Bombay High Court
Shapoorji Pallonji And Company Ltd vs Jignesh Shah And 7 Ors. And Shrikant ... on 29 August, 2018
Author: G.S. Patel
Bench: G.S. Patel
29-CHSL294-18+.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
CHAMBER SUMMONS (L) NO. 294 OF 2018
IN
EXECUTION APPLICATION NO. 1150 OF 2014
IN
SUIT NO. 1512 OF 2009
Shapoorji Pallonji and Co Ltd ...Petitioner
Versus
Jignesh Shah & Ors ...Respondents
And Shrikant Ghanshyam Shah & Anr ...Applicants CHAMBER SUMMONS (L) NO. 1147 OF 2018 IN EXECUTION APPLICATION NO. 1150 OF 2014 IN SUIT NO. 1512 OF 2009 Shapoorji Pallonji and Co Ltd ...Petitioner Versus Jignesh Shah & Ors ...Respondents And Shrikant Ghanshyam Shah & Anr ...Applicants Mr Jugal Kanani, i/b IC Legal, for the Applicants. Mr Karl Tamboly, with Sonam Mhatre & Tejas Gokhale, i/b Dhaval Vussonji & Associates, for the Petitioner. Ms Minal J Chandnani, i/b Jaiwant S Chandnani Associates, for Respondents Nos. 1 to 5.
Page 1 of 4 29th August 2018 ::: Uploaded on - 30/08/2018 ::: Downloaded on - 30/08/2018 23:40:30 ::: 29-CHSL294-18+.DOC CORAM: G.S. PATEL, J DATED: 29th August 2018 PC:-
1. The application is by two flat purchasers Mr Shrikant Ghanshyam Shah & Purnima Shrikant Shah ("the Shahs"). They entered the original agreement dated 5th January 2009 with Crescent Builders, Respondent No. 5, whose partners are Respondents Nos. 1 to 4. The Plaintiff, Shapoorji Pallonji & Co Ltd ("SPCo") brought suit inter alia seeking specific performance. This resulted in Consent Terms and a Consent Decree.
2. What I have before me is an execution proceeding. The Shahs were originally allotted flat Nos. 1203 and 1303 on the 12th and 13th floor of the building known as Crescent Tower. The application today is for a direction to the Court Receiver to issue a no-objection certificate so that these two flats can be connected by an internal staircase/hydraulic lift.
3. The agreement between Crescent Buildings and the Shahs does not say that this was sold as one single split-level unit, what is popularly known as a duplex apartment. The sale was of two separate units. Each was constructed as such. They were was sold in that fashion. The fact that both flats were sold to the Shahs is irrelevant. The sale was of two flats, not a single, united duplex. The Shahs took possession of the two flats as two separate flats.
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4. Mr Tamboly for the Petitioner has instructions to say that the proposal for an internal elevator and staircase may be technically feasible. But that in itself is of no moment. . Many things are technically feasible. That does not mean that they should be done. The Shahs are here in SPCo's execution, not their own,seeking an order that is purely equitable -- under what provision of the Code of Civil Procedure 1908 or High Court Rules (other than Section 151 of the CPC), I am unable to tell.
5. There are several reasons not to accept this application. The least of these is that the sanctioned plans and the agreement do not show the two flats as being internally connected. Further, if this is permitted for one set of owners then it is entirely conceivable that other owners will start making similar demands. There may be thus an aggregation of all manner of demands for structural changes to Crescent Tower, both internally and externally.
6. The relief sought cannot be one demanded as a matter of right. In addition, there are contractual prohibitions, including Clause 25 which says that the purchasers are not to carry out any structural alterations and additions to the flats.
7. In short, what the Shahs now seek that I should do in execution is exempt them from a contractual obligation and responsibility, and that I should do so in deviation of the sanctioned plans, by issuing a judicial fiat to alter the construction contrary to that sanction, and that I should do so whether Crescent Builders or its partners agree or not.
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8. I will do nothing of the kind.
9. The Chamber Summons is dismissed. No costs.
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