Draft consent terms for Bhagtani Serenity Victims
Mumbai, 9th September, 2018: Victims of Bhagtani Serenity are experiencing a powerful current sweeping them towards settlement with the Bhagtani builders. What the builders want is a clean chit i.e. withdrawal of criminal complaints, quashing of FIRs, and closure of proceedings under Negotiable Instruments Act. What they are offering in exchange is conveyance of Serenity project land and/or transfer of development rights in favour of "Serenity Welfare Association".
Invitation to the first meeting of this association is being circulated on Whatsapp. It says:
1st Meeting of ''SERENITY WELFARE ASSOCIATION"
Expect to be held on 23 September 2018.....
All Serenity Member's (Buyers) are Requested to Attend.....
Time: BTN 10:00 -11:00 AM
Venue : Serenity Plot or as Decided by Member's (Buyers)
Has this association been formed and registered? Has a civil case already been filed by this association? It is doubtful. But it appears that the leaders of this association already have a detailed plan to quickly file a civil case and quickly sign consent terms, following in the footsteps of Sapphire Welfare Association.
It is amazing to find that consent terms have already been drafted! (It's a bit like a pregnant woman or her husband has not only named the child, but also printed invitation cards in advance for the child's wedding!)
Who drafted these consent terms? Lawyers from the association's side, or Bhagtani's side? My guess is that it does not matter, because they are basically one and the same.
Below are the draft consent terms sent to me on WhatsApp:
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
SUIT (lodging) NO. 586 OF 2018.
Serenity Welfare Association & Ors. … Plaintiffs.
J.V.P.D Properties Pvt Ltd & Ors. ... Defendants.
The Plaintiff No. 1 Association and Defendant Nos. 1 to 3 have agreed to settle the entire dispute amicably and thereby have agreed to file the Consent Terms as under:
1. That the Defendant Nos. 1 to 3 hereby confirms that they are the absolute legal owners of the land bearing CTS No. 63A/5, and 64 D, Village Tirandaz, Taluka- Kurla, Mumbai Suburban District (hereinafter referred to as the “Suit Property”).
2. The MCGM has approved the plans, issued IOD and commencement certificate of the suit propriety.
3. That, the Defendant Nos. 1 to 3 undertakes that within 30 days from the signing of the present consent terms, the Defendants at their own expense, will execute the Deed of Conveyance and / or transfer of development rights in favour of the Plaintiff No. 1Association, in respect of the suit property being land bearing CTS No.63 A/ 5 and 64 D, Village Tirandaz, Taluka- Kurla, Mumbai Suburban District along with all their rights, interest and title in the suit property.
4. That, after passing of a decree / Order on this present Consent Terms settlement, the Plaintiff Association shall forward the same to the District Stamp Office for adjudication and on receipt of the said adjudication certificate / order the same shall be submitted before the Office of Registrar and / or Sub – Registrar of Assurances for the Registration and the defendants agrees and undertakes to attend the Office of Registrar and / or Sub – Registrar of Assurances for the Registration of Deed of Conveyance and / or transfer of development rights.
5. The Defendant Nos 1 to 3 shall execute registered Power of Attorney in favour of authorized representatives appointed by the Plaintiff Association.
6. The Plaintiff Association agrees and confirms that on the execution of the Deed of Conveyance and / or transfer of development rights of suit property in favour of the Plaintiff association and/or its nominees is full and final settlement of the claim of the Plaintiff members against the Defendant Nos. 1 to 3 as made in the Plaint including the claim of other purchasers who booked the Flats in the Suit Project “Bhagtani Serenity” at Powai. A list of all the purchasers who booked Flats in Suit Project “Bhagtani Serenity ” at Powai is annexed as Annexure “A” herein.
7. That the Defendant Nos. 1 to 3 shall handover the entire original documents pertaining to the Suit Property alongwith the MCGM related applications, permissions,iod , cc , Approvals, etc obtained by the Defendant No.s 1 to 3 to the Plaintiff Association without any delay.
8. That, the Defendant Nos. 1 have provided a list which contains the following details and same is annexed as Annexure “A” herein:
I. Total Square Feet area sold in the “Suit Property” to the Flat Buyers / Investors / Creditors as per the list annexed as Annexure A.
II. Total payment received from the Flat Buyers / Investors / Creditors for the “Suit Property” as per the list annexed as Annexure A.
III. Total refund amount paid to the Flat Buyers / Investors / Creditors of the “Suit Property” as per the list annexed as Annexure A.
IIII. Total outstanding balance payable to the Flat Buyers / Investors / Creditors of the “Suit Property” as per the list annexed as Annexure A.
V. The total outstanding amount of the Xender Finance Limited the Defendant No. 4 herein is Rs ———————
9. The Plaintiff Association agrees to development of the Suit Project “Bhagtani Serenity” at Powai by appointing another developer and as herein after appearing.
10. The Plaintiff Association agrees and undertakes that as and when the other allottees / purchasers (as per the list annexed as Annexure “A”) of the Suit Project “Bhagtani Serenity” (who are not the part of the Association at present) will approach the Plaintiff association for membership, then Plaintiff association shall admit and induct them as a member of the Plaintiff Association.
11. The Plaintiff Association agrees that they will call the bid for the appointment of new Developer through publication in newspaper. After receipt of the bids the same shall be placed before the members of the Association and as per the majority approval they shall appoint the new Developer.
12. The Plaintiff Association further agrees that alternatively ,the Plaintiff Association shall sell the suit property to third party and distribute the amount to the purchasers (Exhibit “A” herein) in proportion of the amount given by them to Defendant No. 1.
13. The defendant No .4 agrees to relinquish all their rights of whatsoever nature in respect of the entire loan /finance provided by them on the suit premises to the defendant No 1 to 3 . The Xender finance , defendant No. 4 herein hereby release the mortgage of the suit premises and handover the possession to the Plaintiff association .
14. The parties hereby withdraw all allegations, aspersions raised against each other, unconditionally.
15. Some members of the Plaintiff Association and also some Flat Buyers / Investors / Creditors of the “Suit Property” have filed criminal complaints in the concerned Police Station and Courts and also the proceedings under Section 138 r/w section 141 of Negotiable Instrument Act against the Defendants and their family members, which are pending before the various Hon’ble Courts. On execution of these presents, the said members of the said Plaintiff Association shall immediately withdraw the said Criminal Complaints and all other complaints filed under Section 138 r/w 141 of Negotiable Instrument Act or any other forum against the Defendants and their other family members.
16. The Plaintiff agrees and undertakes to give its consent for quashing of the F.I.R. NO. of 2017 dated / 2017 registered u/s 406, 420, 120 (B) r/w 34 of IPC by Police Station now transferred to E.O.W. Housing Unit -I as C.R. No. of 2017, as and when the Defendants and the other accused therein make appropriate proceedings in respect of the same.
17. That Defendant Nos. 1 to 3 hereby confirms that they have not created or purported to create any tenancy, license, charge, lease, mortgage, lien or any kind of third party rights over the Suit Property except what is stated in the Exhibit A and no other person or party have any right, title or interest, claim or demand in to or upon the same either by way of mortgage, gift, trust, inheritance, lease or otherwise and that the same are free from all encumbrances and there is no pending litigation of any kind over the Suit Property.
18. That the Defendant Nos. 1 to 3 do hereby agree, admit and undertake to keep the Plaintiff Association Indemnified against any charge, claim, action, penalty or any other action whatsoever by any third party or anybody claiming through the third party and Defendant Nos. 1 to 3 do HEREBY INDEMNIFY THE PLAINTIFF ASSOCIATION AND TO UNDERTAKE TO KEEP THE PLAINTIFF ASSOCIATION HARMLESS.
19. That, the Defendant Nos. 1 to 3 shall support the Plaintiff Association and new developer in every aspects including signing any papers for obtaining permissions needed in future in respect of the development of the project or to sell the suit property.
20. Notwithstanding what is provided in this consent terms, breach of any of the clauses mentioned above shall be construed as an event of default thereof and the non defaulting party shall have the right to seek legal recourse to challenge such a breach and seek necessary legal reliefs from competent court.
21. The Plaintiffs shall be entitled to refund of court fees as per rules.
22. The suit shall be disposed off in the aforesaid terms and decree be drawn accordingly.
23. Parties to act on authenticate copy.
24. Certified copy is expedited.
25. No order as to costs.
Dated this ____day of September , 2018.
One hopes that all the Serenity victims -- or at least the tiny handful who have some legal and financial literacy -- will exercise their critical minds about all the things that are fundamentally wrong in these consent terms. One hopes that sanity will prevail. It is exhausting to repeatedly tell people that jumping over a cliff is injurious to health.
ISSUED IN PUBLIC INTEREST BY