Bombay High Court
Janak @ Jaykar Sharadchandra Doshi vs Jayesh Rameshchandra Savla on 16 January, 2024
Author: R.I. Chagla
Bench: R.I. Chagla
12,34-IA(L) 31286.2022 in EXA(L) 31281.2022 with IA(L) 31708.2022 in EXA(L) 31703.2022 & Ors.doc
Kavita S. J.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO.31286 OF 2022
IN
EXECUTION APPLICATION (L) NO.31281 OF 2022
Kiran Purshottam Goradia ...Applicant
Versus
Janak @ Jaykar Sharadchandra Doshi ...Respondent
WITH
INTERIM APPLICATION (L) NO.31708 OF 2022
IN
EXECUTION APPLICATION (L) NO.31703 OF 2022
Jayesh Rameshchandra Savla ...Applicant
Versus
Janak @ Jaykar Sharadchandra Doshi ...Respondent
WITH
INTERIM APPLICATION (L) NO.41330 OF 2022
IN
COMM. ARBITRATION PETITION (L) NO.28865 OF 2022
Janak @ Jaykar Sharadchandra Doshi ...Applicant
Versus
Jayesh Rameshchandra Savla ...Respondent
KAVITA
SUSHIL
JADHAV WITH
Digitally signed
by KAVITA
SUSHIL
INTERIM APPLICATION (L) NO.33527 OF 2022
JADHAV
Date:
2024.01.17
18:37:04 +0530
IN
COMM. ARBITRATION PETITION (L) NO.28865 OF 2022
1/7
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12,34-IA(L) 31286.2022 in EXA(L) 31281.2022 with IA(L) 31708.2022 in EXA(L) 31703.2022 & Ors.doc
Janak @ Jaykar Sharadchandra Doshi ...Applicant
Versus
Jayesh Rameshchandra Savla ...Respondent
WITH
INTERIM APPLICATION (L) NO.28025 OF 2023
IN
COMM. ARBITRATION PETITION (L) NO.28865 OF 2022
Janak @ Jaykar Sharadchandra Doshi ...Applicant
Versus
Jayesh Rameshchandra Savla ...Respondent
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Mr. Karl Tamboly a/w Aadil Parsurampuria, Mr. Hemant Shah and Mr.
Hrishikesh Tajane i/b IC Legal, Advocates for the Applicant in
IA(L)/31708/2022 in EXA(L)/31703/2022.
Mr. Karl Tamboly a/w Aadil Parsurampuria i/b Mr. P.Y. Shankar a/w
Ms. Sandhya Yadav, Advocates for the Applicant in
IA(L)/31286/2022 in CARBP(L)/29374/2022.
Mr. P.D.P. Rao a/w Devika Purav and Mr. Sagar Pillai i/b. Deven
Dwarkadas & Partners for Petitioner in CARBP(L)/29374/2022.
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CORAM : R.I. CHAGLA, J.
DATE : 16TH JANUARY, 2024.
ORDER :
1. By order dated 10th October, 2023, this Court had
considered the prior order dated 7th December, 2022, by which the
Judgment Debtors were directed to pay transit rent as set out in
Paragraph 2 of the said order dated 10 th October, 2023. It is
12,34-IA(L) 31286.2022 in EXA(L) 31281.2022 with IA(L) 31708.2022 in EXA(L) 31703.2022 & Ors.doc
necessary to note by the prior order dated 7 th December, 2022 that
the transit rent accommodation for the period from 1 st January, 2023
upto 30th June, 2023 at the rate of Rs.3,00,000/- per month which
comes to Rs.18 Lakh was directed to be deposited. The prior transit
rent for the period from June 2020 upto 31 st December, 2022 had
already been withdrawn by the Applicant as recorded in the said
order. It was further recorded in the order dated 7 th December, 2022
that subject to deposit of the amount of Rs.18 Lakh, injunction
granted by the Sole Arbitrator in the order dated 16th August, 2022 in
respect of free sale component is vacated. Further direction was
issued to the Applicant to give an undertaking that he will
refund/bring back the amount, in the event the said order dated 16 th
August, 2022 was set aside in the Arbitration Appeal filed by the
Respondent under Section 34 of the Arbitration and Conciliation Act
which is directed to be heard together with the Execution
Application. Further direction was issued to the Applicant not to
create third party interest in respect of the said Flat.
2. In the said order dated 10 th October, 2023, it was observed
that the previous order dated 7 th December, 2022 was passed without
prejudice to the rights and contentions of both sides. Certain
12,34-IA(L) 31286.2022 in EXA(L) 31281.2022 with IA(L) 31708.2022 in EXA(L) 31703.2022 & Ors.doc
additional prayers were sought by Mr. Tamboly, learned Counsel
appearing for the Applicant viz. for grant of liberty to withdraw the
amount of Rs.18 Lakh which had been deposited by the Respondent
and for directions to be issued to the Respondent - Shri Doshi to
deposit the transit rent accommodation from July 2023 onwards.
3. It is noted that there were objections raised by the
Respondent on 10th October, 2023 that there was no Interim
Application for withdrawal and that the Arbitration Appeal under
Section 37 of the Arbitration Act requires to be heard. Further, there
was an issue with regard to non compliance as Occupation Certificate
remained to be granted and for which complaint has been filed with
the MHADA by the Applicant. Further, this Court had considered that
in Writ Petition (L) No.4402 of 2023 and other connected Writ
Petitions, order dated 11th August, 2023 has been passed by the
Division Bench of this Court, wherein the MCGM was directed to
process the Application for Occupation Certificate for the seventh
floor upwards. The Flats claimed by Applicants are on the eighth and
ninth floor. Further, this Court in the said order dated 10 th October,
2023 had not found any merit in the objection raised by the
Respondent about conduct of Mr. Goradia and Mr. Savla i.e.
12,34-IA(L) 31286.2022 in EXA(L) 31281.2022 with IA(L) 31708.2022 in EXA(L) 31703.2022 & Ors.doc
Applicants in creating hurdle in issuing the Occupation Certificate.
Accordingly, the prayer for permission to withdraw the deposited
amount of Rs.18 Lakh by the Applicant alongwith interest accrued
thereon was allowed and the Arbitration Petitions alongwith
connected Execution Applications and Interim Applications were
fixed for hearing on the next date. The Applicant was granted liberty
to press for issuing further directions about transit rent
accommodation.
4. Mr. Tamboly, learned Counsel for the Applicant has
accordingly sought directions for transit rent accommodation. The
Respondent despite being aware of the matters being listed on today's
board, failed to make an appearance. This Court has taken a
consistent view that transit rent payable cannot be withheld by the
Developer on any pretext. In the present case, there is no dispute
with regard to the Applicant's right to their respective Flats on the
eighth and ninth floors of the subject building, for which Occupation
Certificate is still to be obtained. The Division Bench of this Court by
order dated 11th August, 2023 in Writ Petition (L) No.4002 of 2023
and other connected Writ Petition had provided that the MCGM will
process the application for Occupation Certificate for the seventh
12,34-IA(L) 31286.2022 in EXA(L) 31281.2022 with IA(L) 31708.2022 in EXA(L) 31703.2022 & Ors.doc
floor till last floor of the subject building. The Respondent has till
date not been able to obtain the Occupation Certificate.
5. Thus, there can be no dispute that transit rent
accommodation is payable till date and having noted that by the prior
order dated 7th December, 2022, directions had issued to the
Respondent to deposit transit rent for the period from 1 st January,
2023 upto 30th June, 2023 which comes to Rs.18 Lakh and which
transit rent was permitted to be withdrawn by the Applicant
alongwith accrued interest thereon by the subsequent order dated
10th October, 2023. Similar directions are required to be issued for
deposit of transit rent the period from 1 st July, 2023 till 31st
December, 2023.
6. The Respondent cannot contend that merely because
Arbitration Appeal filed under Section 37 of the Arbitration Act
requires hearing, the transit rent accommodation is to be withheld.
7. In view thereof, the following order is passed:
(i) The Respondent shall deposit the transit rent of
Rs.18 Lakh for a period of six months for the period of six
12,34-IA(L) 31286.2022 in EXA(L) 31281.2022 with IA(L) 31708.2022 in EXA(L) 31703.2022 & Ors.doc
months from 1st July, 2023 till 31st December, 2023 within a
period of two weeks from the date of this order.
(ii) The Arbitration Petition / Appeal filed under
Section 37 of the Arbitration Act shall be heard on the next
date.
(iii) The permission of the Applicant to withdraw the
said amount of Rs.18 Lakh will depend on the outcome of
the Arbitration Petition / appeal to be heard by this Court.
(iv) Place the Arbitration Petition / Appeal under
Section 37 of the Arbitration Act alongwith other matters
on 22nd January, 2024, High on Board.
[R.I. CHAGLA, J.]
