nms3527.02 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO.3527 OF 2002
IN
SUIT NO. 4007 OF 2002
ALONG WITH
COURT RECEIVER'S REPORT NO. 267 OF 2009
IN
igSUIT NO. 4007 OF 2002
ALONG WITH
COURT RECEIVER'S REPORT NO. 73 OF 2010
IN
SUIT NO. 4007 OF 2002
Chaudhary Abdul Majid Shahadat & Ors. ...Plaintiff.
Vs.
Smt. Shenaz Abdulla Shahadat & Ors. ...Defendants.
Ms. Manjiri Shah with Mr. Z.A. Jariwala and Ms. P. Mhatre i/by M/s.
Thakore Jariwala & Associates for Plaintiff Nos. 1 and 2.
Mr. Holambe along with Mr. G.P. Khan for Defendant Nos. 1(a) and 1(b).
Mr. G.G. Ketkar, 1st Assistant to the Court Receiver, present.
Mr. Virag Tulzapurkar, Sr. Counsel with Ms. Jasmin Sheth with Swapnil
Khatri i/by M/s. Wadia Ghandy & Co. for Defendant No. 6.
Ms. Punita Soni i/by M/s. Bilawala & Co. for Defendant Nos. 7,11 to 14,16,
17, 27, 28 and 31.
Mr. Jayesh Bhatt for Defendant No.15.
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Mr. K.K. Shroff along with Ms. Snehali Karkera i/by M/s. Dhruva & Co. for
Defendant No.8.
Mr. V.Y. Sanglikar for Defendant No.236 and Flat Purchasers of Flat Nos.
G-42, 44,11,21 & 23.
Mr. Nainesh Amin for Defendant Nos. 25 and 26.
Mr. M.V. Hakrogi for Defendant Nos. 11 and 13.
Ms. Deepa Kamath for the Flat Purchaser. 235.
CORAM :- ANOOP V. MOHTA, J.
DATED :- 5TH MAY, 2010.
P.C.-
1
As the basic facts, parties and properties are common, interlinked
and interconnected and therefore, for proper understanding of the matter,
for clarity and to avoid repetition; the submissions and the arguments are
made only in these two Motions and the Court Receiver’s Report, and
therefore, this common order, though heard separately one after other. The
facts of both suits are also dealt with separately.
2 (As Per Suit No. 1961 of 2003) The Plaintiff is one of the daughters
of Chaudhary Shaukat Hasmullah (“Shaukat”) who died intestate on 5th
March, 1995 leaving behind 11 heirs. Defendant Nos. 1 to 3 are the sons,
Defendant No.4 is widow and Defendant Nos. 5 to 10 are 6 daughters.
3 The basic prayers in the suit, as well as, in the notice of motion are
for administration of the estate of her father Shaukat and for setting aside
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(a) relinquishment deed dated 1st July, 1995, signed/ executed by the
Plaintiff for release of her share; (b) consent terms dated 15th April, 1998;
(c) development agreement dated 22nd January, 2002 in favour of
Defendant No.32; (d) power of Attorney dated 26th March, 1998 in favour
of Defendant No.1. The Plaintiff along with other heirs of Shaukat
executed a general power of attorney dated 26th March, 1998 in favour of
Defendant No.1 to deal with the suit property. Clause 7 of the Power of
Attorney empowers Defendant No.1 to sign the consent terms. Clause 21
entitles Defendant No.1 to deal with the property for and on behalf of the
Plaintiff. Clause 25 empowers Defendant No.1 to sign, execute and deliver
all contracts, conveyances and assignments and another documents for and
on behalf of the Plaintiff.
4 The Plaintiff has claimed 6.73% interest in the estate of Defendant
Nos. 1 to 3 who are entitled to 13.46% interest in the suit property.
However, in the arguments, restricted as 2.97% of the suit property.
5 The sons of Shaukat (Defendant No.1-3), widow of Shaukat
(Defendant No. 4) and other daughters of Shaukat (Defendant No. 5-11)
have opposed the claims of the Plaintiffs and have affirmed the Deed of
Relinquishment and the Power of Attorney granted in favour of Defendant
No.1 herein. Defendant No.5 and 10 have subsequently filed a contrary
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affidavit however, no independent proceedings challenging the
relinquishment deed have been filed by Defendant No.5 or Defendant No.
10 or any other heir of Shaukat.
6 The Supplementary Deed of Partnership dated 23rd September, 1995
of Haji Shaukat & Co also records that the female members of Shaukat
Branch i.e. Defendant No. 4 (widow), and Plaintiff No.1, Defendant No.
5-11 (daughters of Shaukat) have released their respective undivided
shares in the estate of late Shaukat in favour of Defendant No. 1-3 (sons of
Shaukat). The same release by all the female heirs of Shaukat is also
recorded in the Deed of Partnership dated 11th July, 1995 of Shaukat
Shahadat & Co..
7 As submitted, in written notes also without prejudice that even in the
event prayer (d) of the Plaint is granted i.e. the Consent Decrees are set
aside and the three original suits being Suit No. 1350 of 1980, Suit No. 843
of 1985 and Suit No. 3170 of 1985 are restored, the following shall be the
share of the Plaintiff;
8 M/s. Haji Shaukat & Co. shall have 1/6th or 16.66% share in the Suit
Property to be divided between the then existing partners in their profit
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sharing ratio of 20% each as follows –
Shaukat
Defendant No. 1
Defendant No. 2
Defendant No. 3
Defendant No. 23
Defendant No. 24
Shaukat shall as a partner shall be entitled to 16.66% of 1/6 th in the Suit
Property being 2.97% in the Suit Property.
9 M/s. Shaukat Shahadat & Co. shall have 1/3 share or 33.3% share in
the Suit Property to be divided between the partners then in their profit
sharing ratio as follows.
Shaukat (25%)
Chaudhary Shahadat Hasmullah (25%)
Abdul Basalat (25%)
Rahimtulla Rubali (12.5%)
Defendant No. 23 (12.5%)
Shaukat as a partner shall be entitled to 25% of 1/3 share in the Suit
Property being 8.3% in the Suit Property. Therefore, Shaukat had in the
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aggregate entitled to 2.7% + 8.3% in the Suit Property aggregating to
approximately 11% in the Suit Property.
10 The Plaintiff in Suit No. 1961 of 2003, as an heir of Shaukat may be
entitled to a certain share in this 11% which as per Muslim Law shall
devolve as follows:
Widow (1/8) = 1.38% = 1.38%
Sons (7/52 each) = 2.14% each x 3 = 6.42%
Daughter (7/104 each) = 0.45% each x 7 = 3.21%
------------------
= 11%
Therefore, the Plaintiff as per her case will be entitled to 0.45%
share in the Suit Property, in the event prayers as set out in the Plaint are
granted.
11 An amount of Rs.2,05,72,318/- (Rupees Two crores five lakh seventy
two thousand three hundred eighteen only) has been paid by Defendant
No.32 to sons of Shaukat (Defendant No.1,2 and 3) towards their share of
gross sale proceeds under the Development Agreement (which may include
the share of Plaintiff relinquished to Defendant No.1, 2, 3). By and under
order dated 12th August, 2003, in Notice of Motion No. 1922 of 2003 in
Suit No. 1961 of 2003, Defendant Nos. 1 to 4 deposited the sum of Rs.
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5,45,000/- (Rupees five lakhs forty five thousand only) towards their share
of gross sale proceeds under the Development Agreement. Further, by and
under order dated 3rd December, 2008 in Notice of Motion No. 2782 of
2006 in Suit No. 1961 of 2003 refused injunction against the Suit Property
and directed status quo in respect of Flat of Defendant No.1 towards claim
of the plaintiff.
12 The suit property is an immovable property admeasuring 1596.53 sq.
meters situated at Chakala, Andheri (East) Mumbai, (Notice of Motion
3527 of 2002), in Suit No. 4007 of 2002, owned by –
M/s. Haji Shaukat & Co. M/s. Shaukat Shahadat M/s. Premier Iron
& Co. & Metal Industries
(50% share)
!————————————————————-!
! !
! !
Partners Partners
1 Choudhary Shaukat Hasmullah 1 Shaukat
(“Shaukat”) 2 Choudhary Shahadat
Hasmullah (“Shahadat”)
2 Chaudhary Mohd. Rafiq Shaukat 3 Abdul Basalat Rubali
(D8)
3 Chaudhary Mohd. Zubair 4 Rahimtulla Rubali
Shaukat Ali (D9)
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4 Chaudhary Abdul Gani Shaukat 5 Sharif Hassan Rubali
(D 10) (D 27)
5 Sharif Hassan Rubali (D 27)
6 Ahmed Rubali (D 28)
13 Disputes arose between the partners of M/s. Haji Shaukat & Co. and
M/s. Shaukat Shahadat & Co. resulting in the following proceedings.
(i) Suit No. 1350 of 1980 was filed by Shahadat against Shaukat and
other partners for dissolution and accounts of Shaukat Shahadat & Co. and
declaration that Deed of Retirement of Shahadat was not valid and binding
on him.
(ii) Suit No. 3170 of 1985 was filed by M/s. Shaukat Shahadat & Co.
against Shahadat for declaration that the firm was the co-owner of the Suit
Property and Shahadat had no individual right in the Suit Property.
(iii) Suit No. 843 of 1985 was filed by Shahadat against Shaukat,
Defendant No. 24-26 for declaration that Shahadat was entitled to 1/6th
share in the Suit Property.
14 Shahadat intestate died on 15th March, 1994 and Shaukat died
intestate on 5th March, 1995 leaving behind the following heirs:
(a) Shahadat branch
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——————————————————————–
! ! !
Widow Sons Daughters
(P4) ! !
! !
--------------------------- ------------------------------
! ! ! ! ! ! ! !
P1 P2 P3 D1 D2 D3 D4 D5
!
----------
! !
ig D1(a) D1(b)
Widow Daughter
(Plaintiffs in Suit No. 1717 of 2009)
(Separate from these two suits)
(b) Shaukat branch
——————————————————————–
! ! !
Widow Sons Daughters
(D7) ! !
! !
----------------------- -----------------------------------------------------
! ! ! ! ! ! ! ! ! !
D8 D9 D10 D11 D12 D13 D14 D15 D16 D17
(Plaintiffs in Suit No. 1961 of 2003)
15 The female members of Shaukat branch i.e. widow and 7 daughters
had vide Deed of Relinquishment dated 1st July, 1995 relinquished all their
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right, title and interest in the estate of Shaukat in favour of the sons of
Shaukat i.e. D8, D9 and D10.
16 By recording above, the Consent Terms dated 15th April, 1998 filed in
Suit No. 1350 of 1980, the aforesaid three suits came to be disposed off
and the shares of each branch of Shaukat and Shahadat family came to be
determined to the extent of 8.50% to the Shahadat branch and to extent of
41.50% to the Shaukat branch.
(As per Suit No. 4007 of 2002)
17 Pursuant to the aforesaid Consent Terms, by and under a
Development Agreement dated 22nd January, 2002 executed between
Defendant No. 24-25 (Qureshis), Defendant No. 6,7, 8 (Shaukat heirs),
Defendant No. 27 (Sheirf Hasan Rubali), Defendant No.1, Defendant No.
2-5, Plaintiff 1-4 (Shahadat heirs), Boman Irani, Percy Chowdhary,
Saifuddin Patel ( as confirming parties) and Defendant No.6, all the
aforesaid parties granted development rights in respect of the Suit Property
in favour of Defendant No.6. Defendant No.1 executed the Development
Agreement on behalf of Plaintiff Nos. 1 to 4 and Defendant Nos. 2 to 5 by
and under Power of Attorney dated 25th April, 1995.
18 Under the Development Agreement the gross sale proceeds to
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generate upon sale of the premises to be constructed in the new building
on the suit land is bifurcated in the manner as set out under the
Development Agreement executed between:
i) Defendant No.6.
ii) First Owners (Premier Iron & Metal Industries):- (Mohmd. Jamil
Mohmd. Ismail Qureshi (Defendant No.24), Mohd. Aquil Mohmd. Ismail
Qureshi (Defendant No.25), Mohmd. Kafil Mohmd. Ismail Qureshi
(Defendant No.26),
iii) Second Owners (Shaukat Branch):- Mohd. Rafique Shaukat
Chaudhary, Mohd. Zubair Shaukat Chaudhary, Abdul Gani Shaukat
Chaudhary, Sharif Hasan Rubakli,
iv) Third Owners (Shahadat Branch):- Chaudhary Abdul Majid
Shahadat (Plaintiff No.1), Mohd. Farooque Shahadat Chaudhary (Plaintiff
No.2), Mrs. Gafurunnisa Shahadat Chaudhary (Plaintiff No.4), Abdulla
Shahadat (Defendant No.1), Mrs. Kulsum Manzoor Khan (Defendant No.
2), Mrs. Saira Afzal Khan (Defendant No.3), Mrs. Shahida Saifullah
Chaudhary (Defendant No.4), Mohd. Llyas Shahadat (Plaintiff No.3), Mrs.
Shabira Ayub Khan (Defendant No.5)
v) Boman Irani (First Confirming Party), Sharfuddin A. Patel (Second
Confirming Party), Mr. Percy Choudhary (Third Confirming Party).
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19 Defendant No.6 commenced construction and development on the
suit property as far back as in January, 2002. In spite of being aware of the
redevelopment undertaken by Defendant No.6 the suit came to be filed on
December, 2002.
20 The plans sanctioned by the authorities envisaged construction of 8
residential buildings and 1 commercial complex. Till the date of filing of
the present suit, Defendant No. 6 has completed construction of 5 buildings
(Wing A to E) and building G and H were under construction. The
Commercial Complex and one Residential Building i.e. Wing F are not yet
completed.
21 By and under and order dated 6th May, 2004 passed by the Court
disposed of Notice of Motion No. 3527 of 2002 along with Notice of
Motion No. 1922 of 2003 in Suit No. 1961 of 2003, where the Court
permitted Defendant No. 6 to continue construction of G and H Buildings.
The Court restrained Defendant No.6 from creating third party rights in
respect of the unsold flats of Buildings G and H.
22 The aforesaid order was carried in appeal by Defendant No.6 being
Appeal No. 558 of 2004 in Notice of Motion No. 3527 of 2002 in Suit No.
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4007 of 2002,l whereby the Division Bench of this Hon’ble Court by its
order dated 21st October, 2004 directed the Court Receiver to act as Court
Commissioner and report to the Court about the status of the suit property.
The Court permitted Defendant No. 6 to complete construction of G and H
buildings but restrained creation of third party rights in respect thereof.
23 In the meantime following settlement took place in Suit No. 4007 of
2002:-
Date Agreement Consideration
20th April, 2007 Registered Conveyance Rs.4,00,00,000/-
between Defendant No. 235 (Rupees Four Crores
and Plaintiff No.1 Only)
1st August, 2007 Registered Conveyance Rs.1,10,00,000/-
between Defendant No. 235 (Rupees One Crore
and Plaintiff No.2 Ten Lakhs Only)
28th September, 2007 However, in the meanwhile,
Plaintiff No.4 (Widow)
expired
7th November, 2008 Consent Terms with Plaintiff Rs.2,00,00,000/-
No.3 and Defendant No.6 (Rupees Two Crores
(includes share derived only)
from Shahadat and his +
mother, Plaintiff No.4) Flat admeasuring 975
taken on record by the sq.ft.
Hon’ble Court on 17th
January, 2009
28th December, 2007 Registered Conveyance Rs.35,00,000/-
between Defendant Nos. (Rupees Thirty Five
2-5 in favour of Defendant Lakhs) each.
No.235 (includes share
derived from Shahadat and
their mother, Plaintiff No.4)
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24 In view of death of Plaintiff No.4, in Suit No. 4007 of 2002, her
share in the Suit Property devolved as follows:-
1.06% (As per shares in Consent Terms) 2.08% (As claimed by the
Plaintiffs)
As per Muslim Law of Inheritance, the estate of widow will devolve upon
the sons and daughters in the ratio of 2:1 as follows:
(As per shares in Consent Terms) (As claimed by the Plaintiffs)
3 sons 0.21% each
ig 0.41%
4 daughters 0.10% each 0.20%
Since one of the son (i.e. Defendant No.1) pre-deceased his mother
(Plaintiff No.4), he will not get any share in his mother’s estate as per
Muslim Law.
25 As explained above, by the contesting party, only rights of Plaintiff
No.1 and Plaintiff No.2 accruing to them through Plaintiff No.4 (Widow) is
outstanding. Share of Plaintiff No.1 and Plaintiff No.2 shall be 0.41% each
and therefore aggregating to 0.82%.
Therefore, there is force in the contention raised that, the present
suit only survives to the extent of 0.82% share accruing to Plaintiff No.1
and Plaintiff No.2 through their mother.
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26 Appeal No. 558 of 2004 and Appeal No. 572 of 2004, filed by
Defendant No.6 came up for final hearing before the Division Bench of this
Hon’ble Court. The Division Bench vide its order dated 17th January, 2009,
in view of the “subsequent developments” in the form of settlement
between the parties which were significant and was pleased to set aside the
interim order dated 6th May, 2004 and remitted the Notice of Motion No.
3527 of 2004 in Suit No. 4007 of 2002 and Notice of Motion No. 1922 of
2003 in Suit No. 1961 of 2003 for fresh consideration. The interim order
of Court Receiver was continued till the disposal of the Notice of Motion as
a protection measure. Defendant No. 6 was permitted to grant possession
to the 40 flat purchasers in Wing G and H on satisfying the Receiver that
they have bona fide agreements to sell the flats, substantial consideration
has been paid and that MCGM has granted occupation certificates for the
same flats.
27 All the Flats in Wing A, B, C, D and E are sold to flat purchasers and
the possession of the flats are handed over to such flat purchasers. Wing
A,B, C, D and E are residential buildings, Wing G & H are also residential
buildings and the construction thereof is completed and the occupation
certificate is also given. Wing G and H totally comprises of 56 flats, out of
which 40 flats are sold and letter of allotment were issued accordingly by
Defendant No.6 to various flat purchasers and Defendant No. 6 has
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received substantial consideration thereof. However, possession to the flat
purchasers of these 40 flats as not yet permitted by the Court Receiver in
spite Defendant No.6 having satisfied the Court Receiver in respect of the
requirements as stated above of the Hon’ble Court vide its order dated 17th
January, 2009, the Court Receiver submitted its Report No. 267 of 2009,
dated 8th September, 2009 to the Court for directions. Wing F is a
residential building, the construction whereof is yet to commence and one
more commercial building thereof is proposed to be constructed. In
addition to the buildings to be constructed on the suit land, there are
uncompleted amenities and infrastructure also.
28 Defendant No.1 is entitled to sale proceeds as consideration under
the Development Agreement. Till date Defendant No.6 has paid an
aggregate sum of Rs.67,79,763/- (Rupees Sixty Seven Lakhs Seventy Nine
Thousand Seven Sixty Three only) towards consideration to the Shahadat
branch. Out of the aforesaid sum, a sum of Rs.15,59,421/- (Rupees Fifteen
Lakhs Fifty Nine Thousand Four Hundred and Twenty One only) was paid
by Defendant No. 6 to Defendant No.1 which has been deposited by him in
this Court and a further sum of Rs.52,20,342/- (Rupees Fifty Two Lakhs
Twenty Thousand Three Hundred and Forty Two only) has been deposited
by Defendant No. 6 in this Court on behalf of Shahadat branch.
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29 On 9th April, 2010, as there was no report submitted by the Court
Receiver pursuance to the order passed by the Division Bench, this Court
has directed as follows:-
“1 In view of the order passed by the Division Bench in the
matter, specifically in paragraph No. (2) (ii)(a) read
with Paragraph No.5 of the Court Receiver’s report dated12th September, 2009, it is desirable that the Court
Receiver to give detailed report, within 10 days, from
today.
2 The liberty is granted to the parties to appear before the
Court Receiver, on 12.04.2010 at 3.00 p.m.3 The matter be placed on board with additional report of
the Court Receiver, on 22nd April, 2010, as the additional
report is necessary for passing the final order in Notice of
Motions.”
30 The Court Receiver accordingly submitted the Additional Report No.
73 of 2010, dated 20th April, 2010, and prayed that:-
“(a) As B.M.C. Has issued Occupation Certificate in respect of
“G” and “H” wings of the building and the 19 Flat Purchasers
have paid full consideration to the Defendant No.6 as per list
being Exhibit “C”, the Court Receiver may be permitted to put
the said Flat Purchasers in possession of their respective flats as
agent of the Court Receiver upon executing the necessary AgencyAgreement and undertaking, without royalty and security as
per order dated 17th January, 2009.”
31 It is relevant to note the following order of the Division Bench in
Notice of Motion No. 2708 of 2004 in Appeal No. 558 of 2004 in Notice of
Motion No. 3527 of 2002 in Suit No. 4007 of 2002 dated 21/10/2004:-
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“Heard.
2 The notice of motion is returnable on 14th December,
2004.
3 The learned motion Judge observed that construction has
proceeded considerably and it would not be proper now to stop
the construction activity. He also observed that two buildingsconsisting of five wings are complete and flats therein have been
sold. The work now remains is in respect of G and H wings and
the commercial complex and in G and H wings also it is said
that some agreements have been entered into.
4 Taking overall facts and circumstances into consideration
and the aforesaid observations made by the learned motion
Judge, we are satisfied that the operation of the impugned order
deserves to be stayed and the following ad-interim order shallremain operative until further orders:-
(i) The Court Receiver is appointed to act as
Court Commissioner for reporting to this
Court the present status of the property indispute. If necessary, the Court
Commissioner may take the assistance and
services of the structural Engineer and
Architect to assist him. The report shall besubmitted by the Court Commissioner as
early as possible and in no case later than
four weeks from the date of deposit of
tentative expenses by the appellant.
(ii) The appellant (defendant No.6) is permitted
to complete the construction of G and H
wings as per the sanctioned plans only
without any alteration or modification.
However, the appellant shall not create any
third party right or interest henceforth in
the G and H wings.
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(iii) The appellant (defendant No.6) is restrained
from proceeding with any further
construction in respect of the commercialcomplex.
(iv) The appellant (defendant No.6) shall
furnish to the Court Commissioner the true
and correct copy of the sanctioned plants,
copies of agreements, if any, so far enteredinto in respect of flats in G and H wings, the
copies of other necessary documents
necessary for completion of G and H wings
and all other documents that may berequired by the Court Commissioner.
(v)
Liberty to the appellant (defendant No.6) to
apply the court for appropriate directionafter the completion of construction of G
and H wings.
(vi) The appellant (defendant No.6) is directed
to deposit a sum of Rs.25,000/- with the
Court Receiver towards tentative expenseswithin ten days from today.”
32 It is necessary to note first of all in above back-ground basic prayers
in these two suits which are as under:-
As per Suit No. 1961 of 2003-
“a) that this Hon’ble Court be pleased to declare that
purported Power of Attorney dated 26th March, 1998
(Exhibit “C” hereto) and purported writing dated 1st
July, 1995 (Exhibit “D” hereto) are illegal, null and
void.
b) that Defendant Nos. 1 to 3 and 23 or any of them or
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Exhibit “C” hereto and the writing dated 1st July, 1995
Exhibit “D” hereto be ordered by this Hon’ble Court todeliver up the same to this Hon’ble Court for
cancellation and the same be ordered and decreed to becancelled by this Hon’ble Court;
c) in the alternative it be declared that the said purported
writing (Exhibit “D”) hereto has not been acted uponand was never intended to be acted upon.
d) that this Hon’ble Court be pleased to set aside the
consent decree passed on 15th April, 1998 in Suit No.
1350 of 1980, 843 of 1985 and 3170 of 1985 andrestore the said suits to file.
e) This Hon’ble Court be pleased to declare that Agreement
dated 22nd January, 2002 purporting to be entered into
between 1st Defendants and other Defendants being
Exhibit “E” hereto is a sham and bogus document and
the same be delivered up and cancelled.
g) That it be declared that Plaintiff has 6.73 share or such
other percentage share as may be found in the entire
estate of late Shaukat Hasmulla including property at
Chakala and the same be delivered up to her bypartitioning the same by metres and bounds and for
that purpose the properties and estate of late Mr.
Shaukat Hasmullah be administered under the Order
and direction of this Hon’ble Court in accordance with
law.”
based upon that the Plaintiffs have taken out Notice of Motion for interim
reliefs.
33 The prayers in Suit No. 4007 of 2002 are-
a) that this Hon'ble Court be pleased to set aside the consent
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decree passed on 15th April, 1998 in Suit Nos. 1350 of
1980, 843 of 1985 and 3170 of 1985 and restore the
said suits to file.
b) this Hon’ble Court be pleased to declare that Agreements
entered into between Defendants and Defendant No. 6 in
respect of the suit property are void, illegal and without
any effect in law and be ordered to be cancelled.
c) that the 6th Defendants by themselves, their servants,
agents and persons claiming through or under them be
restrained by a permanent order and injunction of this
Hon’ble Court from in any manner directly or indirectly
entering upon the suit property described in Scheduled
“A”, A1 hereto or from carrying out any construction
thereon;
cc) That this Hon’ble Court be pleased to- (added by the
Complainant in 2005)
(i) Declare that the Defendant Nos. 34 to 248 have no
right title or interest or any part or portion of the
suit property described in Exhibits A and A1 to the
Plaint or on any part or portion of the residential
and/or commercial buildings constructed/ being
constructed thereon.
(ii) That the agreements entered into between the
Defendant No. 6 on the one hand and the
Defendant nos. 34 to 248 on the other hand are all
illegal, null and void and not binding upon the
Plaintiffs.
(iii) That the Defendant Nos. 34 to 248 be ordered and
decreed to hand over to the Plaintiffs quiet, vacant
and peaceful possession of the premises of which
possession is stated to have been given to the said
Defendant Nos. 34 to 248.
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(iv) The Defendant Nos. 34 to 248 be restrained by a
perpetual order and injunction from in any
manner remaining upon and/or entering any part
or portion of the suit property described in Exhibits
A and A1 hereto.
(v) That the Defendant Nos. 34 to 248 be restrained
by an order and injunction from in any manner
dealing with, encumbering, parting with
possession, including any third parties, including
by way of leave and license agreement/ caretaker
agreements or otherwise creating third party rights
in respect of the premises or any part or portion
thereof purportedly purchased by the said
Defendants by entering into agreements with
Defendant No.6.
(vi) That it be declared that all IODs, Ccs and other
permissions, NOC, sanctions and licenses granted
by Defendant Nos. 249 and 250 for carrying out
and/or in aid of development and/or construction
on the suit properties described in Exhibits A and
A1 to the Plaint are all illegal, null and void and
not binding upon the Plaintiff and the Defendant
Nos. 249 and 250 be ordered and directed to
withdraw/revoke/cancel the same.
(vii) That interim and ad-interim reliefs be granted in
terms of prayer clauses (cc) (iii) to (cc) (v) above.”
34 From the above prayer clauses itself it is very clear that the Plaintiffs
want, the Court to decide and declare the power of Attorney dated 26th
March, 1998 purported writing dated 1st July, 1995 and also prayed to set
aside the consent decree passed on 15th April, 1998 in Suit No. 1350 of
1980, 843 of 1985 and 3170 of 1985. The declaration is also sought with
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regard to the agreement dated 22nd January, 2002, purporting to be sham
and bogus document. The declaration is also sought that the Plaintiff has
6.73% share and/or such other percentage share in the entire estate of late
Mr. Shaukat Hasmulla and therefore, sought administration of the same
also. The relief of restrainment was also sought against Defendant No.32
interfering upon the suit property as described in Schedule-Exhibit “A”.
Importantly, such declaration itself such relief and for such declaration is
their exists those detailed executed documents, in view of the consent
terms of the year 1998. The alleged writing is also of the 1st July, 1995.
The suit is for the year 2003, basically after the agreement dated 22nd
January, 2002. The averments so raised in the plaint read with the
supporting documents, even if placed on record unless adjudicated and
decided finally by leading supporting evidence, I am not inclined to accept
the case of the Plaintiffs based upon this averments so raised to grant ad-
interim reliefs as contended.
35 As per Suit No. 4007 of 2002:-
The multiple prayer clauses are made for similar reliefs revolving
around the same consent terms dated 15th April, 1998, the agreement
entered into by Defendant No.6 in respect of the suit property. The
declaration with regard to the Defendant No.34 to 248 is added by
amendment in the year 2005, read with further declaration that all IODs,
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Ccs, other permissions, NOC, sanctions and licenses granted by Defendant
No.249 and 250 for carrying out and/or in aid of development and
construction on the suit properties are to declare the same as illegal, null
and void and not binding. The existence of those documents are not at all
in dispute. The prayers are made to declare those actions and the
documents null and void. Therefore, if the existence are not at all in
dispute and the prayers are to declare the said documents null and void
including all transactions based upon the same unless granted finally, there
is no case of interim relief, as prayed. Most of the parties have already
acted upon on the same. The conduct of the parties and the delay on their
part in filing such suit and seeking declaration of such type of orders which
goes to the root of the documents. Therefore, unless decided by giving full
opportunity to both the parties, I am not inclined to accept the case of the
contesting Plaintiffs only, as some of the plaintiffs are even settled the
matter pending these motions itself.
36 Assume for a moment that the case made out by the Plaintiffs with
regard to their shares, based upon the alleged misrepresentation and of
fraud, yet, in view of above facts and circumstances are quite nominal and
shall be subject to grant in the suit after due trial only. The respective
shares and the claims based upon the same, even if so raised, just cannot
be the reason to overlook the existence of those documents as referred
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above and the conduct of the parties at the relevant time, by accepting
those terms and conditions of those documents actually participated and
acted upon. The Apex Court in M. Gurudas & Ors. Vs. Rasaranjan &
Ors., AIR 2006 S.C. 3275, has considered one of such aspect, which
according to me is relevant to be noted for the present matter i.e. in a
partition suit the Court needs to consider the extent of plaintiffs shares in
the property. As noted, at this prima facie stage, it is not possible for the
Court to decide the shares of the Plaintiffs, even if so agitated and as unless
the prayers so raised/made are decided finally, no case is made out for
grant of reliefs so contended.
37 In Anand Prasad Agarwalla Vs. Tarkeshwar Prasad & Ors., AIR
2001, S.C. 2367, as relied by the learned counsel appearing for the
Plaintiffs referring to Order 39 Rule 1 and 2 of Code of Civil Procedure (for
short, CPC), it is held by the Apex Court, that the Court cannot held mini
trial at the stage of grant of temporary injunction and examine various
aspect of case. This principle, in my view, supports the case of a contesting
Defendants in all respect, as basic reading of the prayers and the averments
so raised in the plaint, as well as, in the Notice of motion, itself shows that
there exists various registered documents/ consent decrees and therefore,
the existences of the same, if not in dispute, and unless that is decided
finally in due trial, those prayer clauses itself are not sufficient to grant the
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reliefs so prayed by the Plaintiffs, at this stage of the Proceedings and to
halt the construction which has been proceeded pursuance to the orders
passed by this Court from time to time.
38 There is no serious dispute, which is clear from the record also the
first order dated 6th May, 2004 in Notice of Motion No.270 of 2004 in Suit
No. 4007 of 2004 and order dated 21st October, 2004 passed by the
Division Bench of this Court in Notice of Motion No. 2708 of 2004 arising
out of the order in Motion No. 3527 of 2002 and as recorded above and the
work/ construction of 2 buildings consisting of 5 wings even completed
and the flats have been sold. The work in respect of “G” and “H” wings
and commercial complex are not completed and as some of the flats in “G”
and “H” wings, some agreements have been entered into, the Division
Bench has appointed the Court Receiver to act as a Commissioner for
reporting the status of the property in dispute. Defendant No.6, has been
permitted to complete the construction of “G” and “H” wings as per the
sanctioned plan. However, directed that the Appellant should not create
any third party rights or interest. Defendant No.6 was also restrain from
proceeding further in respect of the construction of Commercial Complex.
As the Division Bench has also directed to Defendant No.6 to submit the
relevant documents, sanctioned plans with regard to the completion of “G”
and “H” wings. The liberty was also granted to apply for appropriate order
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or directions after the completion of construction of “G” and “H” wings.
From the record, it is clear that the parties acted upon the same and
proceeded accordingly except above there was no any direction and/or
restrainment order against the contesting Defendants. It also means, the
Court Receiver has been appointed by the Division Bench to supervise the
construction itself. The statement is, as recorded that the construction is
completed of “G” and “H” wings, except Commercial property.
39
It is relevant to note the order passed by the Division Bench, on 17th
January, 2009, in Appeal No. 558 of 2004 in Notice of Motion No. 3527 of
2002 in Suit No. 4007 of 2002 which is reproduced as under:-
“1 This appeal arises out of the order dated 6.5.2004 passed
by the learned Single Judge of this Court in notice of motion no.
3527 of 2002 in Suit No.4007 of 2002. It is common ground
before us that after the order dated 6.5.2004 was made by the
learned Single Judge, certain developments have taken place in
that suit in the form of settlement being reached by some of thePlaintiffs with the contesting defendants who are appellants in
this appeal, and death of one of the Plaintiffs as also transfer of
interest by some of the plaintiffs. These developments definitely
have bearing on the type of interim order that should operate
during the pendency of the suit. The appellant has also placedon record consent terms arrived at between the appellant and
the respondent no.3 who was plaintiff no.3 in the suit, they are
taken on record and marked “X” for identification. In our
opinion, in view of these subsequent developments which are
significant so far as the type of interim order that should
operate during the pendency of the suit is concerned, requires
re-consideration of notice of motion which has been decided by
the learned Single Judge. It is also common ground that this
Court has made an ad-interim order in this appeal dated
21.10.2004 which is presently operating.
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2 Taking overall view of the matter, therefore, in our
opinion, the following order would meet the ends of justice:-
(I) The order dated 6.5.2004 passed by the learned Single
Judge of this Court in notice of motion no. 3527 of 2002 in suit
no.4007 of 2002 is set aside. That notice of motion is remitted
back to the learned Single Judge for fresh consideration anddecision. The appellant shall file an affidavit in that notice of
motion within a period of two weeks from today bringing on
record subsequent developments that, according to the
appellant, have taken place during the pendency of the appeal.
Office shall also place on record of the learned Single Judge theconsent terms at “X” for the consideration of the learned Single
Judge. During the pendency of the notice of motion before thelearned Single Judge, ad-interim order dated 21.10.2004
passed in notice of motion no. 2708 of 2004 in this appeal,
shall continue to operate with the following additions:
(i) The Receiver of this Court will continue to function as
before the ad-interim order dated 21.10.2004.
(II) We have been informed that in Wing “G” and Wing “H”
there are total 56 flats. According to the learned Counsel
appearing for appellant, out of 56 flats, 40 flats have been
agreed to be sold and substantial consideration has beenreceived from the purchasers. According to the parties,
therefore, there is no reason as to why possession of those 40
flats cannot be given to the purchasers. This position is not
disputed before us presently. However, in our opinion, it will
not be appropriate to make blanket order for delivery ofpossession. In our opinion, the following order would meet the
ends of justice:-
(a) The appellant and the flat purchasers may produce before
the Receiver material to establish that full consideration has
been received by the defendant no.6 from the flat purchasers
and proper agreements has been entered into in their favour in
respect of the flats and also the documents to show that the
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nms3527.02 29those flats. In short, the defendant no.6 and the flat purchasers
have to satisfy the Receiver that they are bonafide agreements to
sell the flats and substantial consideration has been paid.
Possession of the flats may be given to such purchasers as agent
of the Receiver on usual terms and conditions except royalty andsecurity.
This order will not come in the way of the Corporation
granting occupation certificate, if otherwise, the defendant no.6
is entitled to the occupation certificate in accordance with law.
(III) This order will operate during the pendency of the notice
of motion before the learned Single Judge, with liberty to the
parties to apply for modification of the same, in case there areany subsequent development. It is made clear that the
occupation of 40 flats would be as the agents of the Receiverwithout royalty and security and they will have to abide by all
other conditions as agents.
(IV) The learned Single Judge is requested to dispose of the
notice of motion as expeditiously as possible.”
40 The Division Bench has noted the subsequent events/ developments
pending the Notice of Motion including the consent terms entered into by
some of the Plaintiffs and after recording the same, ordered to dispose of
the motion, as expeditiously as possible, afresh. By putting/filing
additional contentions/additions here again the Court Receiver as already
appointed, directed to continue before the ad-interim order in the Appeal
dated 21/10/2004. The Division Bench has even ordered and observed
“there is no reason as to why the possession of those 40 flats cannot be
given to the purchasers, by recording that in Wings “G” and “H” there are
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56 flats and out of that 40 flats agreed to be sold and substantial
consideration has been received by the Developers. The contention was
added that the Appellant and the Flat purchasers to produced necessary
documents to establish the respective rights and claims, apart from
occupation certificate for occupation of those flats. It is specifically
observed that “possession of the flats may be given to such purchasers as
agent of the Receiver on usual terms and conditions except royalty and
security.” The liberty was also granted to the parties to apply for
modification of this order.
41 The Court Receiver Report No. 267 of 2009 in Suit No. 4007 of
2002, dated 8th September, 2009, submitted by the Court Receiver for
appropriate order basically with regard to the allotment of 40 flats by
treating the same as valid agreements under the Maharashtra Ownership
Flats (Regulations of the Promotion of Construction, Sale, Management
and Transfer) Act, 1963(for short, “the MOF Act”).
42 It is necessary here to note the earlier Court Receiver’s Report of the
year 2004 dated 23rd June, 2004, as the Court Receiver was appointed by
an order dated 6th May, 2004 passed in Notice of Motion No. 270 of 2004
in Suit No. 4007 of 2004, the said report reflects that the representative of
the Court Receiver visited the suit property and even made inventory of the
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flats sold and the construction and the details were submitted in the
Exhibit A and B to the report covering the Names of the flat purchaser, total
consideration paid, the date of possession and the various remarks
referring to the flats, the allotment letter and the date. The allotment letter
ranges for the period from 21/06/2002 up to 05/06/2003 of about 40
flats.
43 It is necessary to note the last additional report dated 20th April,
2010 submitted by the Court Receiver pursuance to the order dated 9th
April, 2010 passed by this Court, in view of Division Bench order dated 17 th
January, 2009 basically paragraph No.2 II (a) read with paragraph No.5 of
the Court Receivers report dated 8th September, 2009, there is no reference
made about the earlier report dated 23rd June, 2004 and basically details of
the respective flats and the date of allotment/ letters and the consideration
so paid. However, it is observed by referring to annexure “C” as under:-
“6. Upon considering the letters dated 29th July, 2009 and
12th April, 2010 of Advocate for Plaintiff Nos. 1 and 2,
and submission dated 12th April, 2010 of Advocate forDefendant No.15 and Annexure “C” of submission dated
15th April, 2010 of Defendant No.6 and oral submission
of Advocate for some of the Flat purchasers recorded in
metting note dated 16th April, 2010, the Court Receiver is
of opinion that 19 Flats Purchasers have letter of
allotment/Agreements and have paid full consideration
to Defendant No.6 as per the receipt filed in the office of
the Court Receiver. Hereto annexed and marked as
Exhibit “E” (Colly) are the copies of the aforesaid letters
dated 29th July, 2009, 12th April, 2010 and 15th April,::: Downloaded on – 09/06/2013 15:55:32 :::
nms3527.02 322010 and Exhibit “F” (Colly.) are the copies of the
Minutes of Meeting dated 12th April, 2010 and 16th April,
2010.
7. Considering all the submissions of Advocate for parties as
well as Advocate for Flat Purchasers i.e. Jalan Family, 19
flat purchasers as per list being Exhibit “C” to this report
may be considered having letter of allotment/ agreement
and have paid full consideration and possession of Flatsmay be given to such Flat Purchasers as agent of the
Court Receiver on usual terms and condition without
royalty and security as per order dated 17th January,
2009.”
44
Though reference was made of 34 flat purchasers, yet prayer is
sought only for 19 flat purchasers. In no order the Court Receiver has been
directed to decide the validity of these documents. The order was to assist/
to verify the proceedings with regard to the details of the purchaser of
respective flats, so that the appropriate order of giving possession, subject
to existing Agency Agreement and undertaking without royalty and
security, can be passed by the Court. There was no opinion sought from
the Receiver to decide and to take decision as prayed in this report. The
important facet in such matters, which is clear from the orders already
passed by the Court from time to time, is to verify the bonafide
transactions/ Agreements pending the proceedings at that time.
45 The material so placed on record with regard to 40 flats, the
purchasers importantly covering the letter of allotments read with
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respective consideration and the substantial amount so paid and deposited
as further supported by the Zoroastrian Co-operative Bank Limited and as
was already placed on record by an affidavit dated 14th January, 2004, 25th
February, 2004 of Defendant No. 34, Defendant No.6, in Notice of Motion
No. 3527 of 2002 in Suit No. 4007 of 2002, just cannot be overlooked even
to consider the case in view of order so passed by the Division Bench. In
absence of any restrainment order, it is quite natural that the concerned
parties proceeded to complete the project, as early as possible. It is also
natural that pending such litigation, some parties may make payment
subsequently. As recorded, some of the parties have paid the substantial
amount/ consideration based upon the letter of allotments which is
recorded above ranges from the year 2002 to 2003. It means, even prior to
the order passed on 6th May, 2004 and even if, there are transactions and
the rights have been created subsequently, still in my view, in absence of
any restrainment order those transactions, just cannot be overlooked.
46 In the construction/ development of property transactions, it is
possible that the parties may enter into oral transactions of the respective
flats. There is no bar. However, appropriate registration and execution of
documents subsequently, as per the requirements of law, as relevant, just
cannot be the reason to deny such purchasers their rights to claim the
possession of the respective flats from the builder/developer as agreed.
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The party like the Plaintiffs, cannot raised such objection to deny the rights
and obligations so created by the parties by executing the agreements
which reflected firstly in letter of allotment and secondly by payment of
respective consideration which may not be 100% because of pendency of
the litigations. In my view, the letter of allotment read with consideration
paid at the relevant time and as not denied by the parties, unless denied
and disputes the same, no third person/ party can object. Even if objected
unless decided in their favour, those documents/ agreements are sufficient
to consider, at this stage to grant possession of the flats to the flat
purchasers.
47 The list of 46 flat purchasers and their respective payments is a part
of record. The Receiver, by giving his opinion, restricted only to the 19 flat
purchasers, which in my view, is not correct. The Plaintiffs suit, as well as,
Notice of Motions and the orders passed thereon which are modified from
time to time, and the pendency of hearing, that itself cannot be the reason
not to deal with handing over the possession of such purchasers. It is not
in the interest of anybody that such project be halted basically when the
shortage of accommodation is at large, in the city. The Court has
appointed the Court Receiver to supervise the construction and which has
been going on. This also, in my view, safeguards the interest of all for the
time being.
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48 It is very much necessary to note here that the Builder/Contractor/
Promoter, as well as, the respective members/ purchasers of the Flats, are
bound by their obligations, as well as their rights. The aspect of registered
covenants between the Plaintiff Nos. 1 and 2 with Defendant No. 235 dated
20th August, 2007, dated 11th August, 2007, the consent terms with Plaintiff
No. 3, Defendant No.6, dated 7th November, 2008, the registered covenant
between Defendant No.1 and 5, in favour of Defendant No. 235 are also
subsequent relevant factor, which goes against the Plaintiffs and such other
supporting Defendants.
49 Even if, there are allegations made about non compliance of various
purchase, non performance of obligations, breach of trust,
misrepresentation, fraud and all these facets need detailed inquiry. The
internal dispute so raised between the family members, by the Plaintiffs
who have a very nominal shares in the property as recorded above, cannot
be adjudicated finally at this interim stage itself. It is settled that if it is
difficult to partition the property, the alternative remedy is to compensate
such person and/or owner of the property by paying the market rate
compensation. The parties based upon the various consent terms,
agreements and registered documents have constructed various wings on
the suit property and now occupied by various other purchasers also. The
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total area of the plot/ property even if taken note of, have already been
developed/constructed and in occupation of large number of occupants/
members who have also formed the society, even if there are allegations of
breaches of various terms and conditions including of provisions of law and
based upon which the contesting Plaintiffs want to re-agitate and re-open
the whole transactions and by filing such suit after such long time/ period,
therefore, the conduct of the parties, in my view, is also relevant factor
which goes against the contesting plaintiffs/ Defendants.
50 After the death of original party, the legal heirs now want to re-
agitate and re-open the issue/ transaction. Some of the plaintiffs agitated
the issue of fraud/ misappropriation pending the litigation, some of the
plaintiffs have settled the matter though they raised such allegations by
filing the suit at initial stage. The internal dispute, even if any, of family
members by considering the developments of the property as recorded
above and the fact that the respective shares of the concerned plaintiffs are
quite less in proportion, I see, there is no reason to halt the project. The
basic elements of balance of convenience, equity, irreparable injury goes
against the Plaintiffs but supporting the case and submission of contesting
Defendants and the purchasers/ members. The conduct and the delay
aspect, in the present facts and circumstances, also goes against the
Plaintiffs. The monitory aspect, as recorded, is also relevant factor, as the
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Plaintiffs can be compensated, if they made out their case, after due trial.
51 It is relevant to note that the matter was also adjourned for various
occasions for the settlement, in view of above, but it could not be
materialized. It will be in the interest of both the parties that such matters
be settled and all should co-operate to complete the project.
52
The learned Senior Counsel appearing for the concerned Defendants,
on instructions, even submitted that they are ready and willing to deposit
the monitory part of considering the share of the respective plaintiffs, if
any. He also submitted that there is no question of continuing the Receiver
in view of subsequent development. However, I am of the view that, since
beginning the Development and Construction on the plot in question, has
been under the supervision of the Court Receiver/ Commissioner, and it is
accordingly proceeded further till this date. Therefore, there is no reason
that it should not be continued till the decision of the suit. Both the suits
are expedited. In view of this, the following order:-
O R D E R
a) The Court Receiver, as appointed for only supervision of
the Development/ construction as Commissioner on the
suit property to continue till the decision of the suits.
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The Receiver shall not interfere and obstruct the day to
day constructions and the affairs of the maintenance of
the Buildings and/or as of the society.
b) The Court Receiver’s Report No. 73 of 2001 is allowed
subject to following modification:-
a) The Court Receiver is directed to give the
possession of the flat to the flat purchasers as agent of
the Court Receiver by executing the necessary Agency
Agreement and without royalty and security as per the
list Exhibit “C” i.e. 46 flat purchasers with all amenities,
car parking space allotted to the flats, if any. It is made
clear that those 46 flat purchasers shall not create any
third party rights or interest in the property without
leave of the Court.
c) The Builder/Promoter, the respective Defendants
maintained the Accounts as already directed and
submitted the same to the Court Receiver for every 6
months, till the disposal of the suits. The respective
rights and obligations of the parties including providing
necessary amenities to continue as per the agreement
and as per the law.
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d) The liberty is granted to the concerned Developer/
parties/ Defendants to sought leave/ permission/ order
from the Court, if they wish to develop remaining
commercial complex and residential building “F” on the
suit property including the car parking space attached to
the flats, if any. It is made clear that the remaining
commercial complex and residential buildings, to be
constructed, subject to sanction and permission in
accordance with law; and no physical possession should
be given to any third person without leave of the Court.
e) It is made clear that no third party right/ interest will
be created on 10% of this undeveloped commercial
complex/ Residential Building (F) without the leave of
the Court, Defendant No.6 to submit the map to the
Receiver de-marketing 10% of the area as observed
above, within four months, with due notice to concerned
Plaintiffs/ Defendants.
f) In view of above, both the Notice of Motions are
accordingly disposed of.
g) Both the Court Receiver’s Report are also disposed of,
accordingly. No costs.
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h) It is made clear that any construction is subject to the
suits decision. All the parties to proceed in accordance
with law with regard to the documentations including
registration, if any.
i) The learned counsel appearing for the Plaintiffs seeks
stay of this order. Now as the order is passed to hand
over possession and permitted construction of
commercial wings and therefore, I am inclined to stay
the effect and operation of this order for six weeks only.
(ANOOP V. MOHTA, J.)
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