This court dismissed an appeal by original defendants challenging an interim order allowing payment of transit rent in a disposed-off suit, ruling that liability ceases after occupation certificate issuance.
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2024:BHC-OS:20204-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMMERCIAL APPEAL NO. 47 OF 2024
IN INTERIM APPLICATION (L) NO. 31042 OF 2024 IN COMMERCIAL SUIT NO. 116 OF 2022
Dahiben Dalpatbhai Mistry & Ors. ….. Appellants
VERSUS
M/s. Green Building Lifescapes LLP & Ors.
….. Respondents
Mr. Piyush Shah a/w. Mr. Aditya Tayade for the Appellants.
Mr. Amogh Singh a/w. Ms. Krutisha Pandey, Mr. Vikas Mishra, Mr. Nirav Karia i/b. Mr. Bhavin Bhatia for the Respondent No.1.
CORAM : A.S. CHANDURKAR &
RAJESH S. PATIL, JJ
DATE : 5th DECEMBER, 2024
P.C. :-
This Commercial Appeal is filed by the original defendant
nos. 11 to 15 challenging an order dated 15th February 2024
passed by the learned Single Judge of this Court in Interim
Application (L) No. 31042 of 2023 which was preferred by the
defendant nos. 11 to 15 in an disposed off commercial suit.
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society and its members wherein the present appellants were arraigned as defendant nos. 11 to 15. The said commercial suit was disposed off on 8th March 2022 since the parties had entered into Consent Terms. After the disposed off suit, the present appellants (original defendant nos. 11 to 15) preferred an interim application seeking a direction to the developer (plaintiff) to deposit the outstanding rent upto date in defendant no.11’s account through Court/directly and also further to pay rent/compensation for onward month’s amount till defendant no.11 is put in possession of the suit flat.
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paid, and the same would be paid within a week. The Single Judge by his order directed that from the month of March 2024, the developer (plaintiff) shall transfer the amount towards monthly transit rent directly in the account of the defendant no.11, on or before 5th day of each month as per the development agreement. Accordingly, the interim application filed by the defendant nos. 11 to 15 was disposed off. The present appellants (original defendant nos. 11 to 15) have challenged the order passed on 15th February 2024 by the learned Single Judge in the present appeal.
in his arguments by the order passed by the Division Bench of
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this Court in Appeal (L) No. 1272 of 2024, (Achala Rajesh Agarwal vs. Vinod Narayandas Punjabi & Ors.). He submitted that after March 2024, the developer (plaintiff) has not paid the transit rent to the appellants. He submitted that hence, this Court should direct the developer (plaintiff) to deposit the arrears of transit rent and further to keep on paying monthly transit rent till the possession of the new flat is handed over to the appellants. He further submitted that the development agreement should also be executed in favour of the appellant no.1.
5. Mr. Amogh Singh, learned counsel appearing on behalf of
the respondent no.1/developer submitted that his client had already deposited the monthly transit rent upto June 2024 and his client is willing to deposit the arrears, if any. He submitted that the GST amount of Rs.2 lacs is not been paid. Hence, his client was not able to execute the development agreement. He submitted that the occupation certificate has already been issued and his client is ready to handover possession of the subject flat.
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Therefore, his client after receiving the occupation certificate by the Municipal Corporation and being ready to handover possession are not liable to pay the monthly transit rent to the appellants. He submitted that there is internal family dispute between the appellants and the brother of the appellant no.2 who is a blind person. He submitted that a civil suit inter se between the family members of the appellants is pending before the City Civil Court at Dindoshi. An interim application is preferred in the City Civil Court has been heard and is pending for passing of order. He submitted that the prayer of the said suit covers the issue inter se between the family members. He submitted that the present commercial appeal is challenging only the order passed by the learned Single Judge of this Court in the disposed off suit, on an interim application filed by the appellants, which in fact was allowed. He submitted that there is no merit in the present commercial appeal and the same should be dismissed.
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appellants who are the original defendant nos. 11 to 15 have challenged the impugned order dated 15th February 2024 which in fact was preferred in a disposed off suit, seeking only the payment of outstanding monthly transit rent. The interim application was allowed in favour of the appellants even though the said interim application was in a disposed off suit.
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any further monthly transit rent after the Corporation has issued the building completion certificate and the developer being ready to deliver possession of subject flat. The rest of the dispute inter
se between the family members of the appellants would be decided in the suit which is pending before the City Civil Court. The order of Co-ordinate Bench of this Court in Achala Agarwal (supra) referred by Mr.Shah will not be applicable to the present proceedings, since the order impugned in the present proceedings pertains to non payment of transit rent, as regards the execution of Development Agreement is concerned, the said issue is pending before the City Civil Court. Therefore, the observations made in the order passed in Achala Agarwal (supra), does not help in supporting the case of appellants.
[ RAJESH S. PATIL, J. ] [ A.S. CHANDURKAR, J. ]
Signed by: Kanchan V. Mayekar Designation: PA To Honourable Judge Date: 09/12/2024 17:24:33
2 issues framed by the court
Whether the allowance of an interim application to pay transit rent in a disposed-off suit is sustainable when possession rights are subject to a pending family dispute.
Whether the developer can be held liable for monthly transit rent after issuing the Occupation Cum Building Completion Certificate.
Colour shows how this judgement treated each authority
Appeal (L) No. 1272 of 2024, (Achala Rajesh Agarwal vs. Vinod Narayandas Punjabi & Ors.)Distinguished¶56
Dahiben Dalpatbhai Mistry & Ors.
M/s. Green Building Lifescapes LLP & Ors.
A.S. CHANDURKAR
RAJESH S. PATIL
As recorded by the court registry
2 orders share this CNR
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