IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

IN ITS COMMERCIAL DIVISION

COMMERCIAL SUIT NO. 215 OF 2017 WITH NOTICE OF MOTION NO. 166 OF 2017 IN COMMERCIAL SUIT NO. 215 OF 2017

Pushker Sona and Anr.	<br>Applicants/plaintiffs
vs.
M/s. A.A. Estate Pvt. Ltd.,	<br>Defendants

WITH COMMERCIAL SUIT NO. 216 OF 2017 WITH NOTICE OF MOTION NO. 167 OF 2017 IN COMMERCIAL SUIT NO. 216 OF 2017

Sumanlal Verma and Anr. .. Applicant/Plaintiff vs. M/s. A.A. Estate Pvt. Ltd., .. Defendants

WITH COMMERCIAL SUIT NO. 286 OF 2017 WITH NOTICE OF MOTION NO. 306 OF 2017 IN COMMERCIAL SUIT NO. 286 OF 2017

84.	copm	s/21	5.17
-----	------	------	------

Varsha	2	84. copms/215.17
Pradeep Banerjee and Anr.		Applicant/Plaintiff
vs.<br>M/s. A.A. Estate Pvt. Ltd.,		Defendants

WITH COMMERCIAL SUIT NO. 597 OF 2017 WITH NOTICE OF MITION NO. 503 OF 2017 IN COMMERCIAL SUIT NO. 597 OF 2017

Sunder Nagar Siddesh Co­operative Housing	ive Ho	ousing
Society Limited		Applicant/Plaintiff
vs.
M/s. A.A. Estate Pvt. Ltd.,		Defendants

WITH SUIT NO. 214 OF 2019 WITH NOTICE OF MOTION NO. 504 OF 2019

Swarganga Co­operative Housing
Society Limited	<br>Applicant/Plaintiff
vs.
M/s. A.A. Estate Pvt. Ltd.,	<br>Defendants

Mr. Tushar Gujjar I/b Solicis Lex in COMS/215/2017, COMS/216/2017, COMS/286/2017 AND COMS/597/2017for Plaintiffs.

…..

Ms. Gargi Bhagwat a/s Ms. Srishti Shetty I/b Divekar Bhagwat and Co. for Plaintiff in S/214/2019.

Mr. Subit Chakraborti I/b Vidhi Partners for defendant No. 1 in COMS/215/2017, COMS/216/2017, COMS/286/2017, COMS/597/2017 AND S/214/2019.

Ms. Jaya Bagwe I/b Sharmila U Deshmukh for Defendant Nos. 2 in COMS/567/2017.

Mr. Prakash G. Lad a/w. Ms. Aparana Muralidharan for defendant No. 2 in S/214/2019.

Mr. Yogesh Gupta, Authorised Representative of Defendant No. 1 present in Court.

…..

CORAM: K.R. Shriram, J. DATE : 22nd February 2019.

PC :

. Paragraph 5 of order dated 18th December 2018 reads as

under :

"Mr. Gujjar states that if Advocate for defendant no.1 informs him during the course of today as to what is the area that plaintiffs are going to get, the amount payable, towards stamp duty and registration and the outstanding amount payable at the time of executing the agreement, plaintiffs will be able to make those amounts ready. Mr. Balsara states that Advocate on record for defendant no.1 shall send an email today itself".

2. First part of Paragraph 2 of the order dated 1st February 2019

reads as under:

"Mr. Kalra tenders a copy of the letter dated 26.12.2018 from Space Moulders, Architect of the Project, demand from MHADA dated 17.01.2019 and letter from Building permission Cell, Greater Mumbai/MHADA, copies whereof are taken on record and marked 'X', 'X1' & 'X2, respectively."

Second part of paragraph no.2 of the order dated 1st February 2019 in suit (L) No. 1085 of 2018 is as under:

"Mr. Kalra states that the amounts mentioned in MHADA's demand letter will be paid within 15 days from today. Ms. Apte for MHADA states, within 3 days of receiving the payments, MHADA will grant Completion Certificate. Statement Accepted."

3. Mr. Chakraborti appearing for Defendant No.1 states that plaintiffs have paid the amount as per the agreement towards stamp duty and registration, but the outstanding amount payable to the Defendant No.1 based on the first slab wise payment due has not been paid.

4. Mr. Gujjar wants to interpret and read the orders in the way that only such amounts according to plaintiffs that are payable, will have to be paid. I do not read the order that way and this clarification was never mentioned to the court earlier. Therefore, plaintiffs shall deposit this amount with the Prothonotary and Senior Master, High Court, Bombay. This amount to be deposited with the Prothonotary and Senior Master, High Court, Bombay within one week from today.

5. Ms. Bhagwat appearing for plaintiffs states that the amount payable, towards alternative accommodation compensation, on 15th February 2019 by the Defendant No.1 has not been paid. Ms. Bhagwat

points out the orders dated 3rd September 2018 and 18th December 2018.

6. Mr. Chakraborti, on instructions from Mr. Yogesh Gupta, authorized representative of Defendant No.1, states that this amount will be paid on or before 28th February 2019, in default certainly Defendant No.1 has to pay interest.

7. On the last occasion, interest was directed to be paid @ 12% p.a. and breach was condoned. It appears that Defendant No.1, will never learn and soon will get termed as a serial offender, a person who could not care for the undertaking given to the Court and orders passed by this Court. Defendant No. 1 shall, therefore, pay interest @ 24% p.a. on the outstanding amount by 28th February 2019. Defendant No. 1 is put to notice that next default will be viewed as aggravated contempt and deliberate and willful disobedience of the orders of and undertakings to this court and will have to pay interest @ 48% p.a. on the outstanding amounts. Because of this default, the matter has to be listed on 1st March 2019 to see whether the Defendant No.1 has complied with the order passed today.

8. In paragraph 2 in Suit lodging No. 1085 of 2018 of the order passed on 1st February, 2019 reads as under:

"1. Mr. Ardeshir for Plaintiffs states that though the installments have been paid upto January2019 with interest, there is no further information as to whether defendant no. 1 has applied to Executive Engineer (Building Proposal) of MHADA as recorded in paragraph4 of the order dated 18.12.2018.

2. Mr. Kalra tenders a copy of the letter dated 26.12.2018 from Space Moulders, Architect of the Project, demand from MHADA dated 17.01.2019 and letter from Building permission Cell, Greater Mumbai/MHADA, copes whereof are taken on record and marked 'X', 'X1' & 'X2', respectively. Mr. Kalra states that the amounts mentioned in MHADA's demand letter will be paid within 15 days from today. Ms. Apte for MHADA states, within 4 days of receiving the payments, MHADA will grant Completion Certificate. Statement accepted.

3. This suit need not be tagged with other 3 suits.

4. All suits be listed for directions on 22.02.2019.

5. Plaintiffs to remove all objections and get the Suit and Notice of Motion numbered within one week from today, failing which Notice of Motion and Suit shall stand dismissed without further reference to this Court."

9. Though the amount was to be paid, Mr. Chakraborti today comes up with a different tune and says that this amount is not paid because there is a pending Writ Petition filed in 2016. I have to note that this submission is deliberate, dishonest and fraudulent submission being made by defendant no.1. On 1st November 2018 this court was pleased to pass the following order in Notice of Motion (L) No. 1929 of 2018 in Suit (L) No. 1085 of 2018 :

"1. The learned Advocate appearing for the Defendant No.2 has tendered a Consent Letter dated 23rd October, 2018 issued by the Resident Executive Engineer, Mumbai Board, for commencement certificate, to the Executive Engineer, Building Proposal Cell, Greateer Mumbai, Planning Authority, MHADA, Bandra (E), Mumbai. The learned Advocate informs the Court that upon the developer approaching the office of the Executive Engineer, Building Proposal Cell, they shall issue a Commencement Certificate within four days. The statement is accepted. Accordingly, the Executive Engineer shall issue Commencement Certificate within four days from him being approached by the developer.

2. I have also noted that in the letter dated 23rd October, 2018 a mistake is committed by the Resident Executive Engineer, Mumbai Board, by stating therein that "Occupation Certificate for Rehab and Sale Component should not be granted unless complete MHADA share of 961.54 m2 is handed over to MHADA". The said error is apparent from the contents of an earlier letter interalia signed / written by another Resident Executive Engineer, wherein it is stated that "Occupation Certificate for Sale Component should not be granted unless complete MHADA share of 961.54 m2 is handed over to MHADA." Infact, the said letter is also signed by Asstt. Engineer (REE/MB), Deputy Engineer (REE/MB) and Asstt. Architect (REE/MB). This error in the letter dated 23rd October, 2018 needs to be corrected.

3. Stand over to 3rd December, 2018."

10. On 11th December 2018, the counsel on instructions from all the three Directors who were present in the Court, stated that Defendant No.1 shall apply to Executive Engineer (Building Proposal) of MCGM/ (MHADA) as recorded in order dated 18.12.2018 with all documents without any difficulties for issuance of commencement certificate and this

application shall be lodged within 15 days from today. In view of this submission, matter was stood over to 18th December 2018.

11. On 1st February 2019, Ms. Shweta Merchant appearing for plaintiffs informed the court that there was no further information from Defendant No.1 as to whether it had applied to the Executive Engineer (Building Proposal) of MHADA as recorded in Paragraph 4 of the order dated 18th December, 2018. The response of counsel for Defendant No.1 was as recorded in Paragraph 2 of the said order which has been quoted above.

12. Today Mr. Chakraborti states that this amount has not been paid because of the pending Writ Petition. At no point of time, Defendant No. 1 mentioned to the Court that there was any pending Writ Petition and if that was the reason, the question of Defendant No.1 informing the Court on 1st February 2019 that the amount mentioned in letter of demand will be paid within 15 days from today, would not arise. Therefore, it is quite clear that Defendant No.1 is only trying to mislead the Court and this is another attempt of Defendant No.1 to play a fraud on the Court.

13. At this stage, Mr. Chakraborti, on instructions, from Mr. Gupta states that on or before 28th February 2019 those amounts, without prejudice to the Writ Petition, will be paid to MHADA, even though Writ Petition is pending of which nobody is aware of.

14. Show Cause Notice also be issued to Defendant No.1 and its Directors as to why contempt proceedings be not initiated against them for deliberately misleading this Court.

15. Stand over to 1st March 2019 on which date, all the three Directors and Mr. Gupta shall remain present before the Court.

(K.R. Shriram, J.)