Pushkarkumar Ganeshlal Jain vs Yash Builders And Anr
2022 Latest Caselaw 11599 Bom

                                                                                            22.ia(l).31598.2022.doc
UTKARSH
KAKASAHEB
BHALERAO
Digitally signed by
UTKARSH
KAKASAHEB
BHALERAO
Date: 2022.11.18
                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
14:53:08 +0530


                                        ORDINARY ORIGINAL CIVIL JURISDICTION


                                      INTERIM APPLICATION (L) NO. 31598 OF 2022
                                                                  IN
                                     EXECUTION APPLICATION (L) NO. 4566 OF 2022


                      Pushkarkumar Ganeshlal Jain                           .. Applicant/Plaintiff
                                                                            Decree Holder
                      In the matter between:
                      Pushkarkumar Ganeshlal Jain                           .. Plaintiff/Decree Holder
                                  Vs.
                      Yash Builders & Anr.                                  .. Judgment Debtors/
                                                                            Defendants


                      Mehul Rathod for the Applicant.
                      J.K. Shah i/b R.J. Law for the Respondent.


                                                              CORAM:- B. P. COLABAWALLA,J.

DATE :- NOVEMBER 15, 2022.

P. C.:

1. On 23rd March, 2022 this Court passed a detailed order. The

operative part of which reads thus:

(a) M/s. Shetgiri and Associates are appointed as the valuer for the purpose of determining the market value of the non residential tenement admeasuring 92 sq.ft. (carpet) on the ground floor of a new building proposed to be constructed on land bearing CTS

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22.ia(l).31598.2022.doc

No. 437, 437/6 to 16 of Village Deonar, Taluka Kurla, Dist.

Mumbai Suburban situated at Arjun Gawand Estate opposite Telecom Factory, Sion, Trombay Road, Mumbai 400088 (the shop). The location of the said shop is more particularly set out in the plan annexed to the consent terms. It is agreed between the parties that the shop that has to be valued by M/s. Shetgiri and Associates is described in a plan annexed to the consent terms as Shop No.4 and which is described as "CONV. Shop No.4, 3.37 meters x 2.59 meters". The same is also marked in hatched lines. It is clarified that whilst determining the valuation, M/s. Shetgiri and Associates shall determine the value as if the shop is already constructed. The valuer is requested to carry out the aforesaid exercise within a period of four weeks from today. In the event, the valuer needs to take inspection to determine the market value, he may do so, in the presence of the Applicant and the Defendants. The valuer M/s. Shetgiri and Associates is requested to forward its valuation report to this Court in a sealed cover on or before 27th April, 2022. The fees of the valuer shall be paid by the Defendants.

(b) Mr. Purohit has stated on instructions of Defendant No.2, who is present in Court, and who is a proprietor of Defendant No.1, that the amount of Rs. 35 Lakhs shall be paid to the Applicants on or before 31st May, 2022. The said statement is accepted as an undertaking given to the Court.

(c) The Defendants shall be allowed to demolish structure in which the shop of the Applicant is situated. However, the Defendants shall not be allowed to carry out any construction after the aforesaid demolition until amount of Rs. 35 Lakhs is paid by the Defendants to the Applicant.

2. In fact, the amount of Rs. 35 Lakhs directed to be paid on or

before 31st May, 2022 (by the order dated 22 nd March, 2022) was a

figure which was a figure that I had suggested for the rent due and

payable upto February, 2022.

     Utkarsh                                                                     page 2 of 4
                                                           22.ia(l).31598.2022.doc

3. In fact, at that time, at the request of the Defendants/

Judgment Debtors I had impressed upon the Applicant/ Decree Holder

to accept this amount of Rs.35 Lakhs towards their dues of rent upto

February, 2022, which they accepted. It was on this basis that time was

given upto 31st May, 2022 to pay amount of Rs. 35 Lakhs towards

arrears of rent upto February, 2022. Admittedly, out of entire amount of

Rs.35 Lakhs only an amount of Rs.24 Lakhs has been paid and the

balance Rs.11 Lakhs is still outstanding.

4. Over and above this, the learned advocate appearing on

behalf of the Applicant/Decree Holder has brought to my attention that

for the period of March, 2022 till November, 2022 nothing has been

paid towards rent which now comes to a sum of Rs.13,18,637/- (which

includes interest and penalty as per the Consent Terms dated 5 th

February, 2018).

5. When I asked the learned advocate appearing on behalf of

the Defendants/Judgment Debtors, for the reasons of non-payment, he

fairly stated that due to some financial difficulty the payments could not

be made. He however assured the Court that the arrears of Rs.11 Lakh as

well as the rent due for the period of March, 2022 till November, 2022

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22.ia(l).31598.2022.doc

together with interest and penalty as per the Consent Terms dated 5 th

February, 2018 (amounting to Rs.13,18,637/-) shall be paid on or before

5th December, 2022. In other words it is stated before me that the

amount of Rs.24,18,637/- shall be paid to the Decree Holder on or

before 5th December, 2022. Accepting the aforesaid statement as an

undertaking given to the Court, the above matter is kept on 6 th

December, 2022 for compliance.

6. 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. )




     Utkarsh                                                       page 4 of 4