1 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.4474 OF 2006 IN SUIT NO. 654 OF 2007 Sarthak Co.Op. Hsg. Socy.Ltd. ...Plaintiff. Vs. Laxmibai Shankar Mungekar & Ors. ...Defendants. ---- Mr.S.C. Naidu, Mr. N.P. Dalvi, Mr. T.R. Yadav and Mr. Y.C. Naidu i/b C.R. Naidu & Co., for the Plaintiff. Mr. R.A. Thorat with Mr. Harish Jain i/b Mr. Sandeep S. Jinsiwale, for Defendant Nos.1 to 6. Mr.A.A. Kumbhakoni, senior counsel a/w Mr. Vishal Kanade i/b Mr. Sanjay Gawade, for Defendant Nos. 7 to 10. ---- CORAM: S.J. VAZIFDAR, J. DATED : 17TH SEPTEMBER 2009 P.C. 1. The Plaintiff is a society registered under the Maharashtra Co- Operative Societies Act. Defendant Nos.1 to 6 are the heirs of the original owner of the property.The suit is filed for a declaration that the Deed of Conveyance dated 6.9.2005 by which Defendant Nos.1 to 6 purported to convey the property referred to therein to Defendant Nos.7 to 10 is illegal and void and for the cancellation thereof. 2. By this Notice of Motion, the Plaintiff seeks the appointment of the Court Receiver and for an interim injunction restraining the Defendants inter alia from disposing of, alienating, encumbering the property which is 2 the subject matter of the said conveyance and for an order removing the unauthorised construction on the suit plot. 3. Several agreements were entered into by various flat purchasers and the original owner of the suit plot. A copy of one such agreements dated 1.11.1981 is annexed to the plaint as Exh.`B’. Under the said agreements the original owner was to construct a building on the property comprising of various flats. The flat owners had agreed thereunder to purchase their respective flats at the price and on the terms mentioned therein. Clause-5 provides that the tenure of the said property is free-hold. Clause Nos. 6,8,10,17 and 20 of these agreements stipulate that nothing contained therein would be construed as conferring upon the purchaser’s any right, title or interest of any kind whatsoever in, to or over the said plot or building or any part thereof and that such conferment was to take place only upon the execution of a conveyance to the Co-Operative Society or incorporated body to be formed by the purchaser’s of respective flats in the said building. The said clauses also stipulate that nothing in the agreements shall be construed as assignment in law of the said plot of land or any part thereof or the building thereon and that such assignment would take place only upon the demise by a formal Deed of Conveyance in favour of the Co- Operative Society to be formed. Clause 20 of the said agreements stipulate that the purchasers were to form and join a Co-Operative Society and for that to do all things necessary and to execute all documents. 3 4. The only reservations that the original owner/vendor made were under Clause-9, 23, and 24. By the said clauses the vendor was entitled to put up hoardings on the building to be constructed and was entitled to construct additional floors on the said building after the completion of the building. It is important to note that the schedule annexed to the agreements stipulates that the area of the plot was about 1429.5 sq.meters. 5. Prima facie, at least it appears that the plot on which the Defendants have claimed a right formed a part of the suit plot. Mr. Thorat and Mr. Kumbhakoni however submitted that the area claimed by them falls outside the suit plot i.e. it does not form a part of the plot that is subject matter of the said agreement. Not to leave any room for grievance, Mr. Naidu, the learned counsel appearing for the Plaintiff agreed that the D.I.L.R. or the T.I.LR. as the case may be may demarcate the property as per the agreement. Mr.Thorat and Mr. Kumbhakoni, the learned counsel appearing on behalf of Defendant Nos.1 to 6 and 7 to 10 respectively agreed to the same as well. 6. In the event of it being found that the area under dispute is not covered by the agreement liberty to the parties to apply to have this orde modified. 7. Mr. Thorat and Mr. Kumbhakoni contended that there was a delay on the part of the Plaintiff in filing this suit. 4 8. I do not agree. The original owner never questioned or challenged the rights of the Plaintiff. It is in fact pertinent to note that by a letter dated 6.4.1987 addressed to the Society the original owner, inter alia, stated that suit against the owners of the structures was pending and that he was therefore unable to take any decision regarding the property. He further stated that in or about 1981-82 the neighboring hutments in shed no.60 i.e. on the west side of the apartment started encroaching upon areas other than the original/existing area under their occupation. He in fact raised a grievance regarding the same. What is important to note is that he in view of the several disturbances from the neighboring hutments on the east side of the property was unable to put up a compound wall and had to compromise by giving up 3 ft. lengthwise in that regard. He also stated that he had started putting up “the partition wall lengthwise in between the apartment and the structure to stop nuisance of the illegal encroachment and blocking upon of the passage by the said hutments in shed No.60.” Prima facie, at least it appears to be that what the original owner was putting up was a partition wall and not the compound wall as is now sought to be contended. He also made a grievance about nothing having been done in the matter by the authorities. Before concluding the said letter the original owner, inter alia, stated as under: “ I was quite willing to finalise the conveyance of the building in favour of the society, but due to aforesaid problems, I was unable to take any decision in the matter. Moreover, he could not utilise the full benefit of the F.S.I. 5 Considering the difficulties explained above, if you still want me to attend to the Conveyance, I have no objection to finalise the same as per the conditions mentioned in the agreement, subject to reserving my rights to utilise the benefit of the F.S.I. Available to me for development even after the conveyance of the building to the society is finalised. From the above letter, it is clear that the original owner’s intention was to comply with his obligation but he expressed his inability to do so due to the disturbance on the site. The letter indicates the original owners stand to be that the society was entitle to the area now claimed by the Defendants. 9. The Society itself was registered on 23.9.1986. The original owner expired on 7.4.1989. Mr. Kumbhakoni placed considerable reliance upon a letter dated 4.8.2004 addressed by the heirs of the original owner and the reply thereto on behalf of the Society dated 2.1.2005. By the letter dated 4.8.2004 Defendant Nos.1 to 6 stated that they were not aware of any commitment made by the original owner with the Plaintiff. They further stated that the building of the Society had already been fenced with a compound wall and that they were willing to convey the land in the name of the Society. By the letter dated 2.1.2005, the Society forwarded the draft of conveyance for approval. Mr. Kumbhakoni places considerable reliance upon the words “in pursuance to your letter dated 4.8.2004 addressed by you to me on behalf of your clients Smt. Laxmibai Shankar Mungekar & Ors.” He submitted that this was an admission on the part of the Plaintiff that the 6 Society is not entitled to an area outside the compound walls referred to in the letter dated 4.8.2004. 10. I am unable to agree. The letters cannot be read so strictly. The letter dated 2.1.2005 cannot be deemed to be a relinquishment by the Society of its rights to the entire under the said agreements dated 1.11.1981. 11. Mr. Kumbhakoni then submitted no interim relief be granted in view of the delay on the part of the Plaintiff. He further submitted that Defendant Nos.7 to 10 had demolished the structures in the occupation of the alleged unauthorized occupants in June 2005 and started construction. The suit, however, was filed only in November 2006. 12. There is in fact no delay on the part of the Plaintiff. Even assuming that there was some delay the same is not such that it ought to affect the Plaintiff’s title to the said property. It is important to note that there was no denial on the part of the owners to comply with their obligations under the agreement dated 1.11.1981. The said letter dated 4.8.2004 does not constitute a denial of the same either. Upon commencement of the construction activities on the plot, the Plaintiff filed a suit in the Bombay City Civil Court being Suit No.1180 of 2006, inter alia, seeking reliefs directing Defendant Nos.1 to 6 to execute the conveyance as per the agreement dated 1.11.1981. An application for interim reliefs was made. The order dated 18.3.2006 passed by the learned Judge in this suit records the statement on behalf of Defendant Nos.1 to 6 that they were not 7 developing the property themselves but the developer was doing so under an SRA Scheme. Defendant Nos.1 to 5 were therefore directed to place the said facts on record in writing. It is important to note that Defendant No.4 in the present suit is also Defendant No.4 in the suit filed before the Bombay City Civil Court. Defendant No.4 was present in the court on that date. He had submitted a writing in the Bombay City Civil Court wherein he stated that he was not doing or going to do any development work in the suit plot and land and nor was any person through the Defendants developing the property. 13. Defendant Nos.1 to 6 filed a written statement only in October 2006. In the written statement they disclosed the agreement between themselves and Defendant Nos.7 to 10. The Plaintiff filed this suit on 28.11.2006. In the circumstances, there is no question of delay. If Defendant Nos.7 to10 did anything they did so either at their own risk or without being informed about the relevant fact by Defendant Nos.1 to 6. The Plaintiff’s rights cannot thereby be affected. 14. It is clarified that this order will not affect the rights, if any, of the occupants of the said structures. The present Defendants cannot claim any rights through them or on the basis of any alleged rights that the occupants may have. Mr. Kumbhakoni stated that Defendant Nos.7 to 10 are willing to merely put the occupants of the structures back on the property in the same condition as existed in 1985. In the event of the occupants adopting any 8 proceeding that would be another matter with which I am not presently concerned. 15. In the circumstances, the Notice of Motion is disposed of by following orders:- i) Office to issue notice to the DILR with a request to demarcate the property as per the agreement dated 1.11.1981. Parties shall co- operate with the DILR. The DILR to file a report on or before 30th November 2009. Liberty to the parties to apply for a copy of the same. ii) Pending the hearing and final disposal of the suit and subject to the liberty granted above, the parties shall maintain status-quo in respect of the suit property.