The Consent Terms, in conjunction with previous orders, establish the liability of the appellants to pay the capitalized value and authorize the Court Receiver to sell flats for its recovery.

V.M. Kanade, J.

1. Appellant Nos. 1 to 4 are partners of Appellant No.5 Crescent Builders. They have filed this appeal being aggrieved by the order of the learned Single Judge dated 22/01/2015 passed in Court Receiver's Report No.381 of 2014 in Suit No.1512 of 2009. By the said order, the learned Single Judge was pleased to accept the Court Receiver's Report and permitted the Court Receiver to proceed with the sale of 18 unsold flats and pay the sale proceeds thereof in discharge of (a) dues of Defendant No.6 – Corporation, (b) decretal amount of Rs 107 crores payable to the Plaintiff and (c) cost of construction. Secondly, the Municipal Corporation was directed to consider the application dated 03/11/2014 made by M/s Parelkar & Dallas for regularization of areas in the building under construction to bring the same within the sanctioned plan and proceed to regularize the areas, if otherwise permissible in law without insisting upon an upfront prior payment of its share of capitalized value and other consequential reliefs were also granted.

2. Principal contention of the Appellants is that no flat could be sold by the Court Receiver until Occupation Certificate of the building is obtained in terms of Clause 6 of the Consent Terms.

3 Before we deal with the submissions made by the learned Senior Counsel appearing on behalf of the Appellants, it would be necessary to briefly state the chequered history of this case.

4. Municipal Corporation of Greater Mumbai (“MCGM”) is the owner of plot bearing C.S. Nos. 1/725 and 725 (Part), situated at Malabar Hill Division, Mumbai and it was reserved for public housing in the development plan. Society was formed by the occupiers and on 09/07/1996, they submitted proposal through their Architects to MCGM for implementation of the scheme under Regulation 33(7) of the Development Control Regulations, 1991 (“DCR”). The proposal was approved by the MCGM. However, a condition was imposed that the Society and/or Developer would enter into agreement with the Municipal Commissioner agreeing to pay 10% of the capitalized value before the grant of the Commencement Certificate and balance amount of 90% before final occupation of the sale building. Accordingly, Memorandum of Understanding (“MOU”) was executed between the Society and Crescent Builders (Appellants) authorizing them to carry out development on the suit property as developer. Thereafter, on 08/01/1997, MOU was executed between the Appellants and Respondent No.1 in which it was specifically agreed that the Appellants would pay the capitalized value and it would be their sole responsibility to pay it to the MCGM. Thereafter, on 16/07/1998, Tripartite Agreement was executed between MCGM, Society and the Appellants. There was a specific clause in the agreement whereby the Appellants were under an obligation to pay 10% of the capitalized value on or before 1998 alongwith interest and balance 90% on or before grant of Occupation Certificate.

5. Show Cause Notice was issued by MCGM on 17/04/2008, asking the Appellants to show cause as to why 90% of the capitalized value should not be recovered from them alongwith interest on account of failure to complete the scheme.

6. Appellants filed Writ Petition No. 72 of 2009, seeking direction to MCGM to grant additional FSI, which had been made conditional upon they paying remaining 90% of capitalized value due to MCGM with interest.

7. Respondent No.1 – Shapoorji Pallonji & Co. Ltd (“SPCL”) filed a suit in this Court on 21/04/2009 against the Appellants and Others for specific performance of various agreements including MOU executed between the Appellants and Respondent No.1.

8. In the meantime, this Court in Writ Petition No.72 of 2009 held that the Appellants were liable to pay balance 90% of the capitalized value on or before 24/04/2008 alongwith interest @ 15% per annum till payment.

9. Thereafter, the Appellants issued termination notice to Respondent No.1 on 12/01/2010. The pending suit was according