City And Industrial Development ... vs Lambda Therapeutic Research Limited

2. The appellant­ City and Industrial Development Corporation of Maharashtra Ltd., (‘CIDCO’ for short) is before this Court in this appeal assailing the order dated 29.08.2018 passed by the High Court of Judicature at Bombay in W.P.No.12674 of 2017. The said order was passed in the writ petition instituted by the respondents No.1 and 2 herein claiming to be aggrieved by the letter dated 20.04.2016, (signed on 01.07.2016) issued by the appellant herein to the Page 1 of 18 respondent No.3 herein requiring them to pay the sum of Rs.14,05,60,587/­ (Rupees Fourteen Crores, Five Lakhs, Sixty Thousand, Five Hundred and Eighty Seven) towards additional lease premium up to 30.03.2007 so as to process the request of respondent No.3 for grant of ‘No dues Certificate’ in their favour which in turn was required to secure Occupation Certificate in respect of the building, from respondent No.4. The High Court having considered the matter has quashed the demand made through the impugned letter dated 20.04.2016/01.07.2016 and has directed the appellant herein to issue ‘No dues Certificate’. The High Court has further directed the respondent No.4 herein to process the application for Occupation Certificate. The appellant is therefore, aggrieved by the order impugned herein.

3. The brief facts leading to the present situation is that the appellant herein allotted plot bearing No.7, Sector 15, CIDCO, Belapur, Navi Mumbai, measuring 3176.25 sq.mtrs to M/s Mehak Developers Pvt. Ltd., the respondent No.3 herein in terms of the New Bombay Disposal of Land Regulations, 1975. The said allotment was governed by the Page 2 of 18 terms and conditions contained in the Agreement of Lease dated 04.08.1995. The construction was required to be completed by the respondent No.3 as per the time frame agreed including the extended time period. Not putting up the construction within the time frame agreed was to attract payment of additional lease premium retrospectively from 06.08.2001 as per the agreed terms. The fact that the respondent No.3 completed construction of ‘A’ Wing of the building known as Arneja Chambers II within the initially extended period i.e. 31.12.2005 is not in dispute.

“The Purchasers have deposited in escrow the a sum of Rs. 20,00,000/­ (Rupees Twenty Lakhs only) with M/s. Khaitan & Jayakar, Advocates & Solicitors, which will be released to the Developers as and when the Developers obtain the Occupancy Certificate for the said premises from the NMMC and upon receipt of approval for extension of time period, and consequent issue of No dues Certificate from CIDCO. The costs incurred for receipt, of approval for extension of time; period which shall lead to issue of no dues Certificate from CIDCO shall be borne by the Developers and the Purchasers equal proportions.” Therefore, if the said aspect of the matter is kept in view the respondents No.1 and 2, to the limited extent can be considered as aggrieved persons for examination of their contention to the limited extent. The contentions to indicate that the construction was completed before 31.12.2008 and that respondent No.3 is therefore not liable to pay the amount indicated in the impugned communication cannot however be accepted at the instance of respondents No.1 and 2 since the fact of completion of construction within the time frame is to be established by respondent No. 3 alone. Hence Page 9 of 18 the further examination herein is to be made keeping in view this aspect as well.

For Mehak Developers, (Proprietor) Add:­ 507, Sharda Chambers, 15, New Marine Lines, Mumbai – 400 020.”

15. Notwithstanding the said conclusion what cannot be overlooked is also the fact that the respondents No.1 and 2 who had made a sizeable investment to purchase the Page 15 of 18 property are the ones who would be ultimately affected and when a discretionary jurisdiction is being exercised by this Court the equities are also required to be worked out and balanced so as to protect the interest of all parties before the Court in the meanwhile. Hence pending such reconsideration an avenue is to be created for the respondent No.4 to issue the occupancy certificate so as to enable the respondents No.1 and 2 to occupy and at the same time the interest of the appellant is also required to be secured.

16. Therefore, pending reconsideration of the matter by the appellant, the respondents No.1 to 3 shall either jointly or severally deposit a sum of Rs.3,50,00,000/­ (Rupees Three Crores Fifty Lakhs) with the appellant towards provisional additional lease premium which would be subject to final decision. On the said amount being deposited the appellant shall issue a provisional ‘No dues Certificate’ limited for the purpose of enabling respondent No.3 to secure the occupancy certificate from the respondent No.4. On such provisional ‘No dues Certificate’ being submitted to the respondent No.4, the respondent No.4 shall process the application for issue of Page 16 of 18 occupancy certificate for the ‘B’ Wing of the building Arneja Chambers II.

18. The appeal is accordingly allowed in part, in terms of the observations and directions contained in para 16 and 17 supra. It is made clear that we have not expressed any opinion on the merits of the matter. There shall be no order as to costs. All pending applications shall stand disposed of.