Sony Pictures Networks India ... vs Ferani Developers And 8 Ors
2021 Latest Caselaw 3188 Bom

                                                           (07)IAL2545.21_COMSL2544.21.doc


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Dhanappa     ORDINARY ORIGINAL CIVIL JURISDICTION
I. Koshti         IN ITS COMMERCIAL DIVISION
Digitally signed by
Dhanappa I. Koshti       INTERIM APPLICATION (L) NO. 2545 OF 2021
Date: 2021.02.23
10:32:42 +0530
                                          IN
                           COMMERCIAL SUIT (L) NO. 2544 OF 2021


            Sony Picture Networks India Pvt. Ltd.              .. Applicant

            In the matter of:

            Sony Picture Networks India Pvt. Ltd.              ... Plaintiff
                 Vs
            Ferani Developers & Ors.                           ... Defendants



            Mr. Zal Andhyarujina, senior counsel with Mr. Abhishek Malhotra, Ms. Sapna
            Chaurasia and Ms. Sneha Harwade i/b TMT Law Practice for the Applicant /
            Plaintiff.


            Mr. Shekhar Jagtap with Mr. Dinesh Jain, Ms. Sairuchita Choudhary and Mr.
            Ninad Naik for Defendant Nos.3 to 5.


            Mr. Cyrus Ardeshir with Mr. Lalit Kataniya and Ms. Nimisha Ghatla i/b
            Katariya & Associates for Defendant No.6.


            Mr. Karl Tamboly with Ms. Madhu Hiraskar for Defendant Nos.1, 2 & 7.




                                      CORAM : B.P. COLABAWALLA, J.

THUSRDAY, 18TH FEBRUARY, 2021

(07)IAL2545.21_COMSL2544.21.doc

P.C. :

1. The above Interim Application has been moved for ad-

interim relief, seeking a direction against defendant Nos.1 and/or

defendant No.2 to restore the lift services for Unit Nos.201 on the

2nd floor, Unit No.301 on the third floor and Unit No.401 on the

fourth floor (all collectively referred to "the demised premises")

of Interface Building No.7 (for short the "said building"), situated

at Malad West, Mumbai. The lift services were cut off to the

demised premises by defendant Nos. 1 & 2 on 22nd January, 2021

on the ground that the amenities charges payable by the owners of

the demised premises, namely, defendant Nos.3, 4 and 5, have not

been paid and which figure comes to approximately Rs.3.48

crores. The plaintiff is the lessee of the demised premises and is

affected by this action taken by defendant Nos. 1 & 2 and,

therefore, has filed the present suit seeking perpetual injunctions

against defendant Nos.1 and/or 2 to restore the lift services to the

demised premises and restraining them from discontinuing /

disconnecting any of the essential services to the demised

premises. There are also other prayers in the suit with which I am

(07)IAL2545.21_COMSL2544.21.doc not presently concerned.

2. Considering that the controversy is in this narrow

compass, it would be necessary to encapsulate the brief facts of

the matter. The plaintiff is a company incorporated under the

Companies Act, 1956 and claims to be one of the leading

broadcasters in India and operates several channels including

Sony MAX, Sony MAX2, Sony SAB, amongst others. Defendant

No.1 is a division of a company called Ferani Hotels Pvt. Ltd. and is

the developer of the said building. Defendant No.2 is the estate

manager of defendant No.1. Defendant No.3 is the owner of Unit

No.201 on the second floor of the said building, defendant No.4 is

the owner of Unit No.301 on the third floor of the said building and

defendant No.5 is the owner of Unit No.401 on the fourth floor of

the said building. Defendant No.6 is a non-banking financial

company and who has lent and advanced monies to defendant

Nos.3, 4 and 5. Defendant Nos. 7 to 9 are the Directors of

defendant No.1.

3. On 19th December, 2014, the plaintiff (formerly known

as "Multi Screen Media Pvt. Ltd.") executed three separate Lease

(07)IAL2545.21_COMSL2544.21.doc Deeds with defendant Nos.3, 4 and 5 for taking on lease, Unit

Nos.201, 301 & 401 (the demised premises) in the said building

for the purpose of carrying on their business activities. Along

with the Lease Deeds, on the same date, the plaintiff also executed

three Amenities Agreements with defendant Nos.3, 4 and 5 to pay

monthly amenities charges in relation to the demised premises.

4. Prior to entering into these Lease Deeds and Amenities

Agreements, Defendant No. 6 had advanced loans to Defendant

Nos. 3 to 5 inter alia against the security of the demised premises

(i.e. Unit No.201 owned by Defendant No.3, Unit No.301 owned by

Defendant No.4 and Unit No. 401 owned by Defendant No.5) under

three separate Loan Agreements dated 31.10.2014. Three

separate escrow agreements were also executed of the same date.

Under these Loan Agreements, the lease rentals payable by the

lessees of the demised premises were the security of defendant

No.6 towards repayment of their loans. In fact, even prior to the

execution of the Lease Deeds on 19th December, 2014, there was a

letter written by defendant Nos.3, 4 and 5 to the plaintiff (dated

19th November, 2014) asking them to pay the lease rentals directly

to defendant No.6. The lease rentals and amenities charges in

(07)IAL2545.21_COMSL2544.21.doc respect of the demised premises are being deposited by the

Plaintiff in three separate Escrow Accounts.

5. It appears that thereafter certain proceedings were

initiated against the properties of defendant Nos.3, 4 and 5 under

the Prevention of Money Laundering Act, 2002. Under those

proceedings, the Adjudicating Authority attached the following

properties:

(a) Unit No.301, 3rd Floor, Building No.7, Interface, Link Road, Malad (W), Tal-Borivali, Mumbai - owned by defendant No.4 (M/s Oak Leasing and Infotech Pvt. Ltd.) and mortgaged to defendant No.6.

(b) Unit No.201, 2nd Floor, Building No.7, Interface, Link Road, Malad (W), Tal-Borivali, Mumbai - owned by defendant No.3 (M/s Rosette Leasing and Infotech Pvt. Ltd.) and mortgaged to defendant No.6.

(c) Unit No. 401, 4th Floor, Building No.7, Interface, Link Road, Malad (W), Tal-Borivali, Mumbai - owned by defendant No.5 (M/s Upright Leasing and Infotech Pvt. Ltd.) and mortgaged to

(07)IAL2545.21_COMSL2544.21.doc defendant No.6.

(d) Escrow Accounts, being Account Nos.

200999779905 and 200999779912, IndusInd Bank, Lower Parel Branch, Mumbai out of which rents were being received by defendant No.6.

6. Being aggrieved by the attachment order, defendant

No.6 herein preferred an appeal before the Appellate Tribunal,

Prevention of Money Laundering Act at New Delhi. The Appellate

Tribunal, vide its order dated 27th July, 2017 read with the order

dated 9th November, 2017, inter alia, directed that the rentals from

defendant No.3 (Rosette Leasing & Infotech Private Limited), and

which were being deposited in Escrow Account No.200999779912

with IndusInd Bank, could now be deposited in Account

No.02321300001236 with DCB Bank Limited, Nariman Point

Branch, Mumbai. Similarly, the rentals from defendant No.4 (Oak

Leasing & Infotech Private Limited) being deposited in Escrow

Account No.200999779905 with IndusInd Bank could now be

deposited with Account No.02321300001205 with DCB Bank

Limited, Nariman Point Branch, Mumbai. The Appellate Tribunal

also, inter alia, recorded an undertaking of defendant No.6 (the

(07)IAL2545.21_COMSL2544.21.doc appellant before the Appellate Tribunal) that after recovering the

EMI due from the attached Escrow Accounts, defendant No.6

would release the necessary amounts due towards the amenities

charges to its borrowers (namely defendant Nos.3, 4 and 5), so

that the demised premises are maintained. The said undertaking

was duly accepted by the Appellate Tribunal. A further

undertaking of defendant No.6 was recorded to the extent that in

the event defendant No.6 lost in its appeal before the Appellate

Tribunal, it shall pay back / restitute all the withdrawn amounts to

the concerned authority. It was, however, clarified that defendant

No.6 would not be liable to restitute the amounts withdrawn

towards the amenities charges as they were actual expenses

payable on behalf of the borrowers and not retained by defendant

No.6 or DCB Bank Limited.

7. Be that as it may, since defendant Nos.3, 4 and 5 were

not paying the maintenance dues/amenities charges to defendant

No.1, defendant No.1 issued a notice dated 10th December, 2020

(with a CC marked to the plaintiff) informing them to pay the

outstanding dues, failing which, essential services to the demised

premises would be discontinued. Thereafter, the plaintiff also by

(07)IAL2545.21_COMSL2544.21.doc their notice dated 19th December, 2020 called upon defendant

Nos.3, 4 & 5 to forthwith pay the outstandings towards the

amenities charges. Since defendant Nos.3, 4 and 5 failed to pay

their outstandings, defendant Nos.1 & 2 discontinued the lift

services to the demised premises on 29th December, 2020.

8. Due to this action, the plaintiff addressed a letter

dated 30th December, 2020 to defendant No.1 for restoration of

the lift operations and also issued notices to defendant Nos.3, 4

and 5 informing them about the discontinuation of the lift and

calling upon them to pay the maintenance/amenities charges

immediately. In reply to the plaintiff's letter, defendant No.1, by

its letter dated 31st December, 2020, informed the plaintiff that

the lift operations would be restored only if they received the

entire outstanding amount of Rs.3.42 crores.

9. Thereafter, on 6th January, 2021, the plaintiff along

with defendant Nos.1 and 2 as well as defendant Nos.3, 4 and 5

agreed to a mechanism where maintenance/amenities charges in

respect of the 4th floor unit (Unit No.401 belonging to defendant

No.5) would be paid by the plaintiff to defendant No.1 so that the

(07)IAL2545.21_COMSL2544.21.doc lift services could be restored. This arrangement was recorded by

an e-mail dated 6th January, 2021. Pursuant to this arrangement,

the plaintiff transferred an amount of Rs.28,86,222/- towards

amenities charges for the 4th floor unit. In view thereof, on 12th

January, 2021, defendant Nos.1 & 2 restarted the lift operations.

Thereafter on 13th January, 2021, the plaintiff shared a draft

agreement with defendant No.1 for payment of their dues. Since

this draft agreement did not culminate into anything concrete,

defendant Nos.1 & 2 once again discontinued the lift services on

13th January, 2021. It appears that thereafter sometime between

13th and 21st January, 2021, defendant Nos.1 & 2 once again

restored the lift services before discontinuing the same finally on

22nd January, 2021. It is in these circumstances that the present

suit is filed on 25th January, 2021.

10. I must mention that when this matter had first come

up, the plaintiff as well as defendant Nos.1, 2, 3, 4, 5, 7, 8 and 9

tendered Consent Terms (signed by all the parties thereto) under

which the entire suit was being settled. At that stage, defendant

No.6 took objection to clause 4.2 of the Consent Terms which,

inter-alia, stipulated that the plaintiff would have a right to adjust

(07)IAL2545.21_COMSL2544.21.doc the aforesaid amount of Rs.3,48,51,941/- being paid by the

plaintiff to defendant No.2 (on behalf of the lessors) against the

lease rent payable by the plaintiff to defendant No.5 under the

Lease Deed dated 19th December, 2014. The objection taken by

defendant No.6 was that the lease rent payable by the plaintiff to

defendant No.5 was the security of defendant No.6 and the

arrangement arrived at in clause 4.2 of the Consent Terms would

be infringing upon the rights of defendant No.6. Mr. Ardeshir,

appearing on behalf of defendant No.6, stated that the Consent

Terms cannot be taken on record in view of clause 4.2 thereof. He

submitted that if the parties want to settle the dispute, they can

do so by deleting the said clause. On this objection being taken,

Mr. Andhyarujina submitted that in these circumstances, the

plaintiff would be constrained to argue the Interim Application on

merits as the plaintiff was not agreeable to settle the entire

dispute with deletion of clause 4.2 of the Consent Terms. It is on

this basis that the matter has been argued before me.

11. In this factual backdrop, Mr. Andhyarujina, the

learned senior counsel appearing on behalf of the plaintiff,

submitted that it can hardly be disputed that providing a lift

(07)IAL2545.21_COMSL2544.21.doc service is an essential service. The plaintiff is the lessee of the

demised premises and is the person using the essential service,

namely, the lift. The plaintiff, under the Amenities Agreements

entered into with defendant Nos.3, 4 and 5, has been paying the

amenities charges as mentioned therein, religiously and without

any default. He submitted that the plaintiff is being

inconvenienced because defendant Nos.3, 4 and 5 are not paying

the amenities charges to defendant No.1 and/or 2. He submitted

that for no fault of the plaintiff, the lift service to the demised

premises has been discontinued.

12. Mr. Andhyarujina thereafter submitted that lift

services, being an essential service, cannot be disconnected

and/or discontinued without just and sufficient cause. In this

regard, he brought to my attention, section 29 of the Maharashtra

Rent Control Act, 1999 (for short the "Rent Act"), section 12A of

the Maharashtra Ownership Flats (Regulation of the Promotion of

Construction, Sale, Management and Transfer) Act, 1963 (for

short "MOFA") and section 11(4)(d) of the Real Estate (Regulation

and Development) Act, 2016 (for short "RERA"). Mr.

Andhyarujina submitted that it cannot be disputed that access to

(07)IAL2545.21_COMSL2544.21.doc lifts is an essential service and which has, under the provisions of

the Rent Act as well as MOFA, been given statutory recognition.

Both the aforesaid provisions, inter-alia, stipulate that lift services

cannot be discontinued without just and sufficient cause. Mr.

Andhyarujina relied upon a decision of a Division Bench of this

Court in the case of J. Satyavrata & Anr. vs. Mohamedbhai

Abdulhussein Sadiq Bahreinwalla & Ors. (1981 Mah LJ 413 :

AIR 1982 Bom 50) to substantiate his argument that an

essential service cannot be discontinued by the landlord without

just and sufficient cause. It is for the landlord to prove that the

discontinuance of the said service was for a just and sufficient

cause. No landlord could deliberately or wantonly create a

situation and then claim just or sufficient cause in extenuation of

his liability arising out of a situation of his own creation. No

landlord can be heard to plead just and sufficient cause of what he

himself has been responsible, directly or indirectly, by bringing

about a situation of his own making. Of course, what is just and

sufficient cause must necessarily depend upon the facts and

circumstances of each case. Relying upon this decision, Mr.

Andhyarujina submitted that in the facts of this case, defendant

(07)IAL2545.21_COMSL2544.21.doc No.1 had not made out any just or sufficient cause for

discontinuing the lift service to the demised premises. Mr.

Andhyarujina was fair to point out that though this decision was

under the provisions of the old Rent Act, and in the present case,

the plaintiff is not a tenant of defendant Nos.3, 4 and 5 and

therefore, would not be governed by that Act, the principles set

out in the said judgment are based on public policy and, therefore,

those principles ought to be applied even in the facts and

circumstances of the present case.

13. Mr. Andhyarujina lastly submitted that the present

situation has been brought about for no fault of the plaintiff but

because of the defaults committed by defendant Nos.3, 4 & 5. In

these circumstances, equities need to be balanced between the

parties, was the submission. Mr. Andhyarujina submitted that

despite the orders passed by the Appellate Tribunal (under the

provisions of the Prevention of Money Laundering Act, 2002)

directing the defendant No.6 to release the necessary amounts

due towards the amenities charges to defendant Nos.3, 4 and 5,

and which was duly done, defendant Nos.3, 4 and 5 did not pay

those amenities charges to defendant Nos.1 and 2. He submitted

(07)IAL2545.21_COMSL2544.21.doc that clearly defendant Nos.3, 4 and 5 are in default in making

payment of amenities charges and which is why the present

situation has arisen. Considering that for Unit No.201 (owned by

defendant No.3) and Unit No. 301 (owned by defendant No.4), the

amenities charges as well as the lease rentals are being deposited

by the plaintiff in the Escrow Accounts, defendant No.6 be

directed to pay over the amenities charges in relation to Unit

Nos.201 and 301 directly to defendant Nos.1 and 2 instead of

defendant Nos.3, 4 & 5. Considering that the amounts being

deposited in an Escrow Account towards lease rentals and the

amenities charges in relation to Unit No.401 are not the subject

matter of any attachment, the amenities charges with reference to

Unit No.401 could be directly paid by the plaintiff to defendant

Nos.1 and 2. This arrangement would subserve the interest of all

parties, including defendant Nos.1 and 2 as well as defendant

Nos.3, 4 and 5. He, however, submitted that once this

arrangement is put in place, defendant Nos.1 and 2 ought to be

directed to restore the lift services to the demised premises. This

is for the simple reason that the past liability towards amenities

and maintenance charges is that of defendant Nos.3, 4 and 5 and

the same cannot be foisted on the plaintiff. On the basis of default

(07)IAL2545.21_COMSL2544.21.doc committed by defendant Nos.3 to 5, the plaintiff cannot be

deprived of the use of the lift and which is really an essential

service. He, therefore, submitted that once the arrangement

referred to above is put in place, defendant No.1 be directed to

restore the lift services to the demised premises.

14. On the other hand, Mr. Tamboly, the learned counsel

appearing on behalf of defendant Nos.1 and 2, submitted that

admittedly defendant Nos.1 and 2 have no privity of contract with

the plaintiff. Defendant No.1 are the developers of the said

building and they are managing the same through defendant No.2

and providing several amenities, including the use of the lift. He

submitted that the demised premises were purchased by

defendant Nos.3, 4 and 5 under three separate Agreements for

Sale all dated 4th October, 2005. Under these agreements, it was

the primary obligation of defendant Nos.3 to 5 to pay all charges to

defendant No.1 and/or 2 in order to avail of the services provided

to the demised premises. Admittedly, there have been several

defaults committed by defendant Nos.3, 4 and 5 and it is in these

circumstances that the lift services have been discontinued to the

demised premises. He brought to my attention that even till date,

(07)IAL2545.21_COMSL2544.21.doc the principal amount outstanding from defendant Nos.3 to 5 is a

figure of approximately Rs.2.02 crores and which relates to the

period from July 2019 till date. He submitted that defendant

Nos.1 and 2 cannot be expected to continue to provide the

amenities and services without being paid for them.

15. As far as the argument of Mr. Andhyarujina regarding

just and sufficient cause is concerned, Mr. Tamboly brought to my

attention the Agreements for Sale entered into between defendant

No.1 and defendant Nos.3, 4 and 5 and which are identical in

nature. He laid particular stress on clauses 46 and 56(B) of these

agreements to contend that it was the liability of defendant Nos.3,

4 and 5 to pay all amounts mentioned in the agreements,

including taxes and outgoings and deposits together with interest

thereon, if any, payable under the terms thereof, as and when it

becomes due and payable. He submitted that in the event

defendant Nos.3, 4 and 5 make any default in payment of the

outgoings, taxes, amounts and/or other payments payable under

the terms and conditions of these agreements for three months,

and in the event the default continuing even after defendant No.1

giving 15 days notice, it would be deemed to be just and sufficient

(07)IAL2545.21_COMSL2544.21.doc for defendant No.1, under section 12A of MOFA, to cut off or

withhold any essential supply or service enjoyed by defendant

Nos.3, 4 and 5 in respect of the demised premises. Considering

that non-payment of amenities charges is specifically agreed to as

giving rise to a just and sufficient cause for discontinuing any

essential service, defendant No.1 was fully justified in

discontinuing the lift services to the demised premises, was the

submission. In these circumstances, he submitted that no case for

ad-interim relief is made out and the same ought to be rejected.

16. I have heard the learned counsel for the parties at

length and have perused the papers and proceedings in the

present suit. Before I deal with the rival contentions, it would be

necessary to reiterate some undisputed facts. Defendant Nos. 3, 4

and 5 purchased the demised premises from defendant No.1

sometime in the year 2005. In October 2014, defendant Nos.3, 4

and 5 have taken loans from defendant No.6 under which the lease

rentals payable on the demised premises were the security of

defendant No.6. In December 2014, the plaintiff entered into three

separate Lease Deeds along with three separate Amenities

Agreements in relation to the demised premises. It is not in

(07)IAL2545.21_COMSL2544.21.doc dispute that the plaintiff is not in default in either paying the lease

rent or the amenities charges to and/or for and on behalf of

defendant Nos.3, 4 and 5. Having said this, it is also undisputed

that defendant Nos.3, 4 and 5 have grossly defaulted in making

payment of the bills raised by defendant No.1 towards amenities

charges and services provided to the demised premises. It is in

this narrow compass that I have to decide as to whether the

plaintiff would be entitled to any ad-interim relief, and if so, on

what terms and conditions.

17. After hearing counsel in this regard, I find

considerable force in the arguments canvassed by Mr. Tamboly.

Mr. Tamboly is right when he contends that defendant Nos.1 and 2

has no privity of contract with the plaintiff. The plaintiff cannot

claim any higher right than defendant Nos.3, 4 and 5 as the

plaintiff is only the lessee of the demised premises of which

defendant Nos.3, 4 and 5 are the lessors and owners. It is true

that under the provisions of MOFA as well as the Rent Act, the

supply of lift services is an essential service. I do not think there

can be any dispute on that count. However, I find that clause

56(B) of the Agreements for Sale entered into between defendant

(07)IAL2545.21_COMSL2544.21.doc No.1 and defendant Nos.3, 4, and 5 clearly stipulates that in the

event of the purchaser making any default in payment of the

outgoings, taxes, amounts and/or other payments for three

months, then, it shall be deemed to be just and sufficient for

defendant No.1 to cut off or withhold any essential supply or

service enjoyed by defendant Nos.3, 4 and 5. For the sake of ready

reference, clause 56(B) is reproduced hereinunder:

"56(B) In the event of the Purchaser making any default in the payment of the outgoings, taxes, amounts and / or other payments payable under the terms and conditions of this agreement of three months and in the event of the default continuing even after the Builders giving 15 days notice in writing to the Purchaser, calling for the payments to be made by the Purchaser, should default, shall be deemed to be just and reasonable cause for the Builders under Section 12 A of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, to cut off or withhold any essential supply or service enjoyed by the Purchaser in respect of the said premises till such time as he / she / they / it makes payments of the said amount together with interest thereon."

(emphasis supplied)

18. I must immediately mention that in answer to this, Mr.

Andhyarujina contended that it is not for the parties to decide as

to what would be a just and sufficient cause, but it is for the Court

(07)IAL2545.21_COMSL2544.21.doc to take a view looking at the facts and circumstances of the case. I

am unable to agree with this submission. Here, defendant Nos.3, 4

and 5 and defendant No.1 have categorically agreed that once

payment is not made of the amounts mentioned in clause 56(B),

the same would amount to a just and sufficient cause for cutting

off or withholding any essential supply or service enjoyed by

defendant Nos.3, 4 and 5. Once this is the clause, I do not think

that the plaintiff (and who claims only through defendant Nos.3, 4

& 5) can contend otherwise. If such an argument cannot be

countenanced on behalf of defendant Nos.3, 4 & 5, it certainly

cannot be countenanced on behalf of the plaintiff. Be that as it

may, even otherwise, at least at this stage, I do not think that it

would be fair to hold that there is no just and sufficient cause

made out especially when one takes into consideration that such

large amounts are due and payable (Rs.3.48 crores) by defendant

Nos.3, 4 and 5 to defendant No.1 and/or 2. It would be ridiculous

to expect defendant No.1 & 2 to continue to provide the services,

even though defendant Nos.3, 4 and 5 are in arrears of payment

of outgoings and maintenance charges to the tune of Rs.3.48

crores.

(07)IAL2545.21_COMSL2544.21.doc

19. Having said this, I must also balance the equities. The

entire claim of Rs.3.48 crores is calculated on the basis of interest

that is charged @ 21% per annum and also on amounts that were

paid late by defendant Nos.3, 4 and 5. If one was to take the

amount that is actually outstanding towards outgoings and

maintenance charges from July 2019 till date, the same works to

approximately Rs.2.02 crores. If one were to calculate interest on

this amount at 10% per annum from July 2019 till date, including

the liability for GST, the same comes to a figure of

Rs.2,43,28,879/-. This calculation is given by Mr. Tamboly

appearing on behalf of defendant Nos.1 & 2 and not disputed by

Mr. Andhyarujina appearing for the plaintiff. In these

circumstances, I think it would be in the interest of justice if a

conditional order is passed for restoration of the lift services.

Accordingly, as and by way of ad-interim relief, I order:

(a) On the plaintiff (for defendant Nos.3, 4 and 5) paying a sum of Rs.2,43,28,879/- to defendant Nos.1 and/or 2, the lift services to the demised premises shall be started forthwith.

(b) All future rentals and amenities charges due from the plaintiff to defendant No.3 in relation to Unit No.201,

(07)IAL2545.21_COMSL2544.21.doc shall be deposited by the plaintiff in Account No.02321300001236 with DCB Bank Limited, Nariman Point Branch, Mumbai operated by defendant No.6. On the deposit being made by the plaintiff, defendant No.6 shall forward only the payment of amenities charges (for Unit No.201) directly to defendant Nos.1 and/or 2 instead of paying them over to defendant No.3.

(c) Similarly, all future rentals and amenities charges due from the plaintiff to defendant No.4 in relation to Unit No.301, shall be deposited by the plaintiff in Account No.02321300001205 with DCB Bank Limited, Nariman Point Branch, Mumbai operated by defendant No.6. On the deposit being made by the plaintiff, defendant No.6 shall forward only the payment of amenities charges (for Unit No.301) directly to defendant No.1 and/or 2 instead of paying them over to defendant No.4.

(d) All future amenities charges payable by the plaintiff to defendant No.5 in relation to Unit No.401, shall be paid directly by the plaintiff to defendant No.1 and/or 2 for and on behalf of defendant No.5. For the amenities charges paid directly by the plaintiff to defendant Nos.1 and/or 2 as mentioned herein, defendant No.5 shall not be allowed to contend that the plaintiff is in

(07)IAL2545.21_COMSL2544.21.doc default for non-payment of the amenities charges to them.

(e) Considering that the amount of Rs.3,48,51,841/- due and payable towards amenities charges to defendant No.1 and/or 2 is admitted by defendant Nos.3, 4 and 5 (in the Consent Terms tendered to this Court), defendant Nos.1 and/or 2 shall be entitled to claim the difference between the figure of Rs.3,48,51,841/- and Rs.2,43,28,879/-, from defendant Nos.3, 4 and 5 by adopting appropriate proceedings in accordance with law.

(f) For the purposes of reimbursing the plaintiff for the payment of Rs.2,43,28,879/-, defendant Nos.3, 4 and 5, through their counsel, have given an undertaking to this Court that the same shall be paid by defendant Nos.3, 4 and 5 to the plaintiff by issuing 12 monthly post-dated cheques and which cheques shall be handed over to the plaintiff, latest by 26th February, 2021. The first post-dated cheque will be dated 1st April, 2021 and each subsequent cheque would be dated the 1st of each succeeding month. A further undertaking is given that the said cheques shall be honoured when presented for payment. The said undertakings are accepted by the Court. It is further directed that a written undertaking in terms of what is recorded

(07)IAL2545.21_COMSL2544.21.doc above shall be filed in this Court by defendant Nos.3, 4 and 5 on or before 26th February, 2021.

20. List the above matter on 26th February, 2021, to

report compliance.

21. This order shall be digitally signed by the Private

Secretary/Personal Assistant of this Court. All concerned shall act

on production by fax or e-mail of a digitally signed copy of this

order.

B.P. COLABAWALLA, J.