Bombay High Court
Mohammed Eshaq Ali Vadgama ... vs Zahir Muslim Roowala And 3 Ors on 25 September, 2023
Bench: Shri Arif Doctor
2023:BHC-OS:10457-DB
1 _11_APPL-23949.23-as-IAL-24149.23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) No.23949 OF 2023
IN
INTERIM APPLICATION NO.464 OF 2023
IN
SUIT NO.16 OF 2023
WITH
INTERIM APPLICATION (L) NO.24149 OF 2023
IN
APPEAL (L) NO.23949 OF 2023
Mohammed Eshaq Ali Vadgama
Through its sole proprietory concern : Appellant/Applicant
M/s. Ali Haji Kasam & Co. (Original Defendants)
Vs.
Zahir Muslim Roowala : Respondents
and others (Original Plaintiff)
Mr. Harish Pandya a/w Mr. Malhar Zatakia and Mr. Aamir Koradia
i/by Mr. Rajendra Rathod for the Appellant.
Mr. Viraj Parekh a/w Mr. Umang Mehta and Advocate Aamir A.
i/by Dhruve Liladhar & Co. for the Respondents.
CORAM : DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
DATE : 25th SEPTEMBER, 2023
P.C. :
The captioned Appeal is not on board. By consent of
the learned counsel for the parties the same is taken on board
and heard finally.
LGC 1 of 16
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2. The present Appeal impugns two orders, the first
dated 16th December 2022 ("the first Impugned Order") and an
the second dated 2nd August 2023 ("the second Impugned
Order") passed in Interim Application No.464 of 2023 which was
taken out by the Respondents abovenamed who are Plaintiffs in
Suit No.16 of 2023.
3. By the Impugned Orders the Appellant has been
directed to execute Permanent Alternate Accommodation
Agreement ("the PAAA") in terms of Indemnity Bond/Agreement
dated 1st February 2022 which was entered into between the
Appellant and the Respondents.
4. Mr. Pandya, the learned counsel appearing on behalf
of the Appellant, invited our attention to the prayers in the Suit
and pointed out that by virtue of the Impugned Orders the Suit
had been decreed at the interim stage. He submitted that by
directing the parties to execute PAAA, the Suit had been decreed
in terms of prayer clause (a) and (b)(iii) which read as under :-
LGC 2 of 16
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"(a) This Hon'ble Court may be pleased to declare and
decree that the Agreement (labelled as Indemnity
Bond) dated 1st February, 2022 (Ex.A herein) is a
legal, valid and subsisting contract and is binding
on the Defendant.
(b) This Hon'ble Court may be pleased to decree and
direct the Defendant to specifically perform the
Agreement (Ex. A herein) and in particular direct
the Defendant :
(i) .........
(ii) .........
(iiii) To execute and register a Permanent Alternate
Accommodation Agreement with the Plaintiffs for
the Allotted Premises / Alternate Premises, in
accordance with the terms and conditions already
crystallised and recorded in the Agreement dated
1st February 2022 (Ex. A herein), and to bear all
the stamp duty and registration charges for the
same."
He then placed reliance upon a judgment of the Hon'ble
Supreme Court in the case of State of U.P. and ors Vs. Ram
Sukhi Devi1 with particular reference to paragraph 8 of the said
judgment to point out that the Hon'ble Supreme Court had on
numerous occasions observed that final relief sought for should
not be granted at an interim stage.
1 (2005) 9 SCC 733
LGC 3 of 16
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5. Mr. Pandya then submitted that the question of
executing the PAAA in the manner contemplated by the
Impugned Orders and in terms of the said Indemnity
Bond/Agreement would effectively be to compel the Parties to
act contrary to the statute. He submitted that since the
redevelopment was under the provisions of Regulation 33(7)(A)
of the Development Control and Promotion Regulations for
Greater Mumbai, 2034 (DCR 2034) since the Respondents were
only entitled to a the area as more particularly prescribed
therein. He submitted the area contemplated for in the Letter of
Undertaking was far greater and thus contrary to the statute and
hence could not be enforced.
In support of his contention that the Appellant could
not be directed to execute such an Agreement or that the
Respondents (tenants) were not entitled to anything more than
what the statute provided, he placed reliance upon a judgment
of the Division Bench of this Court in the case of Estella
Fernandes Nee Estella Fernandes Vs. Swarna Highrise
Constructions and Anr2.
2 2023 SCC Online Bom 1006
LGC 4 of 16
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6. He then submitted that the concession that was
recorded in paragraph 4 of the first Impugned Order was made
by the Appellant's son without any authority from the Appellant.
He submitted that the Appellant's son had attended Court since
the Appellant was of advanced age and would did not have to
face Court proceedings. He submitted that the Appellant's son
had on 16th December 2022 made a statement to the Court only
in an attempt to work out the matter and thus forwarded a draft
proposed PAAA. He submitted that the draft that had been
forwarded to the Respondents was in line with the PAAA which
had been executed with all other tenants. He also submitted that
the Respondents had a monetary claim for the alleged non-
payment of rent which, he pointed out that, was kept alive to be
gone into at a final hearing of the Interim Application. Basis this,
he submitted that the question of, at this stage, including any
such terms in the PAAA to be executed did not arise.
7. He then pointed out that the first Impugned Order did
LGC 5 of 16
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not stipulate that the terms of the Indemnity Bond/Agreement
be incorporated in the PAAA to be executed between the parties.
He submitted that on 2nd August 2023 when the matter was
heard, the Court had for the first time directed that the terms of
the Indemnity Bond/Agreement be incorporated in the PAAA to
be executed between the parties. He submitted that both the
Impugned Orders neither had considered nor had dealt with the
defence of the Appellants both on the law as well as on the facts
as also on merit. Basis the above, he submitted that the
Impugned Order was required to be quashed and set aside and
the PAAA, if any, to be executed was only in terms of the draft
sent to the Respondents.
8. Per contra, Mr. Parekh, the learned counsel appearing
on behalf of the Respondents at the outset invited our attention
to the first Impugned Order and pointed out therefrom that both
the impugned orders came to be passed in light of the statement
made on instructions on behalf of the Appellant as recorded in
paragraph 4 of the first impugned order which reads thus:-
LGC 6 of 16
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"4 At the ad-interim stage, the learned counsel
appearing on behalf of the Defendant (Developer),
on the instructions of the Defendant, who is
present in Court today, has stated that it is not
possible to give two flats of 600 sq.ft. each as the
flats constructed are of 440 sq.ft. RERA carpet
area. He stated, on instructions, that instead of
allotting two flats of 600 sq.ft., each, the
Defendant shall allot three flats of 440 sq.ft., each
to the Plaintiffs without the payment of any further
compensation. He stated that the flats to be
allotted to the Plaintiffs would be flat Nos.1101,
1102 and 1104 respectively. Flat Nos.1101 and
1102 face Morland Road and flat No.1104 is not
facing Morland Road. Mr. Dawar, the learned
counsel appearing on behalf of the Plaintiffs
submitted that the Plaintiffs, without prejudice to
their other rights and contentions, are willing to
accept the allotment of flat Nos.1101,1102 and
1104 respectively."
Basis the above, he submitted that the Appellants had, basis
their statement, invited both the Impugned Orders and therefore
could not now contend that the same were in the nature of final
reliefs which had been granted at the interim stage.
9. He then invited our attention to the Indemnity
Bond/Agreement and pointed out that in the present case the
Appellant had specifically recognized (a) that the Respondents
themselves were tenants; and (b) that the Respondents were
occupying the commercial premises which, which he submitted,
LGC 7 of 16
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were of immense value being located in South Mumbai (c) had
after negotiations agreed to allot the Respondents two
residential flats of 600 sq.ft. each and (d) agreed to pay rent.
Basis this he submitted that Respondents right and/or
entitlement stemmed not from the statutory provisions of DCR
33(7) but from a solemn Indemnity Bond/Agreement. He then
submitted that the Appellant had not made any Application for
recalling and/or clarifying the concession of the Appellant that
was recorded in the first Impugned Order. In support of his
contention that such a grievance could not be raised for the first
time in the Appeal but must necessarily be taken by way of an
Application before the Court where such a concession was
recorded, he placed reliance upon a judgment of the Hon'ble
Supreme Court in the case of State of Maharashtra Vs.
Ramdas Shrinivas Nayak and Anr.3 Mr. Parekh then
submitted that since no such Application was made before the
Learned Single Judge who recorded the concession, the
Appellant was estopped from now asserting to the contrary or
from resiling from the same.
3 (1982) 2 SCC 463
LGC 8 of 16
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10. Mr. Parekh then invited out attention to the Indemnity
Bond/Agreement and pointed out therefrom the following
clauses :-
H. The said Old Structure existing on the Property was
occupied by various tenants/occupants. The
Allottees herein are the Tenants in respect of Road
Facing Commercial Shop Premises No. "01", A Wing
of 43/45 admeasuring 455 sq. ft. situated on the
Ground Floor having a west facing frontage of 15
foot at Morland Road, in building known as
Sutterwala Building 'A' wing, situated on Morland
Road, Mumbai Central (East), Mumbai - 400 008,
standing on the said land and are in occupation and
use of the said Shop since 1965 with Electricity Bill
having current Consumer No 546-5000-035*0 with
Installation No 0378007 dated prior to 1969. The
said Shop is more particularly described in the
Second Schedule hereunder written (hereinafter
referred to as "the Tenanted Premises").
I. The Owner-Cum-Developer have therefore
approached the Allottees and proposed to redevelop
the Property including the Tenanted Premises, the
Developer has proposed to offer the Allottees two
Separate, self-contained of minimum 2 BHK Flats on
10th Floor, or 10th & 11th Floor in New Saleable
Building being "Tower A" with an aggregate RERA
Carpet area of 1200 Sq.ft (2 Nos 2BHK Flats of, 600
Sq.ft.RERA Carpet Area each) along with 2 Covered
Car Parking, on Ownership basis in the newly
constructed premises along with all the standard
saleable amenities in exchange of the Tenanted
Premises which is road facing and currently standing
on the said Land, free of costs and in lieu of the said
LGC 9 of 16
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Tenanted Premises upon such terms and conditions
as more particularly set-out herein.
J. The Allottees hereby agreed that the rent as on 2021
in respect of the Tenanted Premises payable by
Tenant to the Owner Cum Developer is Rs. 537/-
(Rupees Five Hundred Thirty-Seven Only) per month
inclusive of all taxes and/or permitted increase. Both
the parties hereby agree and confirm that the
Allottees have paid the entire rent/expenses/bills in
respect of the said Tenanted Premises till date and
there is nothing that is outstanding and due.
K. The Parties herein had negotiated and arrived at an
agreement that Owner cum Developer shall provide
to the Allotment of Permanent Alternate
Accommodation of Two Separate, Self-Contained and
preferably Adjoining Flats on 10th Floor, collectively
admeasuring 1200 Sq.ft. Rera carpet area (2 Nos
2BHK Flats of, 600 sq ft each) along with 2 Covered
Car Parking to the Allottees free of cost in the New
Residential Wing of the Building being Tower "A".
L. ....
M......
N. The Owner cum Developer has agreed to execute
this Indemnity Bond Keeping all terms and condition
of the Permanent Alternate Agreement intact and
same to be incepted in the original Permanent
Alternate Agreement as mentioned herein, while
executing the same after the permission of MHADA is
received for Non Residential to Residential
Conversion of said shop No 1,for occupant for
Sutterwala "A" Building having structure No 4066(1)
in C.S No 1665 of Sutterwala Building."
LGC 10 of 16
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Basis the above, he submitted that there was no question of now
contending that the Respondents were not entitled to the
execution of the PAAA in terms of the said Indemnity
Bond/Agreement or that the entitlement of the Respondent
would only be as per DCR 33(7).
11. He then submitted that the Appellant's contention
that the Respondents were only entitled to the area as
prescribed under DCR 33(7) was wholly misconceived, since the
MHADA being the statutory authority, had itself by its letter
dated 5th July 2022 addressed to the Appellant, had specifically
accepted the Indemnity Bond/Agreement and the Respondents'
entitlement thereunder. He then pointed out another letter of
MHADA dated 20th September 2022 addressed by the MHADA to
the Appellant in which the Appellant was directed to comply with
the PAAA and get the same duly registered as also to pay
suitable advance rent to the tenant/occupant. Basis this, he
submitted that the attempt now sought to be made by the
Appellant was to resile not only from a valid, subsisting, and
LGC 11 of 16
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binding Indemnity Bond/Agreement, but also from the solemn
statement made to this Court as recorded in the first impugned
order. He submitted that such a course of conduct ought not to
be permitted and thus submitted that the present Appeal ought
to be dismissed.
12. We have heard the learned counsel, considered their
rival contentions as also perused the record and find that the
present Appeal deserves to be dismissed for the following
reasons: -
(i) There is no dispute that today the concession made by the
Appellant as recorded in the first impugned order stands. The
Appellant has admittedly not taken out any application before
the Learned Single Judge who recorded the said concession to in
any manner suggest that the same was not correctly recorded.
Thus, as has been held by the Hon'ble Supreme Court in the
case State of Maharashtra Vs. Ramdas Shrinivas Nayak
and Anr. the matter must end there. We find that given the
LGC 12 of 16
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clear and unambiguous terms of Indemnity Bond/Agreement,
the question of the Appellants even contending that the same
was made on an erroneous appreciation of the law, does not
arise.
(ii) Given this, we find that there is no merit in the Appellant's
contention that by the Interim Application the reliefs in the
nature of final reliefs have been granted. Both the Impugned
Orders have correctly proceeded on the basis of the concession
made by the learned counsel on instructions as recorded in the
first Impugned Order. Thus, we find that the reliance placed
upon the judgment in the case of State of U.P and Ors. (supra)
is wholly misplaced. Additionally, we must note that the
judgment even on facts is wholly inapplicable as the same was
passed in the context of a Writ Petition filed under Article 226 of
the Constitution of India which is not so in the present case.
(iii) The contents that the execution of the PAAA in terms of the
Indemnity Bond/Agreement will be contrary to the provisions of
LGC 13 of 16
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DCR 33(7) is also wholly misplaced. The judgment of this Court
in the case of Estella Fernandes (supra) is also entirely
inapplicable. In the facts of the present case the Appellant has
by way of the Indemnity Bond/Agreement (a) recognized that
the Respondents are tenants of a commercial premises (b)
agreed to allotted two flats of 600 sq. ft. (c) agreed to pay rent
and (d) agreed to execute a PAAA. In the case of Estella
Fernandes the tenants had filed a Petition before this Court
insisting upon specific conditions being incorporated in their
respective PAAA which were contrary to the statue and not
based upon an Agreement entered into between the parties. It
was in this context that this Court found that the tenants could
not dictate such terms of a Developer/Landlord. We find that
there is nothing which prevents an Owner from voluntarily
agreeing to offer a tenant more area than what is prescribed
under 33(7) of the DCR 2034, which is precisely what has been
done in the present case. The Appellants have offered the
Respondents after negotiations two flats of an aggregate area of
1200 sq ft as recorded in lieu of their commercial premises as
LGC 14 of 16
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recorded in the Indemnity Bond/Agreement. This was
subsequently modified into giving three flats of 440 sq ft by the
concession made on behalf of the Appellants and as recorded in
the first impugned order. There is nothing whatsoever in our
view which would amount to this being contrary to the statute
since the same was done voluntarily by the Appellants. Thus,
said judgment in the case of Estella Fernandes (supra) will
have absolutely no application to the facts of the present case.
(iv) We also find that the MHADA being the competent
authority has also recognized the legality and validity of the said
Indemnity Bond/Agreement and directed the execution of the
PAAA in terms thereof.
(v) We also note that the concession recorded in the first
Impugned Order was objected to for the first time by the
Appellant after an inordinate long period of seven months at the
time of executing the PAAA. In any view, as noted above, no
application for recall and/or clarification of the said concession
LGC 15 of 16
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has even been made. The same therefore stands and must be
given effect to.
13. We thus find that there is absolutely no merit in the
present Appeal. Hence the same is dismissed.
14. In view of the dismissal of the Appeal, Interim
Application (L) No.24149 of 2023 does not survive and the same
is accordingly disposed of.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
LGC 16 of 16
