HC dismisses appeal by Omkar, imposes cost of `5L

The Bombay High Court has dismissed the appeal of Omkar Realtor challenging the order of the single judge directing it to provide a habitable flat to homebuyer Shahveer Kapadia. The court has also imposed a cost of Rs 5 lakh on the developer. Kapadia had paid full consideration of Rs 23.41 crore for the 65th floor flat in the Worli project called Omkar 1973.

A division bench of Justices Gautam Patel and Madhav Jamdar observed that there was “total, blatant and flagrant breach of all its contractual obligations” by the developer. On March 21, Justice Kulkarni had directed it to hand over a habitable flat to Kapadia within a week, after observing that the flat handed over to him had huge iron struts. The single judge had also said that if the developer fails to hand over a habitable premises within a week, a court receiver will be appointed. Kapadia’s flat was one in a series of special and exclusive flats with a dedicated elevator opening directly into the house. They also had access to several common lifts. Although the developer handed over possession of the flat to Kapadia, it was “coupled with insurmountable hurdles and obstructions”.

Dinyar Madon, Omkar’s counsel, told the court that the developer has offered to build a wall to conceal the struts that are in the lift shaft. Dismissing the offer, the HC said: “But this is a little too much ingenuity because the whole purpose of these lifts was to provide dedicated access to the flats themselves, i.e. to open into the flats. This is why they carried a premium.”