1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY & ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 679 OF 2009 IN SUIT NO. 364 OF 2009 Veena Sarang CHS Ltd. & Ors. ... Plaintiffs. V/s. Veena Developers and Ors. ... Defendants. Mr. P.M. Shah for the Plaintiffs. Mr. Shripad Murthy i/b. Mr. Vikrant Narkar for Defendant No.1. Mr. V. Kanade a/w. Mr. V. Lohire i/b. Negandhi Shah & Himayatullah for Defendant No.2. CORAM : S.C. DHARMADHIKARI,J. DATED : 08th SEPTEMBER 2009. P.C. :- Heard Mr. Shah, learned Counsel appearing for the Plaintiffs and Mr. Murthy, learned Counsel appearing for Defendant No.1. Defendant No.2 is also served. 2. This matter was argued for some time and placed for orders yesterday at which point of time one affidavit-cum- undertaking was tendered by Defendant No.1. 3. One Haresh Sanghvi, Partner of Defendant No.1, who is present in Court has stated on oath that the First Defendant has presently constructed Wings 'A' to 'E'. As per the original plan, a flat was to be constructed connecting Wings 'C' and 'D on the Ground Floor. He has stated on affidavit that in order to 2 end the dispute between the Plaintiffs and the First Defendant, the First Defendant shall not construct any flat connecting these Wings 'C' and 'D'. Instead, the First Defendant would put up a slab which would not in any manner obstruct the egress and ingress from Wings 'C', 'D' so also the portion below the same. However, to enable the First Defendant to put up such a slab, it would be necessary for the First Defendant to apply for modification of the sanctioned/approved plan. 4. Upon perusal of this affidavit, I had indicated to Mr. Murthy that the First Defendant must make a definite commitment to this Court so as to avoid any inconvenience to the flat purchasers. Accordingly, the First Defendant, who is present in Court states that within 10 days from today, the First Defendant would make an application to Defendant No.3 - Corporation for modification of the sanctioned plans to enable construction of a slab. The First Defendant shall, under no circumstances, construct any flat connecting the said Wings. Within a period of 8 weeks from the date the plans are modified the work of connecting the Wings would be completed. 5. Mr. Shah, learned Counsel appearing for the Plaintiff states that the Plaintiff - Society shall not oppose the application made for modification of the sanctioned and approved plan to the extent indicated above but would co- operate with the builder/developer - Defendant No.1 in that 3 behalf. However, Mr. Shah's complaint is that the builder/developer has not provided proper and complete access to the Plaintiff. 6. Upon instructions, Mr. Murthy states that the First Defendant is developing Plot No.1 admeasuring 6677 sq.mtrs., Plot No.2 admeasuring 1413.70 sq.mtrs. and Plot No. 3 admeasuring 2609 sq.mtrs. referred to as Sector - IX of a larger layout of Survey No.163(P) corresponding with CTS No. 128/A/77 (P) of Village Kandivali, Taluka Borivali, Mumbai Suburban District. These are contiguous Plots and therefore, the development would entail construction of Wings 'F', ‘G’, ‘H’, ‘I’, ‘J’, ‘K’ and 'L' and these are yet to be constructed. Wings ‘E’ and ‘F’ are also connected by the shops on the ground floor. He submits that this would take some time but after taking instructions from the First Defendant - Partner, who is present in Court, Mr. Murthy makes a statement that in so far as construction of Wing 'F' is concerned that would be completed within a period of 18 months from the date the plans are approved as that involves the construction of ground + 8 upper floors. 7. Further, after taking instructions, Mr. Murthy makes a statement that the First Defendant would immediately provide approximately 23 ft. wide access to the Plaintiffs on the Suit site and more particularly, earmarked in the photograph which is taken on record and by consent marked 'A' (next to Wing 'D'). If the said access is not yet opened, Mr. Murthy states 4 that it would be opened within a period of 48 hours (two days) from today. He states that until and unless this access at 'A' above is provided, the First Defendant shall not carry on any activities so as to block the present access to the Plaintiffs Building/Wings. It is clarified that the moment the access earmarked at photograph 'A' above is provided and completely opened for the use of the Plaintiffs that the existing access can be closed or blocked by the First Defendant and not otherwise. 8. Similarly, while accepting each of the statements made by the parties as an undertakings to this Court, it is directed that in the event the construction on Wing 'F' could not be completed within the period specified above, that is 18 months from the date of sanction of the plans, then, as soon as the said period expires, the First Defendant shall immediately open the access which is being permitted to be closed under the present order. It should immediately provide an access from North Side of Wing 'F' and this access/gate shall be in addition to the existing 23 ft. wide gate marked as Annexure 'A' above. Both access shall be permitted to be used not only by the Plaintiffs but those residing in other Wings. Even this relief is granted by consent of parties. Both sides are duly represented and in their presence this order and direction is issued. 9. In the light of these statements made on affidavit so also reiterated during the course of arguments today and accepted 5 as undertakings to the Court, it is directed that the construction at site can presently go on but there will be liberty reserved to the Plaintiffs to apply for relief in terms of prayer clause (b) of this Notice of Motion at a later stage. At that stage, nothing would prevent the Plaintiff from seeking complete stay of the construction at site in addition to seeking prosecution of Defendant No.1 and its partners for willful and deliberate breach and violation of the undertakings and orders of this Court. To enable the Defendants to carry out the aforesaid construction activities, it is directed that the Plaintiff will render not only their assistance and co-operation but shall not obstruct and prevent Defendants No.1 and 2 from constructing and completing the works at site. They would not obstruct the movement of vehicles, materials and labour. However, this order shall not prevent the Plaintiff from seeking the reliefs as clarified above. All complaints to whichever Authorities made by the Plaintiff shall for the present not be prosecuted or proceeded with so as to enable the Defendants to comply with the aforesaid order and directions. Mr. Murthy , learned Counsel appears for the First Defendant states that the First Defendant shall take steps to apply for occupation certificate/part occupation certificate in respect of the construction already made and the Plaintiff to co-operate with the developer in that behalf. The application shall be filed for issuance of such a certificate within a period of six weeks from the date the construction of slab connecting with ‘C’ and ‘D’ Wings is complete. 6 10. This order is passed in the presence of the Office bearers of the Plaintiff and the duly authorised signatories and partners of the Defendants. 11. Notice of Motion disposed off in the above terms with no order as to costs. (S.C. DHARMADHIKARI,J.)