1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORIDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 325 OF 2009 IN NOTICE OF MOTION NO. 4332 OF 2007 IN SUIT NO. 2891 OF 2007 WITH NOTICE OF MOTION NO. 2868 OF 2009 Aaruni Patil .. Appellant Vs. Hemlata Madhusudan Thakur and ors. .. Respondents Ms. Seema Sarnaik for appellant. Mr. Rajeev Patil a/w Sachin Punde for respondent no.1. Ms. Yasmin Tavaria a/w D.A. Barot for respondent nos.4 to 7 CORAM: B. H. MARLAPALLE & SMT. V.K. TAHILRAMANI, JJ. February 23, 2010. P.C. 1. We have heard Ms. Seema Sarnaik, the learned counsel for the appellant – original defendant no.3, Mr. Patil, the learned counsel, appears for respondent no.1 and Ms. Tavaria, the learned counsel, appears for respondent nos. 4 to 7. 2 2. This appeal is directed against the order dated 11/11/2008 thereby allowing Notice of Motion No. 4332 of 2007 in terms of prayer clauses (a) and (b) filed in Suit No. 2891 of 2007. Prayer clauses (a) and (b) read as under:- “(a) that pending the hearing and final disposal of the Suit the Defendant No. 1 and 3, their servants and agents be temporarily restrained by an order of Injunction of this Hon’ble Court from any manner acting, enforcing and/or taking any action in furtherance of Deed of Conveyance/Assignment dated 14/5/2002 and Sale Agreement dated 11th June 2002 executed between Defendant No.1 and 3 in respect of the suit property namely New Survey No. 1155 part and City Survey No.95/10, Matunga Division, along with the building known as “ARUDH APARTMENT” situated at 96, Hindu Colony, 3rd Lane, Dadar, Mumbai 400 014 and/or taking any way advantage of the above documents of whatsoever nature. 3 (b) that pending the hearing and final disposal of the Suit the Defendant No. 1 and 3, their servants and agents be temporarily retrained by an order of Injunction of this Hon’ble Court from dealing with transferring, creating third party rights and/or disposing by whatsoever nature the suit property namely New Survey No.1155 part and City Survey No. 95/10, Matunga Division, along with the building known as “ARUDH APARTMENT” situated at 96, Hindu Colony, 3rd Lane, Dadar, Mumbai 400 014.” 3. The appellant – original defendant no.3 claims his title to some of the units located in Arudh Apartment on the basis of the Deed of Assignment and Conveyance dated 11/6/2002 between defendant no.1 and defendant no.3. The defendant no.3 has purchased one unit on first floor from defendant no.1 and has also purchased one unit from Mr. Abhijit Vartak and thus the appellant claims title over three units, out of six units. 4. Whereas it has been pointed out by the learned counsel for the plaintiffs that a Deed of Declaration was singed and registered at the behest of the flat owners on 30/12/1997 and defendant no.1 along with the 4 plaintiffs as well as Mr. Vilas Salunke, his wife Smt. Dipti Salunke and Mr.Abhijit Vartak are the signatories. As per the said document, use of the units by any holder for other than residential is prohibited and so long as there is no change in user, there is no restriction on transfer of the units. This Deed of Declaration also indicates that all the rights on additional FSI/TDR as well as the open space appurtenant to the building are jointly shared by the unit holders. Whereas the Deed of Assignment dated 11/6/2002, as alleged by the plaintiffs, indicates that these rights which are common to the unit holders, have also been assigned by defendant no.1 to defendant no.3. Consequently, the legality of the said conveyance is under challenge in the pending suit. The plaintiffs also pray for the relief of specific performance. 5. We do not find any justification in continuing with the restraining order against the appellant so far as it relates to the three units, if any one of them or all of them are sought to be transferred for residential purpose. 6. We, therefore, direct that as and when the appellant intends to create 3rd party interest in any of the three units, he claims title on, for 5 residential purpose, he shall give notice of four weeks to the plaintiffs and other unit holders and in case the 3rd party interest is sought to be created for any other purpose than residential, the appellant shall seek permission from the other unit holders. The impugned order stands modified accordingly and appeal is disposed with these modifications. 7. Notice of Motion No. 2868 of 2009 does not survive and shall stand disposed as such. (SMT. V.K. TAHILRAMANI,J.) (B. H. MARLAPALLE, J.)