Bombay High Court
Janak Alias Jaykar Sharadchandrad ... vs Jayesh Rameshchandra Savla on 16 January, 2024
Author: R.I. Chagla
Bench: R.I. Chagla
12,34-IA(L) 31286.2022 in EXA(L) 31281.2022 with IA(L) 31708.2022 in EXA(L) 31703.2022 & Ors.doc
Kavita S. J.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.31286 OF 2022
IN
EXECUTION APPLICATION (L) NO.31281 OF 2022
Kiran Purshottam Goradia ...Applicant
Versus
Janak @ Jaykar Sharadchandra Doshi ...Respondent
WITH
INTERIM APPLICATION (L) NO.31708 OF 2022
IN
EXECUTION APPLICATION (L) NO.31703 OF 2022
Jayesh Rameshchandra Savla ...Applicant
Versus
Janak @ Jaykar Sharadchandra Doshi ...Respondent
WITH
INTERIM APPLICATION (L) NO.41330 OF 2022
IN
COMM. ARBITRATION PETITION (L) NO.28865 OF 2022
Janak @ Jaykar Sharadchandra Doshi ...Applicant
Versus
Jayesh Rameshchandra Savla ...Respondent
KAVITA
SUSHIL
JADHAV WITH
Digitally signed
by KAVITA
SUSHIL
INTERIM APPLICATION (L) NO.33527 OF 2022
JADHAV
Date:
2024.01.17
18:37:04 +0530
IN
COMM. ARBITRATION PETITION (L) NO.28865 OF 2022
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12,34-IA(L) 31286.2022 in EXA(L) 31281.2022 with IA(L) 31708.2022 in EXA(L) 31703.2022 & Ors.doc
Janak @ Jaykar Sharadchandra Doshi ...Applicant
Versus
Jayesh Rameshchandra Savla ...Respondent
WITH
INTERIM APPLICATION (L) NO.28025 OF 2023
IN
COMM. ARBITRATION PETITION (L) NO.28865 OF 2022
Janak @ Jaykar Sharadchandra Doshi ...Applicant
Versus
Jayesh Rameshchandra Savla ...Respondent
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Mr. Karl Tamboly a/w Aadil Parsurampuria, Mr. Hemant Shah and Mr.
Hrishikesh Tajane i/b IC Legal, Advocates for the Applicant in
IA(L)/31708/2022 in EXA(L)/31703/2022.
Mr. Karl Tamboly a/w Aadil Parsurampuria i/b Mr. P.Y. Shankar a/w
Ms. Sandhya Yadav, Advocates for the Applicant in
IA(L)/31286/2022 in CARBP(L)/29374/2022.
Mr. P.D.P. Rao a/w Devika Purav and Mr. Sagar Pillai i/b. Deven
Dwarkadas & Partners for Petitioner in CARBP(L)/29374/2022.
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CORAM : R.I. CHAGLA, J.
DATE : 16TH JANUARY, 2024.
ORDER :
1. By order dated 10th October, 2023, this Court had considered the prior order dated 7th December, 2022, by which the Judgment Debtors were directed to pay transit rent as set out in Paragraph 2 of the said order dated 10 th October, 2023. It is 2/7 ::: Uploaded on - 17/01/2024 ::: Downloaded on - 18/01/2024 03:04:02 ::: 12,34-IA(L) 31286.2022 in EXA(L) 31281.2022 with IA(L) 31708.2022 in EXA(L) 31703.2022 & Ors.doc necessary to note by the prior order dated 7 th December, 2022 that the transit rent accommodation for the period from 1 st January, 2023 upto 30th June, 2023 at the rate of Rs.3,00,000/- per month which comes to Rs.18 Lakh was directed to be deposited. The prior transit rent for the period from June 2020 upto 31 st December, 2022 had already been withdrawn by the Applicant as recorded in the said order. It was further recorded in the order dated 7 th December, 2022 that subject to deposit of the amount of Rs.18 Lakh, injunction granted by the Sole Arbitrator in the order dated 16th August, 2022 in respect of free sale component is vacated. Further direction was issued to the Applicant to give an undertaking that he will refund/bring back the amount, in the event the said order dated 16 th August, 2022 was set aside in the Arbitration Appeal filed by the Respondent under Section 34 of the Arbitration and Conciliation Act which is directed to be heard together with the Execution Application. Further direction was issued to the Applicant not to create third party interest in respect of the said Flat.
2. In the said order dated 10 th October, 2023, it was observed that the previous order dated 7 th December, 2022 was passed without prejudice to the rights and contentions of both sides. Certain 3/7 ::: Uploaded on - 17/01/2024 ::: Downloaded on - 18/01/2024 03:04:02 ::: 12,34-IA(L) 31286.2022 in EXA(L) 31281.2022 with IA(L) 31708.2022 in EXA(L) 31703.2022 & Ors.doc additional prayers were sought by Mr. Tamboly, learned Counsel appearing for the Applicant viz. for grant of liberty to withdraw the amount of Rs.18 Lakh which had been deposited by the Respondent and for directions to be issued to the Respondent - Shri Doshi to deposit the transit rent accommodation from July 2023 onwards.
3. It is noted that there were objections raised by the Respondent on 10th October, 2023 that there was no Interim Application for withdrawal and that the Arbitration Appeal under Section 37 of the Arbitration Act requires to be heard. Further, there was an issue with regard to non compliance as Occupation Certificate remained to be granted and for which complaint has been filed with the MHADA by the Applicant. Further, this Court had considered that in Writ Petition (L) No.4402 of 2023 and other connected Writ Petitions, order dated 11th August, 2023 has been passed by the Division Bench of this Court, wherein the MCGM was directed to process the Application for Occupation Certificate for the seventh floor upwards. The Flats claimed by Applicants are on the eighth and ninth floor. Further, this Court in the said order dated 10 th October, 2023 had not found any merit in the objection raised by the Respondent about conduct of Mr. Goradia and Mr. Savla i.e. 4/7 ::: Uploaded on - 17/01/2024 ::: Downloaded on - 18/01/2024 03:04:02 ::: 12,34-IA(L) 31286.2022 in EXA(L) 31281.2022 with IA(L) 31708.2022 in EXA(L) 31703.2022 & Ors.doc Applicants in creating hurdle in issuing the Occupation Certificate. Accordingly, the prayer for permission to withdraw the deposited amount of Rs.18 Lakh by the Applicant alongwith interest accrued thereon was allowed and the Arbitration Petitions alongwith connected Execution Applications and Interim Applications were fixed for hearing on the next date. The Applicant was granted liberty to press for issuing further directions about transit rent accommodation.
4. Mr. Tamboly, learned Counsel for the Applicant has accordingly sought directions for transit rent accommodation. The Respondent despite being aware of the matters being listed on today's board, failed to make an appearance. This Court has taken a consistent view that transit rent payable cannot be withheld by the Developer on any pretext. In the present case, there is no dispute with regard to the Applicant's right to their respective Flats on the eighth and ninth floors of the subject building, for which Occupation Certificate is still to be obtained. The Division Bench of this Court by order dated 11th August, 2023 in Writ Petition (L) No.4002 of 2023 and other connected Writ Petition had provided that the MCGM will process the application for Occupation Certificate for the seventh 5/7 ::: Uploaded on - 17/01/2024 ::: Downloaded on - 18/01/2024 03:04:02 ::: 12,34-IA(L) 31286.2022 in EXA(L) 31281.2022 with IA(L) 31708.2022 in EXA(L) 31703.2022 & Ors.doc floor till last floor of the subject building. The Respondent has till date not been able to obtain the Occupation Certificate.
5. Thus, there can be no dispute that transit rent accommodation is payable till date and having noted that by the prior order dated 7th December, 2022, directions had issued to the Respondent to deposit transit rent for the period from 1 st January, 2023 upto 30th June, 2023 which comes to Rs.18 Lakh and which transit rent was permitted to be withdrawn by the Applicant alongwith accrued interest thereon by the subsequent order dated 10th October, 2023. Similar directions are required to be issued for deposit of transit rent the period from 1 st July, 2023 till 31st December, 2023.
6. The Respondent cannot contend that merely because Arbitration Appeal filed under Section 37 of the Arbitration Act requires hearing, the transit rent accommodation is to be withheld.
7. In view thereof, the following order is passed:
(i) The Respondent shall deposit the transit rent of Rs.18 Lakh for a period of six months for the period of six 6/7 ::: Uploaded on - 17/01/2024 ::: Downloaded on - 18/01/2024 03:04:02 ::: 12,34-IA(L) 31286.2022 in EXA(L) 31281.2022 with IA(L) 31708.2022 in EXA(L) 31703.2022 & Ors.doc months from 1st July, 2023 till 31st December, 2023 within a period of two weeks from the date of this order.
(ii) The Arbitration Petition / Appeal filed under Section 37 of the Arbitration Act shall be heard on the next date.
(iii) The permission of the Applicant to withdraw the said amount of Rs.18 Lakh will depend on the outcome of the Arbitration Petition / appeal to be heard by this Court.
(iv) Place the Arbitration Petition / Appeal under Section 37 of the Arbitration Act alongwith other matters on 22nd January, 2024, High on Board.
[R.I. CHAGLA, J.] 7/7 ::: Uploaded on - 17/01/2024 ::: Downloaded on - 18/01/2024 03:04:02 :::