INTHE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INTERIM APPLICATION (L) NO. 779 OF 2022 1N SUIT NO. 838 OF 2014 Mohammed Ali Mohammed Iqbal Wadia ‘Applicant INTHE MATTER BETWEEN: ‘Munawwar Asadulla Gour Plaintit Versus Himeara Properties Venture & Others Defendants INDEX Sr Particulars Page Nos. No. 1 | Affidavit in Reply of Defendant No. 4 55-68 2 | Exhibit 1 Copy of the allotment letter dated 27.03.2014. | 69-70 3 | Exuibie2 - Copy of the Schedule dated 21.02.2015 ofthe | 71-72 remaining balance amount | Exaibie3 Copy of the Ledger entry of Loan B | Exubica Copy of the Table A reflect the name of the | 74-76 Detendant No. 4 and Flat No. 2301/1701 Last Page| 7655 IN THE HIGH COURT OF JUDICATURE AT BOMBAY. ORDINARY ORIGINAL CIVIL JURISDICTION INTERIM APPLICATION (L) NO. 779 OF 2022 IN SUIT NO. 838 OF 2014 ‘Mohammed Ali Mohammed Iqbal Wadia .. Applicant MATTER BETWEEN: ‘Munawwar Asadulla Gour -Plaintitt Versus ‘Bimaara Properties Venture & Others Defendants YAVIT IN REPLY OF THE DI TNO.ST 1, Me, Ilyas M. I Solanki, the Defendant No, 4 above named ‘Adult, Indian Inhabitant of Mumbsi do hereby state on solemn affirmation as under: - 1, Thave read over and understood the contents of the above Interim Application dated 06.01.2022 (*IA’) filed by the ‘Applian abuvenamed. Tam filing the present Affidavit to deal withthe contents ofthe above IA. I seek leave to file @ detailed Affidavit to deal with the contents of the above 1A. T deny all that is stated and set out in the said LA, Noting, 2005 yy Sim sien S360 8 a0contained in the above IA shall be deemed to be admitted for want of traverse or otherwise. T have fled Affidavit dated 12.12.2022 in CRR No. 192 of 2022 in the above Suit. For the sake of convenience and brevity, contents of the aforesaid Affidavit shall be deemed tw have been incorporated hereunder, as if they are set out in this Affidavit, At the threshold, the said Flat No, 2301 referred as 1701/1702 sy the Applicant, was already allotied to me, Vide allotment letter dated 27.03.2014. Ihave complied with Imy obligation under the allotment letter dated 27.03.2014 ‘There is no outstanding act to be performed by me under the allotment lene. There is no cause for temnination of the said allotment letter. This Hon'ble Court has recorded my entitlement to the said flat in Order dated 06.09.2019, The Applicant is aware of the said Order dated 06.09.2019 and consequently the Applicant is aware of the said allotment letter given to me, Despite having knowledge of allotment letter dated 27.03.2014 alloting the said flat to me, the Applicant has claimed to have fraudulently and collectively executed Agreement for sale with Defendant Nos. 1 & 3 ‘The Agreement for Sale is silent about the allotment ofthe said flat, vide allotment letter dated 27.03.2014 to me andior alleged termination thereof. The facts set out hereinabove, clearly reflect thatthe Agreement for Sale is fraudulent and collusive,‘Without prejudice to the above, considering the Order dated (06.09.2019, the said Agreement for Sale could not have been executed. Even in the above Interim Application, the Applicant has not referred to any specific termination letter jn as much as no termination letter has been given to me till date, The Applicant is nether necessary nor proper party 10 the present Suit ‘Without prejudice to the above, {had collestively agreed t0 purchase the said flat and two commercial premises in the said building, The allotment ofthe said fat and commercial premises were interrelated. The purpose was that it would be convenient for me and my family to reside in the same building where my commercial business is carried ovt ‘Without prejudice to the above, I say and submit that (i) the above IA as ffamed and filed is misconceived and not ‘maintainable; (i) the same is taken out by the Applicant belataly and by way of afterthought with a view to achieve cextrareous goals and pressurize the Defendant; (fii) the same is taken out with ulterior motive and malafide intentions; (i) the same is also an abuse process of lav. The above TA deserves tobe dismissed with costs. ‘Some of the brief and relevant facts only forthe purpose of the above IA, are as follows: ~ | presently reside on leave and license basis at Flat No. 2801 ‘on the 28" Floor, Rapid Heights 27, Kolsa Street, Mumbai ~ SH400003, admeasuring approx. 450 sq. ft. I am a Trader dealing in Car Tyres, My present area of residence is very congested, misy and does not have any parking facilites, Further the ssid residence is on leave and license basis. 1 wanted to bay my own residential premises in @ newly constructed building. Further for the expansion of my business, I was also looking out for commercial premises Defendant Nos. 1 10 3 approached me with an offer to allot sell flat No. 2301 on the 23° floor and two commercial premises being Shop No. G1 on ground floor and Block No. 101 on first floor. 1 was inclined to purchase both the residential and commercial premises since the same would be in the sare building and be very convenient to me and ‘my family. 1 expressed inability in paying the entire ‘consideration prior to handing over of the possession, since T would raise funds by sale of my existing commercial Premises atthe time of getting possession. At that stage, the building construction was only at an initial stage Defendant Nos, 1 to 3 agreed to allot flat No. 2301 ‘admeasuring 800 sq.ft. carpet area, on the entire 23" floor of the proposed new building ‘Nawadrat’ (as per Mumbai Municipal Crporation Flat No.1701/1702 on 17" Floor) (Guereinattr referred to as “the said flat) for a total soe sx a‘duly paid to Defendant Nos. 1 to 3. As per the allotment letter, the balance payment of Rs. 1,46,00,000/- was payable on or before handing over possession of the said flat and Defendant Nos. 1 to 3 accordingly issued a Schedule of the remaiaing balance amount of Rs. 1,46,00,000/- dated 21.02.2015. A copy of the aforesaid allotment fetter and Schedule dated 21.02.2015 is annexed hereto and marked as Exhibit “1 & 2" ‘The commercial premises being Shop No. GI on Ground ‘loor end Block No. 101 on first floor of the proposed new building “Nawadrat” was agreed to be sold to me vide the Allotment letter. I crave leave to, refer to and rely upon the said Alloument letter, Schedule, documents for parking, spaces and Agreement for Sale, have also given a loan of Rs. 10,00,000/- on 15.02.2016 to Defendant No. 2. A copy of the Ledger reflecting the said fact ishereto annexed and marked as Exhibit “3° | have duly complied with my obligations under the said Allornent Jeter, The said Allotment leter is valid and bindiag as on date, Iam, inter alia, entitled to flat No. 2301 (as per Mumbai Municipal Corporation Flat No.1701). 1 am ready and willing 10 comply with the obligation of bakawe payment as set out in the said allotment letter read with the Schedule of the remaining balance amount. stIk seems that there are some disputes amongst Defendant Nos.1 to3 and the PlaitiffS, due to which the project is not completed within the stipulated period of time. The Plaintiffs herein filed the aforesaid Suits and Notice of Motion seeking various reliefs. This Hon'ble Court passed sn Onder dated 6° September 2019 (hereinafter referred to as ‘the said Order"), inter alia, recording my entitlement to the said fat. The relevant extract of table “A” of the said (Order is anneved hereto as Exhibit “4” Hence, the said allounent letter is valid and binding in my favour [As per the Order dated 06.09.2019, if Defendant Nos. 1 to 3 failed to comply Court Receiver would take charge of the project on or about 05.03.2021 Defendant Nos. 1 to 3 claim to have fraudulently created some rights vide an Agreement dated 25.02.2021, inter alia, in respect of Fist 2301 on 23" floor (as per Mumbai ‘Municipal Corporation Flat No.1701) of the said building, despite my prior entittement to the same. The aforesaid excficie fraudulent, inter alia, for the following reasons: Agreement T have been alloted the said flat. The said Allotment letter has been issued to me. I have complied with the terms of the sai allotment letter. I am ready and willing to comply with the further obligations under the said allotment letter. The said allotment letter is valid andbinding as on date. There is no cause for and reason to terminate the said allotment letter and it is not terminated as on date. Defendant Nos. 1 to 3 have ‘confirmed the aforesaid Allotment leter. This Hon'ble ‘Court has passed an Order dated 06.09.2019 expressly recording my entitlement to the said flat under the said allotment letter. Considering the non-compliance / breach by Defendant Nos. 1 10 3 of an Order dated 06.09.2019, the Court Receiver was to take charge on 05.03.2021. Henes, the ‘Agreement for Sale dated 25.02.2021 was hurriedly ‘executed to wrongfilly create third party rights before appointment ofthe Court Receiver. ‘The Applicant has referred to an Onder dated 06.09.2019 passed by this Hon'ble Court in the Agreement, Hence, the Applicant was aware of the allotment of the sai flat twme, which is also referred in the Table annexed to the said Order. Despite the same, the Agreement for Sale, fiaudulently, does not make any reference to the allotment ofthe said flat to me ‘No payment whatsoever is made under the Agreement for Sale. Tt is surprising that despite Defendant Nos. 110 3 having been unable to complete construction of the building, inter alia, due to want of sufficient funds, Defendant Nos. 1 603 have executed the said Agreement for Sale without receiving any consideration ‘whatsoever. “The reovipt clause of the Agreement for Sale wrongly mentions / refers to payment of Rs30 lakhs on 605.11.2026. tn fact, I have been made to understand that ro payment was made on 05.11.2020. The same is false and make-believe Receipt. Defendant Nos. 1 to 3 had applied for extension of time to complete construction, which was rejected by an (Order dated 25.10.2021. It was only thereafter as T have bbeen made to understand thatthe Applicant has claimed to have paid Rs. 30 lakhs on or around 27.10.2021, The above corduct / factors reflect fraud and collusion between the Applicant and Defendant Nos. Ito 3, It is pertinent to note that Defendant No. 3, with malafide intentions and ulterior motives have entered into various revistered agreements with relatives / friends for the Flats slready been sold / alloted to other persons even after the Court Receiver has taken charge of the suit Building. The details of the same are as follows: + Despite sllotmentagreement for Flat no. 2301 t0 me i.e, Defendant No.4, Defendant no. 3 as fraudulently sold the sid Flat tothe present Applicant. + In respec: of rehab flat on the 8* floor, the temporary accomadation agreement is executed with original tenant Defendant No. 16 ie, Mr. Mohammed Rafi Rokad, who is also part of the said consent Order. However, Defendant no, 3 sold the aforesaid rehab flat to Mr, Anwar Moosa Rangwala (who was not the ‘original tenant) by making a false statement in the ‘Agroement, dated 12.04.2021+The Free Sale flat on the 8 floor was sold to Mr. Mustansir Angoothiwala, vide registered Agreement ated 20.03.2013, Despite this, Defendant No. 3 has sold the very same flat on The Free Sale flat on the 8 floor of the ssid building to Mr, Anwar Moosa Rangwala, vide Registered Agreement dated 12.04.2021 annexed hereinabove. 8, I now comment upon the contents of the above IA as under 9, With reference to paras 1 and 2 contents thereof do not ‘warrant any comment, 10, With reference to par 3, the Order dated 06.09.2019 passed by this Hon'ble Court in the above Suit recorded the undewaking of Defendant Nos. 1 to 3 to complete constuction of the new building “strictly as per the plan approved by the Municipal Corporation of Greater Mumbai ((MCGM’) on 27.05.2011 under File No. EEEP/4OOI/E/A dated 27/05/2011 (‘the BMC plan’).” The outer structure of the entre building / Moors was fully constructed prior to Order dated 06.09.2019 passed by this Hon'ble Court, In fact, Order dated 06,09.2019 contained a Table “A’, which reflected both the Flat numbers of the subject flat i.e. Flat No. 2301 and also Flat No. 1701 on the 17° Floor of the building. I am unaware and deny that during the pendency ‘of the present Suit, Defendant Nos. 1 to 3 have proceeded to Vy titer enn of ne lng a gp e cm of in sane vet nent te Jsbuilding plan or thatthe amended building plan is approved by the Munisipal Corporation of Greater Mumbai on 26.10.2020. Amendment of building plan and approval thereof would amount to breach of Onder dated 06.09.2019 passed by this Hon'ble Court, Iam unaware and deny that in view of the amended building plan, Defendant Nos. 1103 hhave become entitled to additional FSI on the said plot. The said flat was dready reflected in sanctioned plan before, 1 crave leave to, refer and rely upon the aforesaid sanctioned plan, as and when produced, I am unaware and deny that under the building plans, Defendant Nos. 1 to 3 have constructed a flat No, 2301 on the 17th floor of the new building. I am unaware and deny that under the building plans, Defendant Nos. 1 to 3 have constructed flat No. 2301 on the 17th flor ofthe new building. With further reference to said para 3, as per the suid allotment Jeter I have already paid RS lakhs by cheque ated 28.03.2014 as an advance payment and agreed to pay remaining balance in tems of the said allotment leter and the Schedule dated 21.02.2015. Defendant Nos. 1 to 3 continue to hold and utilise Rs lakhs paid by me towards advance payments, as on date and the eventuality «9 pay balance consideration has not arisen. There is no diretion to ‘me to pay the balance amount under the said Allotment letter. I deny having filed to pay the balance consideration, T deny that Defendant Nos. 1 to 3 have terminated the allotment ete: dated 27.03.2014. There is no default ofthe allotment leter and there is no cause for termination of the ch2. same, Without prejudice to the above, Defendant Nos. 1 to 3 ‘cannot terminate allotment letter dated 27.03.2015, cognizance whereof is taken by this Hon’ble Court in Order ated 06.09.2019. I have no received any termination letter. ‘The statement is made in the para under reference as an afterthought, With reference to para 4, the said Flat No, 2301/1701 is alloted to me, vide allotment letter dated 27.03.2014, which is valid and binding as on date. My entitlement to Flat No. 2301/1701 is also recorded / acknowledged by parties and recorded in Order dated 06.09.2019 passed by this Hon’ble Cour. Considering the same, no rights could be created or Agresment be executed in respect of the said Flat No. 2301/1701, The registered Agreement for Sale dated 25.02.2021 is fraudulently and collusively executed with ulterior motives and mala fide intentions, which is already set out hereinabove. I repeat that as per my knowiedge, no ‘payment made prior to or atthe time of execution ofthe said ‘Agreement dated 25.02.2021. 1 deny that by registered Agreement for Sale dated 25.02.2021, Defendant Nos. 1 10 3 have agreed to sell Flat No. 1701/1702 totally admeasuring 100 sq. mirs. RERA carpet area situated on the 17" floor ofthe new building for a total consideration of Rs. 3,00,00,000/1 deny thar under the said Agreement for sale, the Applicant has paid Rs.30 lakhs to Defendant Nos. 1 to 3 fas camest money. Eamest money means money paid ipfront, however as stated above there was no payment‘made prior to or at the time of execution of the said Agreement dated 25.02.2021 With reference to para 5, the Affidavit by the Applicant dated 15.12.2021 itself provides for a schedule for payment ‘sper stage wise construction, The same is a mere gimmick to overcome my rights under the allotment letter. I deny that Interim Application No. 975 of 2021 secking extension of time for completing the construction of the new building is pending. This Hon'ble Court has passed an Order dated (03.02.2022 disposing of Interim Application No. 975 of 2021. 1 am unaware and deny that after appointment of ‘Court Receive: the Applicant attended a meeting before the Court Reesiver and submitted his Affidavit dated 15.12.2021 or that the Applicant has stated his willingness to pay balance consideration of Rs.2,70,00,000/- as per the schedule mentoned therein, With reference to para 6, the facts set out in this Affidavit clearly reflect that Iam entitled to the said fist and alleged mere payment of Rs.30 lakhs by the Applicant cannot nullify the prior allotment made to me. I am unaware and «deny that the amount of Rs.30 lakhs is paid by the Applicant to Defendant Nos. 1 to 3 and has been deposited in the RERA account ofthe projector thatthe same will be weed by Defendant Nos. 1 103 to complete the construction of the new building. 1am unaware and deny that the Applicant is ready and willing to pay the balance sale consideration ¢s per the schedvle mentioned in Affidavit dated 15.12.2021"V7. No construction of new building is being carried out presently. | deny thatthe presence of the Applicant would facilitate the completion ofthe construction of the building, as alleged or otherwise. With eference to para 7, ¥ deny that the Applicant willbe Gireoly affected by any Orders that may be passed in the present Suit or thatthe Applicant is proper or necessary party to the present Suit, I deny that it would be in the interest of justice that the Applicant is impleaded in the present proceedings as party Defendant tothe present Suit I dleny that no prejudice whatsoever would be caused t0 the Pui or the Defendants in the event the reli sought in the present Application are granted With reference to para 8, the loss that would be eaused to ‘me cannot be adequately compensated by way of damages or casts. In cts and circumstances aforesaid, the present Interim Application ought to be dismissed with compensatory costs - taf Defendant No. 4 oFVERIFICATION 1, Mr. Ilyas M. H. Solanki, the Defendant No. 4 above named ‘Adult, Indian inhabitant of Mumbai do hereby solemnly affirm and state that whatever is stated in the foregoing paragraphs of the affidavit is based on my own knowledge, information, and belief, and I believe the same to be true and correct } Solemnnly affirmed at Mumbai) oh { ti A ay 203) <4 9 a 1 pst fs 2 BEFORE ME Advocate Refetan No Dyn vans tlh CuREsHt sic| | You tek 8 8 Beopedties ientan ALLOTMENT LETTER Date: 27/02/2014. ‘MR ILVAAS AL H, SOLANKT ‘Murnbat SUB: ALLOTMENT OF RESIDENTIAL FLAT PREMISES VIZ. FLAT NO. 2301 ON THE 234 {1Q0R FROM -FHE GROUND FLOOR LEVEL. IN OUR PROPOSED BUTLniG KNOUnI AS. *-__* SITUATED OM PLOT BEARING NO. 95h, Cage RUST AT 14-20 MOTLIDAI STREET, AGRIPADA, MUMBAI © 400 611 Unity HLL. "E WARD OF BYCULLA DIVISION (HEREINAFTER COLLECTNCNS REFERRED TO AS "THE SND PREMISES") Dear Sir, uv have agreed to purchase from us and we have agreed to altot You the abovementioned said premises for a total conmideraten amount of Rs.1,51,00,000/~ (RUPEES ONE CRORE FIFTY OMe Laie Be ond, in this” connection, you have. paid a sum oy Bs,3,00,000!- (RUPEES FIVE LAKHS ONLY) by Cheque No. S92765 Eaked 2710312014 as'an Advance Payment out of the said creed fetal, consideration amount and you have agreed is nag the femaining balance at the earifest on or before handing beer the said premises to you. Jn addition to the aboye said consideration you shall also bear and Pay the following further amounts and charger: Stamp Duty and Registration charges Im respect of the said Agreement. o. eet Or Aina tri 20 Foe "ret ceaaer econo “elf 0252347 oot ‘Emot eimsararoparinesonecem Rue Co pay yor Dof toie OMA mA Prnetis Hete (i) Proportionate Stamp’ Duty and Registration Charges towards the execution and registration of the Deed of Conveyance In favour of the Saciety. (ity, Legat Charges. (0) Share. money, application and entrance fee of the Society/Limited Company, Condominium. ( Proportionate deposit for the maintenance, management and upkeep of the building as moy be Fixed as also taxes anid other outgoings, ()) Deposits and other charses- payable for electricity, water and other service connections to building (Wit) Any other incidental or consequential charges. Aindly confirm by signing the duplicate hereof in token of your. ‘acceptance of above term: and.conditions, Thanking you, Yours faithfully, sQwe CONFIRM, fp eg. Ofc 1A, amia anion. 23K Ser Phra, Hun = 400053 “et cise somos "ela On 20¢7 08 Eat eimararoprienthoma canHEDULE ING NCE. AMOUNT Date: 21/02/2015, To: MR. ILYAS tt. H, SOLANKI Mumba Fer Oh TERE Re AMLOTMENT IN RESPECT OF PREMISESIFLAT NO. 2201 SUMED MENTTHIRD FLOOR OF THE PROPOSED NEW auimeoe MOTLIBRT SN SELOT BEARING NO. a5,"CS NO. aneyy GEDINS WARD EA! STREET, AGRIPADA, MUMBAI ~ 400 tT UNDER uid 2 WARD OF BYCULLA DIVISION SUB: SCHEDULE OF REMAINING BALANCE CONSIDERATION AMOUNT Dear sir, GRUPEES. SRT Ne remaining daiance amount of Rar dogo sey (RUREES ONE CRORE FORTY SIX LAKHS ONEYS a fie ‘oliowing manner: (6) | R&.10,00,0007= [Upon completion of O/H Tank Sag LM] (8) _[ R5-10,08.000/s | Upor compilation of Passenger Lit wank RE.20,00,000/5 | Upan complelion of aiectrical work $-20,00,000/= "| Upon completion af intemal pias Hoering, doors and windows of the unit Re-20,00.0007= Upon “completion "of drainage na plumbing works. | Thue "topy Ra] tae obey 1 Anica Manse, 2 lea Sst ee Teli: 022247 e004 mak ivierapopetes ho com: Tt —— ebes A ae pepe tee [| Rs.20,00,0007 [Upon completion of compound work G) | REZOOO GIO [At the tine of handaver for eau to the unit. (8) | REZEG0.GG | Upon handing over the possession afier obtaining occupancy certiticate Rs.1,46,00,0007= | (RUPEES ONE CRORE FORTY SIX L LAKHS ONLY) Kindly confirm the above and obliga. Thanking you, Yours faithtully, Fo SIMAARA PROPERTIES. UWE CONFIRM = Aft dam |). Signaturs of the Purchaserexw o ASIF'Y. RINDANI ede Account ‘Ape stant oe parte 1522016 To Jammu & Kashmir Bank Pamant : 1522016 toonomaece ‘hi bzze4 on J TO ASI YRoAl By clecing Batanco & b Fu Copy Rave qe Def No74 trevmnvarioo sa) Arierore*A-at ison sven cameo ene8 (rovrnmeanion a2) ea T efor Xe. asangeo/- janaonacey- | sgamoon;- a s | NOMA 1 (eters Na “ 3 sense. | 2gonoom. | x95. sipnsear | 22re0cea | 2aasqoo0y TSR,2 vm] foorwneee er oowvor, Jeavee:s| feovnouste| -foworrr oonesert | lewnze“ INTHE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INTERIM APPLICATION (L) NO. 779 OF 2022 IN SUIT NO. 838 OF 2014 Mohammed Ali Mohammed Iqbal Wadia ... Applicant 1 ATTER BETWE! Munawwar Asadulla Gour Plaintitt Versus Eimaara Properties Venture & Others .., Defendants AEFIDAVIT OF DEFENDANT NO. 4 Dated this 164 day of January, 2023 Mrs. Zainab R. Shaikh ‘Advocate for Defendant No, 4 Thomas Associates, Singh House, 2° Floor, Office No. 10, 23, Ambalal Doshi Marg, Fort, Mumbai ~ 400023, Mob: 7208028866