Bombay High Court
Monica Thakur Parwani vs Vaswani Projects Pvt Ltd on 23 April, 2024
Author: Bharati Dangre
Bench: Bharati Dangre
1/8 21.CARBPL.28449.2023.odt
E-file
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
COMM. ARBITRATION PETITION(L) NO. 28449 OF 2023
Vaswani Projects Pvt. Ltd. .. Petitioner
Versus
Haresh CHS Ltd. & Ors. .. Respondents.
WITH
COMM. ARBITRATION APPEAL(L) NO.10271 OF 2024
Ravi Satiskumar Godhia .. Appellant
Versus
Haresh CHS Ltd. & Ors. .. Respondents.
WITH
INTERIM APPLICATION (L) NO.12850 OF 2024
WITH
INTERIM APPLICATION (L) NO.30884 OF 2023
IN
COMM. ARBITRATION PETITION(L) NO. 28449 OF 2023
Vaswani Projects Pvt. Ltd. .. Petitioner
Versus
Haresh CHS Ltd. & Ors. .. Respondents.
WITH
COMM. ARBITRATION PETITION(L) NO. 33834 OF 2023
WITH
Talwalkar
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INTERIM APPLICATION (L) NO.2770 OF 2024
WITH
INTERIM APPLICATION (L) NO.35314 OF 2023
Ravi Satiskumar Godhia. .. Petitioner
Versus
Haresh CHS Ltd. & Ors. .. Respondents.
...
Mr. Vyom Shah, Jimish Shah, Anston Vaz, i/b Divya Shah
Associates. for the Petitioner.
Mr. Vishal Kanade i/b. Glenn Mendonca. for respondent no.1.
Mr. Sushil Upadhyay, i/b Ashok Saraogi, for respondent no.3
Mr. Gauraj Shah a/w. V.A. Joshi i/b. Chitnis Vaithy & Co., for
respondent no.4
Ms. Monica Thakur Parwani, Respondent No. 3 present in Court.
...
CORAM: BHARATI DANGRE, J.
DATED : 23rd APRIL, 2024 P.C:-
1. As directed by the orders in order to resolve the dispute, the Court Commissioner was appointed by this Court on 12 th January 2024 who submitted his report on 18 th January 2024, and in my view, upon the receipt of the report, the dispute between the Respondent Nos. 3, 4 and 5 deserves to be resolved. The Court Commissioner on visiting the Flat No. A-1 in the building has reported as under :
Talwalkar ::: Uploaded on - 30/04/2024 ::: Downloaded on - 11/05/2024 21:48:53 ::: 3/8 21.CARBPL.28449.2023.odt "5. On completion of exercise of measuring the subject premises, Mr. Yogesh Shridhar Thale submitted a plan of the subject premises with the measurements as recorded by him. The said plan mentions, the total usable carpet area of Flat No. A-1 in the subject premises is 463. 20 sq.ft.
Including doorjams area and excluding the same, the total usable carpet area is 452.90 sq. ft. The Room-1 (hatched portion in red) depicts the area under possession of Respondent No. 4, which has 98.63 sq. ft. of usable carpet area. The balance area of Flat No. A-1(excluding Room-1), in possession of Respondent No. 3 has usable carpet area of 354.27 sq. ft. The said plan by the licensed surveyor is attached herewith and marked as ANNEXURE -C." It is worth to note that the Commissioner has also taken into account the agreement dated 4 th December, 2004 furnished by respondent Nos.3 and 4 with regard to the plan of Flat No. A- 1, to demonstrate their arrangement in the subject premises and it is in the presence of the parties, the exercise was carried on. Accompanied with the said report is the plan of flat No. A-1 situated on ground floor.
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2. In terms of the report of the Commissioner, the total usable carpet area of Flat A-1 is admeasuring 463.20 sq. ft. including the doorJams area and excluding the same the total usable carpet area is found to be 452.90 sq.ft.
The Court Commissioner has clearly indicated the area under the possession of the Respondent No.4 which is admeasuring 98.63 sq.ft. Of usable carpet area where the balance area of Flat No. A-1 (excluding room No. 1) in possession of the Respondent No. 3 is informed to have usable carpet area of 354.27 sq. ft.
4. The Respondent No. 3, Ms. Monica is represented by Mr. Saraogi but on account of his unavailability she has advanced the submissions. The respondent No.4 is Shobha Parwani with whom the agreement dated 3rd December 2004 came to be executed and it can be evidently seen that the respondent No.3 had purchased the bed room and half portion of the balcony attached to the bed room for consideration and the party of the second part i.e. Shobha Parwani has sold the same on a consideration. The exact description and the access to this purchased area was also clearly indicated in the agreement. Talwalkar ::: Uploaded on - 30/04/2024 ::: Downloaded on - 11/05/2024 21:48:53 ::: 5/8 21.CARBPL.28449.2023.odt
5. From the report of the Commissioner, it is clear that Flat No. A-1 is internally divided between the Respondent Nos. 3 on one hand and Respondent Nos. 4 and 5 on the other hand. Apart from this, Shobha Parwani is in occupation of Flat -B-8 being as a member of the society and Sanjeev Parwani, her son is in occupation of flat A-4 as its member. In the redevelopment process, they have agreed to purchase an additional area to make themselves entitled to an area of 1092 sq.ft. qua each flat and in the wake of this, they are offered Flat No.1001 admeasuring 1042 sq.ft. area on the 10 th floor and Flat No. 1101 admeasuring 1042 sq.ft. area on 11 th floor. The PAAA is to be executed with these members and are accepted by the members and are ready to be executed and registered. As far as the Respondent No. 3 is concerned who in terms of the report of the Commissioner is in possession of the usable carpet area of 354.27 sq. ft.was also offered the additional area for purchase but she has not come clear on the said stand.
In Annexure-G appended to the Development Agreement, though the Flat No. A-1 is shown in the name of Monica Parwani, with the area of 462 sq.ft., in the wake of an agreement entered with Respondent No. 3 Shobha Parwani, Respondent No. 4, she is Talwalkar ::: Uploaded on - 30/04/2024 ::: Downloaded on - 11/05/2024 21:48:53 ::: 6/8 21.CARBPL.28449.2023.odt entitled to an area in proportion to the one which is in her occupation and though Mr. Parwani who has appeared before me made an attempt to canvass that in the wake of her share in Flat No.A-1, she should be allotted a distinct area/flat which appears to be impossible one as according to the learned Counsel for the developer, at present PAAAs are executed with 17 members and the plans for the buildings have received sanction. Pursuant thereto even IOD is received. The fact remains that even Mr. Sanjeev Parwani and Shobha Parwani are allotted flats on different floors and it is only on the purchase of additional area, they have been entitled for an area of 1092 sq.ft on each floor. Since Flat No. A-1 is considered as an entire unit and there is internal arrangement between the Respondent Nos. 3 and 4, though there may some quibble between them in sharing the flat as far as the developer and the society is concerned, it recognises A-1 as a distinct flat and pursuant thereto, has agreed to allocate an area of 959 sq.ft. as entitled for 40% extra carpet area of 648 sq. ft. There is no additional area purchased as regards flat No. A-1 and therefore entitlement of the member against Flat A-1 will be an area of 648 sq. ft, in the new building. Admittedly, this area will have to be shared by the Respondent Nos. 3 and 4. In any case, this is an internal Talwalkar ::: Uploaded on - 30/04/2024 ::: Downloaded on - 11/05/2024 21:48:53 ::: 7/8 21.CARBPL.28449.2023.odt dispute between the Respondent No.3 on one hand and Respondent Nos. 4 and 5 on the other and all other members of the society cannot be dragged into it since it is informed that 15 out of 26 members have vacated their units/flats. Ms. Monica Parwani agree that she shall vacate the area in her occupation in flat No. A1 on or before 20 th May 2024. As far as balance portion in flat A-1 is concerned Mr. Shah makes a statement that respondent No. 4 has already handed over possession to the society.
It is made clear that if Ms. Parwani refused to adhere to vacate on or before 20th May, 2024, Court Receiver, High Court Bombay is appointed to take forcible possession of the portion of the flat A-1 in her occupation and upon exercising power under Order 40 Rule 1, he shall take forcible possession of the premises and hand over to the society within 3 days thereafter.
Needless to state that it is only clarified that the entitlement of the Respondent nos. 3 and 4 in the new flat to be allotted shall be in proportion to the present holdings in flat No. A-1. Respondent No. 3 shall execute PAAA within aforesaid period and the developer shall also ensure that all the benefits flowing thereunder shall be made available to her. In case of Talwalkar ::: Uploaded on - 30/04/2024 ::: Downloaded on - 11/05/2024 21:48:53 ::: 8/8 21.CARBPL.28449.2023.odt failure on the part of the respondent No. 3 and Respondent No. 4 to execute PAAA for whatsoever reason, the Court Receiver is authorised to execute PAAA, for the very reason that the developer can proceed ahead with the redevelopment process.
( SMT. BHARATI DANGRE, J.) Talwalkar ::: Uploaded on - 30/04/2024 ::: Downloaded on - 11/05/2024 21:48:53 :::