Bombay High Court
Ashok Hariram Parwani And 23 Ors vs Silvex Developers Private Limited And ... on 7 December, 2021
Author: R.I. Chagla
Bench: R.I. Chagla
Digitally signed by
JITENDRA JITENDRA
SHANKAR
SHANKAR NIJASURE
NIJASURE Date: 2021.12.08
17:06:55 +0530
5-ial-24397-2021.doc
jsn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
INTERIM APPLICATION (L) NO.24397 OF 2021
IN
COMMERCIAL SUIT (L) NO.24394 OF 2021
Ashok Hariram Parwani & 23 Ors. ...Applicant/
Plaintiffs
Versus
Silvex Developers Pvt. Ltd. & 13 Ors. ...Defendants
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Neeta Jain with Salman Haider Khan i/b. Mahesh L Kukreja for
the Plaintiffs.
Mr. Farhan Dubhash with Mr. Murari Madekar with Mr. Sachin
Kudalkar i/b. Madekar & Co. for Defendant No.2.
Mihir Desai i/b. Sangram Chinnappa with Kartikeya Bahadur
for Defendant No.3.
Abhishek Adke with Sagar Vichare for Defendant Nos.4 and 5.
Mrityunjay Barai for Defendant No.6.
Mr. Sandesh Shukla with Dhaval A Patil i/b. M/s. K. Ashar &
Co. for Defendant Nos.9, 10 and 11.
Mr. Kunal Maskar with Anil D'souza for Defendant No.14.
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CORAM : R.I. CHAGLA J
DATE : 7TH DECEMBER 2021
ORDER :
1. The learned Advocate for the Plaintiffs seeks leave 1/11 5-ial-24397-2021.doc to amend prayer clause 1(c) in Interim Application and prayer clause g(iii) in Plaint as per draft amendments which are tendered and taken on record and marked 'X' for identifcation. Leave is granted. Amendment shall be carried out in prayer clause 1(c) of the Interim Application and prayer Clause g(iii) of the Plaint forthwith. Re-verifcation is dispensed with.
2. By this Interim Application, the Applicant is seeking appointment of Court Receiver of this Court of the unoccupied Suit fats bearing No.703 on the 7th foor, fat nos.801 and 802 both on the 8th foor, fat nos.901, 902 and 903 all on the 9th foor, fat nos.1001, 1002 and 1003 all on the 10th foor, fat nos.1101, 1102 and 1103 all on the 11th foor, fat nos.1201, 1202 and 1203 all on the 12th foor and fat nos.1301, 1302 and 1303 all on the 13th foor lying in the new partly construction building known as 'Silver Sunshine' situated at plot bearing CTS No.E-872/A, Building No.18, R.K. Nagar, 9th Road, Khar (W) ("subject building"), with all the powers under Order 40 Rule 1 of the Code of Civil Procedure, 1908 including power to complete the balance construction, handover the possession of the unoccupied Suit fats and to obtain occupation certifcate (O.C.) on such terms and conditions as this Hon'ble 2/11 5-ial-24397-2021.doc Court may deem ft and proper.
3. The Plaintiffs have stated that the Defendant No.1 - developer who was appointed in respect of the subject building had been terminated as he failed to complete the construction of the subject building. The Plaintiffs are the fat purchasers along with Defendant Nos.3 to 14 in the subject building from Defendant No.1. The developer had been appointed pursuant to development agreement dated 16th April, 2004 between Defendant No.2 - Society with Defendant No.1 - developer for redevelopment of subject building. The building was contemplated to be a 15 structure tower and permission for the subject building has been obtained till the 13th foor.
4. On or about 2008, Defendant No.1 constructed 10 foors of the newly constructed building and put the members of Defendant No.2 - Society in possession of 6 foors (part). Since 2008, Defendant No.1 put 17 members of Society - Defendant No.2 in possession of the ground + podium + 6 upper foors without obtaining occupation certifcate. 3/11
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5. It is further stated by the Applicants / Plaintiffs that on or about 2010, the Defendant No.1 completed construction upto 13 foors and has obtained the commencement certifcate. However, after constructing 13th foors, the Defendant No.1 suddenly stopped the construction of the building without any intimation to the Plaintiff or other fat purchasers.
6. The Plaintiffs have further stated that on or about 2012, on enquiry with the Defendant No.1, the Plaintiffs learnt that though all the building permissions and approvals from the MCGM, the concerned authorities were obtained, they could not complete the construction as Defendant No.1 had to pay huge amount to MHADA for the payment of premium and obtained NoC as to avail the additional FSI. The Defendant No.1 informed the Plaintiffs along with Defendant Nos.3 to 14 that due to delay caused in payment of premium to MHADA, MHADA had issued a revised offer letter dated 6th April, 2013 increasing the payment of FSI which as per the ready reckoner rate of 2013 came to Rs.62,98,154/- as mentioned in the said revised offer letter. This is stated by the Plaintiffs to be due to the negligence of Defendant No.1. The Defendant No.1 had 4/11 5-ial-24397-2021.doc assured the Plaintiffs that on deposit of the premium amount construction of building will be resumed and completed at the earliest. However, Defendant No.1 has not complied with such assurance and due to which the Plaintiffs have fled criminal complaint against Defendant No.1. Other proceedings have also been referred to including the consumer complaint and further criminal proceedings against Defendant No.1. Defendant No.2 issued the impugned termination notice dated 16th September, 2016 addressed to Defendant No.1.
7. The Defendant No.2 - Society had sought to resolve the issue with the Plaintiffs as fat purchasers and the other non-cooperating fat purchasers. This has been recorded in the meeting of the Defendant No.2 - Society, wherein the Plaintiffs had explained to the members of the Defendant No.2 society that they are willing to bear entire burden of the balance construction of the building. Resolutions have been passed to that effect including resolving that the Plaintiffs shall contribute monies towards the entire share of all the non- willing or non-participating purchasers in order to complete the said subject building.
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8. The present Suit has been fled for inter alia specifc performance of the minutes of the meeting of the Special General Body Meeting of the members of the Defendant No.2 - Society held on 8th August, 2021 at which meeting the aforementioned resolutions are passed.
9. The Defendants other than Defendant Nos.3 to 5 and 14 who are in occupation of the respective fats have opposed grant of ad-interim relief on the ground that they are not required to bear any expenses for the cost of the completion of construction of the subject building as they have already paid the purchase consideration in respect of their fats.
10. The construction of the subject building has remained to be completed in full and though the construction up to 13th foors is completed, only upto the 7th foor is in ready possession and the balance 6 foors are still required to be completed. Further, the Defendant No.2 Society has issued notice of termination to the developers and which by the present Suit a declaration is sought that the termination vide letter dated 16th September, 2016 addressed by the Defendant No.2 - Society to the Defendant No.1 so far as it relates to the 6/11 5-ial-24397-2021.doc agreements of the Plaintiff / letter of allotment be declared as illegal, bad in law, no legal effect and be set aside.
11. In view of the dispute arising between the Plaintiffs and other non-participating fat purchasers as well as the agreement between the Defendant No.2 - Society and the Defendant No.1 - developer having been terminated vide termination letter dated 16th September, 2016, the balance construction of the subject building has remained at a stand still thereby affecting interest of not only the Plaintiffs but also the other fat purchasers including the non-participating fat purchasers. It would thus be necessary by way of ad-interim relief to appoint the Court Receiver of this Court as receiver of the unoccupied suit fats, particulars of which are also provided in amended prayer clause 1(c) of the Interim Application with all the powers under Order 40 Rule 1 of the CPC, 1908 including power to complete the balance construction, handover the possession of the unoccupied Suit fats and to obtain occupation certifcate (O.C.).
12. Hence the following order is passed:
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5-ial-24397-2021.doc (I) Ad-interim relief in terms of prayer clause 1(c) of the Interim Application is granted which reads thus:-
This Hon'ble Court be pleased to appoint Court Receiver, High Court, Bombay or any other person as this Hon'ble Court deems ft and proper as Receiver of the unoccupied Suit fats bearing No.703 on the 7th foor, fat nos.801 and 802 both on the 8th foor, fat nos.901, 902 and 903 all on the 9th foor, fat nos.1001, 1002 and 1003 all on the 10th foor, fat nos.1101, 1102 and 1103 all on the 11th foor, fat nos.1201, 1202 and 1203 all on the 12th foor and fat nos.1301, 1302 and 1303 all on the 13th foor lying in the new partly construction building known as 'Silver Sunshine' situated at plot bearing CTS No.E-872/A, Building No.18, R.K. Nagar, 9th Road, Khar (W), Mumbai 400 052; with all the powers under Order 40 Rule 1 of the Code of Civil Procedure, 1908 including power to complete the balance construction, handover the possession of the unoccupied Suit fats and to obtain occupation certifcate (O.C.) on such terms and conditions as this Hon'ble Court may deem ft and proper.
(ii) The Court Receiver of this Court is appointed for the following fats in the suit building:
Sr.No. Flat No. Floor Status of Flat
1 703 7th Unoccupied
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2 801 8th Unoccupied
3 802 8th Unoccupied
4 901 9th Unoccupied
5 902 9th Unoccupied
6 903 9th Unoccupied
7 1001 10th Unoccupied
8 1002 10th Unoccupied
9 1003 10th Unoccupied
10 1101 11th Unoccupied
11 1102 11th Unoccupied
12 1103 11th Unoccupied
13 1201 12th Unoccupied
14 1202 12th Unoccupied
15 1203 12th Unoccupied
16 1301 13th Unoccupied
17 1302 13th Unoccupied
18 1303 13th Unoccupied
(iii) The Court Receiver shall appoint third party professionals including construction contractor and architect required for carrying out and completing the balance construction of the building upto 13th foor at the costs of the Plaintiffs till Occupation Certifcate is obtained.
(iv) The Court Receiver, High Court, Bombay is directed to collect / recover copies of all the 9/11 5-ial-24397-2021.doc Agreements / Letters of Allotments by and between the Plaintiffs and Defendant Nos.3 to 14 on one hand and Defendant No.1 on the other hand, in respect of the suit property (Exh.A to the Plaint) and also the statements / proof of payments made by them to Defendant No.1, pursuant to those Agreements / Allotment Letters within a period of four weeks from the date of this Order.
(v) The Court Receiver shall fle interim report on or before 17th January, 2022 as to the progress made with respect to the construction of the unoccupied suit fats. The Interim Application shall also be placed for consideration of further ad-interim relief after hearing the parties.
(vi) The Plaintiffs and Defendant Nos.3 to 5 have entered into terms which remained to be fnalized and for that purpose the Interim Application shall be placed on 21st December, 2021 for fling consent terms.
(vii) At this stage, the learned Advocate appearing 10/11 5-ial-24397-2021.doc for the Defendant No.14 seeks leave to fle the vakalatnama. Leave is granted. The Vakalatnama shall be fled within one week from today.
(viii) In the event, if the Defendant No.14 enters into terms with the Plaintiffs, it will also be fled on the next date i.e. 21st December, 2021.
(ix) The Court Receiver shall act on an authenticated copy of this Order.
(x) All the contentions of the parties are kept open.
(xi) Stood over to 21st December, 2021.
[R.I. CHAGLA J.] 11/11