Disposed

Kalpana a. Antani v. Pragatee Enterprise and 3 Ors.

Bombay HC19 Jan 2012NMS/908/2011

Case brief

AI extract

What is this about?

In a suit for specific performance regarding a builder-developer agreement, the court directed the developer to deposit further amounts, continued interim relief to a caretaker, ordered the defendants to grant exclusive possession to the plaintiff, and restrained her from alienating the flat pending probate proceedings involving a will beneficiary.

What did the court decide?

Defendants ordered to put plaintiff in exclusive possession; Directive to defendant to deposit further amounts; Plaintiff restrained from alienating flat pending probate.

Kalpana a. Antani Vs Pragatee Enterprise and 3 Ors. — Specific Performance | Bombay HC (2012)

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905.nms.1821.10 s.1531.10

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skt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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NOTICE OF MOTION OF 1821 OF 2010

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WITH NOTICE OF MOTION NO. 908 OF 2011 WITH

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NOTICE OF MOTION NO. 1301 OF 2011 IN

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SUIT NO. 1531 OF 2010

Kalpana A. Antani

..Plaintiff

-Versus-

Pragatee Enterprise & Ors.

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..Defendants

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Mr. S.B. Prabhavalkar a/w. Mr.N.S. Parte for the Plaintiff.

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Mr. Sean Wasoodew for the Defendant Nos.2 and 3.

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CORAM : S.J. VAZIFDAR, J. DATE : 19^TH JANUARY 2012.

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P.C.

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1 The above notices of motion are inter-connected and are therefore disposed of by the following common order :

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The plaintiff’s mother one Hema Antani had purchased the suit flat by an agreement dated 16^th March 1979. She was the exclusive owner thereof. Only her name appeared on the share certificate issued by the defendant-society. She had however mentioned the name of her husband only as a nominee.

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2 - 905.nms.1821.10 s.1531.10

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2 The plaintiff’s mother died intestate on 7^th August 2002. Thus, the plaintiff and her father inherited the suit flat in equal shares. The plaintiff’s father died on 10^th December 2006 also intestate. Absent any bequest, the plaintiff would be the sole owner of the suit flat upon the death of her father.

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The society-defendant no.4 however, upon the death of the plaintiff’s mother, mentioned the name of the plaintiff’s father on the share certificate. It is possible that this was on the erroneous basis that the plaintiff’s mother having mentioned her husband’s name as the nominee, he was entitled to the flat exclusively. Prima-facie, the mere nomination does not constitute title. Proceeding on the erroneous basis that he was the exclusive owner of the flat, the plaintiff’s father allegedly left behind a will bequeathing the flat to his brother one Ushakant Antani, who has not been impleaded in this suit.

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3 The society had entered into a development agreement with defendant no.1 dated 15^th February 2008. The members entered into the individual agreements with the society and the builder. The plaintiff’s agreement is dated 16^th March 2009. Defendant nos.2 and 3 are also parties to the agreement. Defendant nos.2 and 3 are the plaintiff’s relatives. They have fairly stated that they have no interest whatsoever in the suit flat and they only considered it their duty to protect the interest of

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905.nms.1821.10 s.1531.10

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the plaintiff.

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4 The developer having failed to complete the construction of the building within the stipulated time and having failed to pay the amount towards acquiring temporary alternative accommodation, the plaintiff filed this suit inter-alia for specific performance of the agreement dated 16^th March 2009 and two writings of the same date and for a declaration that defendant nos.2 and 3 have no right in the suit flat.

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5 During the pendency of this suit, the construction of the building was completed and the developer and the society invited the members including the plaintiff to occupy their respective flats. For the purpose of the above notices of motion, it is necessary to note that possession of the said flat was handed over to the society and the builder for the purpose of the redevelopment by the plaintiff. Prior thereto the plaintiff was in exclusive possession thereof. Thus, upon the completion of the building, the plaintiff is entitled to be put back in exclusive possession of the permanent alternative accommodation. This obviously would be without prejudice to the rights and contentions of any other party who may have a claim in respect of the suit flat including the said Ushakant.

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905.nms.1821.10 s.1531.10

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6 The said Ushakant has filed proceedings for probate of the will and the same are pending.

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7 Even assuming that the said Ushakant has a right in respect of the said flat, he would have to adopt independent proceedings including for possession thereof. As far as the question of possession is concerned, however, at this stage, it is only the plaintiff who can be put back in possession as it was she, who had handed over possession to defendant no.1 / the developer and the society. It would however be necessary to restrain the plaintiff from disposing of the said flat till the probate proceedings are concluded.

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8 By an order dated 15^th April 2010 in Notice of Motion No.1821 of 2010, defendant no.1 was directed to deposit a sum of Rs.7.66 lakh in this Court. Defendant no.1 deposited the same. By a further order dated 6^th May 2010, the office was directed to pay a sum of Rs.8,000/- per month up to the month of December 2010 to one Mrs.Bhatnagar. It appears that the plaintiff, upon the death of her parents, was left all alone and was looked after by the said Mrs.Bhatnagar said to be a social worker. The said Mrs.Bhatnagar permitted the plaintiff to occupy a part of her premises on leave and licence basis at a compensation of Rs.15,000/- per month. The said Mrs.Bhatnagar permitted the plaintiff to continue to occupy the

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905.nms.1821.10 s.1531.10

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premises even though, the plaintiff had not being paying the entire amount of the leave and licence agreement.

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9 Prima-facie, it appears that the entire compensation payable for the temporary alternative accommodation was to be paid only to the plaintiff. At this stage, however, I intend permitting the plaintiff to withdraw the amount of the compensation deposited by defendant no.1 as per the order dated 6^th May 2010. The application for the same must be made after notice of the said Ushakant.

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10 It is not possible to compute the amount due and payable by defendant no.1. Defendant no.1, as stated above, has already deposited an amount of Rs.7.66 lakh.

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(i) Notice of Motion No.1821 of 2009 is therefore disposed of by directing defendant no.1 to deposit in Court any further amounts which according to defendant no.1 are payable to the plaintiff under the agreement within eight weeks from today.

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(ii) The order dated 6^th May 2010 directing the payment of Rs.8,000/- per month to the said Mrs.Bhatnagar shall continue till the month of March 2012.

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905.nms.1821.10 s.1531.10

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(iii) Notice of Motion No.908 of 2010 is disposed of by directing the defendants to put the plaintiff in exclusive possession of the suit flat within two weeks from today.

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(iv) The plaintiff shall not dispose of, alienate, encumber, part with possession of or create any third party rights in respect of the suit flat after a period of eight weeks from the service of a copy of this order upon the said Ushakant Antani or till the conclusion of the probate proceedings which ever is later.

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The plaintiff shall however be entitled to make an application to keep paying guests or to give the flat on leave and licence basis after notice to the said Ushakant Antani and to appropriate the compensation subject to such paying guest or licensee filing in court an affidavit / undertaking to be bound by the orders of this Court and not to claim any rights in that flat.

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(v) In view of the above orders, no orders are necessary on Notice of Motion No.1301 of 2010.

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The above Notices of Motion are accordingly disposed of but with no order as to costs.

Kalpana a. Antani v. Pragatee Enterprise and 3 Ors.

Case brief

What is this about?

What did the court decide?

Kalpana a. Antani v. Pragatee Enterprise and 3 Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Coram

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Kalpana a. Antani Vs Pragatee Enterprise and 3 Ors.