Bombay High Court
Sai Krupa Co-Op. Hsg. Society Ltd vs Osho Developer And 4 Ors on 2 February, 2022
Author: G.S.Kulkarni
Bench: G.S.Kulkarni
24.CARBP(L)1097_2022.doc
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL ARBITRATION PETITION (L) NO. 1097 OF 2022
Sai Krupa Cooperative Housing Society Ltd. ... Petitioner
V/s.
M/s. Osho Developer & Ors. ... Respondents
WITH
INTERIM APPLICATION (L) NO. 3050 OF 2022
(Not on board, taken on board)
IN
COMMERCIAL ARBITRATION PETITION (L) NO. 1097 OF 2022
Satish Gopal Bhide ... Applicant
in the matter between
Sai Krupa Cooperative Housing Society Ltd. ... Petitioner
V/s.
M/s. Osho Developer & Ors. ... Respondents
Mr. J.S. Kini i/b. Ms. Sapna Krishnappa for the petitioner.
Mr. Ankit Lohia a/w. Ms. Aditi, Mr. Satyen Vora, Mr. Sanmish Gala i/b.
M/s. Markand Gandhi & Co. for respondent no. 1.
Mr. Vaibhav Parab for respondent no. 2.
Mr. Shreepad Murthy i/b. Mr. Abhishek Patil for respondent no.
3/applicant in Interim Application.
Ms. Pragati S. Bhide, respondent no. 4 in person present.
Mr. Prashant Karande a/w. Sudam Patil and Ajit Hodage i/b. Praful S.
Pawar for respondent no. 5.
CORAM : G.S.KULKARNI, J.
DATE : 2 February, 2022 P.C.:
1. Insofar as respondent no. 2 vacating his tenement is concerned, Mr. Parab, learned counsel for respondent no. 2 has raised two apprehensions. Firstly, in regard to the receipt of the rent by his clients 1/9
24.CARBP(L)1097_2022.doc for the temporary alternate accommodation, being the advance rent for a period of 11 months, corpus fund and transportation charges and secondly, respondent no. 1 and petitioner to register an agreement with respondent no. 2 for permanent alternate accommodation.
2. Mr. Lohia, learned counsel for respondent no. 1 states that already post-dated cheques for 11 months rent, corpus fund and transportation charges in respect of the tenement of respondent no. 2 have already been handed over by his clients to the Society, which is confirmed by Mr. Kini, learned counsel for the petitioner-society. Mr. Kini states that on the day respondent no. 2 vacates his tenement, the cheques for the advance rent of 11 months, corpus fund and transportation charges would be handed over to respondent no. 2. Statements as made on behalf of the petitioner and respondent no. 1 in this regard stand accepted.
3. Insofar as registration of the agreement for permanent alternate accommodation is concerned, Mr. Lohia, learned counsel for respondent no. 1 has pointed out that his clients would soon be executing the agreement with respondent No.2 before a Notary Public and thereafter further steps would be taken to register the said 2/9
24.CARBP(L)1097_2022.doc agreement with the Sub-Registrar of Assurances, when respondent no. 1 along with petitioner-society would commence registering the agreements along with other members of the Society. Statement to this effect as made on behalf of respondent no. 1 and as confirmed by Mr. Kini, learned counsel for the petitioner stands accepted as an undertaking to the Court.
4. Mr. Parab, learned counsel for respondent no. 2 fairly states that such statements as recorded by this Court on behalf of the petitioner and respondent no. 1 would satisfy the apprehensions of respondent no. 2 and his client is willing to vacate the premises within one week from today. Accordingly, respondent no. 2 shall vacate his tenements within one week from today.
5. Insofar as respondent no. 5 is concerned, the apprehensions were also in regard to the payment of advance rent of 11 months, transportation charges and corpus fund. Mr. Lohia, learned counsel for respondent no. 1 makes a statement that all these amounts are already handed over by his clients to the petitioner-Society. Mr. Kini, on instructions, would submit that the entitlement of respondent no. 5 in regard to all these amounts is certainly recognized by the Society and 3/9
24.CARBP(L)1097_2022.doc the cheques as received from respondent no. 1-developer shall be handed over to respondent no. 5 at the time the tenement of respondent no. 5 is handed over by respondent no. 1-developer.
6. There are certain issues in regard to the damage caused to the tenement, which had taken place when respondent no. 5 was not residing in the said tenement. Mr. Karande, learned counsel for respondent no. 5 has drawn the attention of the Court to the damage as caused, which according to him is after breaking open of the main door of the tenement and by an act of unauthorized entry and trespass of respondent no. 5's tenement. It is not possible for this Court to ascertain such claim of respondent no. 5 in that regard and fix any responsibility as to who has trespassed and to ascertain the extent of such damage as claimed in the present proceedings. All these are issues which would require evidence. Respondent no. 5 if still has any grievance in that regard, respondent no. 5 is free to prosecute appropriate remedy as available to him in law. Needless to observe that respondent no. 5 may reconsider his position, as his tenement was lying vacant and in any case it would be now demolished.
7. Be that as it may, insofar as respondent No.5's entitlement to the 4/9
24.CARBP(L)1097_2022.doc amounts is concerned, on behalf of the petitioner and respondent no. 1 the position has been made clear as noted above. The statements as made on behalf of the petitioner and respondent no. 1 to make payment of the amounts which are due to respondent no. 5 under the Development Agreement is accepted as an undertaking to the Court.
8. Insofar as the registration of the agreement for permanent alternate accommodation in favour of respondent no. 5 is concerned, Mr. Lohia, learned counsel for respondent no. 1 informs that his clients would soon execute an agreement and it would be registered along with other members of the Society. Statement of Mr. Lohia to that effect is accepted as an undertaking to the Court.
9. Mr. Karande, at this stage, would point out that his clients has a claim in regard to the shortfall of area which would be now given to respondent no. 5 in the permanent alternate accommodation. This contention as urged by Mr. Karande is disputed by Mr. Lohia, learned counsel for respondent no. 1 as also by the petitioner. The common contention as urged on behalf of the petitioner and respondent no. 1 is to the effect that the development agreement has been entered between the petitioner and respondent No.1 after negotiations and the 5/9
24.CARBP(L)1097_2022.doc terms and conditions of such agreement are accordingly finalized, of which benefit is being accorded to all the members considering the respective area in their possession under the existing tenements. In my opinion, the entitlement of a sole member, namely, of respondent no. 5, certainly cannot be adjudicated in the proceedings as filed by the society, and such contention also cannot be a ground for respondent no. 5 to not handover the possession of the tenement to respondent no. 1 and stall the redevelopment process. Such an approach would be contrary to the well-settled position in law as laid down in several decisions of this Court, which lay down that one person cannot stall the redevelopment which is the majority will of the members. If respondent no. 5 has any monetary claim against the Society or respondent no. 1 in regard to the shortfall of the area, it is open to respondent no. 5 to adopt appropriate proceedings as may be permissible in law. Respondent no. 5 is accordingly directed to handover the possession of his tenement to respondent no. 1 within 10 days from today. Needless to observe that this would be subject to respondent no. 5 receiving all the payments as noted above on the day he hands over the tenement to respondent no. 1. Ordered accordingly.
10. It will be permissible for respondent no. 5 to authorize her 6/9
24.CARBP(L)1097_2022.doc husband to receive the amounts on her behalf as also to handover the tenement to respondent no. 1-developer in view of the physical disability being faced by respondent no. 5, she also being a senior citizen.
11. As far as respondent nos. 3 and 4 are concerned, Mr. Murthy, learned counsel for respondent no. 3 would point out that his client has filed Interim Application. Let reply affidavit be filed to the said application by respondent No.4 or before the returnable date. If any other respondents intends to file reply, they are also free to file reply affidavits.
12. Insofar as handing over of the tenement which was occupied by respondent no. 4 is concerned, Mr. Kini, learned counsel for the petitioner has made a statement that respondent no. 4 has already handed over the tenement to the petitioner-society and the same would be handed over to the developer shortly. In case there are any belongings still in the tenement in question, respondent no. 4 is free to take away her belongings, as it is already observed in the earlier order that respondent no. 4 was in occupation. Respondent no. 3 claims to have some belongings in the said tenement, which is seriously disputed 7/9
24.CARBP(L)1097_2022.doc by respondent no. 4. She submits that there are no belongings as the tenement is already handed over to the society by her. The Court would not dwell on such controversy.
13. Needless to observe that all contentions of the parties and more particularly interse between respondent nos. 3 and 4 are kept open to be agitated in the Interim Application, which is filed by respondent no.3.
14. It needs to be observed that inter se disputes between respondent nos. 3 and 4 would not in any manner concern the redevelopment in question as these are private disputes between respondent nos. 3 and 4 which they need to sort out in an independent appropriate proceedings.
15. List this petition along with Interim Application for hearing on 21 February, 2022, on which day after the compliance being made in respect of respondent no. 2 and respondent no. 5, the petition itself can be disposed of.
16. At this stage, Mr. Murthy, learned counsel for respondent no. 3 submits that the society ought not to hand over the cheques for 8/9
24.CARBP(L)1097_2022.doc advance rent as also incidental payments to respondent no. 4. The request as made by Mr. Murthy is required to be rejected, considering the observations of this Court in its order dated 18 th January 2022. If respondent no. 3 has any monetary claim or a claim of any other nature against respondent no. 4, respondent no. 3 is at liberty to proceed against respondent no. 4 in appropriate proceedings. Such orders as asserted by Mr. Murthy cannot be passed by the Court in the present proceedings which are filed by the society under section 9 of the Arbitration and Conciliation Act. No further clarification is required.
(G.S.KULKARNI, J.)
Digitally
signed by
VIDYA
VIDYA SURESH
SURESH AMIN
Date:
AMIN 2022.02.03
19:31:08
+0530
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