendants
Mr Zal Andhyarujina, Senior Advocate, with Jahaan Dastur,
Ameya Deosthale & Sharanya Mahimtura i/b Lexicon Law
Partners, for the Plaintiffs/Applicants.
Mr Archit Jayakar, with Pooja Yadav, Dhwani Parekh & Prasad
Sawant, for Defendants Nos. 1, 2, 3, 5, 22, 23, 24, 26, 27 and 28.
Mr Mushir Camar, Defendant No. 6 and Defendant No.25 present in
person.
Mr Rahul Singh, with Pranali Raut, i/b Legal Catalyst, for
Defendants Nos. 7 to 21.
Mr Amin Arsiwala, with Nidhi Shah, for Garuda Construction &
ARUN Engineering Pvt Ltd (Proposed Respondent).
RAMCHNDRA SANKPAL Digitally signed by ARUN RAMCHNDRA SANKPAL Date: 2022.03.25 CORAM: G.S. PATEL, J 17:12:35 +0530 DATED: 24th March 2022 PC:-
Page 1 of 424th March 2022 2-IA-744-2022 IN COMS-198-2021.DOC
1. The matter is assigned to me administratively.
2. Consent Terms were filed on 8th October 2021. The Plaintiff in the Commercial Suit is Generic Engineering Construction and Projects Limited ("Generic Engineering"). It has identified a joint developer, one Garuda Construction and Engineering Private Limited ("Garuda Construction"). It proposes a Joint Development Agreement ("JDA"). The parties to this JDA will be Generic Engineering and Garuda Construction.
3. Garuda Construction agrees to file its vakalatnama in the matter though it is not a party to the proceedings through Mr Arsiwala. This will be done by Monday, 28th March 2022.
4. Mr Jayakar for some of the tenants and owners of the property expresses some reservations and concerns. The proposed draft JDV, he says does not fully bind Garuda Construction to a discharge of all obligations under the 8th October 2021 Consent Terms. Garuda Construction is a stranger to the owners and to the tenants. Needless questions of privity of contract might arise at a future date. Garuda Construction proposes to take over the financial obligations of Generic Engineering. It must, Mr Jayakar submits, be made clear in some appropriate fashion that Garuda Construction will assume all the financial obligations jointly and severally with Generic Engineering so that the owners and the tenants are not left without recourse or remedy.Page 2 of 4
24th March 2022 2-IA-744-2022 IN COMS-198-2021.DOC
5. The submission to the extent that it requires Garuda Construction to come before the Court and to bind itself to the Consent Terms is correctly made. Indeed it is unexceptionable and Mr Andhyarujina does not oppose it. Representatives of Garuda Construction are present in Court and they are immediately agreeable and say they will sign such Affidavits or undertakings as are necessary. It was difficult enough to get the Consent Terms signed on the last occasion so I do not propose to require a second round of signatures. It will be enough if Garuda Construction files an Affidavit with an appropriate undertaking (supported with the necessary resolutions and authorisations) that it has read over, understood and accepts the Consent Terms of 8th October 2021 and agrees to be bound by the terms and conditions of those Consent Terms jointly and severally with Generic Engineering. This will extend to all financial obligations assumed by Generic Engineering in those Consent Terms and will also extend to the performance of all development obligations under those Consent Terms.
6. Mr Jayakar points out that an amount of Rs. 60 lakhs has been withheld by Generic Engineering from the first instalment of arrears of past rent payable to his client who are the owners. Other amounts have been deducted from payments made to the tenants who are his clients.
7. Mr Andhyarujina will file a signed statement explaining whether this entire amount has been paid to MHADA as cess, and, if not, what is proposed to be done with the unpaid amount. That Affidavit must also contain a statement about Generic Engineering's and Garuda Construction's commitment to pay future demands of Page 3 of 4 24th March 2022 2-IA-744-2022 IN COMS-198-2021.DOC cess to MHADA on time. The Affidavits from Generic Engineering as Garuda Construction must contain a statement and an undertaking to this effect. There must be a similar statement in regard to municipal property taxes as well and to explain what arrears there are (if any) of property tax, when the arrears will be cleared and how the annual property taxes will be paid.
8. There is also an issue regarding the DA signed between Generic Engineering, the owner, the tenants represented by Mr Jayakar and the other tenants (who are not his clients). That Agreement has been stamped and registered. The introduction of Garuda Construction will have to be done in a manner that does not upset that balance and yet establishes the necessary contractual privity on all sides between Garuda Construction and the owners and the tenants. The tenants who are not represented by Mr Jayakar must also be kept informed. Any issues of stamp duty will also have to be appropriately addressed. Mr Andhyarujina states that he will consider these aspects and take instructions.
9. Garuda Construction's Affidavit will also include as an Annexure to its Affidavit its last filed financial returns.
10. List the matter on 30th March 2022 at 4.30 pm. (G. S. PATEL, J) Page 4 of 4 24th March 2022