{1} nms1004-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1004 OF 2011 IN SUIT NO.2823 OF 2006 Phoenix Tower Co-op. Housing Society Ltd & Ors .. Plaintiffs versus Phoenix Construction Company & Ors .. Defendants Mr.P.K.Samdani, Sr.Advocate a/w J.P.Sen, Pranaya Goyal i/by Wadia Gandhy & Co for the plaintiffs. Mr.S.U.Kamdar, Sr.Advocate a/w C.S.Balsara, Pooja Patil, P.K.Shroff, D.V.Deokar, M.M.Bhatt, Ms.Rashmi Jha and Mr.S.S.Pandey i/by P.K.Shroff & Co for defendant Nos.1 and 2. Mr.Shiraz Rustomjee a/w Jyoti Sinha i/by Negandhi, S and H for the applicant in Chamber Summons No.2013 of 2011. CORAM : S.C.DHARMADHIKARI, J. 15th December 2011. JUDGMENT: . This matter was moved for urgent ad-interim reliefs. However, finding that exhaustive affidavits have been filed and arguments covering all the points have been canvassed, that I have decided to dispose of this Notice of Motion finally by this order. {2} nms1004-11.doc 2} The original plan of 1993 is taken on record and shall be kept in a sealed cover and in safe custody by the Prothonotary and Senior Master/Registrar (O.S) of this Court. 3} The Notice of Motion is by the plaintiff in a suit seeking enforcement of the obligations under the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (for short “MOFA”). 4} It is prayed that the defendant Nos.1 and 2 be ordered, decreed and directed by this Court to execute a Deed of Conveyance of suit property which is more particularly described at Annexure A to the plaint, jointly in the name of plaintiff Nos.1 and 2 and that defendant No.1 and/or defendant No.2 and/or defendant No.5 or such of them as may be determined, ordered and directed by this Court to hand over jointly to plaintiff Nos.1 and 2, the quiet, vacant and peaceful possession of the suit properties which are more particularly mentioned in prayer clause (b) of the plaint. In terms of prayers (c), (d), (e) and (f) so also (g) to the plaint, the following perpetual injunction is sought: {3} nms1004-11.doc “(c) for a perpetual order and injunction of this Hon'ble Court restraining defendant Nos.1,2 and 5 by themselves, their servants, agents and/or otherwise from carrying out and/or undertaking any commercial activity whatsoever in the suit property, in particular in the Sai Service Portion of the basement presently occupied by them, which Sai Service Portion; (d) for an order and direction of this Hon'ble Court ordering and directing defendant No.1 and defendant No.2 to remove the said Cement Mixer Plants together with all its fittings and fixtures from the portion of the suit property; (e) for a perpetual order and injunction of this Hon'ble Court restraining defendant Nos.1 to 4 from carrying out and/or undertaking the illegal construction/structural changes on the 31st and/or the 32nd floor of the Tower B; (f) for a perpetual order and injunction of this Hon'ble Court restraining defendant No.1 and defendant No.2 from carrying out and/or undertaking the construction of the 33rd floor in Tower B; (g) for a perpetual order and injunction of this Hon'ble {4} nms1004-11.doc Court restraining defendant No.1 and defendant No.2 from utilising for any purpose other than for which the same was given/retained, the right of way, shown in the plan Exhibit B.” 5} It is also contended that there are several other reliefs, but as far as this notice of motion is concerned, that is seeking an interim order of injunction restraining defendant Nos.1 and 2 from alienating/transferring/encumbering/creating any third party rights or parting with the possession of the suit property more particularly described in Annexures A and B to the plaint or any part or any portion thereof or using or exploiting development potential including FSI or benefit arising from or accruing from the suit property or regarding the same. Similarly, pending the hearing and final disposal of the suit, defendant Nos.1 and 2 by themselves, their servants and agents be restrained by an order of injunction of this Court from putting up any construction on the portion shown outlined in colour yellow and marked as “CMP” in the plaint at Annexure B, save and except constructing a parking lot for the benefit of members of plaintiff Nos.1 and 2 and from selling, transferring or creating third party rights in respect of any of the {5} nms1004-11.doc car parks whether open or in podium or in basements. 6} The suit proceeds on the basis that the plaintiff Nos.1 and 2 are two registered Co-operative Housing Societies. They are covered and governed by the Maharashtra Co-operative Housing Societies Act, 1960. As far as the plaintiff Nos.1 is concerned, it comprises of the members who are flat owners of the various flats in the building known as Phoenix Tower A, whereas, plaintiff No.2 is a distinct co-operative housing society formed by the members who are flat purchasers in the building known as Phoenix Tower B. It is stated that plaintiff Nos.1 and 2 are entitled to joint conveyance of the suit property. The 1st defendant is a partnership firm which undertook the work of development and construction of the buildings. Defendant No.1 has entered into various Agreements for Sale of flats in the said buildings with the members of plaintiff Nos.1 and 2 and in particular plaintiff Nos.3 to 9. Defendant No. 2 is one of the partners of defendant No.1. Defendant No.2 was in fact the owner of the immovable property admeasuring 15,812.95 sq.mtrs situate and lying at Senapati Bapat Marg, Lower Parel, Mumbai 400 013 in the district and sub-district of the Bombay city. As a partner of defendant No.1, defendant No.2 has brought the suit property into the {6} nms1004-11.doc partnership firm. It is being entitled and authorised by the defendant No. 2 that the defendant No.1 has sold several flats in the buildings. The properties are described at Annexure A to the plaint and Annexure B thereof is a plan. 7} The schedule of the property is reading thus: “ SCHEDULE OF THE PROPERTY ALL THAT piece or parcel of land, hereditaments and premises admeasuring 15,812.95 sq.mtrs in the registration Sub-District and District of Bombay City and Bombay Suburban and registered by the Collector under Cadastral Survey No.141 (part) of Lower Parel Division assessed by Bombay Municipal Corporation under 'G' (South) Ward and street known as Senapati Bapat Marg at Lower Parel, Bombay 400 013 of 'G' (South) Ward, Zone III and bounded as follows:- On or towards North by : part of C.S.No.141 On or towards South by : Existing structure of Phoenix Mills Ltd On or towards East by : 100 wide road known as Senapati Bapat Marg On or towards West by : Piramal Mills.” 8} The plan shows the various portions which are marked by block letters and presently I am concerned with the portion identified and demarcated as parking lot by alphabet “CMP”. 9} It is the case of the plaintiffs that defendant No.3 is controlled and {7} nms1004-11.doc owned by defendant No.2. It is the owner of Flat No.3101, 3102, 3201 and 3202 on the top floors, i.e the 31st and 32nd floor of Tower B. I am not concerned in this case with the allegations with regard to certain illegal and unauthorised changes being carried out in these flats. I am also not concerned with the allegations with regard to one entity known as “Sai Service” which was allotted a portion of the parking lot allegedly. All these entities have removed themselves and there is also a removal of the Cement Mixer Plant. What is presently under issue and with which the parties are concerned is, that if both the immovable properties as described in the schedule and as demarcated and identified in the plan are to be conveyed to the co-operative housing society of the flat purchasers, then, the entire area together with attendant benefits and rights inclusive of exploitation of FSI etc would and ordinarily should come to the plaintiffs. If they are so entitled to all such rights in terms of the stipulations in the agreement between the parties and the provisions of the MOFA, then, such of the portions which are lying vacant and identified as common parking lots/common areas for parking, cannot be utilised or exploited by defendant Nos.1 and 2. If they are intended to be conveyed and have to be conveyed in terms of the above, then, no activity much less construction of a nature other than a parking lot, can {8} nms1004-11.doc be permitted thereon. 10} My attention is invited to the agreements and standard forms. My attention is also invited to the joint obligations. My attention is also invited to the fact that the purchasers of flats having formed co- operative housing societies and seeking the conveyance in their favour, ultimately, it is their choice as to how the areas marked as CMP must be utilised. Once the plaintiffs are entities which are recognised by law, then, their members cannot undertake any activities contrary to the Maharashtra Co-operative Societies Act, 1960, the Rules, bye-laws and the resolutions and decisions of the General Body or the Managing Committee duly authorised by the General Body. Therefore, the complaint that is being made is with regard to refusal to execute a conveyance and the apprehension that the activities hitherto undertaken are jeopardising the rights in relation to the portion marked in yellow and identified as CMP in the plan. A reference, in the affidavit in support of this notice of motion, is made to the written statements so also to an order dated 19th October 2006 which has been passed in an earlier notice of motion in this suit. It is stated in the affidavit in support that pursuant to the institution of this suit, Notice of Motion No.3646 of 2006 {9} nms1004-11.doc and Notice of Motion No.3376 of 2006 were moved. Certain events have taken place which have compelled the plaintiffs to move the present notice of motion and seek further additional interim reliefs and protection. It is stated that the order passed by this Court on 19th October 2006 records a statement of defendant Nos.1 and 2 that they do not intend to utilise the portion coloured in yellow and marked as CMP for any purpose other than as a parking lot and they shall not do so without giving two weeks prior notice in writing to the plaintiffs. A reference is made to notice dated 18th March 2010 addressed to the advocate of defendant Nos.1 and 2 wherein the plaintiffs reminded them about their statement and while accepting that position and the statement what has been contended by these defendants is, that the said portion marked as CMP in the plan was not a part of the land agreed to be conveyed to the members of the plaintiff Nos.1 and 2. Yet, in the affidavits and the written statement it is conceded that the portion admeasuring 2153. 5 sq.mtrs, i.e CMP portion, is part of the suit property and is required to be conveyed in favour of the plaintiff Nos.1 and 2. The plaintiffs hoped that the contesting defendants would abide by their statement of giving two weeks time prior to utilising that portion for any other purpose other than a parking lot. However, now, it is learnt {10} nms1004-11.doc that without authority or consent of the plaintiffs, the defendant Nos.1 and 2 have started using the CMP portion for commercial parking of two wheelers, not belonging to plaintiff Nos.1 and 2 causing tremendous inconvenience. That is how the correspondence further continued and my attention is invited to the advocate's letter. It is in these circumstances that the plaintiffs apprehend that defendant Nos.1 and 2 without prior consent may amend the building plans/ lay out plans so as to alienate, transfer, sale and exploit the development potential, namely the FSI and other benefit in respect of this property inclusive of CMP portion depriving the plaintiffs of the same. If such construction which is not intended for parking or even if construction is put up which is intended to be used as parking lot yet spaces therein if disposed off contrary to the statute, that would mean that the plaintiffs are deprived of the common areas and facilities so also the space for parking. Once it is the clear mandate flowing from the agreements and law, that it is for the society to decide as to how the parking areas should be utilised and by its Members and in what number, then, that authority of the plaintiff- society cannot be in any manner interfered with or taken away by such illegal acts. Once what is to be conveyed to the society is identified and admitted by the parties, then, any act touching the entitlement of the {11} nms1004-11.doc society would contravene the mandate of law and would also defeat the orders passed by this Court. 11} It is on account of the subsequent events which are referred to in the affidavit in support of this notice of motion affirmed by the Chairman of the plaintiff No.2, that the plaintiffs have aforementioned apprehensions. It is stated that the use by defendant Nos.1 and 2 is illegal, as large number of two wheelers are brought in and parked. The parking is causing tremendous inconvenience and hardship and if said acts continue on the foundation that the rights in the property exclusively belong to the defendant Nos.1 and 2, then, ultimately if the lands are to be conveyed, the plaintiffs would be saddled with all encumbrances including the alleged rights of third parties who may have to be allowed or permitted to use the areas identified as CMP. It is in these circumstances, that the plaintiffs have moved the present notice of motion. 12} There is an affidavit in reply filed to this motion by one Kiran Bhailal Gandhi who is Director of defendant No.2 and partner of defendant No.1. It is stated that Notice of Motion No.3376 of 2006 came {12} nms1004-11.doc up for grant of ad-interim reliefs and when the Court recorded a statement of defendant Nos.1 and 2, that the motion came to be disposed off. The defendants have brought to the notice of this Court that the parking portion coloured in blue has been already sold by them to defendant Nos.3 and 4 and that Sai Service has already vacated the premises shown in blue colour in the said plan. Though the plaintiff sought ad-interim relief against defendant Nos.1 and 2, in any manner amending, modifying, applying for amendment, modification of the layout plan or building plan, for construction on the suit property more particularly described in Annexure A to the plaint and shown in black colour outline in the plan Annexure B to the plaint or any part thereof, then, no ad-interim reliefs or other orders were granted, save and except these statements. Now, there are no changed circumstances and the same relief is being sought in the instant Motion. There is no change of user of area marked as CMP. It is admitted that even today the area is used as parking lot for two wheelers. In paras 5, 6, 6.1 of this affidavit and 6.2 thereof, this is what is stated: “5 I say that defendant No.2 at all times was entitled to the immovable property admeasuring 15,812.95 sq.mtrs situate lying and being at Senapati Bapat Marg, Lower {13} nms1004-11.doc Parel, Mumbai 400 013 (Larger Property). I say that the defendant No.1 is a registered partnership firm of which the defendant No.2 is a partner and has brought into the partnership the immovable property admeasuring 15,812.95 sq.mtrs and the defendant No.1 is carrying out the work of development of the said larger property and has constructed two buildings thereon i.e Phoenix Tower A and Phoenix Tower B. I say that a portion admeasuring 2153.5 sq.mtrs on the South West side out of the said larger property admeasuring 15,812.95 sq.mtrs is yet to be developed by the defendant No.1 and therefore the project is incomplete and the time for execution of conveyance under the individual agreement for sale executed between the defendant No.1 and the purchaser of premises in Phoenix Tower A and Phoenix Tower B has not become operative till date. I say that the portion admeasuring 2153.5 sq.mtrs (CMP), the area is for car parking which is yet to be developed by the defendant No.1. I say that it is an admitted position that the said portion admeasuring 2153.5 sq.mtrs is in possession of the defendant No.2. (i) I say that the said portion of 2153.50 sq.mtrs which is in exclusive possession of defendant No.2 is yet to be developed by defendant No.1 as layout development of the project (ii) without prejudice to the above and to each other, I say that defendant No.1 being entitled to deal with the area admeasuring 2153.5 sq.mtrs (CMP area), the plaintiff could not procure any ad interim relief qua the said car parking area at the time of hearing the application for ad-interim relief on the Notice of Motion No.3376 of 2006 (iii)without prejudice to the above and to each other, I say that defendant No.1 is entitled to deal with the CMP area which is for the car parking in the sanctioned layout plan. I say that there is no order operating against the defendant Nos.1 and 2 from dealing with and/or disposing off the said area (CMP) of the car parking {14} nms1004-11.doc (iv)I say that defendant No.2 is also a member of plaintiff society and holding 12 flats. I say that defendant No. 1 sold some of the car parking in the CMP area to defendant No.2. I say that there is no restriction on the defendant No.2 purchasing the car parking spaces in CMP area, as the defendant No.2 is also the member of the society. I crave leave to refer to and rely upon the layout development plan when produced. 6 Without prejudice to the above and to each other I say that under an Agreement for Sale dated 6th August 2005 entered into between defendant No.1 and the defendant No.2, he defendant No.1 sold 41 car parking spaces to the defendant No.2 for a total consideration of Rs.4,10,000/- on the terms and conditions set out in the said Agreement for Sale. I crave leave to refer to any rely upon the said Agreement for Sale when produced. 6.1 I say that by further Agreement for Sale also dated 6th August 2005 entered into between defendant No.1 and the defendant No.2, the defendant No.1 sold 42 car parking spaces to the defendant No.2 for a valuable consideration of Rs.4,20,000/- on the terms and conditions set out in the said Agreement for Sale. I crave leave to refer to and rely upon the said Agreement for Sale when produced.” 13} Thus, it is the stand of the defendant Nos.1 and 2 that defendant No.1 has admittedly provided stilt/open parking to the members of the plaintiffs-society. It is not the case of the plaintiffs that the defendants are dealing with car park meant for members of the plaintiffs-society. It is clear from the lay out plan that the area marked as CMP shown as car parking area is not meant for Phoenix Towers, that, by no stretch of {15} nms1004-11.doc imagination can be stated to be car parking for plaintiffs-society and in any event defendant No.2 being in occupation and possession of the area admeasuring 2153.5 sq.mtrs, is entitled to deal with the said car parking area and in fact the defendant No.1 has sold car parking area to defendant No.2 as stated in the said para. The defendant No.1 is in the process of constructing car parking as per the sanctioned lay out plan for the entire project. However, in the light of the obstruction created by the plaintiffs, defendant No.1 could not complete development of the project and as such conveyance cannot be executed in favour of the plaintiffs. Thereafter, what has been attempted in this affidavit is to deal with the case of the plaintiffs as set out in their affidavit in support. It is reiterated in para 7.3 of this affidavit that the portion marked as CMP does not form part of the area to be conveyed to plaintiff No.1 and it was never agreed to be conveyed to the plaintiffs. The plaintiffs are trying to usurp the areas which are neither sold nor belonging to the plaintiff Nos. 1 and 2 which is clear from the following: (a) The area CMP is meant for car park under the sanctioned layout plan; (b) Admittedly the area CMP is in use and occupation of {16} nms1004-11.doc defendant No.2; (c) The stilt parking and open car parking in the area appurtenant to Towers A and B have already been handed over to the plaintiff Nos.1 and 2; (d) The defendant No.1 has already allotted parking slots to be constructed in the said CMP area as per sanctioned layout plan to defendant No.2 who owns twelve flats in the society of plaintiff No. 2; (e) There is no injunctive order granted in favour of plaintiffs and against the defendant Nos.1 and 2 restraining the defendant Nos. 1 and 2 from dealing with the car parking space “CMP”; (f) The defendant No.2 has been using the area sold to them under Agreement for Sale for parking purposes only; (g) Since the defendant No.2 is using the said CMP area through the right of way provided to them, both the societies and their members are not at all disturbed as the movement of vehicles is not through the society compound premises. Further, the defendant No.2 is not using the compound of plaintiff Nos.1 and 2 for ingress and egress to the parking lot in order to avoid any possible inconvenience to the members of the plaintiffs. {17} nms1004-11.doc 14} Repeatedly, it has been stated that the portion identified and marked as CMP in the plan, Annexure B to the plaint, was never agreed to be conveyed to the plaintiff Nos.1 and 2. The project is yet to be completed and 2153.5 sq.mtrs of area is yet to be developed and after completion of the project, the conveyance can be executed. Yet, at more places than one, it has been stated that the portion marked as CMP is meant for car parking under the sanctioned lay out plan and continues to be used for car parking. 15} In the rejoinder affidavit of the plaintiffs what has been asserted by them is that at no stage did the defendant Nos.1 and 2 disclosed that they have executed an agreement way back in the year 2005 in favour of defendant No.2. There is thus a clear attempt to usurp the areas meant for the societies for commercial exploitation and usage and thereby a refusal to convey the plot/property together with the attendant benefits. The affidavit in reply of Mr.Bharatkumar Ruia, defendant No.4 need not be referred to for the purposes of the present motion. What is then material is, the additional affidavit in support of one Abhilash Munsif, the Chairman of plaintiff No.2, wherein a reference is made to {18} nms1004-11.doc chamber summons being served by one Mugwort Land Holdings Pvt Ltd for impleading it as a party defendant on the alleged ground that defendant No.1 has entered into Agreement for Sale of 125 car parking spaces with them. This according to the plaintiffs supports and reiterates their case that defendant Nos.1 and 2 are attempting to illegally deal with the car parks. There is then an affidavit of one M.Shanmugham, authorised signatory of defendant No.2 and partner of defendant No.1. He purports to deal with affidavits filed by the plaintiffs and states that the building plans in respect of car parking area shown as CMP in the plan annexed as Annexure B, was sanctioned by Mumbai Municipal Corporation on 18th June 1993, i.e prior to the Agreements for Sale entered into with the individual flat purchasers by