Samir Narain Bhojwani vs Aurora Properties And Investments And Anr

,,,,

Naresh H. Patil, J",,,,

This appeal is directed against the impugned order passed by learned Single Judge of this Court in Notice of Motion No.147/2013 dated 9th,,,,

October, 2017. The parties have presented synopsis of relevant dates and events.",,,,

On 6th October, 1996 by development agreement made between Andheri Kamgar Nagar CoÂoperative Housing Society Ltd. (“Societyâ€) of",,,,

the one part and respondent no.1ÂM/s. Aurora Properties and Investments of the other part, the said Society appointed respondent no.1 as developer",,,,

of the property situated at Versova Link Road, Taluka Andheri as described in detail in the plaint. A Lease Deed dated 31st March, 1993 was",,,,

executed in respect of 9402 sq. meters with obligation to construct 243 tenements and 40 tenements for Project Affected Persons free of charge and,,,,

to develop and dispose of balance F.S.I. as per terms set out in the Development Agreement dated 6th October, 1996. On 22nd September, 1999 by",,,,

an agreement for subÂdevelopment made between respondent no.1 and respondent no.2 hereinÂBombay Slum Redevelopment Corporation Ltd.,,,,

(hereinafter referred to as “BSRC Ltd.†for short), the respondent no.1 with the consent of Society transferred benefits of development rights in",,,,

respect of said property under the development agreement dated 6th October, 1996 with the said Society with an obligation to construct buildings",,,,

consisting of 240 tenements and also construct buildings by utilising F.S.I. after deducting 15000 sq. feet area retained by the respondent no.1 as set,,,,

out in the agreement.,,,,

By an agreement dated 10th March, 2003 respondent no.2 and appellant entered into an agreement for development which was registered in the",,,,

SubÂRegistrar's office. Under the said agreement the respondent no.2 herein confirmed that the appellant herein will be entitled to 55% of the total,,,,

area available for free sale buildings, car parkings and respondent no.2 will be entitled to 45% of the total area available for construction of free sale",,,,

buildings, car parking under the SRA scheme. Earlier the agreements were executed between the parties keeping in view SRD scheme but later on",,,,

under the subsequent agreements the parties converted the scheme under SRA.,,,,

On 28th December, 2005 the respondent no.1 by their Advocate's letter addressed to respondent no.2 terminated the said agreement dated 22nd",,,,

September, 1999 with the respondent no.2. On 11th September, 2009 respondent no.2 and respondent no.1 by a tripartite agreement executed with the",,,,

appellant referred the said development agreement dated 6th October, 1996 with the said Society and agreement dated 22nd September, 1999.",,,,

On 9th January, 2012 an Occupation Certificate was obtained by respondent no.2 in respect of Wing A and B of the building “Bay Viewâ€",,,,

constructed on the said property. By a letter dated 16th June, 2012 addressed by the appellant to respondent no.2 and duly confirmed by respondent",,,,

no.2, the 45% area and car parkings in the said Wings “A†and “B†was identified. The appellant by his letter dated 14th August, 2012",,,,

offered to hand over respondent no.2 possession of premises in Wing “Aâ€​ and “Bâ€​.,,,,

The respondent no.1 in the meanwhile filed a Suit on 21st November, 2012 bearing Suit No.62/2013 (“said Suitâ€) in the High Court at Bombay",,,,

against respondent no.2 seeking declaration of the agreement for development dated 22nd September, 1999 read with tripartite agreement dated 11th",,,,

September, 2009 are valid, subsisting and binding upon the parties therein. He claimed specific performance of the said agreement.",,,,

A Notice of Motion No.147/2013 was taken out on the same day by the respondent no.1 herein in the said Suit. On nomination an Arbitrator was,,,,

appointed by the appellant on 28th November, 2012. By an order dated 3rd December, 2012 the learned Single Judge of this Court passed order in",,,,

Notice of Motion No.147/2013 restraining appellant and respondent no.2 from selling, disposing of, alienating, encumbering, parting with possession",,,,

and/or creating third party rights in respect of four flats in Wing “Aâ€​ and 4 flats in Wing “Bâ€​.,,,,

By an order dated 17th December, 2012 the High Court modified its order. By an order dated 30th September, 2014 a Notice of Motion",,,,

No.540/2013 in Suit No.62/2013, an Arbitration Application No.86/2013 came to be dismissed.",,,,

On 12th October, 2016 the Sole Arbitrator passed an order on an application filed by respondent no.2 under Section 17 of the Arbitration and",,,,

Conciliation Act, 1996 (for short 'Act of 1996') passing interim award by directing appellant to deliver physical possession of 16 flats together with car",,,,

parking places.,,,,

On 15th October, 2016 the appellant filed an appeal under Section 37 of the Act of 1996 challenging the order of the Arbitrator. By an order dated",,,,

21st November, 2016 High Court dismissed the Commercial Arbitration Petition No.118/2016. A SLP filed by the appellant being SLP Nos.7743Â‐",,,,

7744/2018 challenging the judgment and order came to be dismissed on 16th April, 2018.",,,,

On 27th September, 2017 respondent no.1 and respondent no.2 filed Consent Terms between them. Based on the said Consent Terms a consent",,,,

decree came to be passed whereunder respondent no.2 agreed to deliver respondent no.1, 8 flats alongwith car parking places. The Court directed the",,,,

appellant by impugned judgment and order dated 9th October, 2017 to deliver 8 flats to respondent no.1. This appeal arises in these circumstances.",,,,

Mr.Dhakephalkar, the learned Senior Counsel appearing for the appellant also submits that respondents 1 and 2 obtained consent decree to defeat",,,,

the claim of the appellant. Earlier they had agreed for four flats each in A, B and C Wing but later on respondent no.1 restricted his claim in A and B",,,,

Wings which are already constructed. The thrust of the submissions of the learned Counsel is that unless the respondent no.2 carries on his obligation,,,,

to construct C wing as per SRA scheme, the respondent no.1 shall not be entitled to his part of 15000 sq. feet area or 8 flats as agreed under the",,,,

consent decree. The submission of the Counsel is that the learned Single Judge committed a serious error in passing interim order by which final relief,,,,

has been granted in favour of the respondent no.1 which is not permissible in law. In case the possession of 8 flats is handed over to respondent no.1,",,,,

nothing remains in the suit to be decided finally and in case the suit is decided against the respondent no.1 then it would be very difficult for the,,,,

appellant to get back the possession of the 8 flats which under the impugned order are directed to be handed over to the respondent no.1. The Counsel,,,,

has taken us to various clauses of agreements placed on record in support of the submissions that the claim of the plaintiffÂrespondent no.1 herein,,,,

cannot be considered and granted under interim order. The respondent no.2 has failed to discharge his obligation under the agreement executed,,,,

between the appellant and respondent no.2 herein. In the submissions of the Counsel the confirmation of the order passed by the Arbitrator allotting 16,,,,

flats to respondent no.2 herein which is confirmed in Apex Court shall not have any adverse effect on the proceedings of the present Suit. Reliance,,,,

was placed on the order passed by the Apex Court in this regard which we have perused. The entitlement of respondent no.2 to the extent of 45%,,,,

was subject to fulfilling his obligation to construct 'C' Wing which he has failed to construct for reasons best known to him. The learned Counsel,,,,

placed reliance on the following judgments:Â​,,,,

i) Progressive Education Society Through Chairman Dr.Gajanan R. Ekbote & anr. V/s Shri Laxmikant Mahadev Shekhane & ors. 2017 SCC Online,,,,

Bom 6593,,,,

ii) The State of Orissa Vs. Madan Gopal Rungta AIR (39) 1952 Supreme Court 12,,,,

iii) U.P. Junior Doctors' Action Committee & ors. V/s. Dr.B.Sheetal Nandwani & ors. 1992 Supp (1) Supreme Court Cases 680,,,,

iv) Vishnu Babu Tambe Vs. Apurva Vishnu Tambe (2017) 2 SCC 454,,,,

The learned Counsel appearing for the plaintiffÂrespondent no.1 herein Mr.Samdani submits that the real dispute and conflict is between appellant,,,,

and respondent no.2Âoriginal defendants 1 and 2 as according to Counsel it is alleged that the respondent no.2 BSRC Ltd did not perform his part of,,,,

obligation in respect of 45% share as he failed to construct the 'C' wing. The learned Counsel submitted that unnecessary the plaintiff is made to,,,,

suffer as other 2 parties are litigating. The Counsel submitted that 55% share has already been utilised and sold by the appellant Samir Bhojwani.,,,,

Under the Arbitration Award the respondent no.2 BSRC got 16 flats which he has already utilised against his share. The plaintiff's share is part of,,,,

15,000/Â sq. feet area out of part of 45% share of the respondents BSRC. These flats were already constructed and are ready, therefore, considering",,,,

the peculiar facts and circumstances, the learned Single Judge moulded the relief by directing the appellant to hand over keys of 8 flats to respondent",,,,

no.1. The Counsel submitted that order passed by the learned Single Judge is reasonable, sound and based on the principles of equity and justice.",,,,

There is no reason to interfere into the order. The appellants have failed to make out any case for Court's intervention in the impugned order. The,,,,

learned Counsel too took us through various clauses of the agreement, award passed by the Arbitrator by the Civil Court. The learned Counsel further",,,,

submitted that under the SRA scheme as agreed between the parties, the respondent no.2Â BSRC, the appellant and respondent no.2 had entered into",,,,

an agreement and in case the respondent no.2ÂBSRC fail to perform certain obligations as alleged by the appellant herein, the plaintiff need not",,,,

suffer. The source of power derived by the other two parties is the main lease agreement. The basic agreement was executed between the Society,,,,

and the plaintiffÂrespondent no.1 Aurora Properties and Investments. Both the appellant and the respondent no.2 have to a large extent enjoyed and,,,,

utilised their share of property leaving behind the plaintiff.,,,,

It is submitted by learned Sr. Counsel Mr.Samdani thatrespondent no.1 has paid 75 lacs against 15000 sq. feet area. The Counsel placed reliance,,,,

on these judgments:,,,,

i) Dorab Cawasji Warden Vs. Coomi Sorab Warden &Ors. (1990) 2 Supreme Court Cases 117,,,,

ii) Indian Cable Company Ltd. Vs. Smt. Sumitra Chakraborty 1985 SCC Online Cal 31,,,,

iii) South Eastern Coalfields Ltd. Vs. State of MP & Ors.,,,,

iv) Industrial Credit Investment Corp. of India Ltd. & Ors. Vs. Karnataka Ball Bearing Corprn. Ltd. & ors.,,,,

v) Deoraj Vs. State of Maharashtra & Ors.,,,,

vi) Om Prakash Gupta Vs. Ranbir B. Goyal,,,,

The learned Counsel appearing for respondent no.2 BSRC supported the contentions of learned Counsel Mr.Samdani. It is submitted that out of,,,,

the share of 45% the plaintiff is entitled to his share which is now restricted under the consent decree to 8 flats in 'A' and 'B' wings. There is,,,,

absolutely no embargo and illegality in allotting 8 flats to the share of the plaintiff even under the order. The Counsel submitted that learned Single,,,,

Judge passed a reasoned order in the peculiar facts of the case. There is no question of any prejudice being caused to the appellant herein. He had,,,,

already enjoyed and sold his 55% share. The learned Counsel, therefore, submitted that appeal is meritÂ​less and deserves to be dismissed.",,,,

We have extensively heard the parties finally by consent. Perused the various clauses of the agreement, award passed by the learned Arbitrator",,,,

and order passed by the Apex Court. We have carefully gone through the judgment of the learned Single Judge of this Court which is impugned,,,,

herein. We find that the basic development agreement executed between the Society and the respondent no.1 was executed in 1996. A further,,,,

agreement was executed for development between respondent no.1 and respondent no.2 in the year 1999 wherein the parties agree that 15000 sq.,,,,

feet area shall be retained by the respondent no.1. This area has been retained throughout for the benefit of respondent no.1 though parties entered,,,,

into various subsequent agreements. Even in the agreement for development made on 10th March, 2003 between BSRC and Samir Bhojwani agreed",,,,

in the following terms in clauseÂ​6 as under:Â​,,,,

(i) BSRCL shall be liable to construct and complete theSlum Rehabilitation Component at their own costs and house the 237 eligible members as per,,,,

AnnexureÂ​II of the said Society in the said Slum Rehabilitation Component at their own costs without any delay or default.,,,,

(ii) BSRCL shall be liable to give the 15,000 Sq. Ft.(Built up area) agreed to be provided by BSRCL under the said Agreement for SubÂdevelopment",,,,

to the said Aurora Properties. The said area of 15,000 sqft. (built up area) shall be given to the said Aurora Properties by BSRCL from and out of the",,,,

45% share of BSRCL being the BSRCL's area in the said Fee Sale Component Area.,,,,

In a communication dated 11th September, 2009 issued by the respondent no.1 addressed to appellant and the respondent no.2, it was averred in",,,,

ParagraphÂ​2 clause (i) and (v) as under:,,,,

“(i) As mutually agreed between us and BSRCL, we will be now entitled to 22,500 square feet constructed area instead of 15,000 square feet",,,,

constructed area as set out in the Agreement for Grant of SubÂDevelopment Rights dated 22nd September, 1999. The said 22,500 square feet",,,,

constructed area and proportionate car parking areas will be provided out of 45% coming to the share of BSRCL.,,,,

(v) We shall otherwise be entitled to all our rights under the Agreement dated 22nd September 1999 in respect of our area from BSRCL.â€​,,,,

The learned Counsel for the appellant submitted that in the subject Notice of Motion prayer (b) was made for appointment of Receiver including,,,,

the power to take possession of premises coming to the share of the plaintiff and hand over the same to the plaintiff in the form of 12 flats in Wings,,,,

“A†and “B†which claim was restricted under the consent decree to 8 flats. Reliance was placed on affidavit filed by Samir N. Bhojwani in,,,,

Notice of Motion wherein the appellant herein stated in clause (viii) as under:Â​,,,,

“(viii) By letter dated 14th August, 2012 and addressed by me to the Defendant No.1 I offered possession of the said 45% area and Car Parking",,,,

Spaces tot he Defendant No.1 as per the said letter dated 16th June 2012 and Defendant No.1 has not taken possession of the said areas till today.,,,,

I have dealt with my 55% area and Car Parking Spaces to the knowledge of the Plaintiffs and Defendant No.1 and third parties are entitled to the,,,,

same.â€​,,,,

The learned Single Judge has in detail addressed the issue raised and recorded findings. The suit is filed by the plaintiff to enforce rights under,,,,

their agreements dated 22nd September, 1999 visaÂvis defendants’ no.1 and under the tripartite agreement dated 11th September, 2009 between",,,,

plaintiff, defendant no.1 and defendant no.2. In ParagraphÂ​33 the learned Single Judge observed as under:Â​",,,,

“ The rights of Plaintiff to the 8 flats and 16 car parking spaces finally agreed as between Plaintiff and Defendant No.1 are paramount to the rights,,,,

of either of Defendants. Rights of Defendant No.2 to the development are derivative rights derived through Defendant No.1 from Plaintiff.,,,,

Consideration for the grant of such rights by Plaintiff, inter alia, is entitlement of Plaintiff to 8 flats and 16 car parking spaces. Defendant No.2 cannot",,,,

claim or enjoy any rights or benefits to the development if Defendant No.2 denies consideration to Plaintiff for the grant thereof by Plaintiff. Each of,,,,

Defendants are contractually obliged to discharge their obligations towards Plaintiffs under the said Development Agreement and the Supplemental,,,,

Development Agreement and provide to Plaintiff the flats and parking spaces agreed to be provided as and by way of consideration and cannot,,,,

Adopting the said reasoning the learned Single Judge declared that the plaintiff was entitled to 8 flats in the said property. The Single Judge observed,,,,

that it is settled law that relief is otherwise awardable on the date of commencement of the suit would become inappropriate in view of changed,,,,

circumstances, the Courts may mould the relief accordingly. Reliance is placed on the judgment in the case of Gaiv Dinshwa Irani & Ors. Vs.",,,,

Tehmtan Irani & Ors. {2014 8 SCC 294}.,,,,

WING,TOTAL,"55% share of

SAMIR","45% share of

BSRCL",

A,44,24.4,20,

B,44,24.4,19.6,

,,48.4,39.6,

,, Less:,8,"=15,000

sq.ft.area

retained     Â

     by

Aurora.

,, Less:,"31.6

16","Balance   Â

    flats

available

Flats released as per

Section 17 order to

BSRCL

,, NET,15.6,Flats Balance