Bombay High Court
Achala Rajesh Agarwal (Nominee) vs Vinod Narayandas Punjabi on 2 February, 2024
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2024:BHC-OS:2025
LAXMIKANT GOPAL
GOPAL CHANDAN
CHANDAN Date:
2024.02.06
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) NO.1272 OF 2024
IN
INTERIM APPLICATION (L) NO.22770 OF 2023
IN
SUIT NO.582 OF 2013
WITH
INTERIM APPLICATION (L) NO.1277 OF 2024
IN
APPEAL (L) NO.1272 OF 2024
Mrs. Achala Rajesh Agarwal (Nominee)
Through Mr. Lakvinder Atma
Singh Randhawa : Appellant/Applicant
constituted attorney for (Defendant No.1B)
Achala Rajesh Agarwal
Vs.
Vinod Narayandas Punjabi and ors. : Respondents.
ALONG WITH
APPEAL (L) NO.1280 OF 2024
IN
INTERIM APPLICATION (L) NO.372 OF 2024
IN
SUIT NO.582 OF 2013
WITH
INTERIM APPLICATION (L) NO.1287 OF 2024
IN
APPEAL (L) NO.1280 OF 2024
Mrs. Achala Rajesh Agarwal (Nominee)
Through Mr. Lakvinder Atma
Singh Randhawa : Appellant/Applicant
constituted attorney for (Defendant No.1B)
Achala Rajesh Agarwal
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Vs.
Vinod Narayandas Punjabi and ors. : Respondents.
ALONG WITH
APPEAL NO.28 OF 2024
IN
INTERIM APPLICATION (L) NO.22770 OF 2023
IN
SUIT NO.582 OF 2013
WITH
INTERIM APPLICATION (L) NO.2498 OF 2024
IN
APPEAL NO.28 OF 2024
Sachi Shrivastava (Adopted Daughter) : Appellant/Applicant
(Defendant No.1A)
Vs.
Vinod Narayndas Punjab and ors. : Respondents.
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Mr. Vishal Kanade a/w Mr. Monil Punjabi i/by Vinod Sharma for
the Appellant in Appeal (L) Nos. 1272/2024 and 1280/2024
(Achala Agarwal).
Mr. Prathamesh Bhargude a/w Mr. Sumit Sonare i/by Mr. Aditya
Raktade for the Appellant in Appeal No.28 of 2024 and for
Respondent No.2 in Appeal (L) Nos. 1272/2024 and 1280/2024.
Mr. Anoshak Daver i/by Mr. Mayur Shikhare for Respondent No.1
in all the Appeals.
Mr. Shanay Shah a/w Mr. Sanmish Gala and Mr. Jigar Shah i/by
Markand Gandhi & Co. for Respondent No.4 in all the Appeals.
Mrs. S. M. Vengurlekar - Section Officer from Court Receiver's
office present.
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CORAM : DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
DATE : 02nd FEBRUARY, 2024
P.C. :
1. All the above-mentioned Appeals arise out of the
same facts and impugn the same order i.e. order dated 10 th
January 2024. It is thus that all the captioned Appeals are being
disposed of by this common order.
2. In order to give context to the rival contentions, it is
useful to set out the broad facts. For the sake of ease, reference
to the Parties in this order shall be as the Parties are arrayed in
Appeal (L) No.1280 of 2024.
3. The disputes and differences between the Parties are
in respect of Flat No. B-35/108, 1 st floor, Sheetal, Apna Ghar Unit
No.9 CHS Ltd, Swami Samarth Nagar, Lokhandwala Complex,
Andheri (West), Mumbai - 400 0053 ("the said flat").
Respondent No.1 i.e. the Plaintiff in the captioned Suit claims
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entailment to the said flat on the basis of a Memorandum of
Understanding ("MOU") entered into by Respondent No. 1 with
one Smt. Asha Ganesh Shrivastava (since deceased) stated to
be the owner of the said flat. The captioned Suit has been filed
inter alia seeking specific performance of the MOU.
4. Since the building in which the said flat is housed was
undergoing redevelopment, Respondent No. 1 took out Interim
Application No. (L) No.22770 of 2023 seeking the following
reliefs, viz.
"a. The Court Receiver may be appointed to take the
possession of the suit premises i.e. Flat No.B-
35/108, 1st Floor, Sheetal, Apna Ghar Unit No.9
CHS Ltd, Swami Samarth Nagar, Lokhandwala
Complex, Andheri (West), Mumbai - 400 053
admeasuring about 770 sq.ft. terrace area
attached to the said flat from Defendant Nos.1(A)
and 1(B).
b. The Court Receiver may be appointed to take the
original Title Deed and original Share Certificate of
the suit premises from Defendant 1(B).
c. The Court Receiver may be directed to handover
the possession of the suit premises to Defendant
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No.3 for redevelopment of the Defendant No.2
property.
d. The Court Receiver may be appointed to execute
Permanent Alternate Accommodation Agreement
(PAAA) with the Defendant No.3 as per the terms
of Development Agreement dated 19th January,
2023.
e. The Court Receiver may be appointed to receive
back the possession from Defendant No.3 of
Permanent Alternate Accommodation Flat, once the
Re-Development of Defendant No.2 society is
completed.
f. The Defendant No.3 may be directed to deposit the
cheques pertaining to Monthly Displacement
Compensation, Onetime Relocation Expenses,
Onetime Brokerage Charges and Hardship
Compensation towards the suit premises with the
Court Receiver as per the terms of Development
Agreement dated 19th January, 2023."
The Appellant in Appeal No. (L) No.1280 of 2024 (Defendant No.
1(B) to the Suit) claims entitlement to the said flat under a Will
stated to be of the deceased. Conversely, Respondent No. 2 in
Appeal (L) No. 1280 of 2024 who is the Appellant in Appeal
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No.28 of 2024 (Defendant No. 1(A) to the Suit) claims to be the
adopted daughter of the deceased and thus claims entitlement
to the said flat on this basis. It was thus that the Appellant in
Appeal (L) No.1280 of 2024 took out an Interim Application inter
alia seeking payment of transit rent, execution of the Permanent
Alternate Accommodation Agreement ("PAAA") as also that
possession of the redeveloped flat be handed over to the
Appellant.
5. Both the aforesaid Interim Applications were disposed
of by the Impugned Order by which the Learned Judge directed
as follows, viz.
"(i) The Court Receiver of this Court is appointed to
take possession of the suit Flat. Both, Defendant
Nos.1A and 1B shall, either personally or through
their Attorneys, remain present at the suit flat on
15 January 2024 at 11.00 a.m. and handover
possession of the suit Flat to the Court Receiver.
(ii) Defendant No.3 shall execute PAAA with the Court
Receiver on same terms and conditions and in the
same format as is executed with the other flat
owners.
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(iii) Defendant No.3 shall pay various amounts arising
out of redevelopment process including the
monthly displacement compensation in respect of
the suit flat, by depositing the same in this Court,
which shall be invested in fixed deposit.
(iv) The Court Receiver shall take over possession of
the redeveloped Flat as and when offered by
Defendant No.3 and shall apply to this Court for
seeking further directions about arrangements to
be made in respect of the redeveloped flat.
(v) After taking possession of the suit flat, the Court
Receiver shall make an Inventory of the movable
articles in the suit flat and Defendant Nos.1A and
1B shall co-operate with the Court Receiver and
take back possession of the said movable articles
so that the suit flat can be demolished for carrying
out the redevelopment process.
(vi) Within one week from the date of taking of
possession of the suit flat, the possession thereof
shall be handed over to Defendant No.3."
6. Mr. Kanade learned counsel appearing on behalf of the
Appellant in Appeal (L) Nos.1272 of 2024 and 1280 of 2024, at
the outset, fairly submitted that possession of the said flat was
not taken from his client who, he submitted, was a resident of
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the United States. He however submitted that since (a) the said
flat was bequeathed to his client and (b) the statement made by
his client, as recorded in the order dated 13 th April 2023 that his
client shall not sell, encumber, part with possession and/or
create any third party right, title and/or interest in respect of the
said flat, the PAAA ought to be entered into with his client as
also the benefits of the redevelopment i.e. transit rent, corpus
etc. should be made payable to his client.
7. Per contra, Mr. Bhargude, appearing on behalf of the
Appellant in Appeal No.28 of 2024 ( Respondent No.2 to Appeal
(L) Nos.1272 of 2024 and 1280 of 2024) submitted that Mr.
Kanade's client did not have any right in preasenti. He submitted
that if at all, the right would accrue only on the grant of
probate/letters of administration in respect of the Will
propounded by Mr. Kanade's client which he strongly disputed.
Conversely, he submitted that there was no dispute nor
challenge till date to the fact that his client was the adopted
daughter of the deceased. He submitted that the lock of the said
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flat was infact opened with the key which was provided by his
client and thus his client had a present and subsisting right qua
the possession/entitlement of the said flat. Basis this he
submitted that the benefits of redevelopment and the PAAA
ought to be entered into with his client.
8. We have heard the learned counsel and as observed
by Learned Judge in the Impugned Order the law pertaining
inter alia to whom transit rent and the other benefits of
redevelopment has been well settled by catena of judgments
including in the matter of Vipul Fatehchand Shah Vs. Nav
Samir Cooperative Housing Society & ors.1 which reiterates
that payment of transit rent and other benefits of redevelopment
are to be made to a person from whom possession of the flat in
question is taken. This would include the person from whom
possession is taken being handed over the flat in the
redeveloped building as well. In the present case as correctly
observed by the Learned Judge, there exist serious disputes qua
title/entitlement to the said flat. However, and crucially, in the
1 Order dated 8th October 2023 in Commercial Appeal No.100 of 2023
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present case it is clear that the said flat was lying locked and
unoccupied. Thus, the question of payment of transit rent and/or
displacement allowance to anyone at this stage would not arise
nor would the question of with whom the PAAA is to be executed
presently arise in view of the rival claims. Given this, we find
that the Learned Judge has considering all these facts and
balancing the equities passed the Impugned Order. We find
absolutely no infirmity in the said order.
9. For the aforesaid reasons, the captioned Appeals are
dismissed.
10. In view of the dismissal of the Appeals, the Interim
Applications do not survive and the same are also disposed of.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
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