1. The 1st Defendant, Kalpavruksha Developers, undertook to construct the building known as Kalpavruksha Tower on final plot on 1204, TPS IV, Mahim Area, CS Nos. 59 and 59/1 of Mahim Division. This is situated at Kashinath Dhuru Road and Yadav Patil Lane, Prabhadevi/ Dadar Mumbai. The proposal was in the mid2000s. Kalpavruksha Developers obtained sanction for a building of ground and 23 floors. Each floor had one flat except the fourth floor, where they were two flats. On the ground floor there was to be a banquet hall. Kalpavruksha Developers constructed a bare shell of G+23. From 2014, all construction came to a standstill. Kalpavruksha Developers ran out of funds. The managing partner of Kalpavruksha Developers died. His son and other partners have been absconding for a very long time.

2. The Plaintiff in this Commercial Suit No. 1203 of 2018 filed for specific performance. By orders of 4th July 2019 and 11th July 2018, this Court appointed the Court Receiver who took possession of the project, conducted meetings and carried out an elaborate exercise to collect copies of flat purchase agreements, Chartered Accountant’s certificates and so on. He prepared a report of 5th March 2020. By an order of 1st March 2019, M/s Shetgiri and Associates, architects and engineers empanelled with the Court Receiver, were requested to carry out the necessary tests to submit a report about the structural stability of the building and construction as it then stood. M/s Shetgiri and Associates were also to assess the development potential of the project.

3. M/s Shetgiri and Associates made a report on 16th September 2019. This showed, inter alia, that the existing bare shell structure would need extensive repairs and retrofitting. Further construction and load on the 23-storey structure would not be feasible with the current foundations. There were no sanctioned plans or permissions for construction beyond the 23rd floor. The then estimated cost of repairs and completion of the 23-storey project were at least Rs. 57.22 crores.

4. By this time, Kalpavruksha Developers had entered into agreements for sale for flats above the 23rd floor, quite literally flats in the air: with no sanctioned plan and now, following the Shetgiri report, no prospect of ever being constructed. In view of Shetgiri and Associates’ report, the Plaintiff filed IA No. 702 of 2021. The prayers were to appoint Shetgiri and Associates to complete the 23 storey project. Several Respondents were added to the IA though not Defendants to the Suit. Some of them filed Affidavits supporting the Plaintiff’s IA.

5. Over the last several weeks, the Plaintiff and others claiming rights in the units up to 23rd floor have been in discussion to work out a scheme for completion of the project. Shetgiri and Associates made a further report. This report is dated 18th August 2021 and opined that since the structure had been exposed to the elements for such a long time, it had begun to degrade and therefore repairs were urgently necessary. A revised estimate of 7th October 2021 by Shetgiri and Associates now estimated the project completion cost at Rs.72.69 crores. The Plaintiff and others have taken this rounded off at Rs. 73 crores.

6. The Plaintiff and some of the Respondents in the IA covering claims for the 23 floors including the banquet hall and ground floor have now evolved a scheme to complete the project. Mr Siroya for Kalpavruksha Developers has made it clear from instructions obtained from Defendant No. 3 (the wife of the deceased partner of Defendant No. 1) that the developer has no funds to complete the project.

7. I have the scheme before me. It has been through several iterations over the past few weeks. I myself have made some suggestions. These suggestions have been discussed, and with some modifications and necessary changes, seem to have incorporated in this scheme. Areas of concern have been addressed. For instance, while the scheme proposes a pro rata contribution by those who have rights or claims in flats up to 23rd floor, provision has been made if one of the participants in the scheme does not ultimately contribute his or her share. This has been addressed by what has come to be known in these proceedings as a “waterfall mechanism”. This sets out an agreed order of priority to claimants. A flat that becomes available on account of non-contribution by a participating member is then offered to others according to this priority scheme.

8. The scheme participants — and we are only concerned with those up to the 23rd floor — fall into various distinct classes. There are some who have registered agreements. There are some who have filed suits of their own and also have registered agreements. Others have registered agreements but have filed no suits. Some do not have a registered agreement but have filed suits.

9. The 28-page scheme document that is given to me has the signatures against flat numbers of all participants except two persons, Bhuvanesh Chandra and Vivek Chandra, who claim rights in respect of Flat 402. Their rights to that flat are not disputed. They have not been able to sign because today they are not in Court. They are online. They are represented by Mr Jayakar.

10. As I noted above, except for the 4th floor, each floor has a single flat. The 4th floor has two. Flat No 401 is a three-bedroom flat. Flat No. 402 is a one bedroom flat. Mr Jayakar’s suggestion is that Bhuvanesh Chandra and Vivek Chandra should not be asked to pay 50% of the contribution due from the 4th floor but 1/3rd instead. The person who has rights over 401 is Mr Kapoor Singh Rana. He is present in Court. He agrees that his contribution will be 2/3rds of the amount payable against the 4th floor. This is noted. The consequence of this is that they will need to be a slight revision in the amounts stated in the 28-page document. I will take the present document as it stands on record and mark it as “X1”. A corrected document may be handed in by the end of the day tomorrow and will be taken on record and marked “X2” with the revised calculation. It would be better if Bhuvanesh Chandra and Vivek Chandra came to Court and signed the document personally to avoid any controversy going forward. The order in this Suit will be on the document that is tendered as corrected and marked “X2”.

11. All allotments that are made under the scheme are subject to the outcome of the suits mentioned in paragraph 17 of the plaint as provided in the scheme and this includes flat Nos. 701, 801, 1601 1701 (two suits), 1801 and 2001.

12. Mr Kanade appears for Defendants Nos. 42 and 43 who have claims to flats on the 36th and the 37th floors. Their claim is ambitious. They can have no rights here in the G+23 structure. They have filed no suit of their own. They have not even filed an IA to be impleaded as defendants to anybody’s suit. There are no sanctioned plans above the 23rd floor. The submission that Mr Kanade is instructed to make is that without the consent of these Respondents, the scheme cannot receive the sanction of the Court. That is a submission that needs only to be stated to be rejected. It is impossible for Respondents to an IA to seek substantive relief in somebody else’s suit. These Respondents have done nothing at all to have their rights adjudicated. Their claims may well be timebarred. They have no rights in respect of the G+23 structure. Their claim is for a higher floor, which cannot be brought into existence. It is, frankly, incredible that such Respondents can make such contentions. Without filing a suit, without paying one naya paisa in court fees, without seeking impleadment in any suit, these Respondents have the effrontery to claim ‘rights’ in the G+23 structure when, admittedly, their so-called or alleged bargain is for a higher floor.

13. There will be an order in Commercial Suit No. 1203 of 2018 and Interim Application No. 702 of 2021 in the above terms and in terms of the Scheme X-2. For the present, I am not disposing of either the IA or the Suit. There is obviously a long road ahead and it is entirely conceivable that the parties may need the assistance of the Court and perhaps more than once. A disposal of the IA or the Suit itself might complicate matters because then application would have to be made in a disposed of matter.

14. Indeed I would propose that although this comes at something of a cost to parties in terms of legal expenses, the matter should be placed for periodic monitoring. For now, I will list the matter on 17th December 2021 for report in progress.

15. The Court Receiver will act on production of an ordinary copy of this order and of the scheme. No authority or planning authority will raise any questions about the person or entity on whose behalf Mr Shetgiri, proposed to be appointed under the scheme, makes an application for any plans or permissions. The participants in this scheme will be regarded by the MCGM and all authorities as an association of persons for the purposes of all permissions, sanctioned plans and certificates going forward until the occupation certificate received. As to the question of Municipal dues including property taxes, the scheme covers that. I have no doubt that ultimately those who get possession will form themselves into either a society or a condominium for final purposes. The MCGM will acknowledge and recognise M/s Shetgiri and Associates as the licensed architects for the purposes of these scheme and this project. The MCGM is not to raise any queries or requisitions on either Mr Shetgiri or the participants in the scheme. If the MCGM has any queries, it is at liberty to approach this Court. The participants in the scheme are at liberty to engage at their pro rata cost security service to safeguard the project.

16. Respondents Nos. 42 and 43 seek a stay of this order. They run the risk of having an order of exemplary costs made against them if they press such a thoroughly misconceived, mischievous, vexatious and frivolous application. That stay, if granted, would severely prejudice all the scheme participants. I will not even consider such an application without an accompanying order of costs equivalent to the cost of completing construction, i.e., Rs.73 crores. The entire application is inequitable and deserving of censure. At this, Mr Kanade, on instructions, withdraws the application for stay.

17. To ensure that these Respondents can play no further mischief, they are immediately ordered to be deleted as party Respondents. Now they are not even respondents, let alone defendants. And they still have no suit of their own. Amendment to be carried out in one week without need of reverification.

18. Liberty to the scheme participants to apply.

19. In Commercial Suit No. 833 of 2019, there is an IA by the Defendants to take the Written Statement on file on the ground that it is within the limitation of 120 days. The IA will be listed on the second week of November subject to leave of the Court.

20. All concerned will act on production of a digitally signed copy of this order.