1 NMS.4230/2009 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 4230 OF 2009 IN SUIT NO. 3113 OF 2009 Malad Vishv Shanti Co-Operative Housing Society Ltd. ...Plaintiff. Vs. Aslam Ishaq Dadi & Ors. ..Defendants. ---- Mr. P.M. Shah, for the Plaintiff. Mr. M.U Pandey, for Defendant Nos.6 and 7. Mr. G.D. Utangale i/b Utangale & Co., for Defendant No.8. --- CORAM: S.C. DHARMADHIKARI, J. DATED : 16th SEPTEMBER 2010. P.C. 1] The plaintiff is a Co-Operative Housing Society. It has filed this suit for Declaration and mandatory order and direction that defendant nos. 1 to 5 should comply with the statutory obligations under the Maharashtra Ownership Flats Act, 1963 either jointly and/or severally by executing the conveyance in favour of the plaintiff-society in respect of the property being Exhibit ‘B’ to the plaint. 2 NMS.4230/2009 2] There are several reliefs which are sought in furherance of the same and as far as interim reliefs are concerned, it is stated that apprehending that pursuant to letter of intimation issued by defendant no.8 and plan that would be sanctioned by Defendant no.9- Corporation, defendant nos.6 and 7 may proceed to put up constructions/buildings on the land which is to be conveyed to the plaintiff-society. 3] This Notice of Motion is moved and the interim injunction that is sought is that defendant nos.8 and 9 should not issue Letter of Intent, Intimation of Disapproval, Commencement Certificate, and sanction any plan for proposed construction to be put up by defendant nos.6 and 7 or their agents, servants or anybody claiming through them. 4] The reply-affidavit to this Notice of Motion has been filed by defendant no.7 for himself and on behalf of defendant no.6. It is clarified by defendant nos.6 and 7 that the plaintiff-society is concerned with only about 1555.77 sq.mtrs. of land[inclusive of 241.5 sq.mtrs as open access), which area in fact works out of 1544 sq.mtrs. as explained in detailed in the written statement. The plaintiff is not 3 NMS.4230/2009 concerned with the rest of the land. Defendant nos.6 and 7 have stated that they are not going to put up any construction on the land which is occupied by the structure of the plaintiff and the open access, so also portion adjoining to the building of the plaintiff. As far as defendant nos.6 and 7 are concerned, they are developing distinct land and property. 5] On the last occasion after some argument, I indicated to both sides that a without prejudice interim arrangement can be made so that construction that is proposed by defendant nos.6 and 7 can continue. Accordingly, a sketch which is acceptable to both sides at this stage has been tendered, which clearly demarcates the area of proposed construction by defendant no.6 and area which is occupied by plaintiff’s building and the common access. The construction will be carried out as delineated and demarcated on the sketch and since the plaintiff’s apprehension is taken care of by demarcation and delineation on the same, the sketch which is signed by both sides and Advocates is taken on record and marked “X”. In view thereof, no interim orders are necessary in the suit. 6] Needless to state that that the construction will be carried out strictly in accordance with law and as delineated and demarcated 4 NMS.4230/2009 on sketch but without prejudice to the rights and contentions of the parties to the suit. Defendant Nos.8 and 9 are the statutory authorities and therefore they shall abide by the agreement between the parties and issue documents/permission accordingly. 7] None appears on behalf of defendant nos.1 to 5 though served. Relief that is claimed against them that having been complied with only obligation under the Maharashtra Ownership Flats Act, 1963 and there is a default in complying with remaining statutory obligation, they should take prompt steps to apply for and obtain occupation certificate in respect of plaintiff’s building. Since these defendants are not appearing, no interim order can be passed at this stage as against them. However, liberty to apply for such other and further interim reliefs after due notice to these defendants. List the Notice of Motion in due course. [S.C. DHARMADHIKARI, J.]