: 1 : nms-1246-10=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1246 OF 2010 IN SUIT NO. 1163 OF 2010 Pravin Amidas Mehta Karta of Pravin Amidas Mehta (HUF) .. Plaintiff v/s. Darshani Atul Kantharia & Anr. .. Defendants ......... Mr. Shailesh Shah i/by Reena Salunkhe for the plaintiff Mr. J.A. Udaipuri i/by M/s. Udaipuri & Co. for defendant no.1 Mr. S.M. Settigar for defendant no.2 ......... CORAM : R.Y.GANOO, J. DATE : 23rd JULY, 2010. P.C. : 1. The plaintiff is a developer in regard to certain properties forming part of properties owned by defendant no.2, a co- operative Society. Defendant no.1 is the member of the defendant no.2 and is presently occupying the premises on the first floor of the building owned by the Society. The plaintiff entered into the Development Agreement with defendant no.2 being Development Agreement dated 28th November, 2005. Little before execution of the development agreement, the : 2 : nms-1246-10=.sxw building of the society consisted of ground, first, second and third floor. As per the development agreement, plaintiff was to construct fourth and fifth floor for residential purpose and thereafter convert ground and first floor for commercial purpose by disposing of the units / properties on the ground and first floor. In order to comply with the terms of this development agreement, it became necessary for the plaintiff to see that all the occupants of the ground floor as well as first floor are shifted to fourth and fifth floor. On account of this arrangement, present defendant no.1 was also required to be shifted to fifth floor and it is noticed that on account of Development Agreement dated 28th November, 2005 and shifting agreement dated 30th October, 2006 entered into between plaintiff and defendant no.1. Defendant no.1 was allotted flat no.502 on the fifth floor. The plaintiff completed the construction in regard to the fourth and fifth floor and expected defendant no.1 to shift to flat no.502 (hereinafter referred to as the suit Flat). The defendant no.1 declined to shift and that resulted in filing of this suit. The plaintiff has instituted this suit for declaration that Development Agreement dated 28th November, 2005 and Shifting Agreement dated 30th October, 2006 are valid and subsisting. Plaintiff has : 3 : nms-1246-10=.sxw also prayed that direction be issued to defendant no.1 to shift to the suit flat. It is the case of the plaintiff that on account of not shifting in time, plaintiff has suffered damage and that is why the plaintiff has prayed for damages to the tune of Rs.65 lakhs and odd. 2. With this frame of the suit, the plaintiff has taken out this motion and by this motion the plaintiff seeks mandatory order directing the defendant no.1 to shift to the suit flat pursuant to Development Agreement dated 28th November, 2005, Compensation Agreement dated 28th November, 2005 and Shifting Agreement dated 30th October, 2006. 3. Parties have completed the pleadings and, therefore, motion was taken up for final hearing and accordingly hearing was provided to Counsels on both sides. Little prior to the commencement of the hearing of the motion, it is noticed that one person Mr. Druvh has been occupying the suit flat on account of a permission given by the plaintiff. This was one of the objections raised by defendant no.1 for not shifting. Learned Counsel for the plaintiff across the bar conceded that as and : 4 : nms-1246-10=.sxw when the defendant no.1 is required to take possession of the suit flat, plaintiff will ensure that the flat is vacant and defendant no.1 would be put in possession of vacant flat. Statement made by learned Counsel for plaintiff is noted and to that extent, the objection raised by defendant no.1 does not survive. Undoubtedly, if defendant no.1 has to shift to the suit flat, he will enter the suit flat when the flat is vacant. 4. As per the terms of the Development Agreement a sum of Rs.77 lakhs was payable to defendant no.2 and the same has been paid. There appears to be no dispute about this part of the transaction. 5. As per the terms of Compensation Agreement and Shifting Agreement, defendant no.1 was entitled to receive Rs.5,01,412/- and out of that Rs.4,26,195.70/- has already been paid to defendant no.1. Learned Counsel for the plaintiff conceded that a sum of Rs.75,216.30/- has remained to be paid. He submitted that plaintiff is prepared to pay to defendant no.1 Rs.75,216.30/-. To that extent also the objection which was raised by defendant no.1 prior to the institution of the suit will not survive. : 5 : nms-1246-10=.sxw 6. The fact that the suit flat is ready for occupation is apparent on the basis of the record and the pleadings which have been exchanged. Hence, at this stage, this Court need not go in the question whether the suit flat is ready for occupation. 7. Defendant no.1 has raised certain objections with reference to the manner in which the flat has been constructed and certain objections pertains to supplying facilities to defendant no.1 at the suit flat. The plaintiff and defendant no.1 have put up their respective stand in the pleadings and it will be convenient for the Court to deal with the each of the objection separately. 8. It is noticed that defendant no.1 was occupying an area of 620 sq.ft. carpet on the first floor. Initially, the plaintiff had agreed to give defendant no.1 an area of 620 carpet however, at a later point of time, it was agreed that plaintiff will provide to defendant no.1 an area of 650 sq.ft. carpet i.e. to say the area of the suit flat shall be 650 sq.ft. carpet. Across the bar, when the matter was taken up for hearing, this aspect was conceded by learned Counsel for the plaintiff and that is how the Court was : 6 : nms-1246-10=.sxw required to consider the objection raised by defendant no.1 as regards non-supply of carpet area of 650 sq.ft. It is noticed that before commencement of the hearing of this notice of motion, Architect of defendant no.1 had gone to the suit flat and had carried out measurements. Similarly, the Architect of plaintiff had also carried out measurements in respect of the said flat. Some discrepancy in the area was noticed as between the measurements taken by plaintiff’s Architect as well Architect of defendant no.1. However, when the matter was taken up for hearing, learned Counsel for plaintiff conceded that carpet area of suit flat can be treated as 624 sq.ft. and conceded that an area of 26 sq.ft. Is in deficit. In so far as this deficit of 26 sq.ft. carpet, learned Counsel for the plaintiff upon instructions made a statement across the bar that the plaintiff shall pay to defendant no.1 Rs.2,60,000/- being the amount arrived at @ Rs.10,000/- per sq.ft. x 26 sq.fts. This sum of rupees is fixed as and by way of rate appearing in the reckoner maintained by Government of Maharashtra. To this figure, there has been no serious challenge. This objection is dealt in the latter part of this judgment. : 7 : nms-1246-10=.sxw 9. The next objection was as regards the width of the internal wall. According to the defendant no.1, the width of the internal wall ought to have been 9 inches, however it is of 8 inches. Learned Counsel for defendant no.1 contended that this has resulted in non-compliance of the terms of the agreement between the plaintiff and defendant no.1 and it forms a substantial objection. So far as this objection is concerned, I am inclined to observe that even if the Court proceeds to accept the case of defendant no.1 that the width of the internal wall is 8 inches, in my view, that does not materially affect the interest of defendant no.1. Across the bar the statement was made that Siporex blocks of 8 inches have been used by plaintiff and they are of the width of 8 inches, whereas defendant no.1 contended that normally bricks made of soil are used and that is how there is a deficit of 1 inch. In my view, the difference of 1 inch will not result in any damage to the strength of the building and this objection of defendant no.1 is required to be overruled. 10. It was pointed out by learned Counsel for defendant no.1 that project will remain incomplete because the occupant of the : 8 : nms-1246-10=.sxw flat no.6 on the first floor has declined to vacate as she has some personal difficulty. According to him so long as the plaintiff does not settle the matter so far as the said occupant of the first floor, the project will remain incomplete and, therefore, this Court should not pass mandatory order. I am not inclined to consider the argument advanced by defendant no.1. This objection is without any substance and is required to be rejected. 11. The next objection is that the plaintiff has not provided loft on the bathroom and WC. In so far as this aspect is concerned, the Court was informed that the loft has been provided to the bathroom and a water tank has been installed on the said loft. Learned Counsel appearing on behalf of the plaintiff conceded that loft has not been provided above the WC. According to him that could not be done on account of placement of the beam and the plaintiff had no alternative but to allow the Civil Engineer to install the beam at that spot because installation of the beam is a matter of providing strength to the building. Learned Counsel appearing on behalf of the plaintiff submitted that plaintiff has installed what may be called as cupboard in other rooms and that would take care of the requirement of defendant no.1. This : 9 : nms-1246-10=.sxw was contested by defendant no.1 by contending that the closed cupboards are not in the nature of loft but the said closed cupboards are installed at the top most position of the walls of the said rooms and that should not be treated as in favour of the plaintiff. Even if the statement of the learned Counsel for defendant no.1 that providing of cupboards does not amount to compliance of agreements is accepted, still the objection cannot be considered as a valid objection for not shifting. 12. It is contended by learned Counsel for defendant no.1 that plaintiff has failed to maintain the ceiling height of 9 ft. and 10 inches in the bedroom and at the passage area. According to him the height is 8 feet and 6 inches. Learned Counsel for the plaintiff contended that taking into consideration the requirement of strength of the building plan was required to be prepared and, therefore, ceiling height of 9 feet and 10 inches could not be maintained. According to the Counsel non-maintenance of ceiling height does not interfere with the enjoyment of the suit flat by defendant no.1. He submitted that this objection raised by defendant no.1 is frivolous and insignificant and should not be considered by the Court. In so far as this objection is concerned, I am inclined to observe that this objection is without any substance. The non-maintenance of ceiling : 10 : nms-1246-10=.sxw height of 9 feet and 10 inches as claimed by defendant no.1 would not materially affect the enjoyment of the suit flat by defendant no.1 as what was agreed to be provided to defendant no.1 was a flat with a carpet area of 650 sq.ft. The plaintiff’s argument that strength of the building was required to be kept in forefront is required to be accepted. This objection is not serious. The defendant no.1 cannot refuse to shift. The defendant no.1 can be compensated in terms of money to be determined at the time of trial. 13. One more objection is raised by defendant no.1 that in the bedroom a beam of 2 ft. x 6 ft. is looping out of bedroom and that has the effect of interfering with the complete enjoyment of the bedroom with reference to its height. Learned Counsel for plaintiff submitted that the beam had to be installed on the basis of plans given by the structural Engineer and, therefore, the plaintiff had no alternative but to install the beam. According to him aforesaid objection cannot be considered as sound objection for the purposes of not shifting to the suit flat. I am in agreement with the submissions advanced by Counsel for the plaintiff. Defendant no.1 cannot refuse to shift on this ground. The defendant no.1 can be compensated in terms of money to be determined at the time of trial. : 11 : nms-1246-10=.sxw 14. After the aforesaid objections were pointed out to the Court, learned Counsel appearing on behalf of defendant no.1 took me through the Shifting Agreement and tried to point out that certain amenities have not been supplied by the plaintiff to defendant no.1 at the suit flat. I have with the assistance of learned Counsel on both sides gone through the said particulars of amenities to be supplied to defendant no.1. After having understood the grievance of the defendant no.1, it is noticed that learned Counsel for the plaintiff stated that external safety grill out side the main door will be provided. It will mean that this part of the objection is taken care of. Learned Counsel for the plaintiff informed the Court that internal doors installed are flush type with oil paint finish with teakwood frame. Same is the position in regard to powder coated aluminium sliding windows with tinted glass on marble frame. 75 series., M.S. Box type grills with 4-5 steel pipes of drying clothes. He also informed the Court that toilet / bath windows will be of marble frame with powder coated aluminium louvers. Serious grievance was made by learned Counsel for defendant no.1 about not supplying with Jaguar make CP hot and cold water mix flush valve / toilet jet : 12 : nms-1246-10=.sxw wash basin outside the toilet / bath. Learned Counsel for the plaintiff informed the Court that the fittings to the wash basin outside the door are of Jaguar make. If this is the position as regards the amenities, the grievance of defendant no.1 as regards non-supply of amenities, does not survive. 15. Learned Counsel for the plaintiff had submitted that the entire project involved shifting of occupants from the ground floor and the first floor to the fourth and fifth floors and that is how if the persons on ground and first floors do not shift to the fourth and fifth floors, the entire project would frustrate and investment made by the plaintiff, up till now shall be a waste. He had also drawn my attention to the fact that the premises on the ground and first floors shall be used for commercial purpose. He submitted that the flat which is presently occupied by defendant no.1 on the first floor is allotted to a third person along with the premises, which are in existence on the ground floor itself. He, therefore, submitted that mandatory order at the interlocutory stage is required to be passed to give full effect to development agreement with defendant no.2. He submitted that if such order is not passed the plaintiff would suffer substantial : 13 : nms-1246-10=.sxw loss in terms of money. He, therefore, submitted that looking to the nature of objections, it is necessary for this Court to exercise discretion in favour of the plaintiff and grant interim order. 16. Learned Counsel appearing on behalf of the plaintiff relied upon the judgment in the case of Dorab Cawasji Warden v/s. Coomi Sorab Warden and Ors. AIR 1990, SC 867. He had drawn my attention to the text of paragraph 14 wherein certain guidelines have been indicated for the purposes of deciding the mater of similar nature. He had also drawn my attention to paragraph 15 where the Supreme Court held that the concerned Court has to look into the matter and in the facts and circumstances of the case, exercise the sound judicial discretion for the purposes of passing mandatory order. 17. Mr. Shah, the learned Counsel had also relied upon Indian Cable Company Ltd. V/s. Smt. Sumitra Chakraborty, AIR 1985 Calcutta 248 and Mrs. Vijay Srivastava v/s. Mirahul Enterprises and Ors. AIR 1988 Delhi 140 where the Court were required to deal with a question as regards passing of the mandatory order at the stage of hearing of the notice of motion. : 14 : nms-1246-10=.sxw In the case at Indian Cable Company Ltd. V/s. Smt. Sumitra Chakraborty, the Court has in paragraph 9 indicated as to how the Court is required to pass mandatory order and exercise the discretion. In the case of Mrs. Vijay Srivastava v/s. Mirahul Enterprises and Ors., the Court has also considered the question as to cases where if a mandatory order is passed and the effect of it on the entire suit. 18. Learned Counsel for the plaintiff submitted that in the present case, it is possible to say that if the mandatory order is passed against defendant no.1. and if defendant no.1 shifts to the fifth floor and the person who is to be allotted premises, which are presently occupied by defendant no.1 is put in possession of the premises, the clock cannot be put back if a different view is taken at the hearing of the suit. Learned Counsel for the plaintiff submitted that this principle should not come in the way of passing of the mandatory order if the Court is convinced that at the stage of disposal of the notice of motion looking to the facts involved and looking to the special situation, the mandatory order is required to be passed. As against this, learned Counsel appearing on behalf of defendant no.1 : 15 : nms-1246-10=.sxw submitted that if defendant no.1 is made to shift on the fifth floor, he will loose his rights as regards flat on the first floor and the situation cannot be reversed at a later point of time because the new occupant will start occupying the premises on the first floor and the entire exercise will result in causing irreparable loss to defendant no.1. He submitted that objections raised by defendant no.1 are of a special nature and, therefore, the motion should be dismissed. I have considered the question in the light of the submissions advanced by learned Counsel on both sides as well as the Judgments which have been relied upon by the learned Counsel for the plaintiff. 19. It is noticed that the plaintiff has undertaken the project of constructing fourth and fifth floor and there is a need to shift the occupants of the first floor to the fifth floor and make the first floor available for development in accordance with the Development Agreement dated 28th November,2005. The Court must lean in favour of passing an order to see that project is completed rather keeping the project to remain in limbo. There are other occupants who have already shifted to the fourth and fifth floor and the persons who have to occupy the present ground : 16 : nms-1246-10=.sxw and the first floor are waiting for the project to be completed. In my view, the objections which I have discussed above, are not as serious as are raised by defendant no.1 for not shifting to new flat. 20. The plaintiff has conceded that he is unable to provide an area of 650 sq.ft. Carpet and deficit is of only 26 sq.ft.. The plaintiff has admitted to pay defendant no.1 Rs.2,60,000/- (26 sq.ft. X Rs.10,000/-). The approach of the plaintiff is reasonable and is in the interest of all concerned. The above stand of the plaintiff would suitably compensate defendant no.1 for the deficit in the area. It may be open for the defendant no.1 at the time of trial to lead evidence and seek additional compensation. 21. The conduct of the plaintiff is reasonable whereas defendant no.1 seems to be sticking to the terms and conditions, which were agreed to by and between the parties prior to the commencement of the construction work. It is a common experience that plans are drafted on paper and they are taken up for final execution and Court has to appreciate that there could be flexibility in fulfilling those plans. : 17 : nms-1246-10=.sxw 22. In view of the aforesaid discussion, I am inclined to observe that plaintiff has made out prima-facie case for grant of order in terms of motion i.e. to say defendant no.1 is required to be ordered to shift to the flat in fifth floor, naturally, it will result in vacating the flat in the first floor which is presently in the occupation of defendant no.1. 23. I have already indicated that the plaintiff has to pay to defendant no.1 a sum of Rs.2,60,000/- towards the compensation in terms of deficit area of 26 sq.ft. The plaintiff has to pay to defendant no.1 a sum of Rs.75,216.30/- being an amount payable under the Compensation Agreement and the plaintiff has agreed to install the outer security gate at the suit flat. Since the plaintiff is taking up huge project like this, installation of a security door is a very small item to be performed by the plaintiff and that the statement of the learned Counsel for the plaintiff is being accepted. One need not wait for the plaintiff to install the security gate and then defendant would shift to the suit flat. Certainly, so far as making the flat available for occupation of defendant no.1 as a vacant flat, the plaintiff will : 18 : nms-1246-10=.sxw have to remove present occupant by name Dhruv. Needless to mention that upon fulfilment of this undertaking only, the defendant no.1 can shift to the new flat. 24. In order to see that this agreement of shifting is complied with, it would be proper to appoint a Receiver so that the Receiver would be able to physically supervise the shifting of the defendant no.1 from the existing flat on the first floor to the suit flat on fifth floor and vacate the flat on the first floor. After the aforesaid shifting is done, Receiver shall be discharged without passing of accounts. The amounts namely 2,60,000/- and Rs. 75,216.30/- can be ordered to be deposited in the Court and upon the completion of the job of shifting of defendant no.1 to the suit flat and giving vacant and peaceful possession to the Receiver in regard to the present flat on first floor, the Receiver would issue the Certificate that the job has been done. Upon production of such Certificate, defendant no.1 would be able to withdraw the said amount deposited by the plaintiff. For the reasons mentioned aforesaid, following order is passed to dispose of the notice of motion. : 19 : nms-1246-10=.sxw ORDER (i) Motion is made absolute in terms of prayer clause (a). (ii) Plaintiff is directed to deposit in this Court on or before 3rd August, 2010 a sum of Rs.2,60,000/-. Plaintiff is also directed to deposit in this Court a sum of Rs.75,216.30 on or before 3rd August, 2010. Upon deposit of these two amounts, Prothonotary and Senior Master shall invest the same in a fixed deposit in nationalized bank initially for a period of 3 months and continue to renew the same for like period if the said amount is not withdrawn or subject to the further orders. For receiving the amounts office shall not wait till the order is signed. Office to accept the amount on the basis of latter of advocate for the plaintiff. (iii) The Receiver, High Court, Bombay is appointed in regard to the suit flat i.e. flat no.502 situate in the building of defendant no.2 as well as flat in which defendant no.1 is presently occupying i.e. flat no.5 on the first floor of defendant no.2. :