Bombay High Court
M/S. Ganesh Associates And Anr vs Sindhu Raghunath Kate And Ors on 14 December, 2021
Bench: Bharati Dangre
Digitally signed by
JAYARAJAN JAYARAJAN
ANJAKULATH ANJAKULATH NAIR
NAIR Date: 2021.12.15
18:20:23 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8927 OF 2021
M/s. Ganesh Associates & Anr. .. Petitioners
Vs.
Sindhu Raghunath Kate & Ors. .. Respondents
...
Mr. S.R. Nargolkar with Mr. Arjun Kadam for the petitioners.
...
CORAM : SMT. BHARATI DANGRE, J.
DATED : 14TH DECEMBER, 2021.
P.C:-
1. Heard learned counsel for the petitioners. The petitioners,
judgment debtors, are aggrieved by an order passed by the Civil
Judge, Senior Division, Pune in Special Darkhast No.59 of 2013,
which seeks execution of a decree dated 23/04/2013. Pertinent
to note that the decree categorically directs defendant Nos.1 and
2 to execute sale deeds of flat admeasuring 1050 sq. ft. and shop
admeasuring 750 sq. ft. which are reserved in "J" Wing of the
building. Since I am not concerned with the other terms of the
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decree, I restrain myself from referring to them.
2. At the stage of execution, the objection, which was raised
by the judgment debtor was whether the area that has been
described of the flat and the shop in the decree is to be
considered as a 'built up area' or 'carpet area'. This issue came
to be settled by filing a draft sale deed on record and on
28/01/2021, it is clearly recorded by the learned Judge that there
is no dispute that the decree of the suit flat and suit shop is about
the built up area and the court has directed to execute the sale
deed of the suit flat of built up area of 1050 sq. ft. and the sale
deed of the suit shop of built up area of 750 sq. ft. and the sale
deeds have to be executed by mentioning the said area as built
up area of the shop and the flat.
3. Two Commissioners came to be appointed for measuring
the properties and two reports came on record at Ex-149 and at
Ex-150. The two reports though set out the areas with reference
to carpet area/built up area, the court has recorded that in both
the reports, there is difference in built up area of the suit shop
and the suit flat. The parties, therefore, agreed to argue on the
legality and validity of the Commissioners' reports.
4. Thereafter, on 11/02/2021, it is recorded that since both the
Commissioners have found the areas of suit shop and suit flat to
be deficit on the basis of the built up area, the judgment debtor is
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directed to pay compensation to the decree holder at the market
rate. The parties are directed to argue on the point of rate of
square feet of the said area and the matter is scheduled for
hearing.
5. The submission of learned counsel for the petitioners is
that the learned Judge has fallen back on the provisions of the
Real Estate (Regulation and Development) Act, 2016 and it is on
the basis of this calculation, deficit area has been arrived at in the
order dated 11/02/2021.
6. Prima facie, I am of the opinion that the learned Judge has
only referred to the said enactment for borrowing the concept of
'carpet area', 'built up area' and 'super built up area'. The
learned Judge has particularly recorded that there is no much
difference in the carpet area of the suit flat and suit shop in the
reports at Ex-149 and Ex-150. In the report at Ex-150, while
calculating the built up area, the area of elevator and other
common areas have been considered and, therefore, the report at
Ex-150 is not found to be in terms of the built up area, but it is as
per the super built up area and, therefore, the said report has
been rejected. In contrast, the order record that the judgment
debtor has not shown any ground to discard the report at Ex-149.
In the said report, the built up area of the suit shop is shown as
535.08 sq. ft. and of the suit flat is shown as 800.51 sq.ft.
Recording that this area is lesser than the one mentioned in the
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decree i.e. 750 sq. ft. for the suit shop and 1050 sq. ft. for the suit
flat, the parties are permitted to argue on the point of rate of per
square feet. Once the learned Judge has discredited the
Commissioner's report, Ex-150 and fallen back to Ex-149, it is
open for the parties to argue before learned Judge about the rate
per square feet and whether it is applicable as per the provisions
of RERA. This will have to be restricted to Commissioner's
report at Ex-149 and since the learned Judge has not foreclosed
the issue and the matter is kept for hearing today, the parties are
at liberty to advance their submissions including the applicability
of rate of per square feet in terms of the RERA, which came into
force in 2016. No further observations are necessary and it is
for the learned Judge to determine the question of rate to be
applied for the deficit area.
7. The writ petition is disposed of in the aforestated terms.
[SMT. BHARATI DANGRE, J.]
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