Research › Search › Judgment

Bombay High Court · body

2021 DIGILAW 30 (BOM)

Kash Foods Pvt. Ltd. v. Omkar Realtors & Developers Pvt. Ltd

2021-01-06

A.K.MENON

body2021
JUDGMENT 1. The applicants are proceeding in execution of consent award passed by a sole arbitrator. The applicants are the claimants in arbitration. Three separate applications seek the diverse reliefs against the sole respondent. In the Chamber Summons of several reliefs, the applicants have now restricted their claim to prayer clauses j (i) & (ii) and prayer clause k(ii) restricted to unsold units in Tower C. 2. In application no.3557 of 2020, the applicant seeks a temporary injunction restraining the respondent, its servants and agents from alienating, creating third party rights or transferring development rights granted to respondent under a development agreement dated 13th April, 2013 without prior approval of the applicants. The applicants also seek an order directing the respondent to disclose (a) Minutes of Meetings held on 30th August, 2020 between respondent and its lead investors and third parties in relation to the project known as Omkar 1973 at Worli; (b) details and information about any transaction entered into by the respondent and any third party in relation to transfer of its development rights in the project and (c) details and information entered into between the respondent and third parties in relation to the said project. 3. In the third proceeding, Interim application no.3 5 59 of 2019, the applicants seek an order directing the respondent to pay a sum of Rs.71,09,820/- p.m. to the applicants under clause 21 of the consent terms between the parties till the applicants are handed over the agreed and allocated constructed premises described as "Modified Owners' Allocation." 4. According to the applicants, based on the respondent's calculation in accordance with clause 21, monthly rent of Rs. 71,09,820/- is payable to the applicants. As of August 2020, the total outstanding is Rs. 12,53,37,885/-. The respondent is liable to pay the monthly sums under the Award until the entire Modified Owners' Allocation is handed over, monthly rent would have to be paid. Some demand drafts were handed over in part payment of rent but these were not encashed since the rent was not tendered in full. 5. Pursuant to breaches of the development agreements, the claimant/applicants had filed a petition under Section 9 of the Arbitration and Conciliation Act which the Court converted to one under Section 17 before the Arbitrator. Some demand drafts were handed over in part payment of rent but these were not encashed since the rent was not tendered in full. 5. Pursuant to breaches of the development agreements, the claimant/applicants had filed a petition under Section 9 of the Arbitration and Conciliation Act which the Court converted to one under Section 17 before the Arbitrator. That application came to be allowed and the respondent was restrained from parting with possession of any units till handing over of the Owners' Allocation. The parties thereafter entered into negotiations and consent terms were arrived at thereby the restraint under Section 17 was relaxed, partially vacated on the promise of timely completion of Owners' Allocation and payment of certain monetary consideration. Monetary consideration in a substantial sum has been paid but the rent promised is still outstanding. 6. On behalf of the applicants, Mr. Jagtiani submitted that the applicant nos. 1, 2 & 3 are owners of the land upon which the project is being constructed and had entered into a Development Agreement with the respondent. The project contemplates construction of three towers A, B & C. The applicant no. 4 though not a party to the development agreement, is a beneficiary under the consent terms dated 3rd October, 2018 which led to the passing of a consent award. The non-monetary obligations of the respondent was to provide the applicants all 5 flats on the 69th floor of Tower A, one flat on the 30th floor of Tower A, two duplex flats on 66th and 67th floor of Tower B and flats no.4801, 4802, 4901 and 4902 in Tower B. These were required to be completed and handed over in a time bound fashion. Mr. Jagtiani submitted that the respondent had committed breach of all the undertakings to hand over flats in question. He relied upon a list of breaches. According to him the respondents had committed breach of the Clauses 10(ii), 11(ii), 12, 13(ii) (iv) 14(i)(iv) and 21 of the consent Award. 7. The respondent was required to get plans amended by 15th November, 2018 and register supplemental agreements in relation to floor nos.66th and 67th which it failed to do and thus defaulted in constructing /handing over duplex flat on floor nos.66th and 67th along with nine car parking spaces. (ii) It breached clause 12 which required completion of interior work and providing flat nos.B-4801, 4802, 4901,4902. (ii) It breached clause 12 which required completion of interior work and providing flat nos.B-4801, 4802, 4901,4902. These works were required to be completed by 31st January, 2019. (iii) 5 flats which were permitted to be used by the respondent had not been handed over back to the applicant, (iv) The lift installed was not upto floor 69. (v) In respect of 5 flats on floor 69th and the additional flat on floor 30th of Tower A, agreements were to be registered but agreements for only flat no.A-6901 and A- 3001 have been registered on 15th July, 2019. The registration in respect of other flats is pending because the respondent now expects the applicant to pay stamp duty and registration charges. (vi) The respondent has defaulted on payment of rent and in paying sum of Rs.20 crores against the adjustable deposit. 8. In the Chamber Summons, the applicants have pressed for relief in terms of prayer clause j(i) and j(ii) and prayer clause k(ii). Mr. Jagtiani submitted that the respondent was also bound to disclose (a) a list of unsold flats on the part of the respondents allocation in Tower A, B & C; (b) a list of assets held by the respondent over which the respondent had power of disposal; (c) the stage of approvals of duplex flats from SRA and MCGM supported by copies of the plans and documents; (d) confirmation that the respondent had not handed over possession of flats on the 67th, 68th and 69th floor of Tower A excluding flat nos.6701 and 6802 in Tower A of its purchasers. 9. Mr. Jagtiani submitted that under Order 21 Rule 32 a decree for specific performance can be enforced by the attachment of the property or with leave of the Court by detaining Directors and Principal Officers of the respondent in civil prison. According to him, it was necessary to pass appropriate orders to enforce the decree by directing detention as aforesaid. Under sub-rule (2) he submitted that decree should be enforced by the attachment of the property of the respondent in complying with the award and would justify orders for attachment and sale of property. He submitted that there is willful default on the part of the respondent. Despite giving undertakings each one has been violated. Under sub-rule (2) he submitted that decree should be enforced by the attachment of the property of the respondent in complying with the award and would justify orders for attachment and sale of property. He submitted that there is willful default on the part of the respondent. Despite giving undertakings each one has been violated. He, however, admitted that a sum of Rs.230 crores has been paid by the respondent as a pre-condition of the consent terms but thereafter all other undertakings have been breached willfully. He submitted that the respondent was bound to obtain approval of plans by the SRA in respect of duplex flats on the 66th and 67th floors of Tower A by 15th November, 2018 but had filed an application only after December 2018. 10. It is contended that the respondent had benefited immensely after being relieved of the injunction and being permitted to handover possession of its allocation to third parties and able to generate cash flows. He therefore seeks attachment of unsold units of Tower C. He referred to breach of clause 29 of the consent terms relating to the insolvency proceedings and that an attachment under Order 21 Rule 32(i) must extend to the respondent's properties including unsold units. Despite an order of this Court dated 27th February 2020 directing disclosure of unsold units he submitted that the disclosure was selective and the respondent had not provided list of unsold units but only stated that 6,70,000 sq. ft. had been encumbered. 11. In relation to interim application no.3557 of 2020 in which the applicants seek an injunction restraining transfer of development rights, Mr. Jagtiani submits that in August 2020, the applicants came to learn that the respondent had meetings with some investors thereby leading the applicant to believe that the respondent was in process of transferring development rights to a third party without consent of the applicants. That such action is breach of the development agreement. Mr. Jagtiani submits that the applicants learnt of an order dated 7 th August, 2020 passed in proceedings initiated against the respondent by Shapoorji Pallonji Investment Advisors Pvt. Ltd. It recorded that a board meeting of two lenders viz. Piramal and Yes Bank was scheduled to be held on 30th August, 2020. Mr. Jagtiani submits that the applicants learnt of an order dated 7 th August, 2020 passed in proceedings initiated against the respondent by Shapoorji Pallonji Investment Advisors Pvt. Ltd. It recorded that a board meeting of two lenders viz. Piramal and Yes Bank was scheduled to be held on 30th August, 2020. In another proceedings in Commercial Suit No. 78 of 2016 also the Advocate contend that they were awaiting lenders response to restructuring proposal that the respondent cannot part with development rights without the applicants prior approval and all the aforesaid meetings indicated the intention of respondent to part with development rights. 12. In Interim Application No. 3 5 59 of 2020 in which the applicants seek recovery of rent pursuant to clause 21 of the consent terms. Mr. Jagtiani submitted that the default in payment of rent is admitted and in the affidavit of the respondent, it has undertaken to pay 4% rent as per clause 21 of the consent terms. In a subsequent additional affidavit dated 8th September, 2020 the respondent has undertaken to pay the rent, but they are in default of payment of Rs.12,53,37,885/- upto August 2020 and further amounts of Rs.71,09,820/- p.m. till the Modified Owners' Allocation is handed over. He submitted that the applicants would give credit sum of Rs.50 lakhs to the respondents since the applicants have encashed the demand drafts amounting to Rs.50 lakhs sent to them on 28th August, 2019. As a matter of protest, some demand drafts of Rs.24,81,285/- had not been deposited since rent payable upto December 2019 was not being paid in full and as of 31st October, 2020 Mr. Jagtiani contended that a total sum of Rs. 13,4 5,5 7 52 5/- was overdue. 13. According to Mr. Jagtiani, vide clause 28 of the consent terms, the respondent had agreed that all obligations to the extent that they had not been modified under the consent terms would continue to bind the respondent and in such circumstances, the development rights cannot be dealt with. The respondent was therefore bound not to create third party rights. 13. According to Mr. Jagtiani, vide clause 28 of the consent terms, the respondent had agreed that all obligations to the extent that they had not been modified under the consent terms would continue to bind the respondent and in such circumstances, the development rights cannot be dealt with. The respondent was therefore bound not to create third party rights. According to the respondent however clause 19 and 28 of the consent terms, the requirements under clause 26 of the development agreement is no longer binding and therefore the respondent does not require clearance from the applicants for development of Tower C which according to the respondent can be dealt with and without reference to the applicants, the respondent's contention being that certain bank guarantees had been provided against which the applicants agreed to give up securities for the top most three floors of Tower C. According to Mr. Jagtiani the clause is not omnibus clause allowing the respondent to transfer the development rights of the project itself but only permits the respondent to construct and deal with by way of sale, flats in Tower C. He therefore submitted that transfer of all development rights is not permissible without the prior approval of the applicant. 14. As far as the Reserved Area B is concerned, Mr. Jagtiani submitted that the respondent's contentions are misleading that the monetary value of Reserved Area B consisting of six flats in Tower B can be equated only with part of the Modified Owners' Allocation i.e. 5 flats on the 69th floor of tower A. He submitted that Reserved Area B is insufficient. Secondly, the respondent's contention that it has not been able to construct the apartments since permissions are awaited is unacceptable because they applied for approval only in December 2018 by which time they should have obtained approvals as evident from the additional affidavit of Kamal Gupta. The respondent was not therefore diligently pursuing the permissions and had not followed up with the authorities to obtain approvals. 15. As far as the interior work of flats for B-4801, 4802, 4901 and 4902 is concerned, the respondent has contended that certain material had to be ordered from abroad. To this, Mr. Jagtiani submitted that the respondent was to complete interior work by 31st January, 2019 yet none of the interiors were completed and the reasons given were unacceptable. 15. As far as the interior work of flats for B-4801, 4802, 4901 and 4902 is concerned, the respondent has contended that certain material had to be ordered from abroad. To this, Mr. Jagtiani submitted that the respondent was to complete interior work by 31st January, 2019 yet none of the interiors were completed and the reasons given were unacceptable. It is difficult to believe that material imports were delayed by more than a year. He also submitted that the other reason for non-payment of rent is due to the pandemic which is once again not believable. 16. On behalf of the respondent, Mr. Khandeparkar contended that the applicants were the original owners of a non-slum plot. Respondent as a developer is also a co-owner in implementation of the project Omkar 1973 on an adjoining plot. Joint Development was proposed of several other plots. The SRA scheme were sought to be combined by amalgamation and was intended to be developed as a single plot. The applicants plot being land locked could not be developed independently and hence the applicants entered into the development agreement dated 13th April, 2013. Disputes thereafter arose which were resolved vide the consent terms. He submitted that Rs.230 crores had already been paid over pursuant to which the applicant consented with 27% share in the applicants plot. This payment was made in October 2018 thus the respondent claims to be co-owner with the applicant in relation to the applicants plot. He submitted that the claim of Rs.20 crores under clause 10(ii) of the consent terms has already been paid by adjustment as already set out in its affidavit dated 25th July, 2019 in the Chamber Summons. This need not detain us since Mr. Jagtiani has restricted his reliefs in the Chamber Summons to prayer clause (j) (i) and (ii) and K(ii). 17. Mr. Khandeparkar submitted that in Tower A and B he has already disclosed that 64 flats are unsold and are encumbered and in Tower C, 6,70,000 sq. ft. of unsold area has been mortgaged. This need not detain us since Mr. Jagtiani has restricted his reliefs in the Chamber Summons to prayer clause (j) (i) and (ii) and K(ii). 17. Mr. Khandeparkar submitted that in Tower A and B he has already disclosed that 64 flats are unsold and are encumbered and in Tower C, 6,70,000 sq. ft. of unsold area has been mortgaged. He admitted to liquidity problems but reiterated that in the process of restructuring the respondent will honour its obligations to the applicant in respect of the 5 flats 6901 to 6905 applicants had taken possession and permitted the respondent to use the units to complete the construction of the higher floors and to complete the amenities cost of which is about Rs.4 crores. He submitted that occupation certificates for the said flats have been already obtained. In respect of duplex flats on floor 66th and 67th in Tower B approval of the modified floor plan layout is to be obtained from SRA. Regularization has been sought but the issues are still not resolved on account of lack of clarity in implementing DCPR-2034. The respondent is ready to execute agreements upon approvals being granted. 18. As far as flat nos.B-4801, 4802, 4901 and 4902 are concerned, Occupation Certificates have been already handed over along with possession to the applicants and the relevant agreements have been executed and registered. He submitted that in respect of flat nos. 6901 to 6905 and 3001 the respondent is ready and willing to share draft agreements and later enter into supplemental agreements, copies of which have been shared. 19. According to Mr. Khandeparkar the respondent has complied with 93% of all obligations under the consent terms and is making efforts to willfully comply with the rest. Rent of Rs. 13 crores is admittedly outstanding and the cost of interior work to be carried out in flats 6901 to 6905 is about 4 crores whereas the applicant is secured to the extent of Rs. 129.29 crores. The liquidity issues prevent them from undertaking interior work and the respondent has suggested that the Reserved Area can be sold and funds from those sales could be used for funding the interior work in terms of the consent terms. The monetary claim being entirely secured with a minimum value of Rs. 129.29 crores. The liquidity issues prevent them from undertaking interior work and the respondent has suggested that the Reserved Area can be sold and funds from those sales could be used for funding the interior work in terms of the consent terms. The monetary claim being entirely secured with a minimum value of Rs. 129.29 crores of 6 flats constituting the Reserved Area and therefore no relief should be granted in the Chamber Summons. 20. As far as the interim application no.3557 of 2020 is concerned, Mr. Khandeparkar submitted that two floors remained to be constructed in Tower A. Tower B has been partly completed upto 69th floor. Occupation Certificates are awaited only for floors 61 to 69. As far as tower C is concerned, it is partly constructed upto the slab of 48 th floor. According to him, the applicants have no right over Tower C and no consent is required. Applicant no. 3 is said to have already sold 27% share to the respondent and cannot seek such injunctions. The consent terms he submitted provides in clause 28 that in any event of any conflict between the development agreement and the consent terms, the consent terms would prevail. This Court as an Executing Court cannot go behind the decree and grant relief contrary to the decree. The attempt of the applicants is to seek injunction to pressurize the respondent. Mr. Khandeparkar submitted that there has been in-principle agreement for restructuring the debts of the respondent and the respondent is awaiting the final term sheet from the lenders. 21. In Interim Application no.3559 of 2020 the prayer merely seeks a direction to pay the amount. No such relief can be granted in execution proceedings since the respondent has already admitted liability. The award is being executed and no further orders are required to be passed. According to Mr. Khandeparkar the applicants are completely secured by clause 2 3(a) read with Annexure VI of the consent terms and six flats having market value of Rs.129 crores have been reserved for the benefit of the applicants. A proposal made to the respondent to sell these flats to recover monies has been declined. It is further contended that the Execution Application having been filed for recovery of only an amount of Rs.77,56,984/- which Rs.74,81,285/- was already been paid over. He therefore submitted that the contents of the applicants cannot be accepted. 22. A proposal made to the respondent to sell these flats to recover monies has been declined. It is further contended that the Execution Application having been filed for recovery of only an amount of Rs.77,56,984/- which Rs.74,81,285/- was already been paid over. He therefore submitted that the contents of the applicants cannot be accepted. 22. In conclusion, Mr. Khandeparkar submits that these obligations under the consent terms clause 11 (ii), 13(i), 13(ii) and 13(iv) are being complied, SRA approvals are awaited on amended plans, interior works are yet to be completed for reasons already set out and the supplemental agreement remained to be signed. As far as clause 12 of the consent terms is concerned, all occupation certificates for flat B-4801, 4802, 4901 and 4902 along with 18 car parking spaces, possession have been handed over but interior works remain to be completed. Amenities and finishing work in flat nos.A-6901 to 6905 were pending. Supplemental agreements have to be registered in respect of one flat 6901. Interior work of all 5 flats is yet to be completed and agreements for four flats have been delivered for signature and registration is to be completed. With reference to clause 14(ii) of the consent terms, flat no.A-3001 has already been handed over within time and the supplemental agreement is to be registered. As far as requirement of obtaining NOC from mortgagees is concerned, for flats A-3001, A-6901, B-4801, B-4802, B-4903 and 4902 NOCs have been furnished, NOCs for flats A-6902, 6903 and 6904 are in the process of being obtained. Clause 18 of the consent terms has been complied with. Clause 21 remains to be complied. As far as clause 2 3 (a) is concerned, flat nos.B-3702, 1801, 1703, 1803, 2203 and 2303 are reserved for the applicants and will be maintained so till possession of all flats are completed. Since the flats are already reserved, the obligations under clause 23 have been complied. Mr. Khandeparkar submitted that any transaction dealing with immovable property would have the effect of extinguish title possession or the right to possess, such property to deal with which would have to dealings with to business and the expression "deal with" would mean the right to enter into any kind of transaction. He therefore submitted that the respondent was entitled to sell, dispose of flats without reference to the applicants. 23. Mr. He therefore submitted that the respondent was entitled to sell, dispose of flats without reference to the applicants. 23. Mr. Jagtiani submitted in rejoinder that the opposition during submissions to payment of rent despite a clear undertaking to pay the rent is obviously an afterthought. He submitted that the Reserved Area B is not sufficient to meet the liability under the consent terms. The respondent had calculated the amount of rent payable and was bound to honor the same. The obligation to pay rent was independent and unconditional and was binding till handover of the modified Owners' Allocation under the consent terms. Reserved Area B was only to be held as security till possession of the entire Owners Allocation is handed over. He made reference to clause 22 of the development agreement in support of his contentions and submitted that there is no question of sale of that area. The Reserved Area what to be retained till possession of the flats to be provided to the applicants are handed over. Therefore the Reserved Area cannot be sold. He submitted that in relation to duplex 466 and 467 of tower B the respondent had contended that Occupation Certificate had been received upto 60th floors. Part Occupation Certificate was obtained only upto GO floors. According to Mr. Jagtiani the obligation to procure approvals of plans for construction of duplex on floor GG and 67 had not been complied with. As regards the contention that the Reserved Area B covers the amount sought to be recovered under execution, it is contended that a total of 50,396 sq. ft. across 12 units was to be handed over of which 477GO sq.ft. still remains to be delivered. Although possession letters for four flats two each on 4801, 4802, 4901 and 4902 possession had not been handed over because interior work was not completed. There is admitted default in delivering possession an area of 47.750 sq.ft. owners reserved area is admeasuring 23.389 sq. fts all of which are on lower floors. Mr. Jagtiani denied that the value of the Reserved Area is 129.29 crores and denied that the value of the applicants entitlement is above 275 crores and therefore the Reserved Area is not adequate security. owners reserved area is admeasuring 23.389 sq. fts all of which are on lower floors. Mr. Jagtiani denied that the value of the Reserved Area is 129.29 crores and denied that the value of the applicants entitlement is above 275 crores and therefore the Reserved Area is not adequate security. Moreover, the Reserved Area has to be maintained since no Occupation Certificate has been issued for the duplex flat and the other units are not ready for possession since interior work remains to be carried out. In view of continuing of a breach of the decree which is for first specific performance, the reliefs for injunction are liable to be allowed. 24. I have heard learned counsel at length. In reply to the Chamber Summons, an affidavit dated 25th July, 2019 of one Paras Pathak and an additional affidavits of Bhanupratap Singh and one Kamal K. Gupta dated 19th September, 2020 on behalf of the respondent are on record. 25. In the affidavit of Paras Pathak dated 2 5th July 2020, the deponent has denied the applicants contentions and reiterates that the consent terms have been acted upon. Non-monetary elements setting out the stages of completion of work with reference to the approvals by MCGM and SRA have been complied with and that Occupation Certificates have been obtained in respect of flats mentioned therein. Completion of pending interior work and other obligations is underway. In the meantime, respondent is willing to pay additional rent at 4% p.a. till the date of handing over the flats. The respondent has not denied liability to pay rent at any time and are willing to pay rent. A flat-wise breakup was also provided. 26. It is contended that the application is a pressure tactic and that the consent terms upon bank guarantees being provided, the claimants were to relinquish their rights in the top three floors of Tower C and the respondent was giving their absolute discretion. The bank guarantees are reportedly handed over and therefore the applicants cannot claim any relief as against Tower C. The deponent admits that respondent has been facing a liquidity crunch due to poor performance of the realty sector, however, they have held various discussions with their lenders in order to restructure their outstanding loans and once the restructuring of debts is finalized, the respondent will be able to honour its commitment to the claimant. As of 19th September, 2020, the respondent has not relinquished control over the project to any third party and the respondent is awaiting the final term sheets and offer letter from the lenders. As regards Towers A & B are concerned, Occupation Certificates upto the 69th and 60th floor were obtained and therefore the question of relinquishing the control of the said project to a third party does not arise. 27. According to the respondent, the applicants are adequately protected and the balance of convenience favours them. According to the deponent, consent terms provide for retention of an area described as 'Reserved Area B' as security and temporary injunctions cannot be sought in execution proceedings. The premises mentioned in Reserved Area B adequately covers the amount sought to be recovered and if any restraint order is passed, it will cause great prejudice to the respondent. It is further stated that unsold inventory in Tower A, B & C has been mortgaged to various lenders and therefore third party rights have already been created. It is also stated that the disclosures sought are confidential and are not required to be provided. 28. The respondent admits that by reason of default, rent is payable under the consent Award and reaffirms that the respondent is making all efforts to restructure their loans and make payments. The respondent has offered to sell flats acquired in the reserved area and recover the amounts due to the applicants but the applicants have refused to agree. In the additional affidavit all particulars have been disclosed by the respondent as directed by the Court and therefore, the applicants are sufficiently protected. The balance of convenience is not in favour of the applicants. Substantial compliance with the consent terms and the Reserved Area B under the consent terms offers sufficient security. 29. In a rejoinder affidavit filed by applicant no.2 dated 2nd August, 2019 it is contended that the respondent has violated consent terms since they have admitted that compliance with non-monetary obligations is delayed. The contentions of the respondent are denied. The obligation under Clause 21 is reiterated in paragraph 2 of the application and it is reiterated that the applicants are entitled to default rent as per clause 21 of the consent terms. 30. The contentions of the respondent are denied. The obligation under Clause 21 is reiterated in paragraph 2 of the application and it is reiterated that the applicants are entitled to default rent as per clause 21 of the consent terms. 30. An additional affidavit has been filed on behalf of the applicants vide dated 29th January, 2020 disclosing that several proceedings have been filed against the respondent in NCLT Mumbai. These have not been disclosed in prior proceedings in Arbitration despite clause 21 of the award providing that the respondent and its Director would inform the applicants in writing about the pendency of liquidation or winding up proceedings under the Insolvency and Bankruptcy Code. In the additional affidavit of one Bhanupratap Singh dated 26th February, 2020 the deponent has disclosed proceedings before the NCLT. It is in this background that the aforesaid applications have to be considered. 31. Out of three applications that have been urged, I am of the view that there is no merit in interim application no.3 5 59 of 2020. Clause 21 of the consent terms reads as follows; "Clause 21 In the event the construction of the Owners' Allocation (as set out in Annexure-II hereto) is not completed or Occupation Certificate(s) in respect thereof from SRA/MCGM is not received within the Completion Period mentioned herein in that event the respondent shall pay to the respective claimants and the respective claimants shall be entitled to receive from the respondent, a further sum equivalent to ongoing market rental of the flats in question, from the scheduled date of completion thereof mentioned herein till the actual date of completion and handover to respective claimant with Occupation Certificate, water, electricity along with amenities as stipulated herein whereby the claimants in turn are able to fulfill their obligations towards purchasers of premises from them, subject to and without prejudice to the other rights and remedies which may be available to the claimants. The ongoing market rental shall be computed at 4% p.a. of Ready Reckoner value of flats as per ASR and which shall be payable every month." 32. The respondent has not and indeed cannot dispute their obligation to make payments since it is not the case of the respondents that the construction of the Owners' Allocation has been completed or that Occupation Certificate has been obtained from SRA/MCGM within the completion period. The respondent has not and indeed cannot dispute their obligation to make payments since it is not the case of the respondents that the construction of the Owners' Allocation has been completed or that Occupation Certificate has been obtained from SRA/MCGM within the completion period. The respondent is in my view, bound to comply with the Award and make payments of the amounts computed in terms of clause 21. The obligations of the respondent under clause 21 remained to be complied with as evident from the affidavit of Paras Pathak dated 25th July, 2019 filed in reply to the Chamber Summons. The question is when compliance will be complete. In the event of non-compliance, the overdue amounts claimed under clause 21 may attract interest. In that view of the matter, no further relief is called for and in view of the order that I propose to pass in the Chamber Summons and the obligation to pay rent being admitted, there is no warrant to grant any reliefs in Interim Application no.3 5 59 of 2020. 33. As far as the Interim Application no.3557 of 2020 is concerned, the restraint that is sought would be premature inasmuch as to grant an injunction restraining the respondent from entering into any agreement to alienate, transfer or to create third party rights and development rights, being the main relief, I find that the applicants are also seeking certain disclosures from the respondent in relation to the negotiations the respondent is said to be engaged in with some investors. 34. Clause 26 of the development agreement does contain a bar against assignment and transfer. It is not in dispute that the Chamber Summons has come up for hearing on several occasions and orders have been passed therein as to the deposit of rentals. The applicants have since brought to the attention of the Court that in separate proceedings pending in this Court, the respondent has admitted to being in negotiations on a restructuring proposal. It is not in dispute that the Chamber Summons has come up for hearing on several occasions and orders have been passed therein as to the deposit of rentals. The applicants have since brought to the attention of the Court that in separate proceedings pending in this Court, the respondent has admitted to being in negotiations on a restructuring proposal. It appears that thereafter applicants' Advocates have sought disclosures in respect to the unsold units in Towers A, B and C. Under clause 28 of the consent award, parties agreed that except for changes in amendment in the consent terms, all other terms and conditions of the development agreement would prevail, except in the event of some repugnancy between the development agreement and the consent terms, the consent terms have to prevail. The intention of the parties is therefore clear viz. the development agreement continues to govern the relationship between the parties except as modified by the consent terms and to the extent of such modification if there is any repugnancy, the provisions of the consent award would prevail. The respondent has not disputed this aspect except that in regard to Tower C the respondent is said to have full liberty to deal with Tower C by virtue of clause 19 of the consent terms. Clause 19 does not render provisions of clause 26 of the development agreement nugatory. 35. I am of the view that there is no warrant for directing the respondent to make the disclosure sought in Interim Application no.3557 of 2020. However, the respondent is obliged to comply with its obligation under the consent award. However, that having been said, I am of the view that it is not for the executing court to consider grant of reliefs in terms of injunction sought since that is an aspect which pertains to the parties obligation under the development agreement which even according to the applicants are not modified by the consent award and remained unaffected and is by any repugnancy contemplated under clause 28 of the consent award. The relief sought may be available to the applicants in appropriate proceedings but not in execution of the consent award. Interim Application no.3557 of 2020 must fail. That leaves us with the reliefs sought in the Chamber Summons. 36. The amounts payable towards rent remain to be paid and the applicants are admittedly entitled to receive the same. The relief sought may be available to the applicants in appropriate proceedings but not in execution of the consent award. Interim Application no.3557 of 2020 must fail. That leaves us with the reliefs sought in the Chamber Summons. 36. The amounts payable towards rent remain to be paid and the applicants are admittedly entitled to receive the same. The respondent's plea of being faced with the liquidity crunch does not absolve the respondent of the obligation to comply with the award and in execution proceedings the decree holder is entitled to apply for attachment. Under Rule 42 of Order XXI where the decree is for rent, property of the judgment debtor may be attached even before the amount due from judgment debtor is ascertained. In the instant case, the respondent claims to have furnished certain details along with additional affidavit of September 2020 furnishing details of 64 flats. The respondent admittedly has liquidity issues but that alone will not prevent from steps being taken in execution. In my view, considering the admitted liability which is only escalating, the plaintiffs will be entitled to further disclosures. The vague disclosure to the effect that 6.7 lakhs sq.fts remained unsold and have also been mortgaged is of no consequence. In my view, the respondent is liable to be ordered to disclose in all particulars the flats/units unsold along with particulars of the mortgage. The rights of the mortgagee is only to the extent of the mortgaged debt and the security created any amounts and overflow would be liable for attachment and in the face of the admitted liquidity crunch, a disclosure is thus warranted. 37. In view of the contention that the unsold premises are said to be mortgaged and the possibility after foreclosure of no overflow being available, it will be necessary to secure the applicants entitlement. The contention that 93% obligations under the consent terms have been complied is of no avail. The security of Reserved Area said to be valued at a sum of Rs. 129.29 crores by the respondent is not acceptable to the applicant and indeed as on date, there is no value agreed between the parties so as to ascertain whether the Reserved Area is sufficient security to meet all liabilities of the respondent including the non-monetary obligation. The security of Reserved Area said to be valued at a sum of Rs. 129.29 crores by the respondent is not acceptable to the applicant and indeed as on date, there is no value agreed between the parties so as to ascertain whether the Reserved Area is sufficient security to meet all liabilities of the respondent including the non-monetary obligation. In that view of the matter, further disclosure would be justified and till such disclosure is completed, in my view, it will be appropriate that the respondent be restrained from alienating, dealing with, selling, transfer of further encumbering or parting with possession of any of the unsold units forming part of the respondents allocation in Tower C as sought by the applicants. 38. As far as the other aspects pertaining to the approval of plans in respect of the duplex flats on the 66th and 67th floor, it is not in dispute that the respondent is behind schedule. That amended plans have been submitted for approval and approvals are awaited, interior work is also not completed. The respondent has sought further time. In my view, reasonable time will be required since grant of approvals will not entirely be in the hands of the respondent. No doubt, there are allegations that there have been delays in seeking approvals but that alone would not entitled to justify any further order in execution at this stage. Likewise, obligations under clause 12 of the consent award 14(i), 14(iii), 14(iv) of the consent award are said to be awaiting compliance. These are the non-monetary aspects in respect of which no further reliefs are sought at this stage. 39. The respondent has contended that possession of flat A-3001 has already been handed over and the agreement in respect thereof has been registered and hence no occasion to seek any relief in this respect. The respondent has also stated that No Objection Certificates (NOCs) in respect of flat nos.A-6902, A-6903 and 6904 are awaited. This is also an aspect that requires some time. Although the breach is alleged of clause 18 of the consent terms, it is the contention of the respondent that possession of the 5 flats on the 69th floor and one flat on 30th floor has already been handed over to applicant no. 4 and hence that obligation has been complied. This is also an aspect that requires some time. Although the breach is alleged of clause 18 of the consent terms, it is the contention of the respondent that possession of the 5 flats on the 69th floor and one flat on 30th floor has already been handed over to applicant no. 4 and hence that obligation has been complied. The respondent has also confirmed that the Reserved Area B will be maintained till possession of all flats complete in all respect has handed over. The Reserved Area is intended to be security for completion of all obligations and not merely for the rent in relation to the payment of rent. The respondent has already undertaken to pay rent as aforesaid and in affidavit in reply to the Chamber Summons admitted that they are willing to pay the additional rent at 4% p.a. upto the date of handing over the possession. 40. The respondent has also sought from the claimant flat-wise breakup / bifurcation of the amount claimed towards rent. In the additional affidavit of 8th September, 2020 the respondent has admitted that it has disclosed details of outstanding rent payable and has reiterated its resolve to make payment. The contention that the Reserved Area provides sufficient security is not an answer. The respondents suggestion that the Reserved Area be sold and the monies be applied towards carrying out internal works is also not acceptable. Therefore to suggest that the Reserved Area is security to meet all the pending obligations is not correct, for the parties have agreed to and/or are bound by Clauses 22 and 23 of the consent award which sets out the reason for providing the Reserved Area viz. to ensure the respondents handing over to the claimants the flats complete in all respects with amenities specified in the annexures free from all encumbrances not limited to allotment, sale of mortgage. The contention that the Reserved Area secures the amount of overdue rent and cost of interior works cannot be accepted. There is substance in the applicants contentions that, prima facie, a total of 47,760 sq. fts is yet to be handed over complete in all respects since some of the initial work is yet to be completed apparently for want of funds. The Reserved Area is said to be only 22,389 sq. There is substance in the applicants contentions that, prima facie, a total of 47,760 sq. fts is yet to be handed over complete in all respects since some of the initial work is yet to be completed apparently for want of funds. The Reserved Area is said to be only 22,389 sq. fts and hence will clearly not cover the flats remaining to be handed over completed in all respects as contemplated in the Award. In my view, the applicants have made out a case for further reliefs of disclosure prayed for in Chamber Summons and for a temporary restraint. Upon disclosures being made the applicants are at liberty to proceed further to seek attachment in execution. 41. In view of the above I pass the following order; (i) Chamber Summons is made absolute in terms of prayer clauses j(i) and J(ii). Chamber Summons is also made absolute in terms of prayer clause k(ii) restricted to unsold units/flats in Tower C. (ii) Interim Application nos.3557 of 2020 and 3559 of 2020 are dismissed. (iii) No orders as to costs.