IN THE HIGHCOURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1325 OF 2011 IN APPEAL FROM ORDER NO. 992 OF 2011 Smt. Shashikala Pai .. APPLICANT VERSUS Garden Residency Co-operative Housing Society Ltd & others .. RESPONDENTS A.A.Kumbhakoni with Shardul Singh, Nikhil Davane i/b. Udwadia & Udeshi for the applicant. M.P.Vashi i/b. M.M.Vashi & Associate for the respondents. CORAM : R.M.BORDE, J. RESERVED ON: 13th September 2011 PRONOUNCED ON: 12th October 2011. PER COURT : Appellant / original plaintiff instituted suit being Special Suit no. 423/2011 in the Court of Civil Judge, Sr.Dn., Panvel. Plaintiff claims relief of possession of the property in the suit and also claims order of injunction and consequential / additional reliefs. 2. According to the plaintiff / appellant, she is owner of the suit property and is entitled to possession thereof. She had purchased the suit property i.e. about 23 gat numbers from various farmers located at village Usarali Khurd and village Vichumbe, Tq. Panvel, Dist. Raigad, in the year 1984. since then she had been in possession of the land as the owner thereof. Defendant no. 3 is her younger brother. According to the plaintiff, she was residing in Mumbai and was unable to look after and develop the lands at Panvel, therefore, she approached defendant no. 3 and appointed him as her power of attorney holder. Defendant no. 1 is the co- operative society and its Chief Promoter was the friend of defendant no. 3. It is alleged by plaintiff that defendant no. 3, her power of attorney holder, fraudulently mis-represented her and formed partnership firm in the name and style M/s Sunandan Developers and executed agreement with defendant no. 1 – society, in respect of the suit property. She came to know that M/s Sunandan Developers is the sole proprietary firm of defendant no. 3 and, defendant no. 3 was operating and having full control on the bank account of the firm. Defendant no. 3 received entire consideration amount from defendant no. 1 in respect of sale of suit property and did not pay any amount nor disclosed exact consideration amount of sale to the plaintiff. According to the plaintiff, the transaction / agreement between defendant no. 1 and 2 defendant no. 3 is illegal and bogus. Defendant no. 1 - society, has no right, title or interest in the suit property. Defendant no. 1 has assigned development rights for development of the property to defendant no. 2 which, according to the plaintiff, is illegal and without any authority. In April 2010, according to the plaintiff, defendant nos. 1 and 2 have started construction activity in her property. Hence, plaintiff issued suit notice and filed suit against them. She contends that she has prima facie case in her favour and is entitled to claim interim relief. Application exh. 5 came to be filed by plaintiff seeking order of injunction against defendants restraining them from creating third party interest and from developing the suit property. Initially, ad-interim order of status quo was passed by the trial court. Being aggrieved by ad-interim order, respondent nos. 1 and 2 / original defendant nos. 1 and 2 preferred Appeal from Order in this court which was numbered as Appeal from Order no. 850/2011. This court directed the trial court to decide the application exh. 5 on or before 8-8-2011, without fail. The application was thereafter taken up for consideration by the trial court which was heard and decided by the trial court. Application seeking temporary injunction presented by plaintiff at exh. 5 came to be rejected and the interim relief was vacated by order dated. 12-8-2011. Appellant / original plaintiff has thus approached this court by presenting appeal from order and an application seeking 3 interim relief. 3. It is the contention of the appellant / original plaintiff that she is the helpless lady and has been deceived by her brother / defendant no. 3. An un-registered power of attorney was executed in favour of defendant no. 3 by plaintiff on 27-3-1997. Reliance is placed on clause (b) of the document executed on 27-3-1997 which reads thus : (b) It shall be by sole and exclusive right to amalgamate any of the said adjoining and/or surrounding properties belonging to me with the said properties mentioned in the schedule whereby I alone shall be entitled to utilize on such adjoining and/or surrounding properties all or any Floor Space Index (FSI) area of the said properties exceeding over and above 2,07,000.00 sq.ft. under the development control rules in force from time to time. . It is thus contended that the plaintiff has kept with herself exclusive right to amalgamate the adjoining lands and surrounding properties and utilize the additional floor space of above 2,70,000 sq.ft. It is thus contended that the development activities being carried out in gat no. 33 cannot be permitted to be proceeded as the plaintiff has right and entitlement to purchase the surrounding properties and utilize the additional FSI/TDR for her benefit exclusively. According to the appellant, this aspect of the matter has not been taken into account by the trial court. It is not disputed that after 4 execution of the power of attorney for development of the property in favour of defendant no. 3, third party interest is created in favour of defendant no. 1. Even, prior to execution of power of attorney in favour of defendant no.3, plaintiff herself had alienated small pieces of land out of her own property in favour of number of members of the society. There is reference to alienation made by plaintiff, in the document of power of attorney as well as the previous document i.e. memorandum of understanding. The memorandum of understanding has been executed by plaintiff in favour of defendant no. 3 even prior to execution of power of attorney on 20-5-1995. As per the terms and conditions stated in the memorandum of understanding, plaintiff is entitled to get the land cost at the rate of Rs. 10/- per sq. ft. as the owner of plot. Clause 3 and 7 of the memorandum of understanding clearly recite that the plaintiff shall be entitled to land value at the rate of Rs. 10/- pr sq. ft. and the firm would be liable to pay the amount at the rate specified in the document. Thus, entitlement of the plaintiff is in respect of value at the rate of Rs. 10/- sq. ft. 4. It is to be noted that the transaction entered into by plaintiff with defendant no. 3 pertains to the year 1995 and 1997. Third party interest has been created in favour of the society in the year 1998. The society has secured non- 5 agriculture permission and has started construction activities. It is to be noted that the grievance of the plaintiff is mainly directed against defendant no. 3 against whom allegations are made in respect of fraud and mis-representation. In the event of success of suit, plaintiff would be entitled to claim monetary benefits/ damages from defendant no. 3. So far as the purchaser i.e. defendant no. 1 is concerned, the society has purchased the property in the year 1998 and started development activities. Restraint cannot be put on plaintiff’s entitlement as the allegations are made mainly against defendant no. 3. Plaintiff has approached the court assailing the transactions which are concluded in the year 1998 on the basis of memorandum of understanding of the year 1995 and power of attorney of the year 1997, only in the year 2011. Although the plaintiff claims that she being a lady was not aware of the fraud committed by defendant no. 3, this is not a stage for considering the serious allegations made by plaintiff against defendant no. 3 relating to fraud and those would be required to be considered at appropriate stage. So far as the purchasers i.e. defendant nos. 1 and 2 are concerned, no restrain can be put on them in respect of developing the property. The application tendered by applicant does not deserve favourable consideration. However, since the matter is subjudised and entitlement of the plaintiff is yet to be determined, whatever third party interest created by 6 defendant No.3 and whatever development that would be carried out by defendant Nos.1 and 2, would be subject to final outcome of the proceeding i.e. Special Civil Suit no. 423/2011 and the instant appeal from order. No case is made out for grant of interim relief in favour of the plaintiff. Application seeking interim relief, therefore, stands rejected. ( R.M. BORDE ) JUDGE 7