M/S. Mahendra Builders Pvt. Ltd. ... vs Smt. Padmabai W/O Ranchhodda V. ...
2021 Latest Caselaw 13128 Bom

                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         ORDINARY ORIGINAL CIVIL JURISDICTION


                                         EXECUTION APPLICATION NO.99 OF 2011
                                                        WITH
                                          CHAMBER SUMMONS NO.334 OF 2019
                                                          IN
                                        EXECUTION APPLICATION NO.241 OF 2011



                    M/s. Mahendra Builders Pvt. Ltd.
                    & Ors.                                             .. Applicants
                             v/s.
                    Smt. Padmabai w/o Ranchhoddas V. Uka
                    & Ors.                                             .. Respondents


                    Mr. Rajesh Shah i/b. Yatin R. Shah for the applicant in EXA/99/2011.

                    Dr. Veerendra Tulzapurkar, Sr. Advocate, a/w Sandeep Parikh, Prakash
                    Shah & Durgaprasad Poojari          i/b. PDS Legal for the applicants   in
                    CHS/334/2019, and for the respondent/defendant no.16 in EXA/99 &
                    241 /2011.

                    Mr. Priyank Daga i/b. Jayakar & Partners for respondent no.10.



                                                           CORAM : A. K. MENON, J.

DATED : 15TH SEPTEMBER 2021.

P.C. :

1. This application has given rise to three separate Chamber

Summonses, two of these bearing no.877 of 2011 and 695 of Digitally signed by SANDHYA SANDHYA BHAGU BHAGU WADHWA

WADHWA Date:

2021.09.16 17:16:30 +0530

5.exa-99-11.doc wadhwa 2011 are filed by four applicants who seek almost identical reliefs

against the respondent no.16 against whom they hold a decree.

The applicants seek a direction to complete construction of the

building on the suit plot and handover their respective residential

apartments in the building to be constructed.

2. Respondent no.16 - judgment debtor is the applicant in Chamber

Summons no.334 of 2019. In that Chamber Summons which is

filed more recently, the applicant seeks appointment of the Court

Receiver, High Court, Bombay in respect of certain premises

specified therein which are claimed to be in the occupation of

respondent nos.4 to 11 and to issue a mandatory order directing

those respondents to deliver the possession of the premises to the

original respondent no.16 in order to enable him to redevelop the

building.

3. The genesis of the application is an order passed by a Division

Bench of this court in three Appeals bearing no.278 of 2015 and

279 of 2015 and 334 of 2015 filed by the very applicants in the

Chamber Summons and the respondent no.16 respectively. By

that order, the Division Bench set aside the order of the Single

Judge relating to execution of the decree. The appeal filed by

5.exa-99-11.doc wadhwa respondent no.16 has been rejected and the appeal filed by the

applicants herein has been allowed as set out therein.

4. Aggrieved by this, the respondent no.16 moved the Supreme

Court in SLP which came to be withdrawn on 24 th July, 2018.

While permitting the withdrawal of the SLP, the Supreme Court

directed that the High Court will frame a suitable time schedule

for completion of construction at the suit plot. To balance the

equities, the Single Judge has been directed to consider the

question as to the amount of security that should be furnished by

the respondent no.16 to ensure completion of construction within

the time schedule to be framed by this Court.

5. It appears that since there was no progress, the applicants once

again moved the Apex Court which passed an order dated 26 th

July, 2021 disposing the Misc. Application and reiterating the

expectation of the court that the High Court would take up these

applications expeditiously in the spirit of the Supreme Court's

order dated 24th July, 2018. I have therefore commenced hearing

of these applications.

6. Today I have heard the submissions on behalf of the applicants in

5.exa-99-11.doc wadhwa Chamber Summons no.695 and 877 of 2011. Mr. Shah on behalf

of the applicants has relied upon a time schedule which has been

proposed by respondent no.16 to which he submits can be

complied with even today. Mr. Tulzapurkar and Mr. Shah have

sought sometime to ascertain the feasibility of arriving at an

amicable solution. As far as the time schedule for completion of

construction is concerned, Mr. Tulzapurkar has submitted

construction can proceed only after demolition of the building

and some of the respondents to that Chamber summons no.334 of

2019 in particular respondent nos.1, 2 & 3 being legal heirs of

one Bipin Shroff and respondent nos.10 & 11 have not

co-operated thus far and have not vacated the portions in their

occupation. Respondent no.10 is represented and he submits that

respondent no.10 is the mother of respondent no.11. Respondent

no.11 is present in court. She is also directed to consider the

MOU and file a reply, if so advised.

7. Respondent nos.10 and 11 appears to be residing in the same flat.

Respondent no.10 who is represented today and states that she has

been provided with a draft Memorandum of Understanding by

respondent no.16 on a without prejudice basis which she is

willing to consider. In view of the fact that respondent nos.1 to 3

5.exa-99-11.doc wadhwa are not present, it will be necessary to hear them before any order

can be passed even assuming the time schedule is agreed as

between the applicants and respondent no.16 and respondent

nos.10 and 11.

8. Respondent nos.1 to 3 are said to have been served with Chamber

Summons no.334 of 2019 but have not entered appearance nor

they have filed a reply. In these circumstances, Advocate for

respondent no.16 shall serve notice upon respondent nos.1, 2 & 3

in the Chamber Summons informing that the matter will be kept

on 17th September, 2021 and that they should remain present in

court either in person or through Advocate duly instructed and

authorized.

9. Meanwhile, additional affidavit of respondent no.16 in Execution

Application to be filed by 18th September, 2021. Affidavit, if any,

on behalf of respondent nos.10 and 11 to be filed within one

week.

10. S.O. to 17th September, 2021.

(A. K. MENON, J.)

5.exa-99-11.doc wadhwa