Bombay High Court
M/S.Eisha Goyal Agarwal Developers ... vs Ashok Kumar Bhasin And Ors on 9 April, 2021
Bench: K.K.Tated, Riyaz I. Chagla
907.140.21-fa.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
INTERIM APPLICATION NO.441/2021
WITH
FIRST APPEAL NO.140/2021
WITH
INTERIM APPLICATION (ST) NO.3467/2021
M/s. Eisha Goyal Agarwal Developers ..... Appellant
Vs.
Ashok Kumar Bhasin & Ors. ..... Respondents
Mr. Karl Tamboly a/w. Mr. Anuj Desai I/b. Pankaj Dash for
the Appellant
Mr. Radhikesh V Uttarwar a/w. Ms. Pooja Thakur for
Respondent Nos.1 to 5
CORAM: K.K.TATED &
RIYAZ I. CHAGLA, JJ.
DATED : APRIL 9, 2021 (VIDEO CONFERENCING) P.C. 1 Heard. By this application, the Applicant is seeking stay to the Judgment and Decree dated 06.08.2020 passed by the Civil Judge, Senior Division Pune on an Application below Exhibit-25 in Special Civil Suit No.644/2020 thereby allowing the said Application and rejecting the plaint filed by the Applicant.
2 The learned counsel for the Applicant also seeks stay to the operation and implementation of the order dated 17.06.2019 passed by the Maha RERA, Pune and order dated Basavraj G. Patil 1/8 ::: Uploaded on - 21/04/2021 ::: Downloaded on - 06/09/2021 02:15:27 ::: 907.140.21-fa.odt 14.01.2020 passed by the RERA Appellate Tribunal, Mumbai.
3 The learned counsel for the Applicant submits that pursuant to the order passed by the Authority, the Tahasildar, Pune issued order dated 08.10.2020 for attachment of their property for recovery of sum of Rs.10,00,89,164/- (Rupees Ten Crores Eighty Nine Thousand One Hundred Sixty Four Only).
4 In the present proceedings, initially, the Respondent - complainant had filed complaint before the Maha RERA, Pune for several reliefs which was decided by Mr. S. B. Bhale, Adjudicating Officer, MahaRERA, Pune by order dated 17.06.2019 directing the Applicant to pay sum of Rs.4,37,50,000/- (Rupees Four Crores Thirty Seven Lacs Fifty Thousand Only) to the complainant with simple interest @ 10.75% p.a. from the date of receipt of the said amount till realisation of the entire amount. The Adjudicating Officer has also directed to pay sum of Rs.1 lac by way of compensation and Rs.50,000/- (Rupees Fifty Thousand Only) towards costs of the litigation. Said order reads thus:
"1. The Respondents are directed to pay amount of Rs.4,37,50,000/- to the complainant with simple interest @ 10.75% p.a. from the date of receipt of said amount till realization of entire amount.
2 The Respondents are also directed to pay the amount of Rs.1,00,000/- to the complainant as compensation.Basavraj G. Patil 2/8 ::: Uploaded on - 21/04/2021 ::: Downloaded on - 06/09/2021 02:15:27 :::
907.140.21-fa.odt 3 The Respondents are also directd to pay the amount of Rs.50,000/- to the complainant towards the cost of this litigation.
4 The Respondents shall pay the entire dues to the complainant within a period of 30 days from the date of this order."
5 Being aggrieved and dissatisfied by the said order, the Applicant preferred the Appeal before the Maha RERA, Appellate Tribunal, Mumbai and preferred M.A.No.361 of 2019 for stay. The appellate tribunal by order dated 12.12.2019 had directed the Applicant to deposit 35% of the amount with costs which they failed and neglected to do so. Hence, the appellate tribunal, by order dated 14.01.2020, dismissed the appeal with costs of Rs.5000/- (Rs. Five Thousand Only). Thereafter the Applicant has filed Second Appeal and also Special Civil Suit No.644/2020 before the Civil Judge, Senior Division Pune for declaration and permanent injunction. Prayer clause of the said suit read thus:
"a. The suit may kindly be decreed.
b. It may kindly be declared that, the said alleged
agreement dated 13/11/2013, was never to be acted upon and it was formal in nature and in fact, by the conduct of the parties, the said agreement dated 13/11/2013, never acted upon and stands cancelled, not binding and subsisting on this Plaintiff.
c. It may kindly be further declared that, on the basis of the said agreement dated 13/11/2013, the Defendant Nos. 1 and 5, are not entitled to raise any claim of whatsoever nature, in the capacity, as allottee or otherwise, with respect to the project on the suit property bearing S.No. 209, Hissa No. 4,.C.T.S. No. 2109, situated at village Yerwada, Kalyani Nagar Tal. Haveli, Dist. Pune.
Basavraj G. Patil 3/8 ::: Uploaded on - 21/04/2021 ::: Downloaded on - 06/09/2021 02:15:27 :::907.140.21-fa.odt d. It may kindly be declared that, the said alleged order dated 17/06/2019, passed by the Adjudicating officer of Mah. RERA Pune in the aforesaid complaint No. CC0050000000022366, and further confirmed by the Hon'ble Appellate MahaRERA in the Appeal by it's order, is without jurisdiction and same are outcome of fraud, and hence same are null and void and non-est in the eyes of law, not enforceable and therefore, such order dated 17/06/2019 and the order passed by Mah.RERA Appellate Tribunal, are liable to be i ignored in the eyes of law and cannot be enforced.
e. It may kindly be declared that, the Defendant Nos. 1 to 5 are not entitled to claim the refund of an amount of Rs.4,37,50,000/- along with the alleged simple interest at the rate of 10.75% p.a. along with the alleged compensation of Rs.1,00,000/- and also the cost of Rs.50,000/- from the present Plaintiff on the basis of the said alleged order dated 17/06/2019 and as such Defendant No. 1 is not entitled to enforce the said order.
f. It be further declared that, the said alleged order/notices dated 18/02/2020 and 11/03/2020, issued by Ld. Tehsildar, Pune City, thereby recording the charge of the alleged amounts of Rs.8,00,71,331% and an amount of Rs. 10,00,89,164/-, on the suit property bearing S.No. 209, Hissa No. 4, C.T.S. No.2109, situated at Yerwada, Kalyani Nagar Pune is illegal, null and void and non-est in the eyes of law, not enforceable and therefore, same are liable to be:
ignored in the eyes of law.
g. It may further be declared that, on the basis of the said order dated 17/06/2019, the Defendant Nos. 7 are not entitled to attach the suit property bearing S.No. 209, Hissa No. 4, C.T.S. No.2109, situated at Yerwada, Kalyani Nagar Pune and recover the amounts as claimed in the alleged notices dated 18/02/2020 and 11/03/2020 or otherwise.
h. It be further declared that the Plaintiff has no attachable interest in the property bearing S.No. 209, Basavraj G. Patil 4/8 ::: Uploaded on - 21/04/2021 ::: Downloaded on - 06/09/2021 02:15:27 ::: 907.140.21-fa.odt Hissa No. 4, C.T.S. No.2109, situated at Yerwada, Kalyani Nagar Pune and therefore on this ground also the alleged order dated 17/06/2019 of Mah.RERA and notices dated 18/02/2020 and 11/03/2020, are not enforceable against the suit property.
i. The Defendant Nos. 1 and 5, may kindly be restrained by the Decree of Permanent Injunction, from claiming any right of whatsoever nature or acting upon the alleged agreement dated 13/11/2013.
j. The Defendant Nos. 1 may kindly be further be restrained by decree of permanent injunction from enforcing the alleged order dated 17/06/2019 passed by Maha. RERA Authority.
k. The Defendant Nos. 7 may kindly be further be restrained by decree of permanent injunction fromacting upon, implementing or any way enforcing the said alleged order/notices dated 18/02/2020 and 11/03/2020, issued by him and be further restrained from recording the charge of the alleged amounts of R$8,00,71)331/- and ants amount of Rs. 10,00,89,1647-, on the suit property bearing S.No. 209, Hissa No. 4, C.T.S.: 3; No.2109, situated at Yerwada, Kalyani Nagar Pune, in revenue record of the said property.
1. The temporary injunction in terms prayer (i) &
(k) may kindly be granted for which the Plaintiff has filed the separate application for grant of temporary injunction.
m. Any other just and equitable orders in the interest:
of justice may kindly be passed.
n. The cost of the suit may kindly be awarded in favour of the plaintiff from the Defendants."
6 In that Special Civil Suit No.644/2020 the Respondent
-Defefendant No.1 had made an Application dated Basavraj G. Patil 5/8 ::: Uploaded on - 21/04/2021 ::: Downloaded on - 06/09/2021 02:15:27 ::: 907.140.21-fa.odt 03.07.2020 under Order VII Rule 11(d) of the CPC being Exhibit 25. After hearing both the sides, the Trial Court by order dated 06.08.2020 held that the plaint is barred by Maha RERA 2016. Hence, the suit is liable to be rejected and rejected the same.
7 Being aggrieved by the said order dated 06.08.2020 passed below Exhibit-25, the Applicant - Plaintiff in Special Civil Suit No.644/2020 filed the present First Appeal as well as Interim Application for stay.
8 The learned counsel for the Applicant submits that the Authority has erred in holding that the suit filed by the Plaintiff is not maintainable. He submits that in fact the order passed by the RERA itself is bad in law and therefore the suit is maintainable. He submits that pursuant to the recovery certificate issued by the Tribunal, the Tahasildar issued attachment order dated 08.10.2020 for recovery of sum of Rs.10,00,89,164/- (Rupees Ten Crores Eighty Nine Thousand One Hundred Sixty Four Only) and other charges. He submits that the next date for holding an auction is 20.04.2021. Hence, there is urgency. He submits that once the Authority holds an auction, then nothing will survive in the first appeal. He submits that he received instructions from his client that they are ready and willing to deposit the 35% amount along with interest as per order dated 17.06.2019 passed by the Adjudicating Officer, Maha RERA, Pune in complaint No.22366 in the Registry of this court on or before 30.04.2021 without prejudice to their rights and contentions i.e. whether the Appeal is maintainable or the Basavraj G. Patil 6/8 ::: Uploaded on - 21/04/2021 ::: Downloaded on - 06/09/2021 02:15:27 ::: 907.140.21-fa.odt Suit. He submits that during pendency of the present application this Hon'ble Court be pleased to restrain the Respondent No.1 Tahasildar from proceeding with the auction of the property. He submits that if ad-interim relief is not granted, irreparable loss will be caused to them.
9 On the other hand, learned counsel for Respondent -
Plaintiff has vehemently opposed the present application. He submits that the First Appeal, as it is filed by the Applicant is not maintainable against the order dated 17.6.2019 passed by the Adjudicating Officer in complaint No.23366. The appeal preferred by the Applicant is pending for hearing on merits. Therefore, there is no question of entertaining the First Appeal. He submits that if this court grants reliefs, in that case the Applicant be directed to deposit the entire awarded amount in the Registry of this court with liberty to the Respondent - Plaintiff to withdraw the same subject to outcome of the First Appeal.
10 Heard both the side at length. It is to be noted that whether the First Appeal is maintainable or not, is required to be decided at the time of final hearing of the First Appeal. Today, the question is, whether the Applicant is entitled for the ad-interim relief or not.
11 Considering the present COVID-19 situation and as the auction is fixed on 20.04.2021 and also the Applicant is ready and willing to deposit 35% of the decretal amount as per order dated 17.06.2019 passed by the Adjudication Officer in complaint No.22366, we are of the opinion that the ad-interim relief can be granted till the next date.
Basavraj G. Patil 7/8 ::: Uploaded on - 21/04/2021 ::: Downloaded on - 06/09/2021 02:15:27 :::907.140.21-fa.odt 12 Hence, following order is passed:
a. The operation and implementation of the auction scheduled on 20.04.2021 as per the order passed by the Tahasildar dated 08.10.2020 for recovery of the amount of Rs.10,00,89,164/- (Rupees Ten Crores Eighty Nine Thousand One Hundred Sixty Four Only). is stayed till the next date on condition that the Applicant to deposit 35% amount along with interest as per order dated 17.06.2019 passed by the Authority i.e. Maha RERA, Pune in complaint No.22366, in the Registry of this court on or before 30.04.2021, failing which the ad-interim relief shall stand vacated without further reference to the court.
b. If amount is deposited, the Applicant to inform the same to the other side in writing, immediately.
c. Liberty granted to the Respondent to file Affidavit in Reply, if any, on or before 23.04.2021, with copy to other side.
d. Rejoinder, if any, shall be filed on or before 29.04.2021, with copy to other side.
e. All contentions of the parties are kept open.
S.O. to 06.05.2021.
(RIYAZ I. CHAGLA, J.) (K.K.TATED, J.) Basavraj G. Patil 8/8 ::: Uploaded on - 21/04/2021 ::: Downloaded on - 06/09/2021 02:15:27 :::