Shreyas @ Ashok Narayan Pathare vs CVK & Associates

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2018 Supreme(Bom) 572

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. PATEL, J.
Shreyas @ Ashok Narayan Pathare & Another - Plaintiffs
Versus
CVK & Associates & Others - Defendants
Notice of Motion Nos. 3734 of 2011 & 920 of 2010 in Suit Nos. 880 of 2010, 1626 of 2006 & Chamber Summons Nos. 524 of 2010, 613 of 2015 in Execution Application (L) No. 141 of 2008
Decided On : 20-04-2018

Advocates Appeared:
For the Plaintiffs : G.S. Godbole, Y.V. Divekar, Rohan Karande, i/b Divekar & Co.
For the Defendants : Zubin Behramkamdin, Anupam Surve, Nikhil Mutha, Pritika Lobo i/b M/s. Nanu Hormusjee & Co., Vishawajeet V. Mohite, R.Y. Sirsikar, Sandeep Patil, Uma Palsuledesai

Headnote:
Civil Procedure Code, 1908 - Order 7, Rule 11 - Sale of Flat - Municipal Corporation of Greater Mumbai - Plaintiff in Suit filed for specific performance and decreed by consent - Defendant to that suit is one Defendant to suit sister and Defendant is her husband - In its suit CVK has filed Execution Application - It has filed two Chamber Summonses in that Execution Application- Sub-Registrar of Assurances Respondent to CVK’s Chamber Summons Municipal Corporation of Greater Mumbai is a Respondent to CVK’s Execution Application and its Chamber Summons has filed Suit which CVK sole Defendant- In that suit CVK has filed Notice of Motion Order Code of Civil Procedure seeking a rejection of plaint- In course of narrative that follows there are references to other proceedings including suits contempt petitions writ petitions appeals and so on- These two suits and three applications in them are ones before me –Held, Court said earlier in hearing Motion Court was only considering whether a separate suit would lie- But that does not mean that must be shut out from every forum without a fuller hearing- I have not addressed merits case at all- All that I have held is that Suit is barred and its plaint is liable to be rejected- result is that objection if any is to be taken Section in execution and not by way of a separate suit is entitled to be fully heard on merits of his opposition to Execution Application- This is only forum in which he can be so heard on those issues Court will leave aside dispute as to whether some or all of these alterations were done by CVK or by and builders/promoters- That is hardly issue points out that there is unequivocal commitment by CVK one that finds place in at least two orders and where CVK agreed to be bound by clause initial Partition consequence of that clause which I have set out above is that CVK has bound itself not to any of additional FSI in building- This is a matter that requires examination- Court will not decide this issue today without giving Pathare a further opportunity to place entirety of case on record- If CVK is able obtain without in any way reducing FSI available in building that is one thing- If however that process of results in a direct or indirect violation or transgression of commitment that CVK made to abide by clause then different considerations would arise one hand we have a contention from Pathare that area specified as being area of three flats combined on first floor is not sacrosanct- On other we have a rival contention from CVK that on account of that shortfall in area commitment in clause accepted by CVK must be read subject to that obligation Court have merely set out this issue only in order to possibly narrow controversy for a later decision- Both sides will need to be heard on this aspect of matter – Order accordingly

JUDGMENT :

A. PARTIES AND THEIR LITIGATIONS

1. Since there are cross-applications and cross-suits, this is how the parties are arrayed before me. One CVK & Associates, a partnership firm of Chartered Accountants (“CVK”), is the sole Plaintiff in Suit No. 1686 of 2006, filed for specific performance and decreed by consent. The 1st Defendant to that suit is one Shreyas alias Ashok Narayan Pathare (“Pathare”). The 2nd Defendant to CVK’s 2006 suit is Pathare’s sister, and the 3rd Defendant is her husband (“the Shastris”). In its suit, CVK has filed Execution Application (L) No. 141 of 2008. It has filed two Chamber Summonses in that Execution Application. The Sub-Registrar of Assurances (“Sub-Registrar”) is the Respondent to CVK’s Chamber Summons No. 524 of 2010. The Municipal Corporation of Greater Mumbai (“MCGM”) is a Respondent to CVK’s Execution Application and its Chamber Summons No. 613 of 2015. Pathare has filed Suit No. 880 of 2010, to which CVK is the sole Defendant. In that suit, CVK has filed Notice of Motion 3734 of 2011 under Order 7, Rule 11 of the Code of Civil Procedure, 1908 (“CPC”) seeking a rejection of the plaint. In the course of the narrative that follows, there are references to other proceedings, including suits, contempt petitions, writ petitions, appeals and so on. These two suits, and the three applications in them, are the ones before me. I will refer to them in this order as follows:

(a) Suit No. 1686 of 2006: “CVK’s 2006 Suit”;

(b) Suit No. 880 of 2010: “Pathare’s 2010 Suit”;

(d) Chamber Summons No. 524 of 2010: “CVK’s 2010 Chamber Summons”;

(e) Notice of Motion No. 3734 of 2011: “CVK’s O7R11 Motion”.

(f) Chamber Summons No. 613 of 2015: “CVK’s 2015 Chamber Summons”;

2. In this order, I propose to dispose of only CVK O7R11 Motion. I have taken up CVK’s 2010 Chamber Summons and CVK’s 2015 Chamber Summons only to pass certain further directions regarding affidavits in each. Neither of those Chamber Summonses are disposed by this order.

3. There is an agreed compilation, and I will be referring to it in the order.

4. Having heard Mr. Godbole for CVK and Mr. Behramkamdin for Pathare, I am inclined to allow CVK’s O7R11 Motion. My reasons follow. B. FACTUAL BACKGROUND

5. The facts are largely undisputed and, indeed, are common to both Chamber Summonses and the Motion. They run like this. On 4th October 2005, Pathare, a promoter of a realty development, accepted an amount of Rs. 3 lakhs as earnest money from CVK for himself and the other co-owners for the sale of Flat Nos. 101, 102 and 103 in a building known as Shreyas at Mogul Lane, Mahim, Mumbai.

6. On 4th February 2006, a Deed of Partition was executed between the various persons named in that document (Compilation, pp. 18 – 33. This is titled as a Partition Deed but seems to have been referred to in the proceedings variously as a Memorandum of Understanding or MoU, and also as a Family Arrangement. I have used the caption or title of the document). Pathare is the second party. The agreement clearly allots Flat Nos. 101, 102 and 103 to the Shastris. The carpet areas of the flats are noted as being 325 sq ft in respect of Flat No. 101 and 992 sq ft for Flat Nos. 102 and 103 together, totalling 1,317 sq ft. The plans of the flats showed a carpet area of 1,317 sq ft.

7. On 16th May 2006, CVK filed Suit No. 1626 of 2006 against Pathare and others for specific performance of the agreement for sale in respect of Flat Nos. 101, 102 and 103, the whole of the first floor (Compilation, pp. 34 – 104). Defendants Nos. 2 and 3 entered written statements. They did not deny the agreement. They also did not deny the correctness of the plans. Pathare filed no written statement at all.

8. There followed a Family Arrangement of 30th October 2007 between Pathare, Sushama Pathare (the mother of Shreyas Pathare and Chhaya Shastri), and the Shastris (Compilation, pp. 122 – 128).

9. On 2nd November 2007, Suit No. 162

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