1 AOG-644.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.644 OF 2010 WITH CIVIL APPLICATION NO.823 OF 2010 IN APPEAL FROM ORDER NO.644 OF 2010 M/s. N.A.N. Developers Pvt. Ltd. .... Appellants Vs. Sanjay Harishchandra Chavan and Others .... Respondents Shri Chirag Balsara with Ms Usha Gadagkar i/b M/s. Divya Shah Assocaites for the Appellants. S/Shri S.U. Kamdar, Senior Counsel with Suhas Patil, Ms Rajni Bhor and Darshan Gupta i/b M/s. Navdeep Vora & Associates for Respondent Nos.1 to 10. Shri S.P. Thorat for Respondent No.11- MHADA. Ms K.K. Soraan for Respondent No.12-BMC. CORAM: R.C. CHAVAN, J. DATED: AUGUST 10, 2010 P.C: 1. This thoroughly untenable appeal by unscrupulous appellants has to be rejected because the appellants/builders have gone back on their word given before the Court in 2 AOG-644.10 previous Notice of Motion No.465 of 2009 stating that dry balcony area of about 50 sq.ft. would be provided. That notice of motion was disposed of by an order which was challenged by the appellants before this Court. The appellants withdrew that appeal and applied for review stating that the operative order in the Notice of Motion No.465 of 2009 was required to be amended to the effect that carpet area of 225 sq.ft. with additional nitch/dry balcony area as may be available, should be inserted. Accordingly, the review application was disposed of by the learned trial Judge. The learned trial Judge while disposing of the review application had observed that the plea of the present appellants was absolutely false. Now when a Judge records something as to what had happened in the Court, that cannot be questioned by anyone. Therefore, this type of attempt by the appellants to go back on their word is, to say the least, undesirable. 2. This appeal arises out an order passed by the learned Judge, City Civil Court in the notice of motion whereby he restrained the appellants from allotting permanent alternate accommodation from C and D Wings to members 3 AOG-644.10 of the society other than the plaintiffs and also restrained the appellants from creating any third party interests in any of the flats in C and D Wings. The learned Judge also directed the appellants to provide permanent alternate accommodation having carpet area of 225 sq.ft. with an additional dry balcony area of 50 sq.ft., totalling to 275 sq.ft. usable in C and D Wings. 3. This order was passed in the context of the following facts. The plaintiffs along with several others, numbering 155 persons, were tenants of various buildings standing on the site which has been developed by the appellants. The plaintiffs were promised by an affidavit-cum- declaration-cum-indemnity bond executed by the developers that the occupants would be provided 50 sq.ft. niche/dry balcony area as per the plan annexed, in the new buildings to be constructed, aggregating usable area to 275 sq.ft.. The learned counsel for the appellants contended that this agreement was superseded by a tripartite agreement entered into after this undertaking, in which, there was no such stipulation. He further submitted that the plaintiffs are a few disgruntled souls in the 4 AOG-644.10 society who should have raised their grievances against the society before the appropriate forum, rather than rushing to the City Civil Court. He submits that the tripartite agreement limits the area which is to be made available to the plaintiffs to 225 sq.ft. only. He further submitted that even if the appellants would have been desirous of providing 50 sq.ft. dry balcony or niche area, this was not permissible in view of the letter of the Municipal Corporation dated 6-12-2008, which he made available for my perusal when the arguments were being advanced. The learned counsel submitted, first, that there was no question of the plaintiffs being entitled to 275 sq.ft. usable area since their entitlement was limited by para 2 of Appendix-III of the DCR for Greater Mumbai. Secondly, he submitted that provision of such dry balconies or niche areas was violative of the elevation features and had been objected to by the Municipal Corporation and therefore could not be carried out. Thirdly, the plaintiffs ought to have approached the Co-operative Court or such other mechanism under the Maharashtra Co-operative Societies Act for redressal of their grievances rather than going to the City Civil Court. Lastly, he submitted that the order passed by 5 AOG-644.10 the learned Judge amounts to decreeing the suit at the stage of grant of interim relief. 4. As rightly pointed out by the learned counsel for the respondents/plaintiffs, first, para 2 of Appendix-III under relevant DCR 33(7) prescribes what is the minimum area that is to be provided to the occupants. It would always be open to the developers to agree to provide additional area. In any case, what is referred to in para 2 of Appendix-III is carpet area and it is nobody s case that dry balcony or niche area would be counted for carpet area. The learned counsel for the respondents/plaintiffs rightly submitted that question is not whether the plaintiffs should be fighting with their society. The question is whether the plaintiffs could approach the City Civil Court for vindication of their rights. The fact that some of the plaintiffs have signed the tripartite agreement, namely, Sanjay Chavan, Ali Hasan Husain and Naresh Krishna Sawant does not disentitle them from taking out their grievances by appropriate proceedings. In any case, clause 24 of this tripartite agreement also refers to balcony areas. Thus it is not that balconies were ruled out in the tripartite agreement. As to the contention that the relief 6 AOG-644.10 which has been granted by the learned trial Judge takes the form of a final relief which could have been granted only after trial, the learned counsel for the respondents/plaintiffs rightly pointed out that in every suit for injunction when the Court grants a temporary injunction, it can be said that a final relief had been granted at an interlocutory stage. Therefore, this contention also cannot be accepted. 5. The order passed on Notice of Motion No.465 of 2009 has attained finality and therefore unless that order is set aside, the appellants would have no escape but to provide for what they agreed to or what they were ordered to do by the Court while disposing of that notice of motion. The question as to whether the Municipal Corporation allows this type of dry balconies or not, is set at rest by the learned counsel for respondents/plaintiffs by making available for my perusal the revised plans which had been sanctioned by the municipal authorities and in which the appellants seem to have provided 65 sq.ft. of balconies to some 15 selected occupants. It may be also useful to mention that the appellants were reluctant to produce these plans, though 7 AOG-644.10 the matter was adjourned on the last occasion for this purpose. When the arguments were being made, the learned counsel for the appellants categorically stated that there is a sanctioned plan which the appellants do not want to produce as it will not be relevant for the purpose of the appeal. The reluctance of the appellants to produce the plans which were now made available for my perusal by the respondents/plaintiffs speaks volumes about the attitude of the appellants. In view of this, first, because the order on Notice of Motion No.465 of 2009 has attained finality, at least till the suit is decided; secondly, the appellants have themselves on an affidavit-cum- undertaking agreed to provide niche or dry balcony areas, and lastly, because there is no prohibition in clause 2 of Appendix-III for providing any such additional non-carpet area to the occupants, it cannot be said that the learned trial Judge erred in granting injunction. The question as to whether the plaintiffs should have approached the Co- operative Court, was also rightly dealt with by the learned trial Judge since this is not a dispute between members of the co-operative society and the society but it is a dispute between the occupants and the developers who 8 AOG-644.10 had agreed to provide permanent alternate accommodation to them. Also, the learned trial Judge has rightly observed that the society may or may not espouse the cause of the members and that cannot be determinative of the standing of the plaintiffs to raise their own grievances before the appropriate forum. In view of all these, the appeal is dismissed. 6. Since the main appeal itself has been dismissed, Civil Application No.823 of 2010 also stands dismissed. (R.C. CHAVAN, J.)