SRJ 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1424 OF 2010 IN SUIT NO. 3182 OF 2003 Gokuldas R. Pai .. Plaintiff V/s. Jaywant R. Keni & Others .. Defendants. Mr. D.A.Barot, for Plaintiff Mr. D.H.Mehta i/b. Shroff & Co., for Defendants CORAM: R.S.MOHITE, J. DATED: 9TH JUNE, 2010. P.C.: 1. Heard both the sides. This Notice of Motion can be finally disposed of forthwith. The prayers in this Notice of Motion seek injunction against Defendants from effecting further constructions of the suit plot situated on the plot no.399, original plot no.276, TPS-III, Scheme, Borivali (W), Mumbai 400 092. The dispute between the parties pertains to the road FSI and it is the case of the Plaintiffs that the conveyance in favour of the Defendants was made by excluding the road FSI. The Plaintiff has filed a Notice of Motion for injunction bearing Notice of Motion No.2991 of SRJ 2 2003 which was disposed off by the Single Judge of this Court by an order dated 16th October, 2003 and an injunction was granted permitting construction subject to certain terms and conditions. The Notice of Motion was finally disposed off on 15th February, 2006 and by consent of the parties, the following order was passed:- The ad-interim order dated 16th October, 2003 passed by F.I.Rebello, J, is confirmed, subject to the following modifications:- (i) The learned counsel appearing for the defendants states that in para 7(i) of the order dated 16.10.2003, the defendants have complied with the conditions by obtaining T.D.R. and they will not utilize the F.S.I. of 571.48 sq. mtrs. but construct only on the basis of the T.D.R. purchased by them. In the light of the aforesaid, the defendants will be at liberty to carry out further constructions, subject to the conditions which are mentioned in para 7(i) of the said order. 2. It is the grievance of the Plaintiff in the present Notice of Motion that the Defendants are constructing additional 6th and 7th floors, by utilizing additional TDR ad- SRJ 3 measuring 566.78 sq. mtrs. It is the first contention of the defendant in respect of the orders dated 16th October, 2003 and 15th February, 2006, the Defendants have complied with the conditions by obtaining T.D.R. and have not utilized the road F.S.I. of 571.48 sq. mtrs., but have constructed only on the basis of the T.D.R. purchased by them. In the light of the aforesaid, the defendants will be at liberty to carry out further constructions, subject to the conditions which are mentioned in para 7(i) of the said order. 3. In my view, the Notice of Motion can be disposed off by the following directions:- (a) that in F.S.I./T.D.R. which will be permitted to the Defendants as well as by B.M.C. will only be F.S.I./T.D.R. purchased from the open market and no part thereof will be treated as relateable to the area of the disputed road. (b) it is agreed that in the event, Plaintiff succeeds in the suit, they will be entitled to claim the benefits of the road F.S.I. and the Defendants will not claim before the B.M.C. that he is not so entitled. SRJ 4 (c) that in order to effect to these directions, the B.M.C. will be entitled to take such steps as they are entitled in accordance with the law and that the B.M.C. will allow the constructions to the Respondents permissible by purchasing T.D.R. without treating the same as reserved T.D.R. derived from the suit road. 4. Notice of Motion is disposed of in the aforesaid terms. (R.S.MOHITE, J.)