Bombay High Court
Pinak Bharat And Co. And Bina V. Advani vs Anil Ramrao Naik on 12 January, 2024
Author: R.I. Chagla
Bench: R.I. Chagla
14-Sheriff Report No.2.2024 with IA 436.2023 in COMEX 22.2016.doc
Kavita S. J.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
SHERIFF'S REPORT NO.2 OF 2024
IN
COMMERCIAL EXECUTION APPLICATION NO.22 OF 2016
Pinak Bharat & Co., & Bina V. Advani ...Decree Holders/
Applicants
Versus
Anil Ramrao Naik & Ors., ...Defendants
WITH
INTERIM APPLICATION NO.436 OF 2023
IN
COMMERCIAL ADMIRALTY SUIT NO.22 OF 2016
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Mr. Prerak Sharma, Advocate for Decree Holders/Applicants.
Ms. Dhruti Kapadia a/w Ms. Sheetal Metkari i/b Mr. Sunil Sonawane
for BMC.
Mr. Milind Jadhav, Sub-Engineer BP (City), BMC present.
Mrs. Jyoti Chavan, Additional G.P. present.
Mr. Archit Jayakar a/w Ms. Pooja Jadhav i/b Jayakar & Partners,
Advocates for the Applicant/Intervener in IA No.2105/2023.
Mr. D.S. Choudhari, Deputy Sheriff present.
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CORAM : R.I. CHAGLA, J.
DATE : 12TH JANUARY, 2024.
ORDER :
KAVITA
SUSHIL
JADHAV 1. The above Sheriff's Report has mentioned the steps taken
by the Sheriff's office for removal of the moveables which are lying in
14-Sheriff Report No.2.2024 with IA 436.2023 in COMEX 22.2016.doc
the subject premises in compliance with the order dated 7th
December, 2023.
2. It is mentioned in the said order that the Judgment Creditor
has not taken possession of the property despite the sale having been
finalized on 13th November, 2018 in view of the issue of stamp duty
being agitated before the Division Bench.
3. The learned Counsel appearing for the Auction
Purchaser/Judgment Creditor M/s Win Win Associates and Ms.
Chavan, learned AGP (Ist/A) for the State of Maharashtra jointly
state that the dispute with regard to the Stamp Duty is being
adjudicated by the Appellate Court and the matter has been placed
on 16th January, 2024. They state that no adjournment will be taken
when the matter comes up before the Appellate Bench.
3. The other issue pertains to the regularization charges and/
or penalty which were sought to be levied by the Brihanmumbai
Municipal Corporation and for which Mrs. Kapadia, learned Counsel
appears. She had on the previous date sought time to take
instructions with regard to the imposition of regularization charges
and/or penalty in the event the subject unauthorized structure is not
14-Sheriff Report No.2.2024 with IA 436.2023 in COMEX 22.2016.doc
being regularized and is being demolished. She has accordingly
taken the appropriate instructions. She has tendered Notice dated
11th January, 2024 issued by the Ex-Engineer (B.P.) City III, wherein
Brihanmumbai Municipal Corporation has taken a decision that there
will be no regularization charges and/or penalty to be recovered after
demolition of the subject unauthorized structure by the Project
Proponent/Applicant at his own risk and costs.
4. The Notice dated 11th January, 2024 is taken on record and
marked 'X' for identification.
5. Considering that the possession of the subject unauthorized
structure is with the Sheriff of Mumbai as mentioned in the Sheriff's
Report and the only reason why it hasn't been handed over to the
Auction Purchaser / Judgment Creditor is on account of the issue of
Stamp Duty still pending for adjudicating before the Appellate Court.
The subject unauthorized structure requires demolition in view of its
dilapidated condition. This can be taken care of by directing the
Sheriff of Mumbai to give license to the Auction Purchaser/Judgment
Creditor for entering the subject premises for the purpose of carrying
out demolition of the subject unauthorized structure. Further, Mrs.
14-Sheriff Report No.2.2024 with IA 436.2023 in COMEX 22.2016.doc
Kapadia states that the Notice dated 11th January, 2024 to the effect
that the regularization charges and penalty will not be recovered is
conditional upon the demolition of the subject unauthorized
structure. In that view of the matter, the following order is passed:
(i) The Sheriff of Mumbai shall give license to the
Auction Purchaser/Judgment Creditor to enter upon the
premises where the subject unauthorized structure is
situated for the purpose of carrying out demolition of the
subject unauthorized structure and which demolition shall
be carried out within a period of four weeks from the date
of this order. The subject unauthorized structure shall be
demolished at the cost of the Auction Purchaser/Judgment
Creditor.
(ii) The learned AGP and learned Counsel for the
Auction Purchaser/Judgment Creditor on the stated date
i.e. 16th January, 2024 when the Appellate Court is to hear
the issue of Stamp Duty, shall not take any adjournment and
shall make an endevour to complete their arguments before
the Appellate Court.
14-Sheriff Report No.2.2024 with IA 436.2023 in COMEX 22.2016.doc
(iii) In the event, the issue of Stamp Duty is not
determined within a period of four weeks from the date of
this Court, the Auction Purchaser/Judgment Creditor shall
hand over possession of the premises where the subject
unauthorized structure was situated prior to demolition to
the Sheriff of Mumbai.
(iv) Needless to state that once the subject
unauthorized structure is pulled down, the Brihanmumbai
Municipal Corporation will not recover regularization
charges and/or penalty from the Auction
Purchaser/Judgment Creditor.
(v) The Sheriff's Report No.2 of 2024 dated 6th
January, 2024 is accordingly disposed of.
[R.I. CHAGLA, J.]
