Bombay High Court
Lajwanti G. Godhwani And Anr vs Shyam R. Godhwani And 3 Ors on 4 December, 2018
Author: G.S. Patel
Bench: G.S. Patel
904-NMSL1918-18.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION (L) NO. 1918 OF 2018
IN
COURT RECEIVER'S REPORT NO. 125 OF 2018
IN
SUIT NO. 3394 OF 2008
Jalwanti G Godhwani & Anr ...Plaintiffs
Versus
Shyam R Godhwani & Ors ...Defendants
And
Vijay Jindal ...Applicant
Mr Sharan Jagtiani, with Karl Tamboly, Jasmine Kachalia, Deepu
Jojo & Aryan Srivastava, i/b Wadia Ghandy & Co., for the
Applicant.
Mr Ajay Panicker, with Amit Kakri, i/b Ajay Law Associates, for the
Plaintiffs.
Ms Gulnar Mistry, with Munaf Virjee, i/b ABH Law LLP , for the
Society.
Mr Gauraj Shah, i/b Kanga & Co., for Defendants Nos. 2 and 3.
Mrs Kavita Ambekar, Ist Assistant to the Court Receiver, is present.
Ms Vrushali Vaidya, Senior Clerk from the Office of the Sub-
Registrar of Assurances, Old Customs House, Mumbai, is present.
CORAM: G.S. PATEL, J
DATED: 4th December 2018
PC:-
Page 1 of 4
4th December 2018
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904-NMSL1918-18.DOC
1.Mr Jagtiani appears for the auction purchaser of Flat No. 194- D on the 19th floor of Tahnee Heights CHSL ("the Society") at Napean Sea Road, Mumbai 400 006. The order of 29th November 2018 directed notice to be issued to the Sub-Registrar of Assurances in regard to the registration of Mr Jindal's title documents.
2. Ms Vrushali Vaidya, Senior Clerk from the office of the Sub- Registrar is present in Court. Though I had directed the Sub- Registrar's presence, in view of what has transpired, I will excuse his personal non-attendance today. Both Ms Vaidya and Mr Jagtiani confirm that after the order of 29th November 2018 the relevant document has been duly stamped and registered. There is no controversy in regard to the stamp or the registration. The Sub- Registrar or his office staff are not required in Court any further.
3. The remaining question relates to the arrears of maintenance, dues and other claims made by the Society. I am informed that the Society has levied a penalty of Rs. 1,90,000/- "for leakage". I am not aware that the Society had any authority to do so or to include this in any statement of arrears of maintenance. There is also an interest claim of Rs. 41,796.99/- on this amount of leakage penalty. Apparently, this claim is made on the basis that there were some members described as being "errant" in regard to leakage repairs, and a circular of 9th May 2016, said to have been ratified by the general body, stipulated a penalty of Rs. 5,000/- per day from 16th May 2016. That is a claim that needs to be adjudicated before an authority competent to do so. It will be open to the Society to make its claim in accordance with law, subject to that claim being made against the original disputants, viz., the Plaintiff and Defendants Page 2 of 4 4th December 2018 ::: Uploaded on - 05/12/2018 ::: Downloaded on - 29/12/2018 06:16:06 ::: 904-NMSL1918-18.DOC Nos. 1, 2 and 3. They are at liberty to oppose any such application on merits. All contentions in that behalf are expressly left open.
4. I only note a statement made by Mr Shah on behalf of Defendants Nos. 2 and 3 that when his clients attempted to make payment of this 'leakage penalty', the Society refused to accept payment on the ground that the flat was in dispute. The offer of payment by Defendants Nos. 2 and 3 is not to be construed at any stage or in any proceeding as an admission by them of the correctness, validity or legality of the Society's contention in regard to the levy of this penalty or interest on it.
5. Other than this leakage penalty and interest all other Society dues in arrears after 7th June 2016 are to be paid by Mr Vijay Jindal, the auction purchaser. The amounts for the prior period should be paid by the Court Receiver to the Society directly from the funds in the hands of the Court Receiver.
6. Mr Jagtiani makes a grievance for third or fourth time that the Society has even now not granted him the permission for renovation of Flat No. 194-D. He makes a further grievance that the Society has, in a somewhat bizarre demand, asked him to produce a share certificate with his name on its face. Obviously Mr Jindal cannot do that. The share certificate will have to be endorsed with Mr Jindal's name as the auction purchaser on the reverse where the names of the transferees are to be entered.
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7. I am no longer interested in requesting the society to effect this endorsement or to grant permission to Mr Jindal. That permission is deemed to be granted by this order, whether the Ssocity likes it or not. The Society will depute its manager to attend the Court on 6th December 2018 and will in Court itself make the necessary endorsement on the share certificate, the original of which is with the Court Receiver. By that date, the Ssociey will bring to Court a letter on its lr-head granting permission to Mr Jindal to carry out the relevant renovations.
8. Mr Jagtiani submits that his clients will fulfil all requisitions including payment of statutorily permissible transfer fee of Rs. 25,000/- (and not a rupee more, whether claimed as a donation, contribution to a sinking fund, or anything else).
9. The underlying title documents which are with the Court Receiver will be delivered to Mr Jindal on 6th December 2018.
10. List the matter on 6th December 2018 for directions on the supplementary board.
11. The appearance for Mr Gauraj Shah, i/b Kanga & Co. shall be corrected to read as for Defendants Nos. 2 and 3 in the order dated 29th November 2018. Original order dated 29th November 2018 be corrected accordingly.
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