Alraf Abdul Kader And 3 ... vs Munawwar Asadulla Gour And Ors
2023 Latest Caselaw 2736 Bom

                                                               IA 970-23.doc




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

                  INTERIM APPLICATION NO. 970 OF 2023
                                   IN
                 CURT RECEIVER'S REPORT NO. 192 OF 2022
                                   IN
                    NOTICE OF MOTION NO. 1374 OF 2014
                                   IN
                          SUIT NO. 838 OF 2014


Altaf Abdul Kader & Ors.                                          .. Applicants
IN THE MATTER BETWEEN
Munawwar Asadulla Gour                                            ..Plaintiff

Versus

Eimmara Properties Venture & Ors.            .. Defendants
                              WITH
         CURT RECEIVER'S REPORT NO. 192 OF 2022
                               IN
            NOTICE OF MOTION NO. 1374 OF 2014
                               IN
                      SUIT NO. 838 OF 2014

Munawwar Asadulla Gour                                            ..Plaintiff

Versus

Eimmara Properties Venture & Ors.                                 .. Defendants


  Mr. Hasmit Trivedi a/w Karan Jakhor i/b. LJ Law, for the
  Plaintiff.

  Mr. Pradeep Thorat a/w Aniesh Jadhav i/b. Aditi Naikare for the
  Applicant in IA/211/2022.


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                                       MARCH 21, 2023

Laxmi




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                                                                IA 970-23.doc




     Mr. Shyam Kapadia a/w Simeen Shaikh & Priyanka Gharge i/b.
     S. K. Srivastava & Co., for Defendant Nos. 1 and 3.

     Mr. Karl Tamboly a/w. Kalpesh Joshi, Nisha Shah i/b. Kalpesh
     Joshi Associates for Defendant Nos. 5 and 8.

     Mrs. Rekha Rane, 2nd Assistant to the Court Receiver is present.

                           CORAM         : B. P. COLABAWALLA, J
                           DATE          : MARCH 21, 2023

P. C.

1.

The above Court Receiver's Report is filed seeking the

following reliefs:

"(A) What steps Court Receiver should take, to complete the construction/development of the suit property to the extent of obtaining Part Occupation Certificate of Flat No. 1101 and 902?

(B) What steps Court Receiver should take, to terminate respective allotment/agreement of Defendant Nos. 4 to 9 and 14, as they failed to deposit the balance consideration amount, as per the clause no. 34 of Order dated 6th September, 2019 of Hon'ble Court.

(C) What steps Court Receiver should take in respect of Flats of Defendant Nos. 4 to 9 and 14, after termination of their respective allotment/agreement?

(D) For such other and further reliefs this Hon'ble Court may deem fit.

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IA 970-23.doc

(E) Cost of this report be awarded at Rs. 5000/- and the Judgment Debtor may be directed to pay the same a time stipulated by the Hon'ble Court."

2. As far as the above Interim Application is concerned, the

same is filed by Defendant Nos. 5 to 8 seeking reliefs as under:

"a.That this Hon'ble Court be pleased to modify/recall the order dated 10th August, 2022 in terms of granting extension of time to the Applicants to deposit the balance consideration amount in such manner as this Hon'ble Court may deem fit in consonance with the commencement and progress of the balance work of the suit building by the agencies that may be appointed by the Ld. Court Receiver;

b. That this Hon'ble be pleased to direct the Ld. Court Receiver to take appropriate steps towards completion of the balance construction/development of the said Property in a time bound manner simultaneously upon deposit of the balance consideration amount by the Applicants and Defendant Nos. 4 and 9;

c. That this Hon'ble Court be pleased to grant a suitable extension of time to the Applicants to make payment of the balance amount in such installments as may be directed this Hon'ble Court in compliance of the Order dated 10th August, 2022;"

3. As far as the above Interim Application is concerned, Mr.

Tamboly, the learned Counsel appearing on behalf of Defendant Nos. 5

to 8 fairly submitted that he is only pressing the Interim Application in

terms of prayer clause (c) seeking an extension of time for the

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IA 970-23.doc

Applicants (Defendant Nos. 5 to 8) to make the payment of the balance

amount in instalments in compliance of the order dated 10 th August,

2022. Mr. Tamboly has also tendered affidavit-cum-undertakings of

each of the said Defendants, namely, Defendant Nos. 5, 6, 7 and 8

wherein it is stated that they will deposit the balance amount due and

payable by each of them in instalments on 1 st April, 2023, 1st May, 2023,

1st June, 2023, and the last instalment would be paid upon receiving

possession of their respective flats, or such time as this Court deems fit.

It is further stated in the undertakings that in the event they fail to

deposit any instalment, then the agreement for sale executed in favour

of each of these Defendants shall stand cancelled forthwith without any

further reference or further orders of this Court.

4. The learned Counsel appearing for the Plaintiff submitted

that as far as the last instalment is concerned, it cannot be that the

Defendants are allowed or permitted to pay the last instalment only on

receiving possession. That is not what the Court had ordered in its

earlier order dated 10th August, 2023. He, therefore, submitted that if

the Court is inclined to grant any extension of time, the last instalment

also has to be paid by 1st July, 2023 and no further time be granted.

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IA 970-23.doc

5. I have heard the learned Advocate appearing on behalf of

Defendant Nos. 5 to 8 as well as the learned Advocate appearing on

behalf of the Plaintiff. By order dated 10 th August, 2022, Defendant

Nos. 5 to 9 were directed to deposit 10% of the balance consideration

within a period of 30 days from 10 th August, 2022 and the balance

outstanding amount was to be deposited in four equal monthly

instalments starting from 12th October, 2022. It is an admitted position

before me that Defendant Nos. 5 to 8 have infact paid the aforesaid 10%

amount within 30 days of 10th August, 2022. However, the balance

amount has not been paid in four equal instalments, and it is for this

reason that the above Application is filed.

6. After hearing the parties, though I am not fully satisfied

that Defendant Nos. 5 to 8 deserve any extension, purely out of mercy,

the following order is passed:

a) Defendant Nos. 5 to 8 are directed to pay the balance

consideration in relation to their respective flats in four equal

monthly instalments. The 1st instalment shall be paid on or before

1st April, 2023; the 2nd instalment shall be paid on or before 1 st

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May, 2023; the 3rd instalment shall be paid on or before 1 st June,

2023; and the 4th/last instalment shall be paid on or before 1 st

July, 2023.

b) In the event there is a single default committed by any of these

Defendants, then in that event, the Agreement/Allotment Letter

issued by Defendant Nos. 1 and 3 in favour of Defendant Nos. 5 to

8 shall automatically stand cancelled without further reference to

the Court and the Court Receiver shall be entitled to sell the said

Flats to any third party by public auction.

c) If the Court Receiver requires any direction in that regard, the

Court Receiver shall file a separate Report.

7. The Interim Application No. 970 of 2023 (filed by

Defendant Nos. 5 to 8) is disposed of in the aforesaid terms.

8. As far as the Court Receiver's Report is concerned, as

mentioned earlier, the Receiver seeks a direction regarding termination

of the respective allotment/agreement entered into with Defendant Nos.

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4 to 9 and 14 as they have failed to deposit the balance consideration

amount as per the order dated 6th September, 2019.

9. As far as Defendant Nos. 5 to 8 are concerned, no directions

need to be passed regarding termination of their allotment/agreement

in light of the order passed above in the above Interim Application

No.970 of 2023.

10. As far as Defendant No.9 is concerned, he has admittedly

not complied with his obligations to make payment in relation to his

flats namely Flat Nos. 1601, 1602, 1701 and 1702 on the 16 th and 17th

floor on site and on the 10th and 11th floor as per the BMC plan. In these

circumstances, it is ordered that the agreement(s)/allotment(s) entered

into by Defendant Nos. 1 and 3 with Defendant No.9 now stand

terminated and the Court Receiver is directed to sell Flat Nos. 1601,

1602, 1701 and 1702 situated on the 16 th and 17th floor on site and on the

10th and 11th floor as per the BMC plan.

11. The Court Receiver, to take sale process forward, shall file a

separate Report and seek necessary directions.

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12. In so far as this Report (Court Receiver's Report No. 192 of

2022) seeking direction against Defendant Nos.4 and 14 is concerned,

the same is kept pending and shall be considered on 13 th April, 2023

along with Interim Application No. 211 of 2022.

13. 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 ].

MARCH 21, 2023

Laxmi