Bombay High Court
M/S Rupji Constructions vs Unknown on 22 October, 2013
Bench: Anoop V. Mohta
1 AO.826-2013
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 826 OF 2013
WITH
CIVIL APPLICATION NO.1037 OF 2013
M/s Rupji Constructions
A Partnership Firm, carrying on
Business and having its address
at C-36, Shree Ram Industrial Estate,
3rd floor, G.D. Ambekar Marg,
Wadala, Mumbai-400 031. ..Appellants.
Vs.
ig (Original Defendants)
Bharati Santosh Labde & Anr. ..Respondents.
(Original Plaintiffs)
WITH
APPEAL FROM ORDER NO. 772 OF 2013
WITH
CIVIL APPLICATION NO. 947 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Sadhana Shersingh Rathour & Anr. ..Respondents.
WITH
APPEAL FROM ORDER NO. 759 OF 2013
WITH
CIVIL APPLICATION NO. 925 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Vijay N. Kesarkar & Anr. ..Respondents.
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2 AO.826-2013
WITH
APPEAL FROM ORDER NO. 781 OF 2013
WITH
CIVIL APPLICATION NO. 961 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Paresh Dattatray Jayawant ..Respondent
WITH
APPEAL FROM ORDER NO. 821 OF 2013
WITH
CIVIL APPLICATION NO.1032 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Ravindra Shankar Chavan ..Respondent
WITH
APPEAL FROM ORDER NO. 822 OF 2013
WITH
CIVIL APPLICATION NO.1033 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Pradeep Balkrishna Sawant & Anr. ..Respondents
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3 AO.826-2013
WITH
APPEAL FROM ORDER NO. 824 OF 2013
WITH
CIVIL APPLICATION NO.1035 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Gopal Ganpat Samrit ..Respondent
WITH
APPEAL FROM ORDER NO. 825 OF 2013
WITH
CIVIL APPLICATION NO.1036 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Vilas Vasant Sawant ..Respondent
WITH
APPEAL FROM ORDER NO. 852 OF 2013
WITH
CIVIL APPLICATION NO.1061 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Nagesh Ram Mahindrakar ..Respondent
WITH
APPEAL FROM ORDER NO. 870 OF 2013
WITH
CIVIL APPLICATION NO.1073 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Dipti Girish Pawar ..Respondent
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4 AO.826-2013
WITH
APPEAL FROM ORDER NO. 886 OF 2013
WITH
CIVIL APPLICATION NO.1078 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Pradip Tukaram Revandkar ..Respondent
WITH
APPEAL FROM ORDER NO. 888 OF 2013
WITH
CIVIL APPLICATION NO.1079 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Sudarshan Ramchandra Sakpal & Anr. ..Respondents
WITH
APPEAL FROM ORDER NO. 890 OF 2013
WITH
CIVIL APPLICATION NO.1082 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Dase Gangadhar G. ..Respondent
WITH
APPEAL FROM ORDER NO. 891 OF 2013
WITH
CIVIL APPLICATION NO.1083 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Pauline Peter D'Souza & Anr. ..Respondents
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5 AO.826-2013
WITH
APPEAL FROM ORDER NO. 892 OF 2013
WITH
CIVIL APPLICATION NO.1084 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Gauri Govind Shukla ..Respondent
WITH
APPEAL FROM ORDER NO. 893 OF 2013
WITH
CIVIL APPLICATION NO.1085 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Jyoti Mangesh Gokarn & Anr. ..Respondents
WITH
APPEAL FROM ORDER NO. 897 OF 2013
WITH
CIVIL APPLICATION NO.1088 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Sheetal Ganesh Khanvilkar & Anr. ..Respondents
WITH
APPEAL FROM ORDER NO. 901 OF 2013
WITH
CIVIL APPLICATION NO.1092 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Arvind Waman Sawant & Anr. ..Respondents
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6 AO.826-2013
WITH
APPEAL FROM ORDER NO. 902 OF 2013
WITH
CIVIL APPLICATION NO.1093 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Ashwini Arjun Manjrekar & Anr. ..Respondents
WITH
APPEAL FROM ORDER NO. 903 OF 2013
WITH
CIVIL APPLICATION NO.1094 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Harshad Kashinath Naik & Anr. ..Respondents
WITH
APPEAL FROM ORDER NO. 904 OF 2013
WITH
CIVIL APPLICATION NO.1095 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Pratima Prakash Narkar & Anr. ..Respondents
WITH
APPEAL FROM ORDER NO. 908 OF 2013
WITH
CIVIL APPLICATION NO.1100 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Devendra D. Kambli & Anr. ..Respondents
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WITH
APPEAL FROM ORDER NO. 909 OF 2013
WITH
CIVIL APPLICATION NO.1098 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Shri Ashok Gosavi Patil & Anr. ..Respondents
WITH
APPEAL FROM ORDER NO. 910 OF 2013
WITH
CIVIL APPLICATION NO.1099 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Ms. Ravina Ravindra Jadhav. ..Respondent
WITH
APPEAL FROM ORDER NO. 914 OF 2013
WITH
CIVIL APPLICATION NO.1103 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Santosh Shivaji Dhure ..Respondent
WITH
APPEAL FROM ORDER NO. 915 OF 2013
WITH
CIVIL APPLICATION NO.1104 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Archana Ashok Sawant & Anr. ..Respondents.
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8 AO.826-2013
WITH
APPEAL FROM ORDER NO. 917 OF 2013
WITH
CIVIL APPLICATION NO.1105 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Bradley M. Martins ..Respondent
WITH
APPEAL FROM ORDER NO. 918 OF 2013
WITH
CIVIL APPLICATION NO.1106 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Mr. Mahesh Madhukar Patke ..Respondent
WITH
APPEAL FROM ORDER NO. 919 OF 2013
WITH
CIVIL APPLICATION NO.1107 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Ramashankar Swamiprasad Gupta ..Respondent
WITH
APPEAL FROM ORDER NO. 922 OF 2013
WITH
CIVIL APPLICATION NO.1109 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Kailash Rajaram Ekkaldevi & Anr. ..Respondents
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WITH
APPEAL FROM ORDER NO. 925 OF 2013
WITH
CIVIL APPLICATION NO.1113 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Sunil Shrirang Phanse & Anr. ..Respondents
WITH
APPEAL FROM ORDER NO. 926 OF 2013
WITH
CIVIL APPLICATION NO.1114 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Kiran Gopal Samrit ..Respondent
WITH
APPEAL FROM ORDER NO. 937 OF 2013
WITH
CIVIL APPLICATION NO.1123 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Govind Ramnayan Shukla ..Respondent
WITH
APPEAL FROM ORDER NO.1101 OF 2013
WITH
CIVIL APPLICATION ST.NO.19154 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Nandini Vilas Loke ..Respondent
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10 AO.826-2013
WITH
APPEAL FROM ORDER NO. 823 OF 2013
WITH
CIVIL APPLICATION ST.NO.16140 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Ashok R. Dhatrak & Anr. ..Respondents
WITH
APPEAL FROM ORDER NO. 933 OF 2013
ig WITH
CIVIL APPLICATION ST.NO.16197 OF 2013
M/s Rupji Constructions ..Appellants
Vs.
Paresh Dattaram Korgaonkar ..Respondent
---------
Mr. Suresh Gole a/w Ms. Pragati Patil i/b Mr. Sachin Gangan for Appellant
in all matters.
Mr. Satyan Vaishnav a/w Ms. Nupur Mukeshrji and Mr. Anil Chauhan i/b
M/s N.N. Vaishnawa & Co., for Respondents.
----
CORAM : ANOOP V. MOHTA, J.
DATE : OCTOBER 22, 2013.
ORAL JUDGMENT:
1 All Appeals filed by the original Defendants as the learned
Judge, by separate orders dated 16 April 2013 in respective motions and
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11 AO.826-2013
suits filed by Plaintiffs-Respondents, granted ad-interim relief in terms of
prayer clauses (a) and (c),which are reproduced below:
"(a) That pending the hearing and final disposal of the suit, the
Defendants, their servants, agents and/or anybody claiming
through them from selling, transferring, encumbering,
alienating and/or creating any third party right in respect of the
suit flat being Flat No.401, 4th floor, at 184-A, N.M. Joshi
Marg, Lower Parel, Mumbai-400 013 bearing C.S. No.205, in
any manner whatsoever;
(c) That pending the hearing and final disposal of the suit, the
Defendants be restrained by an order of injunction of this
Hon'ble Court from carrying out any further modification in
the plan or the proposed construction without the written
consent of the Plaintiffs in respect of flats to be constructed at
Rupji Skyline, at 184-A, N.M. Joshi Marg, Lower Parel,
Mumbai-400 013 bearing C.S. No.205."
2 The submission is made by the learned Counsel appearing for
the Appellant that he is mainly aggrieved by grant of prayer clause (c)as
that resulted into halting the project in all respect, as no further
modification in the plan and/or proposed construction can be made of the
flats to be constructed at Rupji Skyline, 184-A, N.M. Joshi Marg, Lower
Parel bearing C.S. No.205. There is no serious dispute with respect to the
Plaintiffs contract/agreement in the year 2006. They were made known that
the development of the property/proposal is in joint venture with
Maharashtra Housing And Area Development Authority (MHADA). It is
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12 AO.826-2013
also made known that the proposal is sent to MHADA for their approval,
therefore, sanction/permission is necessary to develop the respective
flats/society. The Plaintiffs knowing this, agreed to purchase the respective
flats and paid the consideration. The subsequent amount as asked at later
stage was also paid. Lastly, the demand of Rs.4,000/- each made by the
Appellant, it was objected/resisted by the Plaintiffs, as even by that time
there was no substantial progress made to develop the property though
amount received by the Appellant.
3 The Plaintiffs-Respondents, therefore, in this background filed
respective suits for a decree of specific performance of sale in the proposed
project in question. The prayers are also made to enter into regular
agreement for sale. The prayers is also made to set aside letter dated 27
August 2012 whereby the Appellant threaten to cancel the agreement and
to sell the flats in open market. The submission is also made by referring to
the documents on record by the learned Counsel appearing for the
Plaintiffs-Respondents that the Appellant (Builder) is still advertising and
booking/selling the salable flats.
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13 AO.826-2013
4 The injunction so granted in terms of prayer clause (a) as there
was no progress whatsoever shown and/or made except the time to
time assurances to develop the property inspite of receipt of
amount/consideration. There is no denial so far as this part is concerned
and even the agreement and the receipt of money from respective
Plaintiffs. There is also no denial to the fact that the property could not be
developed for want of permissions for various reasons including
grant/sanction/cooperation from the MHADA.
5 The Respondents-Plaintiffs, in view of specific provisions of
Maharashtra Ownership of Flats (Regulation of the Promotion of
Construction, Sale Management and transfer) Act, 1963 (MOFA Act)
invoked/filed respective criminal complaints before the Sessions Court of
Greater Mumbai. The same are still pending. The Appellant expressed
willingness to refund the amount and accordingly submitted an
affidavit/undertaking on 21.9.2013. This is the development after the
impugned order. The same is subject matter of the criminal proceedings as
initiated by respective Plaintiffs. This Court, therefore, would not like to
interfere with. Let the respective Court deal with the same in accordance
with law.
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14 AO.826-2013
6 So far as order granting prayer clause (c)is concerned, it is
difficult and not possible for the Appellant-Builder, to develop and/or
change the plan for further development in view of present scenario
including pending proposal with MHADA and/or with the Government
with regard to the alleged joint project in question.
7 Admittedly, MHADA not made party though the basic
letters/allotment letters and the averments in the written statement
including the plaint shows the reference and the requirement of MHADA's
presence to finalise the plan/sanction to develop the project. The Plaintiffs
are fully aware of this. The objection raised and/or not raised, the fact of
demolition of tenanted premises/structure by the appellant, just cannot be
overlooked. Their alternative accommodation/premises development, in
view of the injunction granted, could not be and cannot be proceed further.
8 Admittedly, the project requires to provide accommodation to
the old tenants/occupants and the remaining saleble portion can be
disposed of and/or permissible for the Appellant-builder to sell/transfer.
The Plaintiffs are concerned with those salable property/flats. To say that
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15 AO.826-2013
the salable flats can be permitted to develop without developing and/or
constructing the tenanted premises for tenants/occupants who have
vacated, in my view, is unacceptable. The party and the Court should
consider simultaneous development, otherwise the project would be halted
for all the time to come.
9 Normally, there is no reason to deal with the third parties right
who are not parties to the proceedings, but considering the averments and
dispute so raised, it is very clear that this dispute is not only between the
Plaintiffs and the Defendants, but it also involves other tenants/third parties
who have already vacated their respective premises and the Appellant, has
admittedly demolished the same for reconstruction. Everything is halted
now.
10 There may be other various reasons because of which the
Appellant could not proceed with the development even after the receipt of
money. But I am inclined to observe that it will be in the interest of all to
see that the property should be developed at the earliest. Necessary
cooperation, as well as, steps require to be taken jointly, there is no point in
halting the project in such fashion which is incomplete since 2006.
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16 AO.826-2013
11 There is force in the contentions of the learned counsel
appearing for the Plaintiffs-Respondents that if the Appellant desires and/or
has intention to develop the property by submitting the map and/or taking
such further steps, it cannot be done unilaterally. The learned Judge has
considered the scheme and purpose of the MOFA Act and granted prayer
clause (c) to the extent that any development and/or modification of plan
be subject to the consent of respective Plaintiffs. I see there is nothing to
oppose such order though it affects other third parties/tenants but this
cannot continue permanently till the disposal of the suit, as trial may take
its own time for the settlement and/or for the decree as prayed.
12 The suit for specific performance even if filed and if
ultimately not possible for the Appellant-Builder to provide flats including
reasons as contemplated under Section 55 of the Contract Act 1872, the
Court at the end of the day may pass an order of compensation including
the refund of amount. The appellant has already recorded his willingness to
refund the amount. All these facets, in my view, just cannot be overlooked
by the parties while considering their respective rights.
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17 AO.826-2013
13 As I am disposing of all these Appeals and as the third party
like MHADA cannot be joined as party only for these Appeals. Their
presence, in my view, in a given facts and circumstances would definitely
move-forward the development project further. MHADA is necessary party
and/or proper party, the issue can be gone into if objected by either of the
parties in the suit. Considering the above undisputed position on record
and for proper adjudication of the suit, I am inclined to observe that by
keeping all points open, MHADA need to be joined as party-defendant in
the matter. The parties are at liberty to take steps accordingly and if not, the
Court considering Order 1 Rule 10 of CPC, may pass appropriate order
before proceeding further with the matter.
14 All suits, in view of above, are expedited and to be disposed of
within one year as there are common facts, agreements and issues are
involved.
15 All above Appeals are disposed of with liberty to the
Appellant to apply for an appropriate order/modification of plan for the
proposed construction of the flats.
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18 AO.826-2013
16 Liberty is also granted to the parties to settle the matter.
17 All Civil Applications are also disposed of. No costs.
(ANOOP V. MOHTA, J.)
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