Bombay High Court
Suhas Keshav Sawant vs Landmark Heights Pvt. Ltd on 10 August, 2022
Author: R.I. Chagla
Bench: R.I. Chagla
24&25-IA-1597&1600-20.doc
Sharayu Khot.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 1597 OF 2020
IN
SUIT NO. 314 OF 2021
Santosh Ganpat Bandarkar ...Applicants/
Plaintiffs
Versus
Landmark Heights Private Limited ...Defendant
AND
INTERIM APPLICATION NO. 1600 OF 2020
IN
SUIT NO. 315 OF 2021
Suhas Keshav Sawant ...Applicants/
Plaintiffs
Versus
Landmark Heights Private Limited ...Defendant
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Mr. Malcolm Siganporia a/w Kinjal Upadhyay, Mr. Paras S. Gosar i/by
SHARAYU
PANDURANG
Jayesh R. Vyas for the Applicants/Plaintiffs in both IAs.
KHOT
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Digitally
CORAM : R.I. CHAGLA J
signed by
SHARAYU
PANDURANG
KHOT
Date:
2022.08.19
DATE : 10 August 2022
12:44:00
+0530
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24&25-IA-1597&1600-20.doc
ORDER :
1. Heard learned Counsel for the Applicants/Plaintiffs in the above Interim Applications.
2. The Defendant though appearing through their Advocates on previous dates, have not made an appearance.
3. By the order dated 6th June 2022, this Court had referred to the prior order dated 11th March 2020 passed by this Court which had recorded that there needs to be an ad-interim order pending the final disposal of the applications to the effect that the Defendants will ensure that an area of flat equivalent to that mentioned in the two Agreements for Sale is kept unsold and without creation of any third party rights. Statement has been made by the Defendants in their Affidavit in Reply that area of flat equivalent to that mentioned in the two Agreements for Sale which is to be kept unsold and without creation of any third party rights may not be available. Accordingly, this Court had permitted the Defendant to file additional Affidavit disclosing the area of the flat available in the new building under construction and which is to be made available for the 2/5 24&25-IA-1597&1600-20.doc Applicants/Plaintiffs.
4. In the additional Affidavit in Reply to be filed by the Defendant disclosure of the sanctioned plans of Gomti Heights, which is under construction and specific mention is to be made as to the flat which is available for the Applicants/Plaintiffs.
5. The Defendant has filed additional Affidavit in Reply dated 16th June 2022 wherein in paragraph 3, it is stated that the minimum area of the flat available in the new building is 375.13 sq.ft. carpet area and no flat of area claimed by the Plaintiffs is available in the new building to be constructed on the said land.
6. It is necessary to note that the Affidavit in Reply was filed on 16th June 2022 and in Annexure Exh.B to the Affidavit in Reply, the Commencement Certificate which was issued on 28th January 2021 and which is valid upto 22nd December 2021 has been annexed. Thus, the validity of the Commencement Certificate has also expired.
7. I have considered that there has been a breach of the ad- 3/5
24&25-IA-1597&1600-20.doc interim order dated 11th March 2020 to the effect that the Defendant was to ensure the area equivalent to that mentioned in the two Agreements for Sale is kept unsold and without creation of any third party rights. The breach is apparent from what has been stated in the additional Affidavit in Reply dated 16th June 2022 filed by the Defendant, namely that the minimum area of the flat available in the new project building is 375.13 sq.ft. carpet area and no flat of area claimed by the Plaintiffs is available in the new building to be constructed on the said land. In view thereof, the Defendant shall pending the hearing and final disposal of the Interim Application keep aside two flats in the new building, each of 375.13 sq.ft. carpet area, which according to the Defendant is available.
8. The Defendant shall file additional Affidavit in Reply disclosing the compliance of this order and which will attach the plans showing that the two flats of the new project building, each having 375.13 sq.ft. carpet area, have been kept aside for the Plaintiffs. Affidavit in Reply shall be filed by the Defendants within a period of two weeks from the date of this order i.e. on or before 24th August 2022.
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24&25-IA-1597&1600-20.doc
9. Advocates for the Plaintiffs shall serve notice of this order on the Defendant and file Affidavit of Service on or before the next date.
10. Interim Applications shall be placed on the supplementary board on 25th August 2022.
[R.I. CHAGLA J.] 5/5