Evershine Builders Pvt Ltd vs Monarch And Qureshi Builders ...
2023 Latest Caselaw 1447 Bom

                                               27-CHS 916.2019 in EXA 2042.2022.doc

K.S. Jadhav
                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     ORDINARY ORIGINAL CIVIL JURISDICTION

                         CHAMBER SUMMONS NO.916 OF 2019
                                         IN
                      EXECUTION APPLICATION NO.2042 OF 2022

      Evershine Builders Pvt. Ltd.,                 ...Applicant/
                                                     Original Plaintiff
      In the matter between

      Evershine Builders Pvt. Ltd.,                 ...Plaintiff

               Versus
      M/s Monarch and Qureshi Builders              ...Defendant

                And

      Jayesh T. Shah & Ors.,                        ...Respondents
                                      ----------
     Mr. Simil Purohit a/w Rubin Vaki a/w Manish Doshi & Virti Shah i/b
     Vimadalal & Co., Advocates for Plaintiff.
     Mr. Rajiv Narula, Counsel a/w Mr. Tarang Jagtiani a/w Mr. Milind
     Mane i/b Jhangiani, Narula & Associates, Advocates for Respondent
     Nos. 1 & 2.
     Mr. Abhijit Kulkarni, Advocate for SRA.
                                      ----------

                                      CORAM : R.I. CHAGLA J.

                                      DATE         : 13TH FEBRUARY, 2023.
     ORDER :

1. The Chamber Summons has been taken out in the Execution

Application for execution of the Consent Decree in terms of the

27-CHS 916.2019 in EXA 2042.2022.doc

Consent Terms entered into between the Decree Holder and the

Judgment Debtor which was taken on record by this Court vide order

dated 8th June, 2010 and the Suit No.1335 of 2010 was decreed.

Further, Supplementary Consent Terms was arrived at between the

parties on 5th February, 2014 and taken on record by order dated 10 th

February, 2014. The Chamber Summons has sought relief in terms of

implementation of the Decree and Consent Terms dated 26 th May,

2010 read with the said order dated 10th February, 2014 and

Supplementary Consent Terms dated 5th February, 2014. Under the

Consent Terms and Supplementary Consent Terms, part Occupation

Certificate for the subject building known as " Evershine Cosmic" upto

the 17th Floor was to be obtained by Respondent Nos. 1 and 2.

2. The Respondent Nos. 3 to 6 (SRA) has filed Affidavit-in-Reply

dated 16th October, 2019, wherein they have stated that balance

payment of Rs.17 Lakhs is required to be made by the Developer, the

details of which have been mentioned in the Report, which is

annexed to the said Affidavit, apart from which, on the date of the

said Affidavit a total amount of Rs.10,11,26,600/- is to be paid. This

payment is by way of regularization charges apart from development

charges as the Developer had carried out work upto 21 st Floor

27-CHS 916.2019 in EXA 2042.2022.doc

without Commencement Certificate for which the Developer has to

regularize the work from 18 to 21st Floor.

3. The SRA, had by Letter dated 8th March, 2019 addressed to the

Respondent Nos. 1 and 2 considered the request for deferred

payments. However, it is noted that as per the policy, mandatory

details of first installment and post-dated Cheques in requisite

installment was to be submitted within seven days from issuing of the

letter. This has been responded to by Respondent Nos. 1 and 2 by

attaching 15 post-dated Cheques.

4. Mr. Narula, learned Counsel appearing for Respondent Nos. 1

and 2 has stated that the SRA for granting part Occupation Certificate

is only concerned with, whether the construction is according to the

sanctioned plan. He has in this context relied upon the decision of

this Court in Khandwala (SRA) Co-Operative Housing Society Ltd.

Vs. State of Maharashtra and Ors., Writ Petition (L) No.19339 of

2022, Order dated 7th February, 2023. He has also tendered a copy of

fresh Application for Occupation Certificate which has been sent to

SRA on 10th February, 2023 for part Occupation Certificate upto 17 th

Floor. He has submitted that the requisite statutory compliance in

respect of the NOC for part Occupation Certificate has been issued by

27-CHS 916.2019 in EXA 2042.2022.doc

the MCGM in view of statutory permissions having been obtained by

Respondent Nos. 1 and 2.

5. Mr. Simil Purohit, learned Counsel appearing for the Decree

Holder has submitted that the original Application for part

Occupation Certificate was made way back in the year 2014. There

has been no follow up by the Respondent Nos.1 and 2 till the year

2019, wherein they had requested for deferred payment and by way

of installments to the SRA. He has submitted that though the original

Consent Decree had been passed on 8 th June, 2010, in terms of the

the Consent Terms and Supplementary Consent Terms which

remained to be complied with by the Respondent Nos.1 and 2. He

has accordingly submitted that in the event this Court issues any

directions to the SRA, considering the fresh Application for

Occupation Certificate received by them on 10 th February, 2023, the

Respondent Nos. 1 and 2 should be directed to disclose on oath the

particulars of their assets which may be submitted in sealed cover.

6. Mr. Kulkarni, learned Counsel appearing for SRA states that the

fresh Application received on 10 th February, 2023 shall be considered

by the SRA. He has submitted that the amounts due to the SRA

mentioned in the Affidavit-in-Reply of SRA filed on 16 th October,

27-CHS 916.2019 in EXA 2042.2022.doc

2019 has further as accumulated and that the current amount due is

also required to be verified.

7. Having considered the above submissions, it would be

appropriate for the Respondent Nos. 1 and 2 to disclose on oath their

assets. The Respondent Nos. 1 and 2 shall file their Affidavit of

Disclosure, disclosing their assets as per Form No.16A of Order XXI,

Rule 41(2) of the Code of Civil Procedure in sealed cover within a

period of three weeks from the date of this order.

8. The Respondent Nos. 3 and 4 (SRA) shall take decision on the

fresh Application for part Occupation Certificate received on 10 th

February, 2023 within a period of three weeks from the date of this

order. They shall also file Affidavit bringing on record their decision

and also the current amount due and payable by the Respondent Nos.

1 and 2 to the SRA towards regularization and development charges.

The Affidavit shall be filed within a period of four weeks from today.

9. Place the Chamber Summons on 21st March, 2023, High on

Board.

[R.I. CHAGLA J.]