Bombay High Court
Imtiaz Sharafali Furniturewalla vs Adamji Mahomedally And 3 Ors on 21 February, 2023
Bench: R. I. Chagla
29-IA 1151.2020 in EXA 2128.2022.doc
K.S. Jadhav
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.1151 OF 2020
IN
EXECUTION APPLICATION NO.2128 OF 2022
Imtiaz Sharafali Furniturewala ...Applicant/
Decree Holder
Versus
Adamji Mahomedally & Ors., ...Respondents/
Judgment Debtor
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Mr. Rohan Savant, Counsel a/w Mr. Nishit Dhruva a/w Mr. Prakash
Shinde a/w Ms. Niyati Merchant a/w Mr. Yash Dhruva a/w Mr. Harsh
Sheth i/b M/s MDP & Partners, Advocates for Applicant/Decree
Holder.
Mr. R.M. Pardiwalla i/b Lata Kharwa, Advocate for Respondent Nos. 1
to 3.
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CORAM : R.I. CHAGLA J.
DATE : 21ST FEBRUARY, 2023.
ORDER :
1. The Interim Application has been taken out in Execution
Application.
2. The matter had come up on 8th March, 2022 and this Court
had directed the Partners of M/s Darshan Group, who are the
Developers to remain present before this Court on 15 th March, 2022.
29-IA 1151.2020 in EXA 2128.2022.doc
The copy of the order was to be served on Mr. Rajendra Jain and Mr.
Mohan Jain, the Partners of M/s Darshan Group at the address
mentioned in Paragraph 1 of the said order. It was made clear that if
the said persons do not appear before this Court on the next occasion
despite notice, this Court may be constrained to issue Bailable/Non-
Bailable Warrants to secure their presence. Thereafter, the matter
came up before this Court on 15 th March, 2022, on which date, the
aforementioned Partners of M/s Darshan Group were represented by
their Advocate and they were also present in Court.
3. The learned Advocate had undertaken to file Vakalatnama on
behalf of the Partners of M/s Darshan Group within a period of one
week from the date of the order. The matter was thereafter stood
over and papers and proceeding of the abovementioned Application
was directed to be sent on the Advocates for Mr. Rajendra Jain and
Mr. Mohan Jain by the Advocates for the Applicant during the course
of the day.
4. The papers and proceedings have been served by the
Advocates for the Applicant in compliance with the order dated 15th
March, 2022. Thereafter, the matter had come up on 8 th February,
2023, on which date, the Suit was stood over today.
29-IA 1151.2020 in EXA 2128.2022.doc
5. It is noted that inspite of the orders of this Court directing Mr.
Rajendra Jain and Mr. Mohan Jain, Partners of M/s Darshan Group as
well as their Advocates to remain present before the Court, they have
remained absent.
6. Accordingly, the office shall issue notice on Mr. Rajendra Jain
and Mr. Mohan Jain for M/s Darshan Group at the address mentioned
in Paragraph 1 of the order dated 8th March, 2022 to remain present
on the next date, returnable on 14th March, 2023.
7. Mr. Rohan Savant, learned Counsel appearing for the
Applicant/Decree Holder has taken this Court through the Consent
Terms entered into between the parties and the Award passed by the
learned Arbitrator dated 26th June, 2018 in terms of the Consent
Terms. Under the Consent Terms and in particular Clause 7 thereof,
it was agreed between the parties that in the event, the Permanent
Alternate Accommodation Agreement is not executed within 12
months from the date of the Consent Terms, the Partners of the
Respondent No.1-Firm will be at liberty to find the purchaser who is
willing to buy immovable property i.e. Shop No.1, German Darshan,
First Floor, Tulsiwadi, Tardeo, Mumbai-400034 at a minimum price of
the Ready Reckoner Rate. He has stated that the Permanent
29-IA 1151.2020 in EXA 2128.2022.doc
Alternate Accommodation has not been executed till date.
8. The learned Counsel appearing for the Respondent Nos. 1, 2
and 3 has submitted that there are proceedings in the Small Causes
Court, Mumbai which have been instituted by the Respondent No.1-
Firm for declaration that the Respondent No.1-Firm is the tenant in
respect of the subject premises. The suit in the Small Causes Court
has been filed by the Respondent No.1-Firm against the Landlord and
Developer M/s Darshan Group. He has stated that there are Consent
Terms filed in that Suit, wherein M/s Darshan Group has agreed to
execute Permanent Alternate Accommodation Agreement with the
Respondent No.1-Firm. He has submitted that by virtue of the
Consent Terms and Award dated 26 th June, 2018 passed in terms
thereof, the Respondent No.1-Firm has been dissolved.
9. The learned Counsel for the Respondents has further referred
to the further Agreement/Consent Terms between the parties, in
which the parties had agreed that on the date of dissolution of the
Respondent No.1-Firm, the Partners shall be liable to pay Municipal
Taxes and all other outgoings including Society Charges in equal
proportion. The Bank Account will be operational for a period of 12
months for depositing the agreed amount which will be received from
29-IA 1151.2020 in EXA 2128.2022.doc
the customer. There is a dispute between the Partners with regard to
the operation of the Bank Account. He has also sought leave to file
Affidavit-in-sur-Rejoinder which had not been accepted by the
Registrar, though attempted to be filed. A copy of the Affidavit-in-
sur-Rejoinder has been served on the other side. The Affidavit-in-sur-
Rejoinder dated 13th December, 2021 is tendered and taken on
record.
10. At Exhibit-B of the Affidavit-in-sur-Rejoinder, there is a Notice
issued under Section 209-A dated 8th February, 2021 by the MCGM,
wherein they have called upon the occupier of the premises to pay
the outstanding property taxes amounting to Rs.1,01,97,262/- to the
MCGM upto 31st March, 2021. He has stated that an amount of
approximately Rs.67 Lakhs has been paid by the Respondent No.1-
Firm to the MCGM. He has accordingly sought direction for payment
of balance amount of Municipal Taxes and other Society outgoings
which are required to be paid by the Claimant alongwith the
Respondent Nos. 2 to 4 in equal proportion.
11. The learned Counsel for the Respondent has also tendered
letter dated 10th February, 2023 from one Deep Purple Flow
addressed to the Respondent No.1-Firm where in it is mentioned that
29-IA 1151.2020 in EXA 2128.2022.doc
inspection of the furniture and goods lying in the subject premises
had been taken and the said Deep Purple Flow is interested in buying
the entire furniture and fixtures and articles lying in the subject
premises by offering full and final consideration of Rs.1.25 Crores
inclusive of GST. The said letter dated 10 th February, 2023 is taken on
record and marked 'X' for identification.
12. Having considered that M/s Darshan Group-Developer and its
aforementioned Partners though directed by this Court to remain
present, have not remained present either by themselves or through
their Advocate, the issue of the Permanent Alternate Accommodation
Agreement shall be taken up on next date when the Partners of M/s
Darshan Group and their Advocate shall remain present.
13. By consent of the parties, the following order is passed :
(i) The furniture and goods lying in the premises are
allowed to be sold to Deep Purple Flow and the sale proceeds
deposited with the Prothonotary and Senior Master of this
Court within a period of one week from the sale.
(ii) Upon deposit of the sale proceeds the parties are
permitted to apply for withdrawal of the sale proceeds and
29-IA 1151.2020 in EXA 2128.2022.doc
thereafter, for utilization of the sale proceeds to pay property
taxes of the MCGM and outgoings of the Society which are to
be paid in equal proportion as per the Consent Terms between
parties recorded by the learned Arbitrator including payment
of GST in equal proportion by the Claimant and Respondent.
(iii) Stand over to 14th March, 2023, High on Board.
[R.I. CHAGLA J.]
