Jigna Mahesh Thaker vs Heena Builders And Developers And ...
2022 Latest Caselaw 4696 Bom

           Digitally
                                                                           4 s-817-15..doc
           signed by
           LAXMI
LAXMI      SUBHASH
SUBHASH    SONTAKKE
SONTAKKE   Date:
           2022.05.05
           12:31:26
                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           +0530


                                         ORDINARY ORIGINAL CIVIL JURISDICTION
                                                    SUIT NO. 817 OF 2015


                        Jigna Mahesh Thaker                                         ..Plaintiff
                                   Vs.
                        Heena Builders Developers & Ors.                            ..Defendants



                        Ms Gauri Mestha i/b LJ Law for the Judgment Creditor in Suit
                        No.817-2015.
                        Mr. Rohaan Cama a/w Sapna Rachure for Plaintiff in S(L) No. 1242-
                        2018.
                        Mr. Ziyad Madon i/b. Kinnari Mehta for third party (Rushabh
                        Kavaya)
                        Mr. Karl Tamboly and Kuber Wagle for Defendant No.1.
                        Mr. Mihir D. Shah, partner of Defendant No.1 is present.
                        Mr. S. K. Dhekale, OSD, Court Receiver is present.
                        Mr. H. R. Patel, Master (Admn) from the office of Court Receiver is
                        present.

                                                          CORAM:- B. P. COLABAWALLA,J.

DATE :- MAY 04, 2022.

P. C.:

1. When the matter was on board on 21 st April, 2022 this

Court passed the following order:

                        Laxmi                                                            page 1 of 6
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1. On 6th April, 2022 this Court had passed a detailed order under which Mr. Mihir Shah, a Partner of Judgment Debtor No. 1 was inter alia directed to search out and thereafter handover the original title deeds of flat Nos. 601 and 602 in a building known as Gokul Ashirwaad, to the Court Receiver. This time was given because according to Mr. Shah, these original title deeds were in a godown at Bhiwandi. This Court had therefore directed that the search for the original title deeds would be conducted on 8 th April, 2022 along with one representative each of the Decree Holders and the Court Receiver's Office was also to depute one representative to oversee the entire search. The matter was thereafter adjourned to 12th April, 2022. It appears that the search conducted on 8th April, 2022 did not result in finding the original title deeds of flat Nos. 601 and 602. On 12 th April, 2022 the above matter was simpliciter adjourned to 18 th April, 2022 giving one more opportunity to Mr. Mihir Shah to find the original title deeds of flat Nos. 601 and 602.

2. When the matter was called out on 18th April, 2022, Mr. Mihir Shah informed the Court and personally undertook that he would definitely trace out the original title deeds of flat Nos. 601 and 602 and handover the same to the Court Receiver by 20th April, 2022. In these circumstances the above matter adjourned to today at 2.30 p.m.

3. Today when the matter is called out, Mr. Mihir Shah has informed the Court that despite his best efforts he has been unable to trace out the original title deeds of flat Nos. 601 and

602. He has profusely apologized to the Court for not producing the original documents. He however submitted that originally flat Nos. 601 and 602 were purchased from the Developer i.e. Heena Builders & Developers (Judgment Debtor No. 1) by one Krupashwar Builders and Developers Pvt. Ltd. (the name thereafter changed to Balkrishna Builders Pvt. Ltd.), and one Yadu Construction Pvt. Ltd. The aforesaid two companies were wholly controlled by Mr. Mihir Shah, his Mother and his Father. His father is no more and therefore, now, these companies are wholly controlled by Mr. Mihir Shah and his mother. He has tendered to the Court copies of the

Laxmi page 2 of 6 4 s-817-15..doc

Agreement entered into with Balkrishna Builders Ltd as well as Yadu Construction Pvt. Ltd., dated 25 th May, 2007 and 27th May, 2007 respectively. He submitted that the Agreement entered into with Balkrishna Builders Pvt. Ltd., is in relation to flat No. 601 and the agreement entered into with Yadu Construction Pvt. Ltd. is with reference to flat No. 602. He thereafter pointed out that since these agreements for sale were not registered, fresh agreements for sale were entered into with the aforesaid entities on 10th June, 2021. Those agreements have been duly registered.

4. He submitted that a true certified copy of those agreements have already been handed over to the Court Receiver and he submitted that the sale of flat Nos. 601 and 602 can be proceeded with by the Receiver on the basis of the true certified copies of the registered agreements dated 10 th June, 2021. He further submitted and undertook to the Court that the original title deeds are misplaced and no encumbrances have been created on flat Nos. 601 and/or 602 and the Receiver is free to sell the same. He has further undertaken to the Court that he shall file a FIR/Complaint with the Police and will also give a Public Notice that the original title deeds of flat Nos. 601 and 602 have been misplaced.

5. Mr. Shah has further stated that he shall give written undertaking to the Court Receiver indemnifying the successful purchaser of these flats from any action or claim that they may face from any third party.

6. Mr. Shah has stated that he shall carry out the aforesaid exercise of filing the FIR, giving a Public Notice as well as giving a written undertaking to the Court Receiver on or before 28th April, 2022.

7. It is needless to clarify that this order shall not preclude the Court Receiver to complete the process of sale of all the properties mentioned in the Court Receivers Report (including flat No. 601 and 602).

8. Place the above matter on 28th April, 2022 at 2.30 p.m.

Laxmi page 3 of 6 4 s-817-15..doc

9. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.

2. When the matter was called out today the Advocates

for the Judgment Debtors, and particularly Mr. Mihir Shah,

partner of Judgment Debtor No.1 Heena Builders and Developers

who is present in Court, tendered undertakings executed by Mr.

Mihir Shah on behalf of Judgment Debtor No.1, Yadu

Constructions, Balkrishna Builder Pvt. Ltd. and himself as

directed in paragraph 5 of the order dated 21 st April, 2022. The

learned Advocate for the Judgment Debtors also furnished in

Court the proof of filing of complaint for lost property as referred

to in paragraph 6 of the order dated 21 st April, 2022. He further

submits that the Judgment Debtors have issued a public notice in

the Free Press Journal (English) and Navshaki (Marathi) news

papers on 27th April, 2022 stating that the original title deeds of

Flat No.601/6-A and 602/6-B "Gokul Ashirwad" situated on Plot

No.14, N.S. Road, No.4 JVPD Scheme, Vile Parle (West) Mumbai-

400056 have been lost/misplaced.

3. The undertakings of Mr. Mihir Shah are accepted as

undertakings given to this Court. The Indemnity therein is duly

noted.

Laxmi                                                            page 4 of 6
                                                    4 s-817-15..doc

4. Mr. Mihir Shah has already clarified that the

Judgment Debtors have no objection to the sale of Flat No.601

and 602 Gokul Ashirwad" situated on Plot No.14, N.S. Road, No.4

JVPD Scheme, Vile Parle (West) Mumbai-400056, and

accordingly the Court Receiver is directed to take all necessary

steps in this regard in accordance with the previous orders,

expeditiously.

5. It is to be noted that though the orders which have

been passed refer to the Flats as bearing Nos.601 and 602 the

Agreements dated 10th June, 2021 refer to the same as 6A and 6B

respectively. To avoid any ambiguity in the future it is hereby

clarified that Flat No.601 is equivalent to and is the same as Flat

No.6A and Flat No.602 is equivalent to and is the same as Flat

No.6B. Mr. Mihir Shah who is present in Court confirms this.

Accordingly there is no doubt as to the identity of the said flats

and the same are accordingly directed to be sold as set out above

and in the previous orders.

6. List the Suits for directions to report compliance with the

steps required to be taken by Court Receiver, on 17 th June, 2022.

Laxmi                                                            page 5 of 6
                                                   4 s-817-15..doc

7. This order will be digitally signed by the Private

Secretary/Personal Assistant of this Court. All concerned will act on

production by fax or email of a digitally signed copy of this order.

                                       ( B. P. COLABAWALLA, J. )




Laxmi                                                           page 6 of 6