1 srk app-L-247-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (LODGING) NO.247 OF 2011 IN NOTICE OF MOTION NO.309 OF 2011 IN SUIT NO.259 OF 2011 Chandrika Chunilal Shah ... Appellant Versus Orbit Finance Pvt.Ltd. and others. ... Respondents Mr. Predeep Sancheti, Senior Advocate with Mr. Z.T. Andhyarujina i/by M/s. Mayur Narendra & Co. for the appellant. Mr. Aspi Chinoy, Senior Advocate with Mr. Anil Menon for the respondents. CORAM : MOHIT S. SHAH, C.J. & D.G. KARNIK, J. Wednesday, April 27, 2011 P .C. By consent of the parties, appeal is taken up for final disposal. 2. The learned counsel for the appellant states that respondent No.1 has been served through advocate notice. Mr. Aspi Chinoy, learned senior counsel appears for respondent Nos.2 and 3-original defendant Nos.2 and 3. 3. This appeal is directed against the order dated 21st March, 2011 of the learned trial Judge of this Court in Notice of Motion No.309 of 2011. 4. Respondent-defendant No.1 had executed a registered agreement in favour of the appellant-plaintiff on 2nd March, 2000 for providing on 2 srk app-L-247-11.sxw ownership basis premises being unit No.401, admeasuring 2680 sq.ft. of the built up area of 4th floor in the building which was proposed to be constructed on the land on a part of which the plaintiff was having his godown. This was to be provided to the plaintiff by way of permanent alternate accommodation and the plaintiff was to pay only the proportionate cost of construction quantified at Rs.13,50,000/- when demanded by defendant No.1 on the basis of the agreement. 5. Defendant No.1, however, sold the entire fourth floor of super built up area of 12450 sq.mt. for consideration of Rs.11.50 crores to respondent Nos.2 and 3 in the year 2006. 6. The plaintiff therefore, filed the present suit in the year 2007 contending that the building is constructed and only interior work such as tiling, wiring, painting etc. is remaining. The plaintiff thus expected that the defendant No.1 would contact the plaintiff for handing over possession of the said premises to the plaintiff. The plaintiff's case is that the amount of agreed consideration of Rs.13.50 lakhs was to be paid by way of cost of construction which was adjusted and deemed to be paid in other transactions between the plaintiff and defendant No.1. However, if defendant No.1 was to dispute the same and if it was alleged that the consideration was not paid, the plaintiff is ready and willing to make the said payment. The plaintiff invoked his rights under the Maharashtra Ownership Flats Act and contended the transaction of the conveyance by defendant No.1 in favour of defendant Nos.2 and 3 was null and void, as defendant No.1 had already agreed by registered agreement for sale of flat admeasuring 2680 sq.ft. built up area of 4th floor to the plaintiff. 3 srk app-L-247-11.sxw 7. By the impugned order, the learned trial Judge has granted an injunction in terms of prayer clause (b) restraining the defendants from creating third party rights in any manner whatsoever in respect of the suit premises and also from parting with possession of the same or any part or portion thereof. However, defendant Nos.2 and 3 sought permission of the learned trial Judge to grant the area admeasuring 2680 sq.ft. on leave and licence basis for a period not exceeding 11 months. This prayer was made on the ground that second and third defendants had invested an amount of Rs.11.50 crores . 8. The learned trial Judge accepted the above request and directed that after demarcation of built up area of about 2680 sq.ft. on the fourth floor to be done by the Architect, the second and third defendants will be at liberty to grant the said premises on leave and licence basis for a period of not exceeding 11 months subject to the condition that the licensee shall be placed on notice of the pendency of the suit and that no interest shall be created in the premises in favour of the licensee. 9. The appellant-plaintiff challenges the above permission granted by the learned trial Judge to defendant Nos.2 and 3 to grant the premises with built up area of 2680 sq.ft. on leave and licence basis. It is contended on behalf of the appellant-plaintiff that when the suit will be decided and decree will be passed in favour of the plaintiff, the plaintiff will be able to get back only the flat with built up area of 2680 sq.ft., but in the meantime, the licence fees which the second and third defendants will earn, it will not be possible for the plaintiff to recover the same. 10. The learned counsel for second and third defendants have opposed the appeal on the ground that the suit was filed after gross delay of 4 srk app-L-247-11.sxw seven years and that there is nothing on record to show that plaintiff had made any attempt in those seven years from 2000 to 2007 to get the agreement of sale dated 2nd March, 2000 enforced. 11. The learned counsel for the appellant-plaintiff submits that no occupation certificate is yet granted in respect of the premises in question and the interior work such as tiling, wiring, painting etc. is yet to be done and therefore, the plaintiff was not expected to file the suit earlier. 12. Having heard the learned counsel for the parties, we are of the view that while no useful purpose will be served by restraining defendant Nos. 2 and 3 from granting the suit premises on leave and licence basis when substantial investment is made, at the same time, it is necessary to protect the interest of the appellant-plaintiff, in case the appellant-plaintiff succeeds in the suit which is based on the registered agreement covered by the provisions of Maharashtra Ownership Flats Act. 13. In the peculiar facts and circumstances, we are of the view that interests of justice will be served if, while upholding the order of the learned trial Judge permitting the second and third defendants to grant suit premises on leave and licence basis for a period not exceeding 11 months at a time and subject to the condition that the licensee shall be placed on notice of the pendency of the suit and that no interest shall be created in the premises in favour of the licensee, it is directed that the licence fees to be received from the licensee shall be deposited with the Prothonotary & Senior Master of this Court with respect to the built up area of 2680 sq.ft. of the fourth floor which shall be earmarked by the Architect as already directed by the learned trial Judge. 5 srk app-L-247-11.sxw It is directed accordingly. 14. After the first payment by the licensee is deposited with the Prothonotary and Senior Master of this Court, the Prothonotary and Senior Master shall deposit the amount in a recurring deposit with a Nationalised Bank and the subsequent payments to be made by the licensee shall be deposited directly in the said account under intimation to both the parties as well as to the Prothonotary and Senior Master of this Court. In case of any default, it would be open to the parties to move this Court for further directions. 15. Subject to the above further direction, rest of the order passed by the learned trial Judge is confirmed and the appeal is disposed of accordingly. CHIEF JUSTICE D.G. KARNIK, J.