Bombay High Court
Generic Engineering Construction And ... vs Sharifabai Kutubuddin Waff-Ul-Aulad ... on 8 October, 2021
Author: G. S. Patel
Bench: G.S. Patel
2-IAL-16792-2021 IN COMSL-16783-202.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION (L) NO. 16792 OF 2021
IN
COMMERCIAL SUIT (L) NO. 16783 OF 2021
Generic Engineering Construction and Projects ...Plaintiffs
Ltd
Versus
Sharifabai Kutubuddin Waff-ul-aulad Trust & Ors ...Defendants
Mr Zal Andhyarujina, Senior Advocate, with Jahaan Dastur, Ajay
Vazirani, Ameya Deosthale amd Dhiren D, i/b Lexicon Law
Partners, for the Plaintiff/Applicant.
SHEPHALI
SANJAY
Mr Archit Jayakar, with Pooja Yadav, Dhwani Parekh & Prasad
MORMARE Sawant, for Defendants Nos. 1, 2, 3, 5, 22, 23, 24, 26, 27 and 28.
Digitally signed by
SHEPHALI
Mr Mushir Camar, Defendant No. 6 and Defendant No.25 present in
person.
SANJAY
MORMARE
Date: 2021.10.11
10:31:16 +0530
Mr Rahul Singh, with Pranali Raut, i/b Legal Catalyst, for
Defendants Nos. 7 to 21.
CORAM: G.S. PATEL, J
DATED: 8th October 2021
PC:-
1.Consent Terms are finally tendered. These are in three sets.
One is between the Plaintiff, Generic Engineering Construction and Projects Limited ("GECPL") and the owners of the building Page 1 of 13 8th October 2021 2-IAL-16792-2021 IN COMSL-16783-202.DOC known as Sharifa Mansion at Dadar. The second set is between GECPL and some of the tenants/occupants. The third set is between GECPL and the remaining tenants/occupants
2. Sharifa Mansion's re-development has a long -- and mostly unhappy -- history. For a long time, there was a litigation between the owners and the tenants on the one hand and the previous developers, Aadinath, on the other. The re-development made little to no progress. I made several orders in that litigation. GECPL was even then a participant. It was originally Aadinath's contractor. Ultimately, Aadinath was removed as the developer.
3. After several months on negotiations, GECPL, the trustees and the occupants/tenants have arrived at these Consent Terms..
AT 6.00 PM.
4. Consent Terms between GECPL and the owner Trust are tendered. These are taken on record and marked "X1" for identification with today's date. These are signed by the Director of the Plaintiff, by the Managing Trustee of the Trust and by Defendants Nos. 3 and 5 who are also trustees. The Consent Terms are in order. They are not contrary to law. As between the Plaintiff and Defendant No. 1 (Trust) and Defendants Nos. 3 and 5 trustees, there will be an order in the Suit in terms of the Consent Terms marked "X1".
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5. The tenants seem to be split in two groups. Consent Terms as been the Plaintiff and Defendants Nos. 7 to 21 and Defendant Mr Mushir Camar (arrayed twice, as Defendant No. 6 and Defendant No.25) are tendered. These are taken on record and marked as "X2" for identification with today's date. There will be a second order in the matter in terms of the second set of Consent Terms.
6. There is a third set of Consent Terms between GECPL and the remaining tenants. These are signed by the Director of the Plaintiff and, in Court, by Defendants Nos. 22, 24 and 28. Defendants Nos. 26 and 27 are online and have conveyed to me that they have seen the Consent Terms and are agreeable to these. These Consent Terms are taken on record and marked "X3" for identification with today's date. These consent terms will be the third order in the matter.
7. The undertakings in all three set of Consent Terms are accepted as undertakings to the court.
RE: MUSHIR CAMAR
8. I need to make a separate order in regard to Defendant No. 6/25, Mr Mushir Camar. He is present in Court. He is a beneficiary of the Trust and is also a tenant. He has signed the Consent Terms marked "X2". But he says he has a grievance against the Trust and its handling of this transaction with GECPL. He seems to have instructed his Advocate not to appear today. He wants to address the Court based on some material he has on his cell phone. I cannot Page 3 of 13 8th October 2021 2-IAL-16792-2021 IN COMSL-16783-202.DOC permit this. If he has an Advocate, he must be heard only through his Advocate. There are no special rules for him. He has not cared to file an application nor institute any proceedings of his own. He simply says wants to "say something". Nothing will be achieved by that. If Mr Mushir Camar has anything to say in the matter as regards his interest as beneficiary and the trustees of the 1st Defendant trust, he is at liberty to adopt appropriate proceedings. Those proceedings will be decided on their own merits unaffected by any orders passed in this Suit.
9. At the same time his consent in the Consent Terms marked "X2" insures that at the very least he does not lose his right to an allotment as a tenant of alternate premises in the reconstructed building.
RE: SIGNATURES BY THIRD PARTIES
10. The Consent Terms "X1" are signed inter alia by Anwar Camar. He is a trustee but not a named defendant. The Consent Terms "X2" are signed by Prasad Nesarikar, who is a tenant but is also not a named defendant. Anwar Camar and Prasad Nesarikar will have all rights in regard to these Consent Terms as if they were parties to the suit itself. For completeness of record, Mr Andhyarujina states that a formal amendment will be carried out for joining Mr Anwar and Mr Prasad as Defendants Nos. 30 and 31 to the Suit. That amendment is to be carried out within a week without need of reverification.
Page 4 of 138th October 2021 2-IAL-16792-2021 IN COMSL-16783-202.DOC RE: CONSENT OF DEFENDANTS APPEARING ONLINE
11. Defendants Nos. 11 and 12 are part of the Consent Terms marked "X2". They are physically not present in Court to sign the Consent Terms. They are in Dubai. They are online and personally confirmed to me that they are agreeable to the Consent Terms. Indeed, Defendant No. 12 said that she is extremely eager to have the Consent Terms signed and was the first one to consent to them. This is noted.
RE: CONSEQUENCES OF TERMINATION
12. Mr Andhyarujina and Mr Jayakar both request that an order ad invitum be made by the Court, though without detailed reasons, providing for the consequences of a defined Event of Default. The Event/s of Default are already provisioned and defined in each of the Consent Terms.
13. Given the frame of the Consent Terms and the history of this litigation, the consequences of a defined Event of Default can only be as follows, that is to say, in the event of default--
I. Any Redevelopment Agreement, whether under these Consent Terms or in any formal Development Agreement or Re-development Agreement, that may be entered into hereafter on the basis of these Consent Terms shall, irrespective of the form of that agreement stands terminated;
Page 5 of 138th October 2021 2-IAL-16792-2021 IN COMSL-16783-202.DOC II. Upon that termination, GECPL will immediately vacate the site with its equipment, workmen, manpower etc and deliver possession without protest to the Trustees who are the owners of the property in question;
III. There will also be an executable and enforceable order in favour of the 1st Defendant Trust against GECPL for all amounts that may remained unpaid under these Consent Terms/any Development Agreement, and these monetary sums will carry interest at the rate of 9% p.a. from the date of the default until payment or realisation.
IV. The Trust will then be entitled to deal with the property in such manner as it deems fit in accordance with the law including availing the benefit of all work already done on site;
V. All amounts paid by GECPL under these Consent Terms/Development Agreement shall stand forfeited to the respective payees and shall not be refundable in any circumstances;
VI. Similarly, all actual construction work done on site will become the property of the 1st Defendant Trust subject only to the rights of the recognised tenants/occupants in respect of the premises allotted or to be allotted to them.
Page 6 of 138th October 2021 2-IAL-16792-2021 IN COMSL-16783-202.DOC RE: THIRD PARTY RIGHTS ON TERMINATION
14. There remains the question of what is to be done as regards third parties or forward agreements, meaning contracts executed GECPL with third party flat purchasers.
I. Where the trustees as owners of the property have agreed or have been party to any agreement with a free sale flat purchaser/third party flat purchaser, the Trust will undoubtedly be bound by the terms of that agreement.
II. Where funds obtained from a third party flat purchaser can be shown to have been utilised by GECPL for passing on any benefit to the Trust or to any of the occupants, whether this be in the form of monetary payments or execution of civil works and construction, the trustees and the tenants will honour and accept such agreements entered into with such parties;
15. There is a reason for making this provision. If the owners/occupants were to refuse to recognise the rights of third party flat purchasers whose contributions had made possible any civil work on site or payments to the Trust and the occupants, then that would certainly be inequitable. Conceivably, the Trust might be unjustly enriching itself in such a situation by retaining the benefits or the actual amount taken by GECPL from third party purchasers. The Trust cannot do so without recognising the rights of such third parties, nor deny these rights and yet monetise the free sale Page 7 of 13 8th October 2021 2-IAL-16792-2021 IN COMSL-16783-202.DOC component assured to such third party purchasers. It is with a view to balance these equities that this portion of the order that came to be made. This portion of the order is also ad invitum.
RE: MHADA, MCGM, MAHA RERA AND OTHER AUTHORITIES
16. To more fully give effect to the parties of these three Consent Terms, i.e. to complete the development, Mr Andhyarujina for the developer request that the following order also be passed in terms of Minutes of Order that is drawn up. This deals with certain terms that are necessary to MCGM and MHADA. I will, therefore, pass the following order as well:
I. The Development Agreement entered into between 1st Defendant Trust and Aadinath Developers i.e. M/s Aadhinath Developers has been validly terminated and it and any flat purchasers claiming through or under it have no right, title and interest in the present project or the property of the 1st Defendant Trust or the free-sale component. Those rights have never been adjudicated and no attempts have been made by Aadinath Developers' third party purchasers to institute proceedings to have their rights adjudicated. This order will not, therefore, acknowledge or confirm any claims by third parties claiming under Aadinath Developers.
II. The Court Receiver, High Court, Bombay shall remain only in symbolic possession of the Suit Property for the limited purpose of ensuring completion of the Page 8 of 13 8th October 2021 2-IAL-16792-2021 IN COMSL-16783-202.DOC construction of the New Building on the Suit Property without any hurdles/hindrance/nuisance from Aadinath Developers, directly or indirectly, or from any person claiming by, through, from or under Aadinath Developers. No other developer who may have been approached by 1st Defendant Trust in the past shall have any right or claim in respect of any part of the property. The property will continue to be in custodia legis until further orders discharging the Court Receiver.
III. The Court Receiver, High Court, Bombay shall hand over possession of the Suit Property in accordance with the terms of the consent terms.
IV. The old project registered by Aadinath Developers bearing Maha RERA registration number P51900015259 shall be cancelled/revoked on account of the termination of the Development Agreement with Aadinath Developers.
V. Maha Rera shall permit the registration of a new project by GECPL pursuant to the present consent terms.
VI. There will also be the following directions against MCGM and MHADA:
a) The NOC granted by MHADA for development of the Suit Property in favour of Aadinath Developers shall continue to operate in favour of GECPL and GECPL can Page 9 of 13 8th October 2021 2-IAL-16792-2021 IN COMSL-16783-202.DOC continue the construction of the New Building. MHADA is not to insist on a fresh NOC or a NOC from Aadinath Developers.
b) The MCGM will hand over certified copies of all documents pertaining to IOD No. EB/6989/FN/A on an application being made by the 1st Defendant Trust or GECPL or both.
c) MCGM/MHADA will permit GECPL to the appoint a new Architect without insisting on NOC from previous Architect/licensed surveyor of Aadinath Developers.
d) The Approvals/Permission/ Remarks approved or sanctioned for the file under reference shall continue to remain in effect unless and until fresh remarks are required or amendments are proposed by GECPL to meet the area requirements agreed upon in the present consent terms and for full potential consumption.
e) Premiums/Statutory payments already paid partly or fully, shall continue to be considered effective for the approvals already sanctioned.
f) The credit of the deposits and premium (if any) paid by Aadinath Developers to the MCGM or other authorities will stand Page 10 of 13 8th October 2021 2-IAL-16792-2021 IN COMSL-16783-202.DOC transferred to the benefit of GECPL and will be available to GECPL.
g) Concessions approved earlier shall continue to remain in effect and additional concessions required within the preview of prevailing regulations under DCPR 2034, if any, shall be positively considered by the concerned authorities.
h) MCGM and other relevant authorities shall consider in accordance with law any request made by GECPL for waiver of interest, penalties or charges and condonation in parking requirement.
GENERAL
17. Should a clarification or modification be required, liberty to the parties to apply. Further, liberty to the parties to apply to have the matter mentioned before me at any time having regard to the fact that this order has been brought to culmination after several months of efforts from all sides, and with the Court frequently mediating the settlement.
18. The Suit is decreed and disposed of in these terms. The Interim Application does not survive and disposed of as infructuous.
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19. Drawn up orders/decrees are dispensed with although it is open to any of the parties to seek drawn up orders/decrees, if required.
20. There are evidently transfers of property involved. Liberty therefore to the parties to place a certified or an authenticated copy of this order and of each of the Consent Terms before the Sub- Registrar of Assurances or the Collector of Stamps as required for the purposes of stamp duty and registration.
21. Soft copies of all three Consent Terms will be uploaded as the second, third and fourth orders in the matter.
22. The Registry is to ensure that the hard copies of each of the signed Consent Terms are permanently retained on file as part of the record and are not sent for destruction in the ordinary course.
23. Court fees are to be refunded in accordance with the Rules. For the purposes of Section 43 of the Maharashtra Court Fees Act and the proviso to that Section, today's date is the date of making a claim for repayment. The Prothonotary & Senior Master will issue a certificate for a refund of Court Fees computed according to the Rules. He will act on production of an authenticated copy of this order without requiring a separate application.
24. There will be no order as to costs.
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25. All concerned will act on production of a digitally signed copy of this order.
(G. S. PATEL, J) Page 13 of 13 8th October 2021