Disposed

Dalichand Thakrshi Shah and 3 Ors. v. Dharmesh Dalichand Shah and Anr.

Bombay HC5 Oct 2016NMS/1610/2016

Case brief

AI extract

What is this about?

This order sets directions for depositing future compensation payments by the developer into Court for distribution later, mandates approval of new flat allotments, and leaves existing rights disputes open pending a related testamentary petition.

What did the court decide?

Directions for depositing compensation with Court Receiver; flat allotments require Court approval; disputes reserved for testamentary petition outcome.

Dalichand Thakrshi Shah and 3 Ors. Vs… — Contract and Commercial Disputes | Bombay HC (2016)

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915-NMS1610-16.DOC

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ATUL

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1610 OF 2016

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IN

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SUIT NO. 487 OF 2016

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Dalichand Thakarshi Shah & 3 Others…Plaintiffs
Versus
Dharmesh Dalichand Shah & Another…Defendants

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Mr. Vipul Shukla, i/b Jayesh R. Vyas, for the Plaintiffs.
Mr. Akshay Vani, i/b MLS Vani & Associates, for Defendant No. 1.
Mr. Shubro Dey, i/b Sudapa Saha, for Defendant No. 2.

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CORAM: G.S. PATEL, J DATED: 5th October 2016

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PC:-

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1.The two Plaintiffs are, respectively, father and son. The 1st
Defendant is another son of the 1st Plaintiff and the brother of the
2nd Plaintiff. The 2nd Defendant is a construction or development
firm. The dispute is about the premises in a property that is under
redevelopment under DCR 33(7) of the Development Control
Regulations, 1991 (i.e., as redevelopment of a cessed building).

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2.As is usual in such cases, the developer, in this case the 2nd
Defendant, pays to the existing tenants a certain amount as
compensation in lieu of temporary alternate accommodation for a

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Page 1 of 5

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5th October 2016

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915-NMS1610-16.DOC

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temporary period while the redevelopment is under progress. This
is to enable those entitled to the premises in the redeveloped
building to take a transit accommodation of their choice. The flat in
question is or was Flat No. 15 on the First Floor of a structure at
114, VP Road, Girgaum, Mumbai. The 2nd Defendant has entered
into Articles of Agreement dated 29th April 2015. It is this
agreement that governs the reconstruction or redevelopment of a
cessed tenanted structure.

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3.The 1st Plaintiff’s wife was a recorded tenant of the premises.
She died on 2nd May 2015. The 1st Defendant claims that she left a
Will dated 9th December 2014 bequeathing her entire estate to him
and directing a payment of Rs. 10 lakhs to her other son, Plaintiff
No. 2. The 1st Defendant claims to be both an executor and a
beneficiary under this Will. He has filed Testamentary Petition No.
421 of 2016. In that matter, citations are yet to be issued and served.
The 3rd and 4th Plaintiffs are the sisters of the 1st Defendant and
the 2nd Plaintiff. Thus, on intestacy, the deceased mother’s estate
would be shared amongst five persons, i.e., the four Plaintiffs and
the 1st Defendant.

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4.What is of immediate concern in the present Suit for
administration is the flat itself. The Plaintiffs claim that the 1st
Defendant has received entire compensation from the 2nd
Defendant in lieu of temporary alternate accommodation up to
March 2016. On account of these disputes since April 2016 the 2nd
Defendant has not paid any compensation to any party, and in my
view, quite wisely so.

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Page 2 of 5
5th October 2016

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915-NMS1610-16.DOC

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5.In this order, I propose to make an arrangement in regard to
future payments of compensation in lieu of temporary alternate
accommodation as also for the allotment of alternate premises in
lieu of the previous tenanted premises once the reconstruction/
redevelopment is complete. I note only at this stage that this
development is yet to commence. All parties are broadly in
agreement with this proposal. I will also today separately, by
consent, pass directions in Testamentary Petition No. 421 of 2016,
so that that matter is not further delayed.

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6.I clarify that there is no order being made today in respect of
the compensation that the 1st Defendant has already received from
the 2nd Defendant till March 2016.

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7.For the compensation that is payable in lieu of temporary
alternate accommodation since April 2016, the 2nd Defendant will
deposit the entire amount up to October 2016 with the Court
Receiver, High Court, Bombay on or before 26th October 2016. The
2nd Defendant will thereafter deposit the amount of Rs. 18,000/-
payable monthly with the Court Receiver on or before the 10th day
of each month. The Court Receiver will invest the entire amount in
accordance with his usual norms and practice.

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8.The question of which of the parties is entitled to this amount
will be decided later. I only note that this may be subject to the
outcome of the Testamentary Petition itself, for, evidently, the
respective shares of the parties will depend on that outcome.

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Page 3 of 5

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5th October 2016

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915-NMS1610-16.DOC

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9.It also goes without saying that as regards the compensation
that has already been paid to the 1st Defendant by the 2nd
Defendant, whether the 1st Defendant is liable to make payment of
all or any part of this to any of the Plaintiff, is also a matter that is
left open to the final determination of the Suit.

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10.As regards the flat itself and the premises to be offered in the
new building, it is not possible to appoint the Court Receiver of the
physical premises simply because they no longer exist, the old
building having been pulled down and the new construction yet to
commence. The Court Receiver is, however, appointed of the
entitlement or allotment in respect of the permanent alternate
premises in the new building.

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11.Consequently, therefore, none of the parties are entitled to
create any third party rights in respect of that entitlement or to
encumber it in any way. The 2nd Defendant is not to make an
allotment to any of the parties, i.e., the four Plaintiffs or the 1st
Defendant without leave of the Court. Any of the parties are at
liberty to make an application to Court after at least five days’ notice
to the other side as regards the question of allotment, once the
redevelopment/reconstruction is ready for possession and
occupation.

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12.All contentions in that behalf are expressly kept open, subject
only to the rival contentions in the Testamentary Petition.

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Page 4 of 5

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5th October 2016

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915-NMS1610-16.DOC

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13.In view of this, no further orders are necessary on the Notice
of Motion at this stage.

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14.By consent, the Notice of Motion is disposed of in these
terms with liberty to the parties to apply.

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(G. S. PATEL, J.)

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Page 5 of 5
5th October 2016

Dalichand Thakrshi Shah and 3 Ors. v. Dharmesh Dalichand Shah and Anr.

Case brief

What is this about?

What did the court decide?

Dalichand Thakrshi Shah and 3 Ors. v. Dharmesh Dalichand Shah and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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