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2009 DIGILAW 915 (BOM)

Nitin Seth v. Vijay Lakhani

2009-07-24

ANOOP V.MOHTA

body2009
Judgment :- Heard finally by consent. 2. As the basic consent terms concerned with the petitioners and the respondents are common, which is the foundation for filing these Contempt Petitions by the petitioners, I am disposing all these contempt petitions by this common order. For the purposes of disposing these contempt petitions, the facts of Contempt Petition No.21/09 are taken. Most of the events are common except respective payment and the flat numbers. 3. In 1994, Punit City Project, Plot No.27, Sector No.15, CBD Belapur, Navi Mumbai 400 703, launched by respondents 3 to 5. 4. The petitioners paid the agreed amount to respondents 3 to 5 for purchase of respective Flats in Punit City Building under a registered Agreement for Sale. 5. In 2002, Suit No.36 of 2002 filed by GIC Housing Finance Limited against respondents 3 to 5 for recovery of outstanding dues in respect of mortgage of the property. The mortgage of the property by respondents 3 to 5 to GIC Housing Finance was not within the knowledge of and consented the petitioners. 6. In 2005, respondents 3 to 5 unable to complete project and handed over the project to Punit City Association. 7. On 20.12.2006, Development Agreement between respondents 1 and 2 and Punit City Association and respondents 3 to 5 to take over the redevelopment project. 8. During April, 2007 to July, 2007, the petitioners contested the taking over the project by respondents 1 and 2 from respondents 3 to 5 by taking out Chamber Summons No.643 of 2007. 9. On 22.08.2007, the Court accepted the Undertakings by taking on record the Minutes of Order duly signed by all the parties. 10. On 29.08.2007, the Petitioners and respondents 1 and 2 and respondents 3 to 5 executed and registered Supplementary Tripartite Agreement for sale of Flats. 11. On 17.08.2008 a Separate Affidavits of Undertaking executed by the respondents. 12. On 11.09.2008, Letter of respondents 1 and 2 of expressing their inability to hand over possession. 13. 30.09.2008 was day of handing over possession of Shop Nos. 2, 3 and 4 by respondents 1 and 2 to the respective petitioners as per the undertaking. The flats could not be handed over. Hence, in February, 2009 the present Contempt Petitions. 14. There is no dispute about the consent terms read with the contents therein. 13. 30.09.2008 was day of handing over possession of Shop Nos. 2, 3 and 4 by respondents 1 and 2 to the respective petitioners as per the undertaking. The flats could not be handed over. Hence, in February, 2009 the present Contempt Petitions. 14. There is no dispute about the consent terms read with the contents therein. Respondents 1 and 2 are the main parties as alleged by the petitioners who, according to them, not complied with the order/undertaking dated 17.08.2007. 15. Admittedly, as respondents 3 to 5 could not complete the construction, respondents 1 and 2 entered into a Tripartite Agreement for sale in respect of all flats with the respective parties. This also recorded in the consent terms/order dated 22-08-2007 duly signed by all the parties, read with common order dated 22-08-2007 passed in chamber summons no.643/2007 and thereby accepted the statements and undertaking given by the respondents. Suit No.36/2002 was accordingly disposed of. 16. In view of above, admittedly, the parties have entered into the consent terms. The background of the litigation and the default on earlier builder/parties were well within the knowledge. The factual situation, therefore, even otherwise, could not have been changed except that they decided to proceed further to complete the Project/construction. 17. The lacunae and the reason for such delay in completion of the project itself shows that there are various formalities and various stages need to be completed jointly, specially with the cooperation of all. 18. When we talk about the handing over of possession within the prescribed time, it also means subject to Rules and Regulations of the Mumbai Municipal Corporations and as contemplated under Section 45 (1) and (3) of the Maharashtra Regional Town & Planning Act. The requirement is that whether there was intentional and/or deliberate attempt to avoid and/or not to comply with the undertaking given to the Court. Therefore, though undertaking was given and as recorded, that itself cannot be the reason to held them responsible/liable for alleged breach of undertaking. It is not the case that respondents 1 and 2 not proceeded with the construction. The basic submission is that they failed to provide the flat and so-called damages within the specified period and, therefore, the contempt. 19. Admittedly, respondents 1 and 2 proceeded as per the consent orders in question. However, as alleged, they could not complete the same for want of various formalities. The basic submission is that they failed to provide the flat and so-called damages within the specified period and, therefore, the contempt. 19. Admittedly, respondents 1 and 2 proceeded as per the consent orders in question. However, as alleged, they could not complete the same for want of various formalities. There are various documents on record to show that the dispute, with regard to some boundary portion of the land/project in question, which was well within the knowledge of the petitioners, could not be settled at the earliest. Respondents 1 and 2 themselves could not settle the same. That was again the requirement of joint efforts and the pursuation by all. 20. The respondents moved an application on 11.03.2008 for issuance of occupation certificate for the plot in question to the Municipal Corporation of Navi Mumbai. The said application was under process. The concerned Department of the Corporation enquired and asked for many details and in fact on 14.10.2008 the said application was rejected on various grounds. The objection about the boundary dispute as referred above, was also there. The respondents have no choice but to apply afresh on 27.05.2009 along with the necessary required documents for the purposes of occupation certificate. The application was thereafter proceeded again and ultimately, now an Occupation Certificate dated 22.06.2009 has been issued by the concerned Authority referring to application dated 11.03.2008 and 27.05.2009. 21. A statement is made at the bar and which is not in dispute that the construction is completed. About 22 other members have already been handed over the possession of the flats. The learned counsel for respondents 1 and 2 makes further statement that they are ready to hand over the possession of the flats, subject to all other necessary formalities including the balance payment, if any. 22. Even if there are some defaults or some delay, but taking note of above circumstances and the reason so recorded, in my view, it is difficult to accept the case of the petitioners that there was intentional delay or deliberate attempt not to comply with the consent terms/orders. 23. The delay was also caused because of some alterations in the project by the new developer/respondents 1 and 2, even if we take note of, that itself in my view is no way sufficient to accept the case of the petitioner as averred in the present case in view of above. 24. 23. The delay was also caused because of some alterations in the project by the new developer/respondents 1 and 2, even if we take note of, that itself in my view is no way sufficient to accept the case of the petitioner as averred in the present case in view of above. 24. Defendants 3 and 4 are admittedly though party to the proceedings, but were not in-charge of the Project and the construction in question at least since August 2007. Therefore, they are in no way responsible firstly for the project/construction, and lastly, the alleged delay in completing the project. 25. So far as the damages as referred in the consent te3rms/undertaking, that cannot be gone and/or considered in this proceeding. Whether there is a delay or no and what are the reasons for the same, that is a mater of trial. Even otherwise, contempt proceedings cannot be invoked to execute the money claim. For that, remedy is elsewhere. In the present case, there is no monetary claim decided yet. Therefore, also there is no question of deciding the issue of damages even, if any, in the present proceeding. 26. Strikingly, the Apex Court in 2009(5) SCC 665 - Food Corporation of India vs. Sukhdeo Prasad, has held that the contempt jurisdiction cannot be utilized to recover or to enforce the monetary part of the order/direction. 27. In view of above, keeping all points open with regard to the damages, if any, all these Petitions are dismissed. No costs.