1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 3 OF 2010 ALONG WITH CIVIL APPLICATION NO. 3 OF 2010 Usha Jayant Kantebet & ors. ... Appellants v/s M/s.Prashanthi Enterprise & ors. ... Respondents Mr.Ravindra Bhat for the appellants. Mr.Shailesh Shah for respondent Nos.1 to 3. CORAM: SMT.NISHITA MHATRE, J. DATED: 4TH JANUARY, 2010 P.C.: 1. The appellants who are the plaintiffs before the City Civil Court are aggrieved by the order passed by the City Civil Court refusing them interim reliefs. The notice of motion filed by them has been dismissed on 5.12.2009. The suit filed by the plaintiffs is for an injunction restraining defendant No.4 i.e. the Municipal Corporation of Greater Mumbai, from issuing the completion certificate and the occupation certificate in favour of defendant Nos.1 to 3 2 with respect to the new building situated on the suit property. Certain other reliefs have also been sought by the plaintiffs.. 2. It is contended on behalf of the appellants that the defendants have committed a breach of the development agreement executed between themselves and the defendants on 25.6.2005. According to the learned advocate, the appellants had executed the agreement on the understanding that, (i) a residential building would be constructed on the plot of land; (ii) they would be allotted residential flats on the first floor of the building; and (iii) in any event if any T.D.R. is loaded on the building, the consideration would be increased. He submits that the developers i.e. respondent Nos.1, 2 and 3 have completely breached the agreement as they are constructing a building which will have commercial premises on the ground and a first floor. He further submits that despite the T.D.R. having been loaded by the developers, the amounts which the appellants were entitled to, have not been paid within the stipulated time under the agreement. He further submits that the parties had agreed to decide mutually which would be the flats which could be allotted to them on the first floor of the newly constructed building. According to the learned advocate, letters of allotment have been issued without there being any mutual agreement. 3 3. Mr.Shah for the developers submits that the developers were always ready and willing to pay the amount which the appellants were entitled to as a result of the T.D.R. being loaded on the newly constructed building in accordance with the agreement. He submits that, even today the developers are willing to deposit the amount in Court. He further submits that although the letters of allotment were issued to the appellants way back in the year 2007, the appellants filed the present suit for injunction only in 2009. He further submits that a suit of this nature is not maintainable. However, without going into the merits, he submits the following flats are available for being allotted to the appellants i.e. Flat No.201 to defendant No.8 Flat No.202 to defendant No.5 Flat No.203 to plaintiff Nos.1 & 2 Flat No.301 to plaintiff Nos.3 & 4 Flat No.302 to defendant No.9. The learned advocate further submits that the Trial Court has rightly refused the reliefs to the appellants. 4. In my opinion, the Trial Court has committed no error in refusing the reliefs to the appellants. The construction is being carried out in accordance with the commencement certificate issued by the Corporation i.e. respondent No.4 4 herein. In these circumstances, in my view, it would not be proper to grant any relief to the appellants. Further more, whether the aforesaid flats have been earmarked by mutual consent or not is a matter of evidence which could be led at the trial. In any event, the appellants are entitled to certain amounts on account of the T.D.R. being loaded. This amount is being deposited by the developer in Court and, therefore, in my opinion, there is no need to grant any relief, especially since the appellants were aware that flats were not being allotted to them on the first floor but on the second floor and above in the year 2007 itself. 5. Appeal from order stands dismissed. 6. The developers will deposit in the Trial Court within two weeks from today the amount to which the appellants and other defendants are entitled, i.e. the amount payable on account of the T.D.R. being loaded. 7. In view of dismissal of the appeal from order, civil application also stands dismissed. ..... 5