1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION REVIEW PETITION NO.10 OF 2009 FROM APPEAL FROM ORDER NO.667 OF 2009 READWITH CIVIL APPLICATION NO.835 OF 2009 IN NOTICE OF MOTION NO.430 OF 2009 IN L.C.SUIT NO.1092 OF 2002 AND COUNTER CLAIM NO.8 OF 2004 M/s.Gango Co-operative. Housing Society Ltd., )..Petitioners Vs M/s. Parag Corporations & Ors. )..Respondents ---- Mr.M.V. Pandey for the petitioners. Mr.Vimal Mahadik for the respondent no.2. Mr.V.R.Walawalkar i/by S.R.Bhalekar for the respondent no.1. ---- Coram : R.S.MOHITE,J Date : 23rd November, 2009. PC 1 This is a review petition filed by the original respondent no.1 seeking review of my order dated 29.8.2009. There are three main contentions which are raised. The first contention is that my observation that there is a serious dispute between the parties as to who has a right to construct in view of additional 25% FSI which is admittedly available is 2 an error apparent on the face of the law. There is no substance in this contention. It is seen that in their counter claim the right which is claimed by defendant no.2 in the main appeal is based upon an agreement dated 15.5.1988. As regards their rights so claimed, it is the case of the original plaintiff that the rights mentioned in that agreement are not available to defendant no.2 because the agreement was obtained by mis-representation, fraud, coercion and undue influence. It is there case that this agreement therefore, cannot be acted upon. Assuming that the plaintiff succeeds in his plea and in that case the only other agreement which is in existence is the consent terms dated 16.8.1984. Defendant no.2 has in his counter claim categorically asserted his rights to the said FSI. It is in this background, it has been observed that there is a serious dispute between the parties as to who has a right to construct in view of the additional 25% FSI. The 2nd circumstance which according to the Advocate for the petitioners amounts to “special circumstance” meriting review is that the petitioners had filed a writ petition being Writ Petition No.2511 of 2006 and had withdrawn the same. On perusing of the withdrawal order however, I find that the withdrawal was made after making a statement that they would like to pursue the relief claimed in the suit wherein counter claim has been preferred. These aspects have been noted in the order dated 12.6.2007. The 3rd contention raised is that in their counter claim the defendant no.2 has not relied upon their rights flowing from the consent terms dated 22.8.1984. Prima facie, I find that this has not been done because defendant no.2 has contended that there was a novatio by subsequent agreement dated 14.5.1988. As stated earlier, if the plaintiffs’ case that the agreement dated 14.5.1988 was voidable, is accepted then the rights of the parties will have to be considered in accordance with the consent terms. 3 2 It may be stated here that apart from the aforesaid fact, in my view, the observations made by me at the stage of admission are prima facie observations. The observations made by the City Civil Court in the earlier Notice of Motion being Notice of Motion No. 1068/2002 decided on 24.3.2003 also are its prima facie view taken more particularly the observation that the agreement dated 14.5.1988 appears to have been obtained by fraud is also a prima facie view expressed when evidence is not being led between the parties. In any case, that view is not binding on this Court. It will be open for this Court to take a different prima facie view on the basis of the record before this Court. In this view of the matter, there is no substance in this review petition and the same is rejected. (R.S.MOHITE,J) 4