1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO. 277 OF 1999 NO. 277 OF 1999 NO. 277 OF 1999 IN IN IN SUIT SUIT SUIT NO.1376 OF 1987 NO.1376 OF 1987 NO.1376 OF 1987 1. Smt. Meena Lakhmichand Asrani ] 2. Shri Naresh Lakhmichand Asrani ] 3. Shri Harumal H. Ramnani ] 4. Smt. Maya Lokesh Ramnani ] Appellants 5. Shri Harakchand L. Gala and ] (Auction 6. Smt. Nirmala Harakchand Gala ] purchasers) ] All r/o Bhatia Bhavan, 15th Road, ] Khar, Mumbai - 400 052 ] Vs. 1. Bank of India ] a Body Corporate constituted ] under the Bombay Companies ] (Acquisition & Transfer of ] Undertakings) Act V of 1970, ] having their Head Office at ] Respondent Express Towers, Dalal Street, ] No.1 Mumbai - 400 021 ] (Plaintiff) having their Bombay Metropolitan ] Zonal Office at Phiroze ] Jeejibhoy Towers, Dalal Street, ] Mumbai and their Branch Office at ] Skyscraper ‘A’ Bhulabhai Desai ] Road, Mumbai - 400 026. ] ] 2. M/s Shantico Enterprises, ] a Partnership firm carrying on ] business at Room No.318, ] 3rd Floor, Arun Chambers, ] Tardeo, Mumbai - 400 034 ] ] 3. Mrs. Alia Jagdish Bhatia of ] Bombay Indian Inhabitant, ] carrying on business at Room ] No.318, 3rd Floor, Arun Chambers, ] Tardeo, Mumbai - 400 034 ] ] 2 4. Shridhar N. Lad of Bombay ] Respondent Indian inhabitant, carrying ] Nos.2 to 5 on business at Room No.318, ] (Ori.defts 3rd floor, Arun Chambers, ] 1 to 4) Tardeo, Mumbai - 400 034. ] ] 5. Jagdish Bimal Bhatia of ] Bombay, Indian inhabitant, ] residing at Bhatia Bhavan, ] Narayan Mansion, 15th Road, ] Khar, Mumbai - 400 052 ] 6. Mrs. Kamla Jagdish Bhatia ] ] 7. Mrs. Alia Jagdish Bhatia and ] ] Respondent 8. Mrs. Nirmal M. Bhatia ] Nos.6 to 8 Respondent No. 2 to 4 of ] (deft.nos. Mumbai, Indian inhabitants at ] 5 to 7) present residing at 175/176, ] Movie Tower, Oshiwara, ] Mumbai - 400 058 ] 9. Mrs. Vandaqna Vensi Balwant ] of Mumbai, Indian inhabitant, ] Respondent residing at Avebels, 227, ] No.9 St. Andrews Road, Pali Hill, ] (Intervenor Bandra, Mumbai - 400 050. ] Ms. Kavita Shah i/by Mr. A.G. Shah Advocate for Appellants. None for Respondents. CORAM CORAM CORAM : R.M.S. KHANDEPARKAR & : R.M.S. KHANDEPARKAR & : R.M.S. KHANDEPARKAR & P.B. P.B. P.B. MAJMUDAR, JJ MAJMUDAR, JJ MAJMUDAR, JJ. DATE DATE DATE : 3RD JUNE, 2008 : 3RD JUNE, 2008 : 3RD JUNE, 2008 ORAL ORAL ORAL JUDGMENT (PER R.M.S KHANDEPARKAR, J.): JUDGMENT (PER R.M.S KHANDEPARKAR, J.): JUDGMENT (PER R.M.S KHANDEPARKAR, J.): 1. Heard. 2. This appeal arises from the order dated 9th October, 1998 passed in Suit No.1376 of 1987 3 from the Court Receiver’s Report. 3. From the impugned order, it has been clarified that the sale-deed which was to be executed pursuant to the auction held in regard of the property in question was excluding the F.S.I. available on the plot and the terrace of the building. 4. The contention on behalf of the appellants is that such exclusion of F.S.I. in the sale-deed was necessitated pursuant to the Order dated 1st September, 1993 passed in Suit No. 1376 of 1987 in Notice of Motion taken out by the plaintiffs in the said suit. The contention on behalf of the appellants is that by the said order dated 30th July, 1993 what was sought to be excluded was F.S.I. to the extent of 1367.50 sq. mtrs. and not the entire F.S.I. available for the plot and terrace, therefore the learned Single Judge erred in directing exclusion of entire F.S.I. available to the plot. 5. The order dated 30h July, 1993 was passed on an application taken out by the Plaintiff wherein there was reference to F.S.I. of 1367.50 4 sq. mtrs.. However, by the subsequent order dated 1st September, 1993, it was clarified that the sale shall be excluding the additional F.S.I. available and attached to the plot. In other words, the entire F.S.I. directed to be excluded from the auction and consequently the sale-deed could not refer to any part of F.S.I. and the exclusion of the F.S.I. could not have been restricted to the extent of 1367.50. Hence, no fault can be found in the impugned order. There is no case for interference in the impugned order. 6. The appellants however, justified in contending that this arrangement has to be subject to the outcome of the Suit No.3106 of 1985 filed by the respondent No.9 herein against respondent Nos. 6 to 8 herein. As the exclusion of such F.S.I. in auction and consequently in the sale-deed would depend upon the outcome of the said suit, the impugned order shall be subject to the final outcome of the said suit. Even otherwise the impugned order has been passed in relation to the Receiver’s Report pending the disposal of the matter. 7. The appeal therefore partly succeeds and 5 impugned order is modified in above terms. There shall be no order as to costs. (P.B. (P.B. (P.B. MAJMUDAR,J.) MAJMUDAR,J.) MAJMUDAR,J.) ( R.M.S. KHANDEPARKAR, J.) R.M.S. KHANDEPARKAR, J.) R.M.S. KHANDEPARKAR, J.)