Lajwanti G. Godhwani And Anr vs Shyam R.

Godhwani And 3 Ors on 25 September, 2018

Bombay High Court

Lajwanti G. Godhwani And Anr vs Shyam R. Godhwani And 3 Ors on 25 September, 2018
Bench: G.S. Patel
15-NMSL1918-18.DOC

Arun

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION (L) NO. 1918 OF 2018
IN
COURT RECEIVER'S REPORT NO. 125 OF 2018
IN
SUIT NO. 3394 OF 2008
WITH
COURT RECEIVER'S REPORT NO. 267 OF 2018

Vijay Jindal ...Applicant

In the matter between
Lajwanti G Godhwani & Anr ...Plaintiffs
Versus
Shyam R Godhwani & Ors ...Defendants
And
The Court Receiver, High Court, Bombay
And
Tahnee Heights Cooperative Housing Society ...Respondent

Limited Mr Sharan Jagtiani, with Mr Karl Tamboly & Mrs Jasmine Kachalia, i/b Wadia Ghandy &
Company, for the Applicant/Auction Purchaser.

Mr Ajay Panickar, i/b Ajay Law Associates, for the Plaintiffs. Mr Mayank Bagla,with Ms Kunjita
Shah, i/b M/s Kanga & Company, for Defendants Nos. 2 and 3.

Ms Gulnar Mistry, with Mr Munaf Virjee & Ms Etika Srivastava, i/b ABH Law LLP, for Respondent.

Mr Karl Shrof, with Ms Khyati Pandit, i/b Dhru & Company, for Defendant No.4.

25th September 2018 15-NMSL1918-18.DOC Mrs Kavita Ambekar, Ist Assistant to Court Receiver
present.

CORAM: G.S. PATEL, J

DATED: 25th September 2018
PC:-

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 Lajwanti G. Godhwani And Anr vs Shyam R. Godhwani And 3 Ors on 25 September, 2018

1. There is an Affidavit in Reply from the Tahnee Heights Cooperative Housing Society ("the
Society") of 17th September 2018.

2. There is some confusion in the pagination. This will be resolved in the course of the day.

3. The society has a claim of unpaid maintenance dues of approximately Rs.3.5 lakhs for the period
1st July 2017 to 31st August 2018. As if the present array of parties was not dizzying enough, Messrs
Jagtiani and Tamboly seem to be alternating appearances for the Auction Purchaser, Mr Vijay
Jindal. I have-- unwittingly--heard both. They state that it was only on 9th June 2018 that Mr Jindal
was put in possession of the flat sold. Given this, it is now clarified that all the society dues on and
after 9th June 2018 are to be discharged and paid by Mr Jindal. All amounts due or overdue for any
prior period, i.e. until 9th June 2018, will be paid out of the funds in the hands of the Court Receiver
directly to the Society. The Receiver will act on production of an authenticated copy of this order.
The Plaintiffs, represented by Mr Panicker, are at liberty to take up their disputes with the Society in
regard to its claim for unpaid or overdue maintenance in an appropriate forum in 25th September
2018 15-NMSL1918-18.DOC suitable proceedings at an apposite time, with sufficient notice and in
accordance with law.

4. It seems that there is a proposal by the Society, one of four in the complex known as "Petit Hall"
at Nepean Sea Road, to obtain a conveyance of the land on which the four buildings stand. As and
when that conveyance is obtained, there may be a requirement for sharing of stamp duty by various
members of the different societies. This does not mean that any amount can be called for from the
auction purchaser in advance at this stage. The auction purchaser will undoubtedly, as a member of
the Society, have the same rights and obligations as every other member with perhaps one
additional difference, viz., that the purchase consideration paid by Mr Jindal is deposited with the
Court Receiver. Should there, therefore, at any time before the disposal of the Suit, be a demand
from the society for a contribution (whether pro rata or otherwise) towards stamp duty assessed
payable on a conveyance to be taken by the society, Mr Jindal will be entitled to make an application
in the matter to have the whole or part of that demand met from the funds in the hands of the Court
Receiver. All contentions in that behalf are expressly kept open. The society is not concerned with
the stamp duty, if any, payable in regard to the auction sale concluded in his favour. The society can
make no claim in that regard.

5. Ms Mistry on behalf of the Society states that the necessary approvals for membership and for
repairs and renovations will be granted to Mr Jindal on his making an application. M/s Jagtiani and
Tamboly say that three letters have been written already to the Society asking for membership. The
Society will treat these letters 25th September 2018 15-NMSL1918-18.DOC as applications sufficient
for this purpose as also for permission to carry out the necessary repairs. Mr Jindal, his consultant
and their workmen will be bound all Society regulations, rules and norms while carrying out or
effecting any repairs and renovations, including adhering to all Society-mandated timings, safety
requirements, etc. It goes without saying that all these changes must be authorised and in
accordance with law and not otherwise. This order is not itself to be construed as giving Mr Jindal
any blanket permission to carry out any changes or renovations.

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 Lajwanti G. Godhwani And Anr vs Shyam R. Godhwani And 3 Ors on 25 September, 2018

6. Irrespective of whose name appears on the share certificate, by virtue of this being a
Court-ordered sale, the Society will enter the name of Mr Vijay Jindal on the share certificate and
allow him admittance to the membership.

7. It is clarified that neither the permission for repairs nor the admission to membership of the
Society is subject to the Society's contention that there is some amount payable as stamp duty on a
conveyance of the land to the society. At present that is only a contention. It is not yet a demand. All
the rival submissions on both sides are kept open and it is clarified that neither the grant of repair
permission nor the admission to membership are contingent on payment of this amount; and
equally that by granting membership or repair permission, the Society is not deemed to have waived
its right to raise a demand, if permissible in law.

25th September 2018 15-NMSL1918-18.DOC

8. Once the sale is completed, the balance will be transferred to the Prothonotary and Senior Master
to be held to the credit of the Suit and will be invested until further orders.

NOTICE OF MOTION NO. 1318 OF 2018

9. This is the Plaintiffs' Notice of Motion. Mr Panicker states that from of the funds in the hands of
the Court Receiver, the Plaintiff is entitled to an undisputed amount of 25%. The contesting
Defendants disagree on the amount to which that percentage is to be applied. This is not something
that can be resolved in a Motion. This is also not a reason to dismiss the Motion. All that can be
done is to adjourn the Notice of Motion to the hearing of the Suit, leaving all contentions open.

(G. S. PATEL, J) 25th September 2018

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