Bombay High Court: The Division Bench of S.J. Kathawalla and Milind N. Jadhav, JJ., directed the builders who failed to refund the buyers their amount to date to establish that they are virtually paupers not having funds in their bank accounts and their standard of living also bears out the same.
Instant petition was filed by a retired pensioner. It was submitted that the petitioner by registered sale agreement purchased a residential flat for a total consideration of Rs 62, 77,310.
Respondents 6 and 7 were the partners of Respondent 5-Firm.
It was submitted that the possession of the said flat was to be given by 31-05-2015. An amount of Rs 61,58, 136 was paid from time to time to respondent 5 towards the purchase of the said flat. Though the building could not be completed due to several irregularities.
Petitioner filed a statutory complaint with respondent 4 – Maharashtra Real Estate Regulatory Authority seeking withdrawal from the project and refund of monies paid along with interest. Respondent 4 directed respondent 5 to refund the amount collected with the interest of @10.05% p.a.
Petitioner had again approached the respondents 5 to 7 for seeking compliance with the RERA Order, yet the same was neglected. Further, an execution application was filed wherein recovery warrant was issued under Section 40(1) of the RERA Act against respondents 5 to 7 which was forwarded to respondent 2 – Collector for execution and enforcement.
Till 2018, no action took place.
Further, the petitioner apprehended that the respondents 5 to 7 were attempting to avoid and delay the execution of the Recovery Warrant and meanwhile they were disposing of their assets in order to circumvent the due process of law.
In 2021, respondents 5 to 7 approached the petitioner for settlement, however, they committed default in payment of the first installment itself and breached the Memorandum of Understanding.
Petitioner, being aggrieved by the laxity on the part of the Statutory Authorities in execution and enforcement of the Recovery Warrant, approached this Court by the present petition.
Analysis, Law and Decision
Bench noted that respondents 5 to 7 have repeatedly brazenly breached the orders passed by this Court as well as undertakings given to this Court.
The said respondent’s counsel again reiterated in the Court that the respondents do not have any funds and they shall be in a position to pay only a sum of Rs 10 lacs only on 25-08-2021.
In view of the above stated, Court directed the respondents 5 to 7 to give complete disclosure of their movable and immovable, encumbered and unencumbered assets and properties before the next date. They shall also produce their bank statements as well as accounts operated by the firms/s and/ or companies in which they are partners and/or directors; particulars of their standard of living, as indicated through their electricity bills, their credit card statement/ s and the income tax returns that they have failed in the last three years.
Hence, the matter was adjourned to enable the respondent’s advocate to satisfy the Court that they do not have funds whatsoever.
Therefore, respondents 5 to 7 have repeatedly not only taken several flats, purchasers, for a ride, by taking their hard-earned monies and not providing them with their flats on time, nor returning their hard-earned monies, but have also repeatedly taken the Courts for a ride by giving solemn undertaking/s in order to avoid any adverse orders being passed against them, knowing fully well that they have no intention to honour the undertaking/s given by them to the Court. They are also well aware that assignments keep changing from time to time and they can, therefore, endeavour to convince the next Judge taking up the said assignment to grant them further extension of time to make payment, which order would once again be breached with impunity.
In view of the above, the matter was adjourned to 22-07-2021. [Arun Parshuram Veer v. State of Maharashtra, 2021 SCC OnLine Bom 1132, decided on 3-07-2021]
Advocates before the Court:
Mr. Nilesh Gala i/by Law Square for the Petitioner
Mr. P.G. Sawant, AGP for Respondents 1 to 3 – State
Mr. Ashutosh M. Kulkarni a/w Mr. Akshay Kulkarni for Respondent 4
Mr. Makarand V. Raut a/w Mr. Manoj Nikam for Respondents 5 to 7
Justice Kathawala’s bench always come out with a very practical and effective solution to a complex legal issue . Now the Builders will have to prove , they are the paupers , what they can not do .