Naresh Kumar Mohan Singh Maru And 2 ... vs Rahul Vilas Nahata And 5 Ors
2021 Latest Caselaw 3529 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    ORDINARY ORIGINAL CIVIL JURISDICTION
                  INTERIM APPLICATION (L) NO. 2628 OF 2021
                                        IN
     COMMERCIAL EXECUTION APPLICATION (L) NO. 1176 OF 2019


Naresh Kumar Mohan Singh                      ... Applicant/Claimant
Maru and Ors.
         vs.
Rahul Vilas Nahata and Ors.                   ... Respondents


Mr. Sean Wassoodev for the Applicant.
Mr. Mayur Khandeparkar i/b. C. Nikate for Respondent nos. 3 to 6.
Mr. Vishal Hegde a/w. Mr. Amol Shiroli and ms. Deepkar Livingston for
Respondent nos 1 and 2/ Judgment Debtor nos. 1 and 2.


                                         CORAM : A. K. MENON, J.

DATED : 24th FEBRUARY, 2021 P.C. :

1. At the hearing of this application Mr. Wassoodev seeks urgent

ad-interim relief by way of injunction restraining the respondent nos. 3

to 6 from alienating, encumbering, creating third party rights in any

manner whatsoever in any of the shops, units, offices or premises

constructed or known to be constructed in the project known as

Centropolis by Skyward Ashthika Lifestyle situated at Final Plot no. 71,

Village, Bhamburda (Shivaji Nagar), Taluka Haveli, District Pune.

17-IAL-2628-2021-COMEXL-1176-2019.doc rrpillai

2. The claim of the decree holder who Mr. Wassoodev represents is

that the provision of the consent terms have been breached. The

aforesaid respondent have not complied with their obligation under the

consent terms of providing constructed premises and in particular in

accordance with clause 1 of the consent terms. Clause 1 of the consent

terms make reference to nine properties. All these properties at items

1 to 7 are said to be under various stages of construction. Properties

described at item nos. 8 and 9 being office no. 503 and 504 have not

having been constructed nor work has begun towards construction, in

view of the fact that no plan is sanctioned for the fifth floor apparently

due to height restrictions and as canvassed by Mr. Khandeparkar.

3. Mr. Khandeparkar opposes the application on the basis that the

respondents are ready and willing to perform their obligation under the

consent terms even today and that the occasion for the applicants to

execute the decree in terms of the consent terms as a money decree and

pursuant to clause 7 of the consent terms has not arisen inasmuch as

the property in question are very much available and not encumbered.

Notwithstanding Mr. Wassoodev's contention that encumbrance has not

been disclosed on the RERA website pertaining to the project.

17-IAL-2628-2021-COMEXL-1176-2019.doc rrpillai

4. At the hearing today Mr. Khandeparkar on behalf of the

respondents state that none of Shop no. 3, Office nos. 102, 202, 203,

205, 303 and 404 have been encumbered in any manner nor offered as

security to any financial institution or lender and that these will not be

dealt with, sold or otherwise encumbered or possession parted with On

the other hand all remaining work therein will be completed on or

before 30th April, 2021 in view of the extended time lines provided in

the RERA Registration of the project.

5. Mr. Khandeparkar acknowledges the fact that Office nos. 503 and

504 cannot be now constructed and no commitment can be made at all.

He however submits that the obligation to pay over the monetary

component in clause 7 has not arisen since these respondents are

willing to offer alternate premises of larger area and at no extra costs

to the applicant. In that spirit respondents have today offered Office no.

401 admeasuring 468 sq.ft in lieu of 442 sq.ft in office no. 503 and

office no. 403 admeasuring 420 sq. ft in lieu of 418 sq.ft in Office no.

504.

6. Mr. Khandeparkar states on instructions that apart from the seven

units which are under construction till further orders these two units

nos. 401 and 403 will also not be dealt with, sold or otherwise

encumbered, offered as security or possession parted with but

17-IAL-2628-2021-COMEXL-1176-2019.doc rrpillai respondent will continue to carry out work in completing construction

so as to obtain occupation certificate in respect of all these units well

before the dead line aforementioned. Accordingly , I pass the following

order :

(i) Statement of Mr. Khandeparkar is accepted. In view thereof no

ad-interim relief is required at this stage.

(ii) Liberty is reserved to the applicant to pursue execution

proceeding in accordance with law.

(iii) All contentions on merits are kept open.

                    (iv)    Reply to be filed within two weeks.

                    (v)     Rejoinder within two weeks thereafter.

                    (vi)    List per CIS.




                                                                             (A. K. MENON, J.)


           Digitally
           signed by
           Rajeshwari
Rajeshwari R. Pillai
R. Pillai  Date:
           2021.02.25
           16:50:08
           +0530

17-IAL-2628-2021-COMEXL-1176-2019.doc rrpillai