IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 470 OF 2009 WITH NOTICE OF MOTION NO. 3798 OF 2009. Subhash M. Dhanjani & Anr. ..... ..... ...Appellants. V/s M/s.Ankur Developers & Ors. ..... ..... ...Respondents. Mr.Rahul Rao i/by Dahibawkar & Co., Adv. for the appellants. Mr.D.H.Mehta i/by M.M.Legal Asso. For respondent No.1. Mr.S.K.Sonawane, Adv. for the respondent No.2 Mr.Rahul Narichania with Mr.V. Pereira & Aziz Khan i/by Divya Shah & Asso. Adv. For respondent No.3. CORAM: J.N.PATEL ACTING C.J. AND B.R.GAVAI, J. 12th January, 2010. PC: Heard. The original plaintiff has preferred this appeal being aggrieved by dismissal of notice of motion taken out in a suit wherein the appellant-original plaintiff is seeking mandatory order and injunction and for direction, directing defendant No.1 to specifically perform forthwith and comply with terms and conditions as recorded in the letter dated 22.5.06 which is annexed as Ex.B to the plaint and for further ancillary reliefs. It is case of the plaintiff that he is entitled for flat on the ground floor admeasuring 750 sq. ft. + 419 sq. ft. 1 carpet area with stilt parking in the building known as Rajdoot Khar Coop. housing society. Learned Single Judge after examining the agreement between the parties arrived at a finding that the plaintiff is entitled to flat admeasuring 1105 sq. ft. carpet area on the first floor of the proposed new building “Rajdoot” to be constructed on the said property in lieu of surrendering the present flat and therefore the plaintiff is not entitled for the reliefs sought for in the notice of motion. Learned Single Judge also considered equities in favour of plaintiff by observing that at the highest plaintiff may claim compensation from the defendant if they succeed in establishing their case of change of location of their flat in violation of section 7A of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale Management and Transfer) Act, 1963. 2. Learned counsel for the plaintiff submitted that the plaintiff was misled by defendant No.1-developer by obtaining an agreement from him wherein the proposed flat which started on 4th floor and not the ground floor. It is submitted that the appellant-plaintiff was using the said flat for commercial purposes and therefore he was given assurance by the respondent original defendant Nos. 1 to 3 that he would be given a flat on the lst floor. 3. It is well settled that the plaintiff has to make out a prima facie case at the first instance in order to get relief sought for in the notice of motion and if the agreement between the parties is examined it does not specify that the 2 plaintiff was eligible for being alloted flat on the lst floor which could be used for commercial purposes and what has been offered to the plaintiff is in consonance with the agreement executed between the parties known as development agreement dated 21.5.2006 and the subsequent agreement. Therefore the learned Single Judge was justified in dismissing the notice of motion taken out by the plaintiff. We therefore do no find any merit in the appeal and the same is dismissed with no order as to costs. 4. In view of dismissal of appeal Notice of Motion No.3798/09 does not survive and the same also stands disposed of. (ACTING C.J.) (B.R. GAVAI, J.) 12.01.2010. 3