Bombay High Court
Vistra Itcl(India) Limited(Formerly ... vs Sanjay Dattatreya Kakade And Ors on 15 March, 2022
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
14.crr.350.21..docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANJALI Digitally signed by
ANJALI TUSHAR
TUSHAR ASWALE
ORDINARY ORIGINAL CIVIL JURISDICTION
Date: 2022.03.16
ASWALE 18:39:32 +0530
COURT RECEIVER'S REPORT NO. 350 OF 2021
IN
COMMERCIAL EXECUTION APPLICATION(L)NO.31 OF 2017
Vistra ITCL (India) Ltd & Anr ..Applicants
Vs.
Sanjay D. Kakade & Ors ..Respondents
Mr.Sharan Jagtiani, Senior Advocate a/w Shraddha Achaliya, Ankita
Agarwal i/b DSK Legal, for the Applicant.
Mr.G. S. Godbole a/w Rahul Soman, Aditya P. Shirke i/b Ketki Gadkari,
for Respondent No.2.
Dr. Abhinav Chandrachud a/w Shweta R. Rathod i/b Elixir Legal
Services, for Respondent Nos. 4 to 8 in IAL.941/22.
Mr. Bharat Mehta a/w Shruti Vyas, Devangi B. Mehta, for UOI.
Mr. Manish Upadhyay, AGP, for the State.
Mr. S. K. Dhekale, OSD, Court Receiver is present.
CORAM:- B. P. COLABAWALLA,J.
DATE :- MARCH 15, 2022.
Aswale Page 1 of 15
14.crr.350.21..docx P. C.:
The Applicants filed the instant Execution Application with respect to default in payment by Respondent No.3 to the Applicants of amounts due and payable under a Consent Arbitral Award dated July 14, 2014. In the Judges Order No. 74 of 2017 filed in the captioned Execution Application by the Applicants, this Court appointed the Receiver, High Court, Bombay ("Court Receiver") as the Receiver with respect to 22.95 Acres of land at Kothrud of Respondent No.3 vide an order dated January 19, 2018. Subsequently, Consent Terms dated February 22, 2018 came to be executed between the parties ("Consent Terms"), whereby, inter alia, Respondent Nos. 1 to 3 undertook to make payment of an amount of INR 260 Crores to the Applicants along with interest in the manner provided therein. In terms of the Consent Terms, this Court passed an Order dated February 22, 2018, appointing the Court Receiver in respect of 18.90 Acres of land (described at Schedule I hereinafter "Schedule I Land") being part of the 22.95 Acres of land at Kothrud, Pune for which the Court Receiver stood appointed vide Order dated January 19, 2018 and 10.18 Acres of land (described at Schedule II) situated at Kirkee, Pune Cantonment, having all powers under Order 40 of the CPC, 1908 in case of any default by the Respondents under the Consent Terms. Aswale Page 2 of 15
14.crr.350.21..docx 2 Symbolic possession of the Schedule I Land in terms of the Consent Terms dated February 22, 2018 and Order dated February 22, 2018 was taken by the Court Receiver on February 27, 2018. 3 Upon a default in payment under the Consent Terms, at the request of the Applicants, the representative of the Court Receiver along with the representatives of the Applicants, the Respondents and the representative of City Surveyor Office, Pune namely Government Maintenance Surveyor No.1 Mr. Sanjay Pawar, visited the Schedule I Land and the Court Receiver took physical possession of approximately 13.75 Acres out of the Schedule I Land in the presence of the said officer from City Survey Office, Pune. At this stage, the Ld. Additional Government Pleader ("AGP") appearing for the State Government made a submission that the presence of the officer from the City Survey Office, Pune shall not be deemed to mean acceptance by or participation by the State Government of the process of taking physical possession by the Court Receiver.
4 Thereafter, despite various requests being sent from the office of the Court Receiver to provide the original documents pertaining to the Schedule I Land, the Respondents failed to hand over the same to Aswale Page 3 of 15
14.crr.350.21..docx the Court Receiver. The failure of the Respondents to hand over the original documents pertaining to the Schedule I Land, inter alia, led to the filing of the present Court Receivers Report No. 350 of 2021. 5 The present Court Receivers Report was heard at length by this Court on October 4, 2021, when it was submitted by Mr. Godbole for the Respondents that there are no title deeds in the possession of Respondent No. 1 and 2 in respect of the Schedule I Land. It was stated on behalf of the Respondent No. 1 that the Schedule I Land consists of areas which were required for housing residents of New Kopre Gaothan in Pune District and that since the residents could not build houses on these lands on their own, they had approached the State Government.
Respondent No.1 was thus permitted by the State Government to put up construction and provide accommodation to the residents of Kopre Gaothan and develop the rest of the land apparently at their costs and in respect of the same an order of the Collector, Pune dated 05.09.2002 and order dated 07.09.2002 of the Sub-Divisional Officer (SDO), Pune was passed ("Allotment Orders"). It was also submitted that the Exhibit A and B to the preliminary affidavit in Reply of Respondent No.1 to the Court Receivers' Report dated September 9, 2021 (inadvertently recorded as Exhibit A and B to Receiver's report) alone are available with the Aswale Page 4 of 15
14.crr.350.21..docx Respondent No. 1. Mr Godbole further submitted that apart from the aforesaid communications from the Collector and the SDO, there is also a Development Agreement and a Power of Attorney granted by the residents of Kopre Gaothan in favour of the Respondent /s as also a Deed of Rectification, on the basis of which they have proceeded. It was also submitted that the Respondents were willing to handover the originals of the Development Agreement dated 10.09.2001 registered at Sr. No. 10506 of 2001 ("Development Agreement"), Deed of Rectification dated 17.06.2002 ("Deed of Rectification"), allied documents and the Power of Attorney dated 10.09.2001 registered at Sr. No. 10507 of 2001 ("POA"). At paragraph 5 of Order dated October 4, 2021, this Court directed the City Survey Officer, Pune to provide a location plan with dimensions of the individual plots in question, which are in occupation of the parties and identifying the area for which the Court Receiver has been appointed. This Court also felt it necessary that the Government Resolution/Order dated 10.07.2002 (based on which the Allotment Orders of the Collector, Pune and SDO, Pune were passed) is placed on record for perusal and directed the office of the Government Pleader to obtain copies of the same.
6 Thereafter, the Court Receiver's Report came up for hearing Aswale Page 5 of 15
14.crr.350.21..docx before this Court on October 28, 2021, when the Ld. AGP submitted that there are serious allegations of fraud on the part of the Respondents in giving their consent to the Consent Terms dated February 22, 2018 without disclosing the Public Interest Litigation No. 135 of 2009 ("PIL") pending before this Court. Ld. AGP on October 28, 2021 tendered a compilation of orders passed in the PIL and sought to tender a compilation of 7/12 extracts pertaining to the Schedule-I Land (which were subsequently tendered on December 15, 2021). In view of the directions of this Court given vide Order dated October 4, 2021 to the City Survey Officer, Pune to prepare a plan, the Applicants made a statement to the effect that the costs, charges and expenses of preparation of the plan by the City Survey Officer, Pune would be borne by the Applicants. However, subsequently on October 29, 2021, the Court Receiver, under cover of its email, shared the charges communicated by the City Survey Office, Pune for the demarcation exercise, which ranged from a sum of Rs. 6,00,000/- to Rs. 67,00,000/- for preparing the plan, depending upon the time period within which the plan would be prepared. 7 On November 25, 2021, the Ld. AGP tendered copy of the government order dated 10.07.2002 in respect of the Schedule I Land referred to in the Order dated October 4, 2021.
Aswale Page 6 of 15
14.crr.350.21..docx 8 During the course of the hearing, the Applicants requested this Court to direct the Respondents to deposit the original Development Agreement, the original POA and the original Deed of Rectification with the Court Receiver of this Court with the protections previously agreed upon in principle between the parties.
9 The Ld. AGP made submissions before this Court that execution should not be proceeded against the Schedule I Land identified in the Consent Terms dated February 22, 2018, by reason of the PIL being Public Interest Litigation No. 135 of 2009, Writ Petition No. 2737 of 2018 and Writ Petition No. 12670 of 2019 ("Writ Petitions") pending before this Court and a show cause notice being issued by the Collector, Pune in this regard.
10 Further, reliance was placed on various orders passed by this Court in the said PIL and Writ Petitions. It was contended that since the continuation of development rights over the subject land, which rights have been obtained against an obligation of resettlement of all the Project Affected Persons, is itself under challenge, the Respondents'/ Award Debtors' entitlement to the land is itself under a cloud. It was also Aswale Page 7 of 15
14.crr.350.21..docx contended that the Respondents/ Award Debtors ought to have pointed out the pendency of the PIL to the executing court in 2018 and should have pointed out the order of the executing court to the court hearing the PIL after 2018.
11 Mr. Godbole has contended that though the aforesaid PIL and Writ Petitions are pending, the Schedule I Land is an Occupancy Class I land as reflected from the 7/12 extracts submitted by the Ld. AGP and that the occupants of the said land are free to transfer the land without any restrictions. Further, upon instructions of his clients (whose representative is present in Court), Mr. Godbole submitted that no orders of cancellation or interim reliefs restraining the rehabilitation or development, in the pending PIL and Writ Petitions have been passed. 12 After hearing the parties, it has been agreed as between the Applicants/Award Creditors and the Respondents/Award Debtors that the following original documents, being the: (i) Development Agreement dated 10.09.2001; (ii) POA dated 10.09.2001; and (iii) Deed of Rectification dated 17.06.2002, be handed over to the Court Receiver appointed by this Court. This is strictly without prejudice to the submissions made by the Ld. AGP in respect of the challenge in the Aswale Page 8 of 15
14.crr.350.21..docx pending PIL and Writ Petitions. The contentions of the State Government represented by the Ld. AGP and the Respondents/ Award Debtors in the PIL and Writ Petitions are kept open and not affected by this arrangement.
13 Accordingly, the Respondents are directed to hand over original Development Agreement, original POA and original Deed of Rectification to the Court Receiver, High Court Bombay within a period of 10 (ten) days from the date of this Order. The Respondents have also agreed to hand over duly certified copies of the orders of allotment of the Collector, Pune dated 05.09.2002 and order of S.D.O., Pune dated 07.09.2002 ("Allotment Orders"), which are public documents. As per the Respondents the originals thereof are not traceable in the custody of the Respondents. Once the originals of the said Allotment Orders are located by the Respondent/s the same will be handed over to the Court Receiver. The Respondents are directed to hand over the certified copies within one week of receipt of such copies and shall take all steps necessary to obtain the original and certified copies expeditiously. 14 The Court Receiver shall keep the original and certified copies of the documents so submitted in safe custody. Aswale Page 9 of 15
14.crr.350.21..docx 15 According to the Respondents/Award Debtors since the Court Receiver has been appointed in respect of only a part of the land out of the entire land which is the subject matter of the Allotment Orders, the Development Agreement and the POA, it may hamper transactions / development in respect of the remaining portions of the land. A copy of the plan showing three different portions of the allotted lands is handed over to the Court and marked as "X1" for identification and for convenience a copy thereof is annexed to this Order. The portions marked as plots A1 in the said plan consists of a portion of the area for which the Court Receiver is appointed (i.e. 18.90 Acres excluding the common road and outer edges of the plot). The plot marked as A1 (green shaded area) in the plan is the area admeasuring 13.75 Acres of which physical possession has been taken by the Court Receiver. The portion marked as plot A2 is partly developed and a portion thereof is still being developed by M/s Kakade Construction Company, (presently known as Skylux Cityscapes Pvt. Ltd.). In respect of this property the Court Receiver has not been appointed. The portion marked as plot B is being developed by Shri Suryakant Kakade and in respect of this property the Court Receiver has not been appointed. The portion marked as plot C is being developed by Kakade Green Estate Private Limited, and the Court Receiver has not Aswale Page 10 of 15
14.crr.350.21..docx been appointed for this portion. It is clarified that plots marked as A2, and C in the plan do not form part of the Schedule I Land on which Court Receiver was appointed vide Consent Terms dated February 22, 2018. 16 Since the Allotment Orders of the Collector, Pune and S.D.O. Pune, the Development Agreement and the POA referred above, are composite documents in respect of plots marked as A1, A2, B and C as shown in the plan, it is made clear that the original documents are being handed over to the Court Receiver only on account of the Court Receiver being appointed as Receiver in respect of property marked as plot A1 which is the Schedule I Land as per Consent Terms dated 22.02.2018 and the Court Receiver's Report, and that such handing over of the original documents would not amount to any encumbrance on or a clog on the rights to the properties marked as plot A2, B and C respectively as shown in the plan and it is made clear that the Court Receiver is not appointed in respect of the said properties vide the Consent Terms dated February 22, 2018.
17 It is directed that as and when required by the aforesaid M/s Kakade Construction Company (now known as Skylux Cityscapes Pvt. Ltd.), Suryakant Kakade and Kakade Green Estates Pvt. Ltd., the Court Aswale Page 11 of 15
14.crr.350.21..docx Receiver shall allow physical inspection of the said documents by the concerned persons / Advocates etc. and also furnish to the said M/s Kakade Construction Company (now known as Skylux Cityscapes Pvt. Ltd.), Suryakant Kakade and Kakade Green Estates Pvt. Ltd., their representatives, Advocates etc. copies of the Development Agreement, POA and Deed of Rectification as certified true copies at their cost. 18 Similarly, if (a) KCCPL (Respondent No.3) or any of its representatives or any Advocates / persons indicated by KCCPL [Respondent No.3]; or (b) the Applicants or any of its representatives or any Advocates / persons indicated by the Applicants desire to conduct the inspection, the Court Receiver shall allow physical inspection of the said documents by the concerned persons / Advocates etc. and also furnish copies of the Development Agreement, POA and Deed of Rectification as certified true copies at the cost of the Respondents or the Applicants as the case may be.
19 Further, it is made clear that though the said original documents are in the custody of the Court Receiver, if M/s Kakade Construction Company (now known as Skylux Cityscapes Pvt. Ltd.), Suryakant Kakade and Kakade Green Estates Pvt. Ltd. wish to use the Aswale Page 12 of 15
14.crr.350.21..docx POA in respect of plots marked as A2, B or C, a certified copy of the POA, original of which is deposited with the Court Receiver, shall be accepted by the concerned revenue authorities and Sub-Registrar of Assurances, instead of the originals thereof.
20 It is hereby clarified that the deposit of original documents referred to above is only pertaining to the area in respect of which the Court Receiver has been appointed vide Order 22.2.2018 passed by this Court in Judges Order No. 74 of 2017 in Commercial Execution Application (L) No. 31 of 2017 and does not, in any manner, restrict the rights of M/s Kakade Construction Company (now known as Skylux Cityscapes Pvt. Ltd.), Suryakant Kakade and Kakade Green Estates Pvt. Ltd. to carry out any transactions or avail of financial facilities in respect of plots marked as A2, B and C in the plan annexed herewith. 21 All rights and remedies of the Applicants and the Respondents in execution are kept open.
22 It is again clarified that the submission of the original documents by the Respondents to the Court Receiver as aforesaid shall be strictly without prejudice to the rights and contentions of the State Aswale Page 13 of 15
14.crr.350.21..docx Government and/ or any other persons in the PIL and Writ Petitions pending before this Court.
23 The State Government is directed to seek urgent circulation/listing of the Public Interest Litigation No. 135 of 2009, Writ Petition No. 2737 of 2018 and Writ Petition No. 12670 of 2019 pending before this Court. The Applicants/Award Creditors (who have indicated that they may be constrained to seek intervention in the aforesaid PIL and Writ Petitions) and/or the Respondents/Award Debtors may consider seeking clarification on the scope of the PIL and Writ Petitions and that the Orders therein do not affect the present execution proceedings.
24 As regards compliance with the statement made by the Applicants in the Order dated October 28, 2021 relating to application for demarcation of the Schedule I Land by the City Survey Officer, the Applicants are directed to apply to the City Surveyor Office in terms of the Order dated October 28, 2021 and pay the prescribed charges for conducting such exercise by the City Surveyor Office, Pune within a period of upto 4 (four) months. The City Surveyor Office, Pune is directed to cooperate and upon payment of the fees by the Applicants, prepare a Aswale Page 14 of 15
14.crr.350.21..docx plan and conduct demarcation of the Schedule I Land in a timely manner. 25 Once the demarcation exercise is complete, the Court Receiver shall commence the exercise of conducting valuation of the Schedule I Land and appoint a valuer for the said purpose. The Applicants, in the first instance, shall bear the expenses pertaining to the valuation exercise to be conducted by the valuer so appointed by the Court Receiver.
26 This order disposes of the Court Receiver's Report in so far as prayer clauses (a) and (b) are concerned. It is clarified that the Receiver's Report continues in relation to the Schedule-II land. In these circumstances, the Receiver's Report is kept pending for consideration of prayer clauses (c) and (d) thereof. Liberty to apply. 27 This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
( B. P. COLABAWALLA, J. ) Aswale Page 15 of 15