Bombay High Court
Ritesh Haldar vs Elite Housing Llp on 24 June, 2025
2025:BHC-OS:9704-DB
Megha 10_carbal_14486_2025_fc.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL ARBITRATION APPEAL (L) NO.14486 OF 2025
WITH
INTERIM APPLICATION (L) NO.14544 OF 2025
IN
COMMERCIAL ARBITRATION APPEAL (L) NO.14486 OF 2025
Ritesh Haldar ...Appellant
(Orig. Respondent. No.7)
V/s.
Elite Housing LLP and Ors. ...Respondents
WITH
COMMERCIAL ARBITRATION APPEAL (L) NO.15542 OF 2025
WITH
INTERIM APPLICATION (L) NO.16453 OF 2025
IN
COMMERCIAL ARBITRATION APPEAL (L) NO.15542 OF 2025
Rohitesh Haldar ...Appellant
V/s.
Elite Housing LLP and Ors. ...Respondents
______________
Mr. Mayur Khandeparkar with Mr. Nivit Srivastava, Ms.
Sneha Patil, Mr. Yash Chedda, Brena Gala and Mr. Rohit Bamne
i/b. M/s. Maniar Srivastava Associates for the Appellant in
CARBAL/14486/2025 & for Respondent No.8 in
CARBAL/15542/2025.
Mr. Pravin Samdani, Senior Advocate with Mr. Sahil Saiyed &
Digitally
signed by
MEGHA
SHREEDHAR
Mr. Amit Padwal for the Appellant in CARBAL/15542/2025.
MEGHA
SHREEDHAR PARAB
PARAB Date:
2025.07.01
10:54:04
+0530
Page No. 1 of 14
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Mr. Rohaan Cama with Mr. Kyrys Modi & Mr. Shanmukh
Puranik i/b. M/s. Narayanan & Narayanan for Respondent No.1
in both the Appeals.
Ms. Sunita Serrao with Mr. Krisandra Hegde i/b. M/s. P. Vas &
Co. for Respondent No.2.
Mr. Nimay Dave with Ms. Nitya Shah, Ms. Aditi Bhargavan &
Ms. Shitha Jain i/b. M/s. Divya Shah Associates for Respondent
No.9 in CARBAL/15542/2025 and for Respondent No.4 in
CARBAL/14486/2025.
______________
CORAM: ALOK ARADHE, CJ. &
SANDEEP V. MARNE, J.
Dated: 24 JUNE 2025.
Judgment: (Per Sandeep V. Marne J.)
1) Commercial Arbitration Appeal (L) No. 14486/2025 is
not on board. Upon request made by the learned counsel
appearing for the parties, the same is taken on board and heard
along with Commercial Arbitration Appeal (L) No. 15542/2025.
Both the Appeals are admitted and with the consent of the
learned counsel appearing for parties, they are taken up for final
disposal.
2) These two appeals are filed under Section 37 of the
Arbitration and Conciliation Act, 1996 (the Act) challenging the
judgment and order dated 16 April 2025 passed by the learned
Single Judge of this Court in Petition filed by Respondent No.1
seeking interim measures under Section 9 of the Act. By the
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impugned order, the learned Single Judge has granted liberty to
Respondent No. 1 to approach the Court Receiver for execution of
tripartite Agreement in respect of the Flat in question for
carrying out redevelopment of the building, with further
direction to take over possession thereof and hand over the same
to Respondent No. 1-Developer for demolition of the building.
The impugned Order directs payment of all amounts arising out
of package towards redevelopment of the flat, including the
corpus and transit rent, to be paid to Smt. Leena Rohitesh
Haldar (Leena), who is found to be in possession of said Flat.
Upon completion of the redevelopment process, possession of new
flat is also directed to be handed over to Leena. Two of the
Haldar family members - Ritesh Haldar (Ritesh) and Rohitesh
Haldar (Rohitesh) are aggrieved by the judgment and order
dated 16 April 2025 and have filed the present appeals.
3) A very brief factual background leading to filing of
the present Appeals is stated thus:
Flat No.12, situated in the building 'Spectrum' Road No. 14-B,
Khar (W), Mumbai (the Flat) is the subject matter of
controversy. Haldar family comprises of three brothers: Ritesh,
Rohitesh and Rajesh. Leena is the wife of Rohitesh. The Flat is
claimed to have been purchased by Ritesh, but at the time of
applying for society membership, it is claimed that the name of
mother-Sabita Haldar was also included in respect of the flat.
Ritesh claims that after marriage between his brother Rohitesh
with Leena, he permitted the duo to occupy the flat as gratuitous
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licensees. On 8th May 2002, the mother passed away and Ritesh
claims exclusive ownership in respect of the flat, whereas his two
brothers-Rohitesh and Rajesh claim that the mother had 50%
share in the flat and after her death, her share has devolved on
to them. Though Rohitesh and Leena have been occupying the
flat (as gratuitous licensees, as per Ritesh), there appears to be a
marital discord between the couple and Leena claims that her
husband-Rohitesh no longer occupies the flat, in which she
resides along with her two children. It is claimed that Rohitesh
owns a separate flat in the building Sangeeta Apartments, in
which he resides separately from his wife. The building in which
the flat is situated has been taken up for redevelopment and the
society has executed agreement with the developer (Elite Homes
LLP) on 31 July 2024. Ritesh claims that Rohitesh has
surrendered his alleged 16.67% share in the flat, which he was
erroneously claiming, vide surrender deed dated 24 February
2025. The developer has called upon Ritesh to handover
possession of the flat for demolition of the building by executing
an Agreement for Permanent Alternate Accommodation (PAAA).
Ritesh is willing to handover possession of the flat to the
developer and to execute the PAAA. However, Leena has raised a
claim that the flat is her matrimonial house and staked a claim
to receive rental compensation from the developer.
4) In the above factual background, the developer filed
Commercial Arbitration Petition No. 155 of 2025 under Section 9
of the Act seeking interim measures for appointment of Court
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Receiver in respect of the flat for securing its possession. By
Order dated 16 April 2025, the learned Single Judge has allowed
the Petition. By the impugned order, the learned Judge has
granted liberty to Respondent No. 1 to approach the Court
Receiver for execution of tripartite Agreement in respect of Flat
No. 12 for carrying out redevelopment of the building.
Respondent No.1 has been directed to issue notice to all members
of the society including the Appellants and Court Receiver
intimating a specific and reasonable deadline for vacation of Flat
No. 12. It is further directed that in the event of non-vacation of
possession of flat No. 12, the Court Receiver shall be entitled to
take possession thereof by seeking aid of local police station. It is
further directed that all amounts payable in respect of Flat No.
12 towards hardship compensation, transit accommodation rent,
brokerage and displacement compensation shall be paid by the
Court Receiver to Leena, who is found to be in possession of Flat
No.12. It is further directed that upon completion of construction
of Flat No.801 (in lieu of Flat No. 12), possession thereof shall be
handed over to Leena. Liberty has been granted to the other
members of Haldar family to approach relevant forum to stake
their claims to the flat in question. Ritesh and Rohitesh are
aggrieved by the judgment and order dated 16 April 2025 and
have filed the present appeals.
5) We have heard Mr. Khandeparkar, the learned
counsel appearing for the Appellant-Ritesh in Commercial
Arbitration Appeal (L) No.14486 of 2025, Mr. Samdani, the
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learned senior advocate appearing for the Appellant-Rohitesh in
Commercial Arbitration Appeal (L) No.15542 of 2025, Mr. Dave,
the learned counsel appearing for Respondent No.9- Leena, Mr.
Rohaan Cama, the learned counsel appearing for Respondent
No.1-M/s. Elite Housing LLP (original Petitioner) and Smt.
Serrao, the learned counsel appearing for Respondent No.2-
Spectrum Co-operative Housing Society.
6) After having considered the submissions canvassed
by the learned counsel appearing for the parties, it is seen that
Leena claims exclusive possession of the flat, whereas her
husband -Rohitesh claims that he too resides in the said flat. On
the other hand, Appellant-Ritesh, though does not dispute
occupation of the flat in question by Leena, claims that he is the
owner thereof. Leena, as of now, has not claimed ownership of
the flat, but claims that the flat is her matrimonial house and
that she has the right of residence therein.
7) It is the contention of Ritesh that he is the owner of
the flat. Our attention is invited to notice issued at the instance
of Leena on 6 January 2025 to the first Respondent-developer
and to the Secretary of the Society in which there is an
admission that in the records of the Society, the flat, as of now,
stands in the name of Ritesh. However, Ritesh's two other
brothers- Rohitesh and Rajesh apparently claim shares in
respect of the flat in question. Be that as it may. It is not the case
of Leena that she is the owner of the flat in question. However,
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the position remains undisputed that as of now, Leena and her
two children reside in the subject flat. There is some dispute
between Leena and her husband Rohitesh about occupation of
the flat. Leena claims that Rohitesh has been living in a separate
flat at Sangeeta Apartment near Juhu Tara Road and that Leena
exclusively occupies the flat in question alongwith her children.
8) In the light of the above position where ownership of
the flat is claimed by Ritesh and possession is with Leena, the
issues before the learned Single Judge were essentially three: (i)
in whose name the PAAA is to be executed; (ii) who would receive
the monetary redevelopment package in the form of hardship
compensation (corpus), transit rent, brokerage, etc upon handing
over possession of the flat for redevelopment and (iii) who will be
put back in possession of the permanent alternate
accommodation (Flat No. 801).
9) This Court has consistently taken a view that
redevelopment process cannot be utilized for the purpose of
seeking eviction of an occupant from the old premises and that
possession of the permanent alternate accommodation must be
handed over and the transit rent must be paid to the person, who
was actually in possession of the old premises. Such an
arrangement ensures that possession of the person in occupation
of old premises is not disturbed only on account of demolition of
the building for its redevelopment. Reference in this regard can
be made to the Order passed by the Division Bench of this Court
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in Vipul Fatehchand Shah Vs. Nav Samir CHS1 in which it is
held as under:
We have heard learned Counsel and find that in so far as the issue of
transit rent is concerned, the law is now well settled. It is not in
dispute that the transit rent is to be paid to the person, who is being
dishoused from the premises in question. It is also clear that the
person dishoused for the purpose of redevelopment shall be put back
into possession on completion of the redevelopment. It is clear that
inter se disputes qua title and/or entitlement to the flat, which is
subject to redevelopment, are not factors which are relevant or to be
considered for purposes of payment of transit rent as also possession
being handed back to the person dishoused on completion of the
redevelopment. To that extent, the Appeal must succeed.
10) In Harshad Shah Vs. Labharti Realties & Ors 2 it
is held as under:
5. We have heard learned Counsel and find that the law with regard
to entitlement of transit rent, etc., is now well settled by a catena of
judgements including as has been held by this Bench in the case
of Vipul Fatehchand Shah (supra). In the present case given that
there is no dispute to the fact that possession of the said flat is being
taken from the Appellant, it is the Appellant alone, who is entitled to
payment of transit rent as also the other amounts, more particularly
mentioned in the development agreement. Consequently, it is the
Appellant who will also have to be put back into possession of the flat
on completion of redevelopment. However, insofar as the balance
corpus amount is concerned, we direct that the same shall be
deposited by Respondent No.1-Developer in this Court within a
period of four weeks from today. We further make it clear that except
for transit rent all the other amounts paid under the development
agreement shall be subject to the final outcome of the entitlement of
the said flat in any proceedings which may be adopted by the parties
qua title to the said flat. In the event that no proceedings are taken in
respect of the said flat by either the Appellant or Respondent Nos.3
and 4 on the date of completion of the said redevelopment, then the
corpus amount shall also be handed over to the Appellant at the time
of handing over said redeveloped flat.
Commercial Appeal(L) No. 25162 of 2023 decided on 6 October 2023
Appeal (st) No. 29617 of 2023 decided on 25 October 2023
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11) In the present case as well, Leena is described by
Ritesh as his gratuitous licensee. Thus, Leena's possession is
admitted by Ritesh, who claims to be the exclusive owner of the
flat. In ordinary circumstances, Ritesh will have to secure a
decree from the court of competent jurisdiction for eviction of
Leena. He cannot circumvent that procedure in law and use the
redevelopment process to evict Leena. Merely because
redevelopment process requires handing over of possession of old
premises to the developer, the same would not mean that the
person in actual possession of old premises would lose such
possession. In our view therefore redevelopment process
undertaken by the Respondent No.1-Developer cannot result in
dispossession of Leena, who is described as a gratuitous licensee
by Ritesh. It appears that Ritesh has already initiated
proceeding for eviction of Leena (Suit No. LE/C Stamp No. 202 of
2024 in the Court of Small Causes at Mumbai). Leena's
occupation of old premises as well as securing of benefits by her
under redevelopment process would obviously be subject to the
outcome of that Suit. However, since Leena would be handing
over possession of the premises, it is Leena alone who must be
put in possession of alternate accommodation. Similarly, transit
rent needs to be paid to Leena, who would be dispossessed and
needs to make interim arrangement in some other house during
currency of the redevelopment process. This approach has been
consistently followed by this Court and we do not see any reason
why a departure needs to be made in the present case as well. To
this extent, we find that the interim measures made by the
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learned Single Judge directing handing over possession of
alternate accommodation (Flat No.801) as well as payment of
transit accommodation rent and brokerage to Leena need not be
disturbed.
12) However, the learned Judge has also directed that
PAAA shall be executed in the name of the Court Receiver. As of
now, there is no pending litigation qua ownership of the flat.
Name of the Appellant-Ritesh is entered in the records of the
Society as a member and he claims ownership in respect of the
flat in question. Ritesh has relied on Surrender Deed executed by
Rohitesh relinquishing his share in the flat. Rajesh has
apparently not filed any proceedings claiming ownership in the
flat. Far from filing any proceedings claiming ownership in the
flat, Leena is actually facing eviction suit filed by Ritesh in the
Court of Small Causes, Mumbai describing her as a gratuitous
licensee. In absence of pendency of any litigation, execution of
PAAA with the Court Receiver is unwarranted, in the facts of the
present case. In our view, therefore, PAAA needs be executed in
the name of the person, whose name is reflected in the records of
the Society. Similarly, the amounts towards hardship
compensation (corpus) also needs to be paid in the name of
Appellant-Ritesh. Execution of PAAA as well as payment of
hardship compensation (corpus) in the name of Appellant-Ritesh
shall however be subject to claim of alleged shares in the flat
raised by his two brothers- Rohitesh and Rajesh.
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13) In our view, the above arrangement would balance
the equities as Leena's possession of Flat No.12 shall remain
protected until she is lawfully evicted by decree of the competent
Court. Though she would be handing over possession of the flat
to the Respondent No.1-Developer, she would continue to receive
transit rent so as to enable her to scout for temporary
accommodation till the new building is constructed and flat
No.801 is ready for occupation. Once permanent accommodation
(Room No.801) becomes available for possession, Leena would
secure possession thereof subject to pendency of eviction
proceedings against her. At the same time, the person claiming
ownership in respect of flat and whose name is reflected in the
Society records (Ritesh) would have PAAA executed in his name
and shall also receive the hardship compensation (corpus) in
respect of the old premises. Mere execution of PAAA in the name
of the Appellant-Ritesh would not affect the claim of Leena
towards possessory right in respect of the old as well as new
premises, subject to outcome of eviction proceedings.
14) So far as the appeal filed by Rohitesh is concerned,
he is the husband of Leena and there appears to be matrimonial
dispute between the couple. Learned Single Judge has found
Leena to be in possession of Flat No.12 and on that count, has
directed payment of transit rent, brokerage, etc. to Leena. If
indeed Rohitesh believes that he is also in possession of Flat
No.12, it is for him to seek appropriate directions in respect of
alleged shared household from the court of competent
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jurisdiction, which can also make an arrangement in respect of
amount received by Leena towards transit rent and brokerage.
We are therefore not inclined to interfere in the direction of the
learned Single Judge in directing payment of transit rent and
brokerage to Leena as well as for handing over possession of
permanent accommodation (Flat No.801) to Leena in the Appeal
filed by Rohitesh. His Appeal therefore deserves to be dismissed.
15) In our view, therefore some modification in the
impugned judgment and order passed by the learned Single
Judge is warranted in the facts and circumstances of the present
case.
16) We accordingly proceed to pass the following order:-
(i) The direction by the learned Judge for execution
of tripartite Agreement in respect of Flat No.12 in
the name of Court Receiver is set aside. Instead,
Respondent No.1-Developer shall execute tripartite
Agreement/PAAA in respect of Flat No.12 in the
name of Ritesh. Execution of such Agreement in the
name of Ritesh would be subject to claim of
ownership raised by any other party. The amount of
hardship compensation (corpus) and all amounts,
except transit rent and brokerage, shall be paid by
Respondent No.1 -Developer to the Appellant -
Ritesh subject to the claim of ownership in respect of
Flat No.12 by any other party.
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(ii) The transit rent and brokerage in respect of flat
No.12 shall be paid by Respondent No.1-Developer
to Leena from the date of vacation of flat No.12 till
the date of handing over possession of permanent
accommodation (flat No.801).
(iii) Even though tripartite Agreement/PAAA is
directed to be executed in the name of Appellant-
Ritesh, Respondent No. 1-Developer shall handover
possession of permanent accommodation (Flat
No.801) in favour of Ms. Leena immediately upon
the said flat becoming available for occupation.
Leena would hold possession of flat No.801 subject
to the orders that may be passed in the eviction
proceedings initiated against her.
(iv) Ms. Leena shall hand over possession of flat
No.12 to Respondent No.1-Developer within a period
of four weeks from the date of receipt of written
intimation from Respondent No.1.
17) To the above extent, impugned judgment and order
dated 16 April 2025 shall stand modified.
18) It is clarified that present order shall operate only in
respect of flat No.12 and the judgment and order dated 16 April
2025 shall remain unaffected in respect of Flat No.6.
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19) With the above directions, Commercial Arbitration
Appeal (L) No. 14486 of 2025 is partly allowed and disposed of.
Commercial Arbitration Appeal (L) No. 15542 of 2025 is
dismissed.
20) In view of disposal of the appeals, interim
applications do not survive and the same stand disposed of.
[SANDEEP V. MARNE, J.] [CHIEF JUSTICE]
24 June 2025
