1 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICDTION Notice of Motion No.2726 of 2008 IN Suit No.2369 of 2008 Manoj Madhukar Champanerkar & anr. ... Plaintiffs v/s. Anoop Dhirajlal Dalal & ors. ... Defendants Mr.M.M. Vashi for Plffs. Mr.Vastal Shah with Mr.Y.R. Shah for Deft.No.4. Mr.Snehal Shah i/by M/s.Purnanand & Co. for Deft.No.2. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 23rd March, 2010 P.C. : 1.The Plaintiffs are flat purchasers in the building constructed by Defendant No.3. The Plaintiffs have paid, and in fact, overpaid, the consideration payable as per the schedule agreed between the parties. Whereas under Clause-2 of the Agreement between the Plaintiffs and Defendant No.2, the Plaintiffs were to pay Rs.30 Lakhs at the time of the execution of the Agreement, Rs.40 Lakhs on the application of the Occupation Certificate and Rs.10 Lakhs upon the issuance of the Occupation Certificate, the Plaintiffs have paid Rs.59 Lakhs by now. Defendant No.4 has not applied for Occupation Certificate. 2 2.The Plaintiffs have been put in possession. The possession is nebulous and meaningless. Because the Occupation Certificate is neither applied for nor granted, the Plaintiffs cannot be granted the regular water connection nor can they have the electricity connection in their names. The Plaintiffs are, therefore only in occupation of the suit premises. The Plaintiffs await the juridical possession which the Plaintiffs are entitled to get upon making payment of the consideration and (in fact, more consideration) as agreed between the parties. 3.A temporary water connection is granted. The electricity connection is yet in the names of the owners, Defendant Nos.1, 2 and 3 and have not been transferred to the name of the Plaintiffs for want of Occupation Certificate. 4.It is the contention of Defendant No.4 that the Occupation Certificate is not given and not applied for because Defendant No.2, who was occupying the Ground Floor premises, was required to be shifted to the second floor premises of an equivalent area to be constructed by Defendant No.4, upon which the Ground floor premises was to be demolished. Though the second floor premises was offered to Defendant No.2 and 3 Defendant No.2 has taken possession of the second floor premises, he has not allowed the demolition of the Ground Floor premises. Consequently, Defendant No.4 cannot and has not applied for Occupation Certificate, as it cannot be granted. 5.Defendant No.2 states that the flat on the second floor given to Defendant No.2 is of a lesser area by 130 sq. ft. and hence unless he is compensated at the present market value for the said area, he cannot be taken to have been put in possession of the second floor premises of an equivalent area as per the agreement between the parties. 6.Defendant No.4 contends that Defendant No.2 has been put in possession of an equivalent area. 7.Defendant No.3 has also been put in possession of the second floor premises. The premises occupied by Defendant No.3 on the Ground Floor has already been demolished upon Defendant No.3 being put in possession of an equivalent premises on the second floor. The reciprocal promises of the parties with respect to the grant of premises to Defendant No.3 are, therefore, complete. Defendant No.3 has, in fact, raised a grievance in paragraph 10 of his Written Statement that Defendant No.2 refused to part with old Ground Floor 4 premises in contravention of the terms and conditions of the agreement and hence appropriate action be taken against him. 8.It can, therefore, be seen that the only dispute between the parties is with regard to the contention of Defendant No.2 that he has been given 130 sq. ft. of area less than what was the area in his possession on the Ground Floor premises. If that is true, Defendant No.4 agrees to compensate him at the market rate for the extent of the area which falls short of the area of the Ground Floor in his possession earlier. 9.The parties have agreed before the Court that the market rate at which the compensation would be calculated is Rs.11,500/- per sq. ft. 10.Consequently, Defendant No.2 and Defendant No.4 have agreed to refer the matter to M/s.R.G. Kapadia & Architects, who have their office at Court Chambers, behind the Income-tax office, Marine Lines, Mumbai. Defendant No.4 has the original plan. Defendant No.2 would be entitled to be given possession of the area shown to be in his possession on the Ground Floor as per the original building plan. 11.The parties shall refer this dispute to the aforesaid 5 Architects. Defendant No.4 shall produce before the Architects the original plan. The Architects shall measure the actual area of the second floor premises constructed by Defendant No.4 and which is in possession of Defendant No.2 and certify whether that area is equivalent to the area of the Ground Floor premises, initially in possession of Defendant No.2 as shown in the plan or whether it falls short of that area and by how much. 12.The parties shall approach the Architects on Saturday, 27 th March 2010. The Architects are requested to carry out the inspection within 2 weeks at a time convenient to them. Defendant No.4 shall give notice to Defendant No.2 of the time fixed by the Architects. The Architects are also requested to give a short report to the parties of the inspection taken. 13.Defendant No.4 shall pay Defendant No.2 the amount for the shortfall, if any, in the area at the rate mentioned above within 4 weeks of the report of the Architects and shall also demolish the premises on the Ground Floor within 4 weeks. Defendant No.4 shall thereafter forthwith apply for Occupation Certificate to the Municipal Corporation. The Municipal Corporation shall grant the Occupation Certificate as per the procedure established by law. 6 14.Defendant No.2 shall not obstruct the demolition upon the market value being paid to Defendant No.2. 15.The Plaintiffs shall make payment of the balance amount upon being informed by Defendant No.2 of the application being made and upon being given a copy thereof and thereafter the final amount upon Defendant No.2 obtaining the Occupation Certificate. 16.Aside from the payment of consideration for the flat, the Plaintiffs have paid Rs.16 Lakhs for the stilt parking space allotted to the Plaintiffs on parking lot No.14. It is the Plaintiffs contention in paragraph 19 of the Plaint that the Plaintiffs are unable to park their car in the alloted lot No.14 unless the front wall is broken and a gate is made as shown in the approved Municipal plan. Defendant No.4 has the approved Municipal Corporation plan. That plan is to be produced before the Architects for determining the area of the premises in possession to Defendant No.2. 17.At the inspection meeting of the Architects stated above, Defendant No.4 shall obtain the Architects opinion with regard to parking lot No.14 also. The Architects are requested to make a report also with regard to the change, if any, required in parking lot 7 No.14. If any demolition or construction is required to be done as per the plan for the use of parking lot No. 14, Defendant No.4 shall do the same within 4 weeks of the Architects Report. 18.Defendant No.4 shall pay the professional fees of the Architects as fixed by the Architects along with the payment to be made to Defendant No.2 or in any case, within 4 weeks of the Architects bill being given to Defendant No.4. 19.The Notice of Motion is disposed of accordingly. (SMT.ROSHAN DALVI, J.)