MUMBAI: In a setback for a developer, Justice S J Kathawalla of the Bombay high court halted grant of possession of any flat in three plush towers of ‘Omkar 1973’ in Worli and also restrained creation of third-party rights in three topmost floors and the terrace of one tower in a Rs 500-crore dispute. The HC last month appointed an arbitrator, senior counsel E P Bharucha, to resolve the dispute. Two towers are over 70 storeys high and the third is halfway through. Flats come at a hefty price tag, starting at Rs7 crore.
The flagship project of Omkar Realtors and Developers landed in legal trouble after the owner of a portion of land where a slum rehabilitation project is underway dragged the builder to court. Kash Foods, owner of the portion of land amalgamated with the slum scheme implemented by Omkar, coming up next to the TV tower in Worli, moved HC to protect its rights under a 2013 agreement with the builder.
‘Developer can’t sell or mortgage top floors, terrace in one tower’
Kash Foods said that it had transferred development rights in its property at Lower Parel division to Omkar in lieu of allocation of almost 80,000 sq ft of usable carpet area and 72 car parks as developed area, including 15 large 3-to-5 BHK luxury homes, an entire top 73rd floor, duplex residence and triplex penthouse.
The value of the property allocation is in excess of Rs500 crore, Kash Food said in a plaint filed before the high court.
The deal was to hand over premises to Kash Foods first before handing possession to other flat purchasers, present or prospective.
Bombay HC halts possession of any flat in ‘Omkar 1973’ Over 130 flats have already been given to buyers in the high-end residential skyscrapers named after the latitude and longitude intersection. The HC was told that part occupancy certificate has been granted for two towers.
But Kash Foods, in a suit filed through advocate Siddhesh Bhole, contended that Omka r had breached its obligations and had created third-party rights in the top floors of Tower C meant for Kash Foods, besides not constructing a duplex on the 64th floor of one tower as promised, by creating a refuge floor and selling flats on the floor above to others. A slew of senior counsel including Iqbal Chagla, Navroz Seervai and Harish Jagtiani appeared for Kash Foods to make its case as a ‘victim’ of breaches by the builder’s “egregious conduct” since February.
Justice Kathawalla initially passed an interim order till disposal of the matter in arbitral proceedings against the builder Omkar Realtors after hearing its lawyer Aftab Diamondwalla. Omkar, through its counsel Aspi Chinoy and Dinyar Madon, later maintained that the builder had committed no breaches. The builder also said that “height restrictions imposed by civil aviation ministry” made it impossible to hand over the triplex. The court was told it was the builder’s obligation to get defence ministry nod before proceeding with development.
The high court then appointed independent architect Amol Shetgiri to examine the plans to see if the triplex was sanctioned, if demolition beyond permissible height restriction or changes alter structural stability, and to find out what stage the approvals were at. The HC directed that till arbitrator decides whether to grant relief or not, Omkar cannot sell, mortgage or transfer to any third party the proposed topmost floors and open terrace in Tower C. The builder also cannot sell or create rights in 18,000 sq ft of usable carpet area in a tower and “cannot hand over possession of any of the flats constructed in Towers A, B and C to third party purchasers.” A report by the architect said structural stability would not be affected.