1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice No.651 of 2007 IN Suit No.1474 of 1999 (Award dated 21.7.2000 and 5.10.2000) Satyanarayan Malpani & anr. .. .. Plaintiffs v/s. G. Nahar Group of Concerns & ors. .. .. Defendants Mr.D.D.Madon, Senior Advocate with Mr.S.S.Shah i/by M/s.Mehta & Girdharlal for plaintiffs. Mr.Rangras i/by V.L.Desai for defendant Nos.1 to 13. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 21 st April 2008 P.C. : 1. This Notice is taken out under the provisions of Order XXI Rule 34 of the Code of Civil Procedure, 1908. A conveyance has to be executed in terms of the Award dated 21 st July 2000. Under the Award, respondent Nos.1 to 13 are required to pay Rs.23,09,954 /- along with interest at the rate of 15% per annum from 13.3.1999 till payment to the claimants. The payment has been made and received. Under the Award, upon receipt of such payment of consideration, a Deed of Conveyance is required to be executed in accordance 2 with Clauses 4(d), 15 and 21 of the Agreement between the claimants and respondent Nos.1 to 13 and respondent No.14 dated 21.12.1984. 2. A draft Deed of Conveyance has been sent by respondent Nos.1 to 13 to the claimants. The claimants have raised certain objections. The learned Prothonotary and Senior Master has referred the objections to this Court. 3. The first objection is that the conveyance is sought to be made not in favour of respondent Nos.1 to 13 but in favour of a partnership firm M/s.G. Nahar Group of Concerns. The Deed of Conveyance shows the partnership firm as well as the partners of that firm. The firm is not a separate legal entity. The partners of the firm may change from time to time. It is, therefore, clarified that the Deed of Conveyance shall be made in favour of the firm represented by the partners as are available now. Since the claimants are required to execute the Deed of Conveyance in favour of respondent Nos.1 to 13 in their individual capacity, it is agreed between the parties that the Deed of Conveyance executed, as aforesaid, shall be a valid discharge of the obligations of the execution of the conveyance in favour of respondent Nos.1 to 13. 3 4. The second objection is that under the second Schedule of the conveyance land of admeasuring 7408.70 square meters is shown to be required to be transferred. The claimants object to the said area. The agreement between the parties shows the second Schedule referred to in Clause 4(d). The said schedule shows 6559.66 sq. meters of land having FSI of 84,023.3 sq. ft. required to be conveyed. The second Schedule refers to a certificate of an Architect one Mr.Dinesh Shah. He stated to be the Architect of the claimants. The date of certificate is not mentioned. It must be taken a date prior to the date of the Agreement. The date of the Agreement is 21.12.1984. Respondent Nos.1 to 13 have shown me a certificate of the same Architect but it is dated 1.3.1985. That certificate issued after the date of the Agreement. That certificate cannot be read into the Agreement which is of a prior date. The certificate cannot determine the extent of the area to be conveyed. The extent of such area is as shown in the schedule to the Agreement. The precise area of the land required to be transferred is shown in the second schedule to the Agreement. The conveyance is required to be made for that specific land and no more. 5. I have been shown the Award. The two issues in the Award are whether respondent No.1 used FSI in excess of 84,023 4 sq. ft. The said issue is answered in the affirmative. The second issue is whether that excess FSI is to the extent of 10,937 sq. ft., without payment of consideration to the claimants' firm. That issue is also answered in the affirmative. The amount of consideration which is paid is, therefore, for the land to be transferred as well as for the FSI used in excess of what was agreed as per the second schedule to the Agreement dated 21.12.1984. The consideration is stated to be paid for the FSI used. That FSI is the excess FSI used. After user of the excess FSI, additional area of land cannot be conveyed. The area of land to be conveyed under the Deed of Conveyance shall, therefore, be 6559.66 sq. meters without more. 6. The third objection is that Rs.3,25,000 /- , which is required to be paid/deposited at the time of the execution of the conveyance, is not paid or deposited. Respondent Nos.1 to 13 shall deposit Rs.3,25,000/- in Court within one week of the claimants executing the Deed of Conveyance as aforesaid. 7. The fourth objection is that certain development charges are not paid. The claimants claim them to be at about Rs.1.5 Lacs. Counsel for the claimants has not been able to show me the exact amount of development charges payable now. I 5 am told that some amounts have been paid from time to time. Remainder of the development charges agreed to be paid shall be deposited by respondent Nos.1 to 13 in this Court within one week from today. The claimants shall be entitled to withdraw the charges deposited as soon as they are deposited. 8. Respondent No.14, who is a partner of the claimants, claims that a Suit has been filed by him for declaration that the partnership subsists (which the claimants' claim to be dissolved) and hence, no payment can be made unless that Suit is deposed of. That contention is misconceived. The suit between partners has nothing to do with enforcement of the Award or the execution of the Conveyance Deed. The rights and liabilities of respondent No.14 as a partner of the claimants shall be decided his the Suit and respondent No.14 shall be entitled to claim his share from the amounts received by the claimants (which is already received) upon he proving that he is the partner of the firm which continues. 9. There shall be amendment in the draft Deed of Conveyance showing 6589.66 sq. meters conveyed to respondent Nos.1 to 13 instead of 7408.70 sq. meters as shown in the draft Deed of Conveyance. The Deed of Conveyance shall further show a recital as to how respondent Nos.1 to 13 are replaced by the 6 present partners of the firm of M/s.G. Nahar Group of Concerns and an indemnity given by the present partners of the said firm to the claimants against any action by any of respondent Nos.1 to 13 not shown as the transferees in the Conveyance. Claimants to execute the Deed of Conveyance forthwith. 10. Notice is disposed of accordingly. [SMT.ROSHAN DALVI, J.]