Bombay High Court
Rubi Ventures Pvt Ltd vs S S Enterprises on 21 February, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-OS:3651-DB
J-2647.odt
rajshree
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL APPEAL (L) NO.2647 OF 2025
IN
INTERIM APPLICATION (ST) NO.27637 OF 2021
ALONGWITH
INTERIM APPLICATION (L) NO.4453 OF 2025
IN
COMMERCIAL APPEAL (L) NO.2647 OF 2025
Shailesh Nagindas Shah & Ors. ] Appellants
vs.
Rubi Ventures Private Limited & Ors.] .. Respondents
ALONGWITH
COMMERCIAL APPEAL (L) NO.2721 OF 2025
IN
INTERIM APPLICATION (ST) NO.27637 OF 2021
WITH
INTERIM APPLICATION (L) NO.2990 OF 2025
IN
COMMERCIAL APPEAL (L) NO.2721 OF 2025
Ruby Ventures Pvt. Ltd. ] .. Appellant
vs.
S.S. Enterprises & Ors. ] .. Respondents
Mr.Mayur Khandeparkar a/w Mr.Yashodhan Divekar, Ms.Aneesa
Cheema, Mr.Rohan Karande and Mr.Arjun Divekar i/b Divekar & Co. for
the Appellant in COMAP(L) No.2721/2025.
Mr.Nishant Sasidharan a/w Ms.Gauri Mestha i/b LJ Law for Appellant in
Digitally signed
COMAP(L) No.2647/2025
by RAJSHREE
RAJSHREE KISHOR MORE
KISHOR Date:
MORE 2025.03.06
14:35:36
+0530 1/14
::: Uploaded on - 06/03/2025 ::: Downloaded on - 08/03/2025 05:02:21 :::
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CORAM : ALOK ARADHE, CJ. &
BHARATI DANGRE, J.
DATE : 21st FEBRUARY, 2025.
JUDGMENT (PER BHARATI DANGRE, J) :
-
1. Two Commercial Appeals listed before us raise a challenge to
the Order dated 11/12/2024 passed by the Single Judge on Interim
Application (L) NO.27637/2021 in Notice of Motion No.1939/2018 in
Commercial Suit No.1190/2018.
Commercial Appeal (L) No.2647/2025 is instituted by Shailesh
Gandhi and 3 others being Defendant Nos.4 to 7 in the Suit filed by
Rubi Ventures Ltd. The said Appellants are represented by Mr. Nishant
Sasidharan alongwith Ms.Gauri Mestha.
Another COMAP(L) No.2721/2025 is filed by Ruby Ventures Pvt.
Ltd., as according to it, the Single Judge has failed to take into
consideration the breaches on part of the Developer in complying its
obligations under registered Agreement for Sale and allowing the
attachment only in respect of Item Nos.1 and 2 of Exhibit 'A' would not
be sufficient to cover the claim of the Appellant, in the present Suit.
The said Appellant is represented by Advocate Mr.Mayur
Khandeparkar alongwith Mr.Yashodhan Divekar.
Both the Appeals are accompanied with Interim Applications
seeking stay of the impugned order.
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2. We have heard the respective counsel and perused the Appeal
memo as well as the interim applications filed therein.
3. Ruby Ventures Private Limited , a Company registered under the
Companies Act, 2013, instituted Commercial Suit No.1190/2018 by
impleading M/s. S.S. Enterprises, a partnership firm carrying on
business as Builder and Developer alongwith its partners, Defendant
Nos.2 to 7.
The Plaintiff being the purchaser of four office premises bearing
office No.701 to 704 in the building known as 'S.S. House' situated at
Nehru Nagar, Vileparle, Mumbai, under 4 duly registered Agreements
of Sale dated 20/03/2014, pleaded that they were desirous of
acquiring office space in Vileparle (E) to accommodate their growing
need and since it was informed by the Defendants that they were
constructing a modern commercial building and gave a representation
that the building was already constructed and they would receive the
full Occupation Certificate within few months, the Plaintiff agreed to
acquire the suit premises, four in number admeasuring 4800 sq. feet
carpet area from Defendant No.4.
Four distinct Agreements of Sale were, thereafter, entered into
and duly registered with the Sub Registrar of Assurances in
accordance with the provisions of Maharashtra Ownership Flats
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(Regulation of the Promotion of construction, sale, management and
transfer) Act, 1963 and Rules made thereunder.
Pursuant to the said Agreement, according to Plaintiff, a sum of
Rs.9,76,61,940/- i.e. almost 90% of the total consideration was paid to
Defendant No.1, the details of the payment being specifically set out in
the Plaint.
After making the aforesaid payment, the Plaintiff was required to
pay balance consideration amounting to Rs.1,08,51,336/- at the time
of taking possession of the suit premises and the payment was subject
to compliance of the obligations by the Defendants as stipulated in the
Agreement.
However, since the Defendants could not complete the
construction of the said building in timely manner and it was delayed,
and since it was learned by the Plaintiff that Defendant No.1 had
already transferred the unsold premises to its partners against paper
entries standing to their credit, with an intention to create bogus third
party rights over such offices in the building resulting in failure to
adhere to the assurances given to the Plaintiff, it aired its concern with
the Defendants, but could not get any clarity.
Somewhere at the end of 2015, the Plaintiff learnt that disputes
had arisen interse between the partners of Defendant No.1 Firm and
three groups with the rival claims with each other were formed, at the
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insistence of the Plaintiff and some other persons who were also
sailing in the same boat, Defendant Nos.2 to 7 eventually called for
meeting of the purchasers and assured that the construction was
completed to a large extent, but the Defendant NO.1-firm did not
possess sufficient monies to complete the remaining construction and
expressed an apprehension that without payment of the necessary
charges/ Premium towards open space deficiency, the MCGM would
not accord the Occupation Certificate. Because of the difficulty in
which the Plaintiff found itself, some of the purchasers in the office
building reluctantly agreed to pay the additional consideration for
acquiring additional car parking spaces as they intended not to risk in
making further payments to the Defendant NO.1-Firm and it was
suggested that the Co-operative Society of the purchasers of the office
premises be formed and willing purchasers can deposit the payment
with it.
4. As a consequence, a Co-operative Housing Society of
purchasers of offices in the building came to be registered in the name
of 'S.S. House Co-operative Premises Society Ltd.' and on 29/03/2016
some monies were deposited. However, ultimately with lot of efforts
when on 05/01/2018 the Plaintiff was handed over possession of suit
premises located on 7th floor of the building SS House, and was
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handed over Letter of Possession, it was noted that the area of the suit
premises was not the same which was agreed to be sold and when the
Plaintiff called for physical measurement to be carried out it learnt that
the Defendant had illegally filled the floor raise for flower bed area
adjoining the suit premises by extending the floor slab beyond the
MCGM approved plan to cover the areas in Office No.701 and 704 and
partially in Office No.702 and 703. It was discovered that the area
which was handed over was quite less than the area mentioned in the
Agreement in respect of all the four premises.
It is in the wake of aforesaid background, the Plaintiff filed the
Suit interalia for specific performance of the Agreement of Sale in
respect of the suit units.
A Notice of Motion No.1939/2018 for interim/ad interim relief was
also filed therein. Alongwith the Plaintiff, six other unit purchasers had
also filed six separate Suits thereby seeking almost identical reliefs.
5. On 18.07.2018, the Single Judge passed a common order
restraining Defendant Nos.4 to 7 from creating third party rights in
respect of the suit units. Defendant Nos.4 to 7 were also directed to
file an Affidavit disclosing their personal assets and also disclosing
particulars of the third party rights created in respect of the units, till
date.
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6. By order dated 23/07/2018 Defendant Nos.2 and 3 were also
directed to file a disclosure affidavit and were restrained from creating
any third party rights in respect of their personal assets.
The Defendants were conferred with liberty to move the Court
seeking modification of the order dated 18/07/2018 after they filed their
necessary Affidavits. Since the Notice of Motion was not being heard,
the Applicants/Defendant Nos.4 to 7 filed Appeal (L) No.534/2018 and
on 18/12/2018, the Division Bench formed an opinion that the
approach adopted by the Single Judge was not in tune with the settled
legal position as a drastic injunction order was passed by him without
assigning reason in support of such order, which is not permissible.
However, considering that the Single Judge himself had granted liberty
to move for modification and this liberty was invoked by the Appellants,
the Single Judge was directed to take up application for modification,
for consideration as no full fledged hearing was conducted. He was
also directed to consider the request of the Appellants restricting
injunction only so far as claim of damages made by the Plaintiffs in
the Plaint. It was also clearly stated that if the Appellants are in a
position to point out that the properties which are encumbered and
which are worth more than 35 crores, the Single Judge would take into
consideration that aspect of the matter for restricting the order of
injunction.
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Despite this clear direction, when the Motion was adjourned to a
future date by the Single Judge, the Division Bench in another Appeal
filed by Shailesh Shah and Others, took into consideration the Affidavit
filed alongwith the details of properties jointly owned by Defendant
Nos.1 and 7 and took note of the properties at Sr.No.1 and 6 in
Exhibit 'A', but the dispute existed whether the properties were
unencumbered or not and therefore, even if the two properties were to
be deleted from the list, the amount was roughly be estimated as Rs.19
Crores.
Further insofar as Unit Nos.101 and 102 owned by Defendant
Nos.4 and 7 in the suit building, the same was valued around
Rs.38,43,00,000/-. The statement on behalf of the Appellants that they
were willing to offer Rs.45 Crores by way of total security was
recorded and finding that it would be sufficient to meet the claim of the
Plaintiff, the Division Bench observed thus :-
" 6] Prima facie, even according to valuation of the claim of the Plaintiffs is
concerned, though for giving lesser area than one promised, is around
Rs.34,01,10,164/- the claim including damages has been worked out to
around Rs.57,87,33,379/-. Assuming for a moment that the claim of the
Plaintiffs is granted in entirety, it is not the present Appellants who would be
only liable to make the payments. Some liabilities would also come to the
share of other Defendants. In that view of the matter, in the peculiar facts
and circumstances of the case, we find that it will be in the interest of justice
that blanket order of injunction granted by the learned Trial Judge needs to
be quashed and set aside."
7. The order was modified by imposing injunction restraining the
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Defendants from creating any third party rights or dealing with the
properties listed in Exhibit A, until further orders are passed by the
Single Judge and also imposing injunction in respect of the fixed
deposits mentioned in Para 10B and the Appellants were restrained
from creating any third party rights or deal with in any manner with Unit
No.101 and 102 of the suit property until appropriate orders are passed
by the learned Single Jude.
8. The above order being passed on 11/12/2018, Defendant Nos.4
to 7 filed Interim Application on 23/11/2021 seeking vacation of the
order dated 21/12/2018 or in the alternative seeking modification of the
order and vacating the order in respect of the properties listed at
Sr.No.3 to 6 of Exhibit A annexed to the additional Affidavit dated
21/12/2018 as well as para 3 and 6 of the operative part of the order.
9. The learned Single Judge has passed an order on this IA (L)
No.27637/2021 taken out the Defendants 11/12/2024, which has given
rise to the two Appeals, which are listed before us.
In the background of the order dated 11/12/2018 and further
order dated 21/12/2018, Defendant Nos.4 to 7 filed Application seeking
vacation of the order in the wake of the changed circumstances.
Though on both the occasions the Division Bench passed the order, it
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directed listing of the Notice of Motion before the Single Judge and on
21/12/2018, while it modified the order dated 18/07/2018, 23/07/2018
and 09/08/2018 passed by the Single Judge, by the same order the
Defendants were directed not to deal with the properties (listed in
Annexure 'A' annexed to the additional Affidavit) as an ad interim order,
in the interest of the Plaintiffs, being seven in number who had filed
seven distinct Suits. The property mentioned in the said Affidavit was
valued as on the date of the order at Rs.53,77,82,623/-
The order dated 21/12/2018 also restrained the Defendants from
creating third party rights in respect of the Fixed Deposit Receipts as
set out in Para 10B of the additional Affidavit as well as Unit No.101
and 102 of the suit property until further orders are passed by the
Single Judge.
10. In the interregnum, out of the seven Suits filed in the High Court,
four Suits were settled and disposed off in terms of "Consent Terms"
and all the Plaintiffs and other unit purchasers paid the outstanding
amount under their respective Agreements pursuant to the settlement
arrived between them. One of the unit purchasers Haldiram Foods
International Pvt. Ltd. , Plaintiff in Commercial Suit No.1194/2018 in
principle settled the matter and agreed for the regularization./
construction of S.S. House and agreed to pay outstanding amount
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under the Suit Agreement. Another Plaintiff in Commercial Suit
No.1196/2018 could not settle the dispute since it was subjected to
insolvency.
11. The Plaintiff, Ruby Ventures, however, did not agree for
settlement and as per Defendant Nos.4 to 7 there is an amount of
Rs.1,13,06,050/- still due and payable by the Plaintiff to Defendant
No.1 and it is the specific case of the Defendant that the Plaintiff do
not want to pay the outstanding amount and is avoiding to enter the
Consent Terms.
In any case, in the wake of the aforesaid development, when out
of 7 Suits, 4 Suits are already settled and disposed off and in one Suit
settlement is already arrived at in principle and the Plaintiff has agreed
to make the payment, whereas, in one Suit the proceedings against
the Plaintiff are initiated by their secured creditor, and since earlier
order was passed for benefit of all the Plaintiffs, the order dated
21/12/2018 was prayed to be vacated or to modify the same so as to
limit it to the interest of the Plaintiff.
12. The Single Judge extensively heard the Interim Application
taken out by Applicants/Defendant Nos.4 to 7 and appreciated the
specific contention that 5 out of the 7 Suits as originally filed are
settled and disposed off in terms of the Consent Terms and the
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monetary claim in the pending Suits as on date was far less than what
existed on the date when the Court passed the order on 21/12/2018.
The monetary claim in the 2 pending Suits i.e. one by Ruby Ventures
Pvt. Ltd (1190/2018) and another by Shah Steel Impex (1197/2018),
the claim for lesser area is added as Rs.7,87,75,382/- whereas the
claim for damages in both the Suits is totalled as Rs.7,54,93,839/-.
Thus, it was specifically pointed out to the learned Judge that as
on date the aggregate claim in the two pending Suits including the
short fall in area as well as the claim for damages stand at
Rs.1,54,26,922/- and as far as Plaintiff Ruby Ventures is concerned, its
total claim is of Rs.13,51,54,231/-, but the assets of the Defendants
injuncted are more than the monetary claim by the Plaintiff in the suit.
13. Taking cognizance of the subsequent development being that 5
out of 7 Suits have been settled and if Interim Application is allowed in
terms of prayer clause (b), the assets injuncted would still be in
excess of monetary claims made in both the subsisting suits, the
learned Single Judge deemed it appropriate to allow the Interim
Application in terms of prayer clause (b) by specifically recording that it
would be wholly unconscionable for the injunction to subsist against all
the assets of the Applicants as set out in the order , in the wake of the
changed circumstances.
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14. Appreciating the argument of the Plaintiff advanced through Mr.
Khandeparkar, that the Developer is not applying for the Occupation
Certificate without any impediment, the order made it imperative for the
Developer to apply for Occupation Certificate in respect of the Plaintiffs'
premises and therefore, while allowing the Application in terms of
prayer clause (b) thereof it was made subject to the
Respondents/Developer applying for an Occupation Certificate in
respect of the Plaintiff's premises with a further clarification that the
order shall effect only on the on which the application for Occupation
Certificate is submitted. The learned Judge has, thereafter, issued
direction in prayer clause (b) of the operative portion to facilitate
presentation of the application for Occupation Certificate by appointing
a Senior Advocate of this Court as a Facilitator. In addition, he also
stipulated that in the even the Occupation Certificate is granted, within
a time bound period of four weeks, the Plaintiff shall make the payment
of balance consideration under the Agreement of Sale.
15. We fail to understand how any party could be aggrieved by the
said adjustment as the Applicants Shailash Shah and others are held
entitled to relief in terms of prayer clause (b) which is made subject to
the developer i.e. Defendant No.1 of which they are partners, to file an
Application for Occupation Certificate, as the Plaintiff shall not be kept
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away from the premises for which he is entitled. At the same time, if
the Occupation Certificate is obtained , the Plaintiff is directed to make
payment of balance consideration under the Agreement of Sale.
We find that the equities are perfectly well balanced by the
learned Single Judge in the order impugned before us and in any case
all rights and contentions of the parties in the Plaintiff's Notice of Motion
are kept expressly open.
Finding no legal infirmity in the impugned order by upholding the
same, both the Appeals alongwith the Interim Applications filed therein
are disposed off.
(BHARATI DANGRE, J.) (CHIEF JUSTICE)
