1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1255 OF 2008 WITH CIVIL APPLICATION NO.1540 OF 2008 M/s. SPACE CON ..Appellant V/s Mukesh Vallabhdas Paleja & anr. ..Respondents WITH APPEAL FROM ORDER NO.1256 OF 2008 WITH CIVIL APPLICATION NO.1541 OF 2008 M/s.SPACE CON ..Appellant V/s Mrs.Chhaya Rajendra Paleja & anr. ..Respondents Mr.G.S.Godbole i/b.Mr.Dnyaneshwar Deshmukh, Advocate, for the appellant Mr.Anil C. Singh i/b. Mr.Dhanesh R. Shah, Advocate, for the respondent No.1 CORAM : R.M.SAVANT, J. DATE : 5TH FEBRUARY, 2009 P.C. 2 . These Appeals from Order take exception to the two separate Orders, both dated 26th November, 2008, passed in Notice of Motion No.1677 of 2007 and Notice of Motion No.1678 of 2007. By the said orders, the said Notice of Motions were allowed by the learned Judge of the City Civil Court, Borivali Division, Dindoshi Court, Mumbai. The operative part of the orders is relevant and is reproduced herein under :- 1. Notice of Motion No.1677 of 2007 is hereby made absolute partly. 2. Till decision of the suit, the defendant or any person claiming through it, is restrained from dealing with, disposing off, alienating, parting with possession or creating third party right in respect of Flat No.2/A, Heritage Building, Nehru Road, Vile Parle (East), Mumbai – 400 057. 3. The Addl.Registrar of this Court shall appoint the Court Receiver, High Court, Bombay with direction to take possession of the suit Flat No.2/A and the plaintiffs be appointed as his agents and they be put in possession of the suit Flat subject to payment of expenses or outgoings by the plaintiffs since the date possession is taken by the Court Receiver. 4. The request regarding appointment of the Court Commissioner is rejected. 3 AND 1. Notice of Motion No.1678 of 2007 is hereby made absolute partly. 2. Till decision of the suit, the defendant or any person claiming through it, is restrained from dealing with, disposing off, alienating, parting with possession or creating third party right in respect of Flat No.2/B, Heritage Building, Nehru Road, Vile Parle (East), Mumbai – 400 057. 3. The Addl.Registrar of this Court shall appoint the Court Receiver, High Court, Bombay with direction to take possession of the suit Flat No.2/B and the plaintiffs be appointed as his agents and they be put in possession of the suit Flat subject to payment of expenses or outgoings by the plaintiffs since the date possession is taken by the Court Receiver. 4. The request regarding appointment of the Court Commissioner is rejected. 2. Since both the Notice of Motions were heard together and since both the Appeals involve similar questions of law and facts, the Appeals are being heard together. 3. The plaintiffs i.e.the respondents herein have filed suits against the defendants i.e. the appellants herein seeking directions to comply with the statutory obligations under the MOFA Act, 1963. The 4 plaintiffs in Appeal from Order No.1255 of 2009 have purchased suit flat No.2/A and the plaintiffs in Appeal from Order No.1256 of 2009 have purchased suit flat No.2/B, both situated in Heritage Building, Nehru Road, Vile Parle (East), Mumbai – 400 057. As per the Agreements, the said flats are admeasuring 540 Sq.feet + 122 Sq.feet (Chajjas). The Agreements in respect of the said flats were registered on 17th April, 2006. The plaintiffs in both the Appeals have paid the total consideration of Rs.40,50,000/- for each flat. Inspite of obtaining Part Occupancy Certificate, the defendants failed to handover the possession. Therefore, the plaintiffs in Appeal from Order No.1255 of 2008 have filed S.C.Suit No.1778 of 2007 and the plaintiffs in Appeal from Order No.1256 of 2008 have filed S.C.Suit No.1777 of 2008. The plaintiffs in the said suits have filed the said Notice of Motions claiming an injunction restraining the defendants temporarily from dealing with, disposing of or alienating, encumbering, parting with possession or creating third party right in respect of Flat No.2/A & 2/B, Heritage Building, Nehru Road, Vile Parle (East), Mumbai – 400 057 and for appointment of the Court Receiver, High Court, Bombay under Order XL, Rule 1 of the Code of Civil Procedure, 1908 and direction to 5 the Court Receiver to put the plaintiffs in possession of their respective suit flats and also for appointment of the Commissioner to visit the site and submit the report. 4. The appellants herein i.e.the defendants in the said suits filed their Affidavit-in-reply. The defendants have accepted the execution of the Agreeements in respect of the said flats in favour of the plaintiffs as also accepted the fact of payments made by the plaintiffs. The sum and substance of the case of the defendants is that as per the request of the plaintiffs, the area of the suit flats was increased while making the construction and the plaintiffs had agreed to pay the amount for the increased area. But on demand by the defendants the plaintiffs failed to pay it. According to the defendants, each of the plaintiff was liable to pay an amount of Rs.39,83,200/- for the increased area. 5. Since the plaintiffs did not pay the said amount, the defendants have terminated the Agreements by a letter dated 16th November, 2006, and have paid an amount of Rs.1,00,000/- to the 6 plaintiffs by way of refund of the amount of consideration and further by the said letter, the defendants have undertaken to refund the balance amounts after the plaintiffs get No Lien Certificate from the Banks from whom they had obtained loan. Thereafter, Affidavits-in- reply & the Affidavits-in-rejoinder were filed by the defendants and the plaintiffs. 6. The Trial Court, looking to the Clauses of the Agreements entered into with the plaintiffs, especially Clause 5, Clause 6(a) & Clause 6(e), Clause 13 & Clause 14 and the provisions of the MOFA Act , 1963 came to a conclusion that the plaintiffs have made out a prima facie case and granted the reliefs, the operative part of which has been reproduced earlier in this order. The case of the defendants' that the plans were modified at the request of the plaintiffs and the plaintiffs were, therefore, obliged to pay for the increased area. The Trial Court was of the view that the said case could not be accepted as no document was produced by the defendants to show the consent of the plaintiffs for the increase in the area was obtained as also no copy of the approved plan sanctioned 7 by the Planning Authority i.e.MCGM was produced by the defendants. 7. In so far as the termination of the Agreements is concerned, the Trial Court accepted the case of the plaintiffs that the said termination letter was not received by the said plaintiffs and therefore, the defendants could not rely upon the same. The Trial Court therefore, was of the view that at the said prima facie stage it was mandatory on the part of the Developer/Builder to comply with his obligations as laid down under the said Act and the registered Agreements, and considering the fact that the said area of the second floor was lying vacant granted the reliefs, which are reproduced earlier in this order. 8. I have heard the learned counsel for the respective parties and having considered the reasons cited by the Trial Court, in my view, the reasons cannot be faulted with. However, the impugned orders of the Trial Court call for one modification namely that the plaintiffs would be entitled only to the area mentioned in the Agreement dated 17th April, 2006. Therefore, the directions contained 8 in the operative part of the order require only one clarification namely that the plaintiffs could be entitled to the area mentioned in the respective Agreements. The Court Receiver therefore, put the plaintiffs in possession of the said area taking into consideration the approved plan of the Planning Authority i.e.The Municipal Corporation of Greater Mumbai at the time of the said Agreement. 9. In so far as the termination of the Agreements on which much emphasis is laid by Mr.G.S.Godbole, the learned counsel appearing for the plaintiffs is concerned, it is significant to note that though the plaintiffs reside in the same vicinity i.e.Vileparle (East), Mumbai – 400 057 and the defendants have also their office in the same area, the said termination letters have been despatched from Ulhasnagar which can be seen from the Postal Stamps on the acknowledgements given to the defendants of the said letter having been received in the said Post Office for despatch. The fact that the said letters have been despatched from Ulhasnagar by itself speaks volumes of the conduct of the defendants. The plaintiffs' case that the defendants did not want to abide by the terms of the Agreements 9 therefore appears to have substance. 10. As per the approved plan at the time of Agreement, the ad- interim order operating from 8th December, 2008, to operate for a period of four weeks from date. 11. Having considered the reasons cited by the Trial Court for making the above motions absolute, to the extent mentioned in the operative part of the impugned orders, in my view, no case for interference in the impugned orders is made out. The above Appeals are accordingly dismissed. 12. However only one clarification is issued that the plaintiffs would be entitled only to the flats of the area mentioned in the Agreements for sale dated 17th April, 2006. The Court Receiver is, therefore, directed to get the flats re-instated in the same position as mentioned in the Agreements for Sale dated 17th April, 2006. 13. In view of the dismissal of the above Appeals, the Civil 10 Application Nos.1540 of 2008 and 1541 of 2008 do not survive and the same are accordingly disposed of. (R.M.SAVANT, J.)