Bombay High Court
Pranav Construction Private Limited vs Ramesh Mandir Co-Operative Housing ... on 1 October, 2021
Author: G. S. Patel
Bench: G.S. Patel
906-IAL-20687-2021 IN SL-20684-2021.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 20687 OF 2021
IN
SUIT (L) NO. 20684 OF 2021
Pranav Construction Private Limited ...Plaintiff
Versus
Ramesh Mandir Cooperative Housing Society ...Defendants
Limited & Anr
Mr Sharan Jagtiani, Senior Advocate, with Mayur Khandeparkar,
and Nakul Jain, i/b Harsh Behany, for the Plaintiff.
Mr Anoshak Davar, with Ameet Mehta and Dhaval Zaveri, i/b
Solicis Lex, for Defendant No.1.
Mr Ritesh S Rathod, present in person.
CORAM: G.S. PATEL, J
DATED: 1st October 2021
PC:-
1.This is more or less the same usual story that of one ARUN RAMCHNDRA SANKPAL Digitally signed by dissenting member opposing the redevelopment of an old society, ARUN RAMCHNDRA SANKPAL Date: 2021.10.04 unmindful of the collateral prejudice being caused to fellow 10:54:25 +0530 members of the society.
2. The 2nd Defendant is one Nayana S Rathod. She occupies Flat No. B/6-2, Ground floor in the 1st Defendant Society. The Page 1 of 8 1st October 2021 906-IAL-20687-2021 IN SL-20684-2021.DOC Plaintiff is the Developer. Nayana Rathod is represented in Court today by her son, Ritesh Rathod.
3. Over the last week or so this matter has had a very peculiar turn. Ritesh has compelled his lawyers Mr Nitin Thakkar, Mr Tejas Vora and their attorney to withdraw appearances. I kept the matter today. In Court, Ritesh says that he has engaged new Advocates but requires two weeks' time. I am not adjourning the matter simpliciter. As the following order will show, prima facie, Ritesh Rathod and his mother's demands are fully secured by what the Developer proposes, and to which the Society has no objection.
4. The dispute is this. The Rathods claim that the premises that they occupy are an area of 526 sq ft. Of this, they say, they gave the Society an area of 140 sq ft for use as a society office. This was a gratuitous license, according to them. The Society does not accept this position. It says that it independently has title to the area of 140 sq ft. The Rathods have filed proceedings in the Small Causes Court in regard to this 140 sq ft. It is because the proposed redevelopment does not acknowledge the Rathods as having title or rights over this 140 sq ft. that they oppose the redevelopment totally.
5. The consequences of this opposition are going to fall not only on the Developer but more particularly and certainly more emphatically, on other members of the Society. This opposition has wide consequences to others. The payment of transit rent accommodation will not begin. Other charges will not be paid to them. They cannot be asked to vacate. The entire redevelopment Page 2 of 8 1st October 2021 906-IAL-20687-2021 IN SL-20684-2021.DOC will get delayed. The building will continue to deteriorate. How the Rathods believe this is in their interest or the Society's interest is unclear. Of course they cannot explain this either. The Rathods should be mindful that if they continue this kind of opposition, despite safeguards being made, they may well be held liable to other members of the society for any losses including in damages. No member of a society is allowed to conduct himself in this fashion jeopardizing the common interest of the society for a narrow personal interest especially when that interest is being fully secured.
6. There is no immediate urgency to vacate because the developer has not yet given notice to vacate. The Society members will have 30 days to vacate after that notice is received. Consequently the Rathods will automatically get some time to brief their new Advocates. But that does not mean that I should encourage their opposition. I will set out the proposal of the Developer. . I do so because, to my mind, it fully addresses all concerns that the Rathods may have and keeps in mind the possible result of the Small Causes Court proceedings being in favour of the Rathods and against the Society (and consequently against the Developer).
7. To this end, the developer has committed in writing that it will keep Flat No. 907 admeasuring 635 sq ft. MOFA carpet area on the 9th floor of wing "B" of the proposed building reserved for the 2nd Defendant. This means that it will not create any third party rights, encumbrances, allotment or sales in favour of any person in regard to Flat No. 907. This reservation will be subject to any order Page 3 of 8 1st October 2021 906-IAL-20687-2021 IN SL-20684-2021.DOC passed in the Rathods' LE Suit No. 62 of 2021 in the Court of Small Causes at Bandra, Mumbai.
8. As to the question of transit rent, the Developer has to pay 42 months' rent in advance computed according to the Permanent Alternate Accommodation Agreements ("PAAA") signed with all other members. On the rate, the Rathods can have nothing to say. They cannot claim a better rate. They will get exactly what other members get. The only difference will be in the computation of the aggregate amount. This is a factor of the area to which they are entitled. Taking their claim at its largest, the developer has worked out an amount of Rs. 4,31,163/- which is the amount relatable to the additional area of 140 sq ft claimed by the Rathods. The developer says it will deposit this amount in the Small Causes Court and the withdrawal by the Rathods of this amount will depend on their being able to get a favourable order from that Court showing that they are entitled to this amount. If the Rathods fail, of course the amount will have to be returned with accrued interest to the developer.
9. The Developer further says that even during the pendency of the Small Causes Court proceeding, the developer will execute a PAAA in respect of Flat No. 611. This admeasures 455 sq ft. MOFA carpet area and is to be on the 6th floor of wing "C" of the proposed building. This means that the Rathods will have an assured allotment, depending the outcome of the Small Causes Court proceeding, of either Flat No.611 of 455 sq ft or Flat No. 907 of 634 sq ft.
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10. In all other respects the Developer agrees to treat the Rathods at parity with other members and confirms that it will pay to Mrs Rathod (I clarify that when I use the plural I am referring only to the 2nd Defendant; Ritesh has no independent right) a sum of Rs. 9,88,786/- which comprises hardship compensation, displacement compensation, brokerage and shifting charges in accordance with the provisions of the Development Agreement signed by the developer with the society on 13th August 2020. The transit rent to which I referred earlier has been called displacement compensation. There is no separate transit rent over and above the displacement compensation.
11. The Developer also says that if, during the pendency of the Small Causes Court's proceedings, the proposed building is completed and an occupation certificate obtained, the developer will offer Flat No. 611 (455 sq ft) to Mrs Rathod in terms of the Development Agreement 13th August 2020. The 2nd Defendant is at liberty to take a possession on a without prejudice basis and subject to her right to take Flat No. 907 (634 sq ft carpet area) if the Small Causes Court proceedings go in her favour.
12. Then the Developer further says that should the Small Causes Court suit be decreed in favour of the 2nd Defendant, Mrs Rathod, the Plaintiff will, within the one week of the date of the decree and final order, deliver possession of Flat No. 907 to the 2nd Defendant and execute a PAAA. This may be a modification of the earlier PAAA and will involve a cancellation of any allotment of Flat No. 611. The 2nd Defendant cannot have possession of both. If takes possession of Flat No. 907 she will be required to surrender Page 5 of 8 1st October 2021 906-IAL-20687-2021 IN SL-20684-2021.DOC possession of Flat No. 611. She will get possession of Flat No 907 only against a surrender of Flat No 611 (provided, of course, her entitlement to the larger area is adjudicated in her favour). Naturally, both parties will have to attend the Sub-Registrar of Assurance for registration of all these documents.
13. Also, if Mrs Rathod gets a decree in her favour, she is at liberty to withdraw the entire amount deposited with the Small Causes Court and accrued interest. Once Mrs Rathod gets possession of Flat No. 907 subject to the conditions listed here)obviously Mrs Rathod will cease to have any rights in respect of Flat No. 611.
14. Directions to Mrs Rathod to sign the PAAA and so on can await a further hearing. I have no doubt that these will be required.
15. In my view these statements made by the Developer are eminently reasonable. They fully safeguard and secure any possible claim of Mrs Rathod may have. I do not see how she can have any objection to this whatsoever. Ritesh Rathod seems to still carry some impression that he can ask for even more than this although everything he and his mother seeks is secured today. It is they who have filed the proceedings in the Small Causes Court. They cannot possibly expect an order of this Court that effectively amounts to a decree in the Small Causes Court proceedings. It is of course open to them to withdraw those proceedings and give up their claim for the additional 140 sq ft and accept the smaller Flat No. 611 and the consequential benefits.
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16. In short, this proposal by the Plaintiff Developer causes the 2nd Defendant absolutely no prejudice whatsoever. Indeed, viewed from any angle, it would be impossible for the Rathods to claim anything beyond this.
17. The Rathods must be mindful that continued obstruction is not something this Court can or will entertain. The jurisprudence in such cases is well settled and it is against the Rathods. As members of a society they are not entitled to oppose a Development Agreement for the sake of it or for special benefits. If there is a genuine dispute about the area to which they are entitled, that of course needs to be addressed. That is precisely why the developer has made these commitments.
18. I will, for now, accept these commitments from the developer as undertakings to the Court but on a without prejudice basis, which is to say that if the Rathods inflate their demands beyond the demand for additional area to be recognized as being of their ownership, then the developer will be released from all these undertakings and commitments and will be entitled to withdraw all amounts deposited by it even in the Court of Small Causes.
19. I would request the Developer not to issue a notice to vacate immediately. That request is only because, having regard to the large volume of pending cases it may or may not be possible for a Court to take up the matter again at a very early date. Mr Khandeparkar on instructions agrees that the notice to vacate will not be issued before 20th October 2021.
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20. List the matter on 14th October 2021.
21. Mr Khandeparkar informs me that the Society has filed an Order 7 Rule 11 Application before the Court of Small Causes at Bandra. On that application, strangely, an order of status quo has come to be made. The Society is at liberty to press its application under Order 7 Rule 11 and is at liberty to cite this order before the Court of Small Causes at Mumbai. It may also apply for a vacating of any existing status quo order.
22. Previous order, if any, to continue until next date.
23. All concerned will act on production of a digitally signed copy of this order.
(G. S. PATEL, J) Page 8 of 8 1st October 2021