*1* nms.3533.08.s.2937.group.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.3533 OF 2008 IN SUIT NO.2937 OF 2008 Ashwini Life Science Pvt.Ltd. a Company incorporated under the Companies Act, 1956 and having its registered office at F-1203, Shanti Apartment-1, Mathuradas Extension Road, Kandivali (West), Mumbai-400067. ..Plaintiffs -Versus- 1 Vijay Dwellers Private Limited, a company incorporated under the Companies Act, 1956 having its registered office at 1, Tarlika, Ground Floor, 216, Sir Bhalchandra Road, Matunga (East), Mumbai-400019 and having its corporate office at Office Complex, Vijay Nagari, Ghodbunder Road, Thane (West). 2 Rashmikant Shah, of Mumbai, Indian Inhabitant, residing at 575-A, Second Floor, The Orient, Jam-e-Jamshed Road, Matunga, Mumbai-400019. 3 Vrajlal Talakshi Gala, of Mumbai, Indian Inhabitant, residing at 575-A, Fifth Floor, The Orient, Jam-e-Jamshed Road, Matunga, Mumbai-400019. 4 Vinod Gala of Mumbai, Indian Inhabitant, *2* nms.3533.08.s.2937.group.sxw residing at 73, Chantrda Kutir, 5th Floor, Bhaudaji Road, Matunga, Mumbai-400019. 5 Mahendra Manilal Shah of Mumbai, Indian Inhabitant, residing at 7, Trivedi Niwas No.2, 317-A, Bhalchandra Road, Matunga, Mumbai-400019. 6 Karan Rajendrakumar Shah of Mumbai, Indian Inhabitant, residing at R/15, Madhav Nagar, R.A. Kidwai Road, Wadala, Mumbai-400031. 7 Meghraj Sohanlal Jain of Mumbai, Indian Inhabitant, residing at 401, Sheela Niwas, Plot No.29 D/E, Chemburkar Marg, Vile Parle (East), Mumbai-400057. 8 Ajitkumar Sohanlal Jain of Mumbai, Indian Inhabitant, residing at 401, Sheela Niwas, Plot No.29 D/E, Chemburkar Marg, Vile Parle (East), Mumbai-400057. 9 Balaji Lifestyle Realtors Pvt.Ltd., a Company incorporated under the Companies Act, 1956, having its registered office at 118/120, Ashok House, 3rd Floor, Zaveri Bazar, Mumbai-400007. 10 Balaji Universal Tradelink Pvt.Ltd., a Company registered under the Companies Act, 1956, having its registered office at 118/120, Ashok House, 3rd Floor, *3* nms.3533.08.s.2937.group.sxw Zaveri Bazar, Mumbai-400007. 11 Parvara Properties Pvt.Ltd., a Company incorporated under the Companies Act, 1956, having its registered office at Khimji Meghji House, 11/15, Issaji Street, Vardadi, Mumbai-400003 and also at 477, Babylon, 1st Floor, Adenwala Road, Matunga, Mumbai-400019. 12 Penganga Properties Pvt.Ltd., a Company incorporated under the Companies Act, 1956, having its registered office at Khimji Meghji House, 11/15, Issaji Street, Vardadi, Mumbai-400003 and also at 477, Babylon, 1st Floor, Adenwala Road, Matunga, Mumbai-400019. 13 Kolab Properties Pvt.Ltd., a Company incorporated under the Companies Act, 1956, having its registered office at Khimji Meghji House, 11/15, Issaji Street, Vardadi, Mumbai-400003 and also at 477, Babylon, 1st Floor, Adenwala Road, Matunga, Mumbai-400019. 14 Kinnerasani Properties Pvt.Ltd., a Company incorporated under the Companies Act, 1956, having its registered office at Khimji Meghji House, 11/15, Issaji Street, Vardadi, Mumbai-400003 and also at 477, Babylon, 1st Floor, Adenwala Road, Matunga, Mumbai-400019. 15 Manjari Properties Pvt.Ltd., a Company incorporated under the Companies Act, 1956, having its registered office at 5, Russell Street, *4* nms.3533.08.s.2937.group.sxw Kolkata, West Bengal-700071. 16 Pranahita Properties Pvt.Ltd., a Company incorporated under the Companies Act, 1956, having its registered office at Khimji Meghji House, 11/15, Issaji Street, Vardadi, Mumbai-400003 and also at 477, Babylon, 1st Floor, Adenwala Road, Matunga, Mumbai-400019. ..Defendants ALONG WITH NOTICE OF MOTION NO. 864 OF 2009 IN SUIT NO.453 OF 2009 Smart Microsoft (Mumbai) Pvt. Ltd. ..Plaintiffs -Versus- Vijay Dwellers Pvt. Ltd. & Ors. ..Defendants WITH NOTICE OF MOTION NO.3534 OF 2008 IN SUIT NO.2936 OF 2008 Sanjivani Life Science Pvt. Ltd. ..Plaintiffs -Versus- Vijay Dwellers Pvt. Ltd. & Ors. ..Defendants WITH NOTICE OF MOTION NO.3535 OF 2008 IN SUIT NO.2935 OF 2008 Simoni Mercantile Pvt. Ltd. ..Plaintiffs -Versus- Vijay Dwellers Pvt. Ltd. & Ors. ..Defendants WITH NOTICE OF MOTION NO.3536 OF 2008 IN SUIT NO.2934 OF 2008 Aurovin Chemicals Specialities Pvt. Ltd. ..Plaintiffs -Versus- Vijay Dwellers Pvt. Ltd. & Ors. ..Defendants *5* nms.3533.08.s.2937.group.sxw WITH NOTICE OF MOTION NO.863 OF 2009 IN SUIT NO.454 OF 2009 Triple Crown Travels Pvt. Ltd. ..Plaintiffs -Versus- Vijay Dwellers Pvt. Ltd. & Ors. ..Defendants .......... Mr. P.S. Dhakephalkar, Senior Advocate a/w Mr. M.S. Doctor, Raj Mehta i/by RKM Legal for the Plaintiffs. Mr. P.K. Samdani, Senior Advocate a/w Mr. C.D. Mehta, Ms. Faiza Dhamani i/by M/s Dhruve Liladhar & Co. for the Defendant Nos. 3 and 4. Mr. N.S. Fadia, for the Defendant no.5. Mr. M.P.S. Rao, Senior Advocate a/w Mr. Mayur Narendra, Mr. U. Charya, Ms.Usha Rahi i/by Mayur Narendra & Associates, for the Defendant Nos. 1, 2 and 6. Mr. Y. Kapur i/by Naik Y .M. for the Defendant Nos. 9 and 10. Ms.Rajni Iyer., Senior Advocate i/by Rajesh Sharma & Associates for the Defendant Nos.8, 11 to 16. .......... CORAM : S.C.DHARMADHIKARI, J. Reserved on : 09th September, 2011 Pronounced on : 21st October, 2011 JUDGMENT: 1 This is a Notice of Motion by the Plaintiffs seeking appointment of the Court Receiver, High Court, Bombay or some fit or proper person as a Receiver of the property described in Annexure-A to the plaint, namely, all that leasehold piece and parcel of land described as plot No.476 admeasuring 710 sq. yards equivalent to 593.64 sq.mtrs. or thereabout together with structures standing thereon and known as “Africa House” and all that piece and parcel of land being Plot No.477 admeasuring 711 sq. yards equivalent to 594.49 sq.mtrs. or thereabout *6* nms.3533.08.s.2937.group.sxw together with structures standing thereon and known as “Raghdev Bhavan”. The Plaintiffs are also seeking interim injunction restraining the Defendant Nos.1 to 16 by themselves, their respective servants and/or agents from, in any manner whatsoever, making any additions or alternations and/or renovations in respect of the said buildings and flats and/or from selling, leasing, encumbering or alienating and/or parting with possession of the flats/buildings under construction on the said property till such time as a flat admeasuring 753 sq.ft. carpet area has been allotted to the Plaintiffs in the building known as “Babylon” constructed on the said property and the Plaintiffs have been put in vacant and peaceful possession thereof. 2 The claim of the Plaintiff which is a private limited company is based on allegations in the plaint. The allegations in the plaint are that the Plaintiff Company was tenant and occupier in respect of Flat No.8 admeasuring 69 sq.mtrs. approximately in a building formerly known as “Africa House” located at 476, Hormosji Edenwalla Road, Matunga (East), Mumbai-400019. The Defendant No.1 is also a company incorporated under the Companies Act, 1956 having its registered office at the address mentioned in the cause title and it carries on business as Builder and Developer. The Defendant Nos.2 to 5 are shareholders and directors of the Defendant No.1 Company and the Defendant Nos.6 to 8 are holding themselves out as Directors of the Defendant No.1. Presently, the Defendant No.2 is in management and control of the Defendant No.1. The Defendant Nos.9 to 16 are all companies incorporated under the Companies Act, 1956 having their addresses mentioned in the cause title and that they purport to have purchased the flats in the building known as “Babylon” which is constructed by the Defendant No.1. The Defendant *7* nms.3533.08.s.2937.group.sxw Nos.11 to 16 are allegedly controlled by the Defendant Nos.7 and 8 or their family members. 3 The allegations in the plaint proceed on the basis that the building “Africa House” was located on this plot which is more particularly described at Annexure-A to the plaint. There are two buildings on Plot Nos.476 and 477, namely, Africa House and Raghdev Bhavan. Both buildings together had about 19 tenants/occupants including the Plaintiffs. The Defendant No.1 acquired the rights to redevelop the property by virtue of two Deeds of Assignment both dated 15.03.2002 executed in their favour by the original owners of the said property. The Plaintiffs acquired the tenancy rights in respect of Flat No.8 in the building known as “Africa House” by two registered documents dated 18.03.2002 executed by the former tenant of the aforesaid flat. The Defendant No.1 consented to the transfer of tenancy in favour of the Plaintiffs by a registered document dated 20.03.2002. In view of the fact that the buildings were in dilapidated condition, it was proposed to redevelop the same under the provisions of the Maharashtra Housing and Area Development Authority Act, 1976 (in short, MHADA Act) read with Regulation 33(7) of the Development Control Regulation for Greater Bombay, 1991 (in short, DC Regulation). These documents are annexed as Annexures C to G to the plaint. 4 On or about 21.05.2002, the Defendant No.1 through their Architects/Consultants submitted a proposal for redevelopment of the property to the Mumbai Building Repairs & Reconstruction Board (in short, Repair Board) which is a statutory authority constituted under the Mhada Act for the purpose of supervising the repairs and reconstruction of *8* nms.3533.08.s.2937.group.sxw dilapidated buildings. Pursuant thereto, the Repair Board carried out an inspection of the said property and prepared a list of tenants. The list is to be found in a report dated 30.05.2003. The names of the Plaintiffs appear in the aforesaid list of tenants. Annexure H is a copy of the report dated 30.05.2003 along with annexures thereto. 5 The Plaintiffs, therefore, submit that there is no dispute about their occupancy rights. They also submit that the Defendant No.1 called upon the Plaintiffs to execute an irrevocable letter of consent addressed to the Chief Officer of the Repair Board in accordance with the DC Regulation 33(7) and which irrevocable consent was executed by the Plaintiffs on stamp paper which is dated 28.05.2002. The Defendant No.1 also paid to the Plaintiffs Rs.2,40,000/- per annum from 01.04.2002 onwards and by way of compensation towards alternate accommodation. 6 After setting out the details of the redevelopment and pointing out that the redevelopment envisages the construction of two separate buildings, one for rehousing/re-accommodating the tenants of the existing building and second for re-accommodating the tenants as well as free sale in market. It is stated that the undertaking to rehouse the tenants was given by the first Defendant’s director to the Repair Board as that is the requirement of the Repair Board. On 05.06.2002, the Repair Board granted its NOC for redevelopment subject to the terms and conditions more specifically set out therein. The very first condition of the NOC is that all occupants of old buildings had to be re-accommodated in the redeveloped building. As agreed and to facilitate the redevelopment, the Plaintiffs handed over possession of their premises. It is contended that the proposed building was to be known as Raghdev Bhavan which *9* nms.3533.08.s.2937.group.sxw was meant for re-accommodating 10 of the original tenants/ occupants. Second building was to be known as Babylon which was meant for the purpose of re-accommodating the balance original tenants/ occupants including the Plaintiffs. It is stated that the remaining flats in the building Babylon, after re-accommodation of the balance original tenants/ occupants, were meant for free sale and that is how the plans of the buildings construction indicate. The Plaintiffs state that as per the plan, their names are shown in the list of tenants required to be accommodated in the building known as Babylon. It is stated that the plan was submitted to the Repair Board by the Defendant No.1. This plan was the only plan shown to the Plaintiffs by the Defendant No.1 and that was shown to the Plaintiffs before it was submitted to the Repair Board. 7 The Plaintiffs allege that subsequently the Defendant No.2 has unilaterally and wrongfully altered the plans and the allocation of tenements to the various tenants/ occupants. The Plaintiffs contended that the Defendant No.1 has submitted another plan on or about 11.03.2004 to the Repair Board. It is stated that the construction of the first of two buildings viz. Raghdev Bhavan was completed in or around December, 2007. The construction of the second building Babylon is partially completed. 8 There is reference made to certain proceedings initiated before the Company Law Board by the Defendant No.3 against the Defendant No.2 and others including the Defendant No.1 wherein alleged acts of mismanagement are set out. It appears that the allegations pertain to the dealings of the Defendant No.2 for and on behalf of the Defendant No.1 of some flats in a building Babylon and these dealings were *10* nms.3533.08.s.2937.group.sxw discovered by the Defendant No.3. It is alleged that there are certain orders passed in those proceedings, but this suit is to assert primarily the rights of the Plaintiffs individually and to enforce their separate individual and personal agreements and obligations undertaken in that behalf by the Defendant No.1. 9 It is stated that since the relationship between the parties was cordial, the Plaintiffs did not keep copies of several documents, such as applications, permissions and sanctions granted by the Repair Board and the Municipal Corporation in favour of the Defendant No.1. However, when the disputes arose between the parties, the Plaintiffs took recourse to the Right to Information Act, 2005 and discovered that there have been misrepresentations and several misleading statements. The Plaintiffs, therefore, became aware of the fact that there are violations of the statutory obligations and that is how they approached the authorities pointing out the same. The Plaintiffs then referred to the regulations and particularly requirement of providing permanent alternate accommodation after redevelopment in terms of the said regulations and policies of the MHADA. It is then contended that when there was specific representation that the Plaintiffs would be re-accommodated in a building known as Babylon, but in violation of that representation and NOC condition, the Defendant Nos.1 and 2 have purported to deal with the flats in the buildings under construction and wrongfully attempted to alienate the same in favour of the Defendant Nos.9 to 16 and that is evident by the copies of agreements Annexures T to II, JJ and KK to the plaint. 10 It is alleged in paragraphs 5 and 6 of the plaint as under:- *11* nms.3533.08.s.2937.group.sxw “5. The Plaintiff submits that the present situation of the said property is that, the first building viz. “Raghdev Bhavan” has been already completed and as far as the Plaintiff has been able to ascertain 11 of the former tenants/ occupants of the original buildings have been placed in possession of the 11 tenements in this building and the shell of the second building viz. “Babylon” is completed. However, most of the civil work in the Babylon building is still going on. There are a total of 19 occupiers/ tenants who are required to be accommodated, out of which 11 have been accommodated in Raghdev Bhavan, as stated hereinabove. Defendant No.2 purports to have sold 16 falts in the building “Babylon” to Defendant Nos.9 to 16 and purports to have retained two flats and certain amenities therein with himself. Defendant No.1 has an obligation to allot and put the Plaintiff in possession of one flat admeasuring a minimum of 753 sq.ft. (carpet area) in the said building “Babylon” before selling and/or alienating any flats therein to third parties. 6. The Plaintiff submits that the Defendant Nos.9 to 16 are not bonafide purchasers for value and have colluded with Defendant No.2 in an attempt to deprive the Plaintiff and other occupiers/ tenants of the original buildings, who are supposed to be reaccommodated in the reconstructed buildings on the said property. Defendant Nos.9 to 16 have purported to purchase incomplete flats in the building known as “Babylon” of which only the shell structure is presently completed. The balance work of completing the said building and flats is purportedly to be carried by Defendant Nos.2 and 9 to 16 themselves. In any event, and without prejudice to what is stated hereinabove, it is submitted that, in view of the fact that the said property is being redeveloped under the provisions of the MHADA Act and with DCR 33(7), Defendant Nos.9 to 16’s rights, if any, are subject to the statutory rights of the Plaintiff and the other occupants of the original buildings to be accommodated in the reconstructed building and the purported sale or alienation of the flats to Defendant Nos.9 to 16 cannot have any effect on the rights of the Plaintiff to be allotted and put in possession of a flat of atleast 753 sq.ft. (carpet area), in the said building “Babylon” which is being *12* nms.3533.08.s.2937.group.sxw constructed on the said property. The statutory provisions in this regard, as well as the conditions in the NOC dated 5th June 2002 are equally binding on Defendant Nos.9 to 16. As far as the Plaintiff is aware, Defendant Nos.11 to 16 are controlled and managed by Defendant Nos.7 and 8. Furthermore, it is submitted that Defendant Nos.9 to 16 are deemed to have checked and taken inspection of all documents and papers pertaining to the redevelopment under Regulation 33(7) of the DCR and therefore had full knowledge of the prior rights of the Plaintiff.” 11 It is in these circumstances that the suit is filed for a declaration that the Plaintiff is entitled to be allotted and put in possession of a flat admeasuring 753 sq.ft. carpet area in a building known as Babylon or alternatively in a building known as Raghdev Bhavan and till such time the aforesaid flat is identified and allotted and the Plaintiff is put in vacant and peaceful possession thereof, the Defendant Nos.9 to 16 are not entitled to exercise any rights under their respective agreements referred to above. The Plaintiffs are apprehending that the acts of the Defendants would further jeopardize and prejudice their claim as sought and the allegations to that effect are to be found in paragraphs 7 and 8 of the plaint. 12 This is how the averments in the suit filed in this Court on 20.09.2008 proceed. It is in such suit, the instant Notice of Motion for interim relief has been filed. 13 In answer to this Notice of Motion for interim reliefs, an affidavit has been filed by one Rashmikant Shah (Defendant No.2) on behalf of himself and as Managing Director of the Defendant No.1. He states that there was an order passed by this Court on 14.11.2008 on this *13* nms.3533.08.s.2937.group.sxw Notice of Motion which has been complied with inasmuch as the sanctioned plan dated 18.01.2006 and certified true copy of the affidavit of one Vipul Chheda has been furnished to all parties. It is stated that flat Nos.102, 401, 501 and 502 in a building “B” are shown as reserved for the Plaintiffs, but they are presently in occupation of the tenants as their transit accommodations. Names of these persons are Rashmikant Shah, S.K.Patni, Ramesh Padaya and Suresh Kandoth. It is stated that the flats have not been alienated till date and there is an undertaking given that prevailing situation will not be altered until further orders that are passed by this Court. 14 Thereafter, it would be necessary to refer to certain orders that are passed by this Court. Mr.Dhakephalkar, learned Senior Counsel appearing on behalf of the Plaintiffs would submit that an application for urgent ad-interim reliefs was made in these suits and on 26.09.2008 a learned Single Judge of this Court directed that the parties shall maintain status-quo, but they are permitted to carry on internal works till the next date and they shall not claim any equities by the reason of carrying out internal works. On 18.10.2008, this Court recorded the statement of the Defendant Nos.1 and 2 to the effect that the Plaintiffs in four suits that are filed including the instant suit are disclosed as tenants in possession of the different premises of the existing building. When the Court inquired as to whether, these Defendant Nos.1 and 2 accept that the Plaintiffs are tenants, the Advocate appearing for the Defendant Nos.1 and 2 took time to seek instructions and produce the necessary documents. That is how ad-interim orders continued and the matter was adjourned to 24.10.2008. On 24.10.2008, this Court gave further time to the Defendant Nos.1 and 2 to make a statement, whether, they are accept the Plaintiffs as tenants in *14* nms.3533.08.s.2937.group.sxw respect of the separate premises in the building “Africa House”. Later on, the affidavit of Vipul P. Chheda, constituted attorney of the Petitioners in Company Petition No.29/2008 was tendered by the Defendant Nos.1 and 2 and that was taken on record on 14.11.2008. It is during the hearing on 14.11.2008 that the sanctioned plan was produced for perusal of the Court and the Court referred to the same and recorded the statements of the Advocates appearing for the Defendant Nos.1 and 2 to the effect that four flats in building “B” were designated for allotment to the Plaintiffs in four suits and they have not been alienated by the Defendant Nos.1 and 2, but they have allowed the said flats to be used as transit accommodations by certain parties. Therefore, the Court recorded further statement that the details of such occupation will be disclosed by the Defendant Nos.1 and 2 by filing an affidavit and it is on this basis that the earlier orders were continued without prejudice to the rights and contentions of the parties. 15 Subsequently, on 02.12.2008 this Court granted permission to the Defendant No.14 to file an affidavit bringing on record certain documents which were allegedly recovered during the course of search taken under section 93 of the Code of Criminal Procedure, 1973. The Court noted that certain search was carried out and the documents annexed to the affidavit were produced before the learned JMFC, 9th Court, Thane on 29.11.2008. Therefore, that affidavit was taken on record and those who wished to controvert the contents thereof were granted time to file their affidavits. 16 The matter was then heard extensively at ad-interim stage on 18.12.2008 and after noticing rival contentions, this Court passed the *15* nms.3533.08.s.2937.group.sxw following order:- “27. Hence, the prayer for ad-interim relief is disposed of by passing the following order: (i) The Court Receiver, High Court, Bombay is appointed as the Receiver of Flat Nos.102, 401, 501 and 502 in the building “B” more particularly shown in the sanctioned plan of 18th January, 2006 which are referred to in the order dated 14th November, 2008. (ii) The Court Receiver will take formal possession of the said four flats without disturbing the occupation of the occupants. The occupants will be permitted to occupy the said flats as agents of the Receiver without payment of royalty and without furnishing security. (iii) If the said flats are vacated by the present occupants, the possession of the flats will continue to remain with the Court Receiver. (iv) There will be ad-interim injunction against the 1st and 2nd as well as 9th to 16th Defendants restraining them from creating any third party interests in respect of the other flats in the said buildings and restraining them from parting with possession of the said flats in favour of the third parties. It is made clear that no equity will be created in favour of the 9th to 16th Defendants if any interior work is carried out by them. It is also made clear that actual occupation of the flats by the 9th to 16th Defendants after grant of occupation certificate will be subject to further order which may be passed at the time of hearing of Notice of Motion and in the suit. (v) The parties and the Court Receiver to act upon an authenticated copy of this order. (vi) The documents received from the Court of the learned Judicial Magistrate First Class, 2nd Court, Thane shall be kept in sealed envelope and shall be returned to the said Court through Principal District Judge, Thane. Before transmitting the documents to the concerned Court, the Registry will prepare adequate number of xerox copies of the documents and will supply the said copies to the advocate on record for the parties.” *16* nms.3533.08.s.2937.group.sxw 17 It appears from the record that in two suits, namely, Suit Nos. 453/2009 and 454/2009 filed by M/s Smart Microsoft (Mumbai) Private Limited and M/s Triple Crown Travels Private Limited respectively, another learned Single Judge of this Court passed an order dated 19.03.2009 and directed at ad-interim stage that the Court Receiver, High Court of Bombay shall stand appointed as a Receiver in respect of all flats except Flat Nos.102, 401, 501 and 502