1 nms1941-10 ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1941 OF 2010 IN SUIT NO.1961 OF 2010 Avantika Co-opertive Housing Society .. Plaintiffs Vs. Laxmi Properties Ltd. And Anr. .. Defendants Mr.S.U.Kamdar, Sr.Advocate a/w Mr.Nishit Dhruva, Mr.Karan Bhosale, Ms.Pooja Patil, Mr.Prakash Shinde i/b M/s.M.Dhruva and Partners for the plaintiffs Mr.P.K.Dhakephalkar, Sr.Advocate a/w Mr.Simil Purohit, Ms.Azmin Irani, Mr.Manish Doshi, Mr.Sandeep Vimadalal i/b M/s.Vimadalal and Co. for defendant nos.1, 2 and 6 Mr.Vishal Kanade i/b M/s.Shiralkar and Co. for defendant no.4 Mr.S.C.Singh i/b Mr.G.C.Singh for defendant no.8 Mr.Balasaheb Deshmukh for defendant no.10 Mr.Sandeep Parekh i/b M/s.M.G.Law for defendant nos.7 and 9 CORAM : S.C.Dharmadhikari, J. DATE : December 21, 2010 P.C. : 1. The plaintiffs have filed the suit seeking the following reliefs: (a) That this Hon ble Court be pleased to order and decree, ’ directing the defendants to execute the Deed of Conveyance in 2 nms1941-10 favour of the plaintiffs Society in compliances of their statutory obligations under the provisions of Maharashtra Ownership Flats Act, 1963, transferring the rights in respect of the immovable property and the building Avantika thereon together with right and access to common spaces, open spaces, terraces, stair cases, lobbies, recreational amenities etc. in the immovable property; (a)(i) That the defendant nos.1 to 2 be order and decree to pay to the plaintiffs a sum of Rs.50 lacs towards compensation for delaying the execution of Deed of Conveyance. (b) To Order and declare that the plaintiffs have a right in respect of the immovable property along with all the common spaces, open spaces, terraces, structures, recreational amenities, servant quarters, garages, FSI/TDR or any other additional right in respect of the said immovable property. (c) To order and declare that the plaintiffs and its members have complete right to access all the common common spaces, open spaces, terraces, structures, recreational amenities, servant quarters and garages situated on the immovable property. (d) To order and declare that all the fences/compound walls and other structures constructed on the immovable property 3 nms1941-10 which is obstructing the free access to all the common spaces, terraces, structures, recreational amenities, servant quarters and garages be forthwith demolished.” 2. A temporary injunction is claimed in furtherance of the afore quoted final reliefs and principally to protect the property and the common spaces, open spaces, terraces, structures and recreational amenities, so also, the free access that is referred to in prayer clauses g , g(i) and g(ii) of the plaint. ‘ ’ ‘ 3. Mr.Kamdar, learned Senior Counsel appearing on behalf of the plaintiffs submits that the plaintiffs is a Co-op.Housing Society. The ULC Authority granted permission to the defendant no.1 for construction of building Awantika. He submits that the construction was permitted subject to demolition of the existing structures. Mr.Kamdar submits that the defendant no.1 entered into development agreement with defendant no.2 for development of the immovable property situate at C.T. Survey No.568, 568/1 to 13 admeasuring 6460.90 sq.m and more particularly described in the plaint. 4. In pursuance thereof, on 18.4.02 agreement for sale was executed with purchasers of flats / tenements in building Awantika. Inviting my attention to the agreement, he submits that the schedule to the said agreement would show that the property which is described therein is not the only land beneath the building Awantika, but also the property described as several pieces or parcels of land bearing C.T. Survey No.568, 568/1 to 13 admeasuring 4 nms1941-10 6460.90 sq.mtrs situated at Juhu Birla Lane, Mumbai which is more particularly described in the First schedule. Therefore, invited my attention to the schedule of the property, a copy of which is at pg 52 of the plaint paper book. 5. Mr.Kamdar submits that it is erroneous and false to suggest that only the land beneath the construction, that is the building Awantika, belongs to the plaintiff society and was intended to convey to it. The plaintiff is entitled to the entire piece or parcel of land admeasuring 6460.90 sq.mt. Mr.Kamdar submits that in the garb of retaining the land and the FSI, so also, all benefits attached thereto what the developer and the vendor are seeking to do is to exclude the Co-op.Housing Society from use and enjoyment of the same which is clearly understood by parties. That the entitlement is entire piece or parcel of land and not just the land beneath the construction and that would be conveyed to the plaintiff society. Therefore, as long as this land is conveyed, it was incumbent upon defendant nos.1 and 2 to have maintained a position as would allow the members of the plaintiff thorough access to the Recreation ground / gardens and to the Juhu beach from the properties that are more particularly described and demarcated on the plan which is sanctioned by the Municipal Corporation. 6. Mr.Kamdar submits that the plan was directed to be produced by the court vide letter dt.31.8.10, now the same is produced. Once the same is produced for perusal of this court and submissions are made by parties on that basis, then, it is incumbent upon the defendants to give appropriate undertakings 5 nms1941-10 until the suit is heard and disposed of. From the plan, according to Mr.Kamdar, it is clear that defendant no.1 and 2 and persons claiming through them, have deprived the plaintiff society of their use and access to the garden and the pathways leading to Juhu beach. Mr.Kamdar submits that the plaintiffs are aggrieved principally by three acts of defendant nos.1 and 2. Firstly, the refusal to convey the entire land with all its benefits, secondly blocking the access to the garden and Juhu beach and thirdly, by the builder and developer allowing some of the members of the plaintiff society to use the terrace above their flats exclusively. Mr.Kamdar s complaint is that these ’ members claim that the builder has sold them the flat so also, the terrace and therefore, it is their exclusive property whereas the builder has clarified now that the terrace is not sold to them. If the terrace is not sold to them, then, it is understood in law that common space and area is available to all the members of the plaintiff society. The acts of the defendants in collusion with the builder and developer in blocking the other members from using the terrace and usurping it exclusively, can be made subject matter of any proceedings between plaintiff and member in cooperative court by taking recourse to section 91 of the Maharashtra Co-op.Societies Act, 1960 but until and unless the court declares that the persons who are purchasers of the subject flats have no right, title and interest in the terrace, the matter must not go to the said court and the civil court retains its exclusive jurisdiction for issuing such declaration. For all these reasons and until final reliefs are granted, this court must grant protective interim relief so that the entitlement of the plaintiff society is not lost but is preserved till the hearing and final disposal of the suit. 6 nms1941-10 7. Mr.Kamdar submits that a strong prima facie case is made out and as set out in the plaint so also, correspondence that the terrace is fully occupied by defendant nos.7 to 10 and they have put illegal structures thereon as a result, there is no open space on the terrace. Mr.Kamdar submits that in case of any fire or other hazards, members of the plaintiff cannot run to the terrace and refuge area. Further the access is being blocked for emergency vehicles such as fire brigade, ambulance and they will not be able to enter the building and the terrace. Therefore, the apprehensions that are set out and expressed particularly in para 27 27A, 28 and 29 of the plaint would show that the balance of convenience is in favour of the plaintiff and they will suffer grave loss, irreparable harm and injury in case interim reliefs are denied to them. 8. On the other hand, Mr.Dhakephalker, learned Senior Counsel appearing on behalf of the defendant nos.1, 2 and 6, submits that the suit claim is entirely misconceived and false. Firstly, it was always understood that what the plaintiffs can claim and are entitled to is the portion of land beneath the building Awantika which is admeasuring 1059 sq.mt. All benefits that are attached to this portion together with the land belong to the building and is to be conveyed to them. Defendant no.1 has never refused to convey this portion to the plaintiff. That the entire benefits of FSI or TDR in relation to this plot area has been consumed and there is no question therefore, of the plaintiff being deprived of their right to the immovable property and to the conveyance as claimed. It is false to suggest that the plaintiffs are entitled 7 nms1941-10 to 6460.90 sq.mt area. While developing the property, it was clearly understood between the parties that the development rights have been conferred on the developer by the owner under the agreement dt.18.4.99. That agreement and the suit agreement of 18.4.02 must be read together so that there is no confusion and it is clear that the plaintiff cannot claim anything more than 1059 sq.mt. 9. Inviting my attention to the plaint and the annexures, Mr. Dhakephalkar submits that clause 7 of the agreement must be read fully and so read, it conveys the above meaning and nothing else. A misreading thereof by the plaintiff and of the schedule below the Agreement would not enable the plaintiff to seek any relief as expressly agreed. Mr.Dhakephalkar was at pains to point out that what the plaintiffs have done is to omit reading clause 1 of the agreement, the usual recitals states that the owner developer shall construct flats on the property bearing C.T. Survey No.568 facing the East side by CTS NO.569 admeasuring about 1059 sq.mtrs situated at Juhu Birla Lane, Mumbai and more particularly described in the schedule hereunder written. It is this land on which construction has been made and in relation to this, plans have been approved. The purchasers have been shown these plans. On a building on this land, he would purchase a flat with the amenities described therein and that the price is set out therefor. In the teeth of such a clause what clause 7 does is nothing except clarifying owners rights in relation to the immovable property described in the schedule and what it amplifies is the FSI available in respect of the land. Therefore, merely on the strength of the recitals under the heading 8 nms1941-10 and the schedule to the property, the defendant cannot be called upon to convey anything above 1059 sq,mt. The plans produced also do not make any departure from this position. On the other hand, the same demarcates the construction at site and particularly of Awantika building. 10. Mr.Dhakephalkar has then invited my attention to the correspondence preceding the institution of the suit. He submits that the reliance placed on terms of the ULC is once again nothing but indicating the property which is already mentioned very clearly in the agreement and particularly at pg 69 of the paper book. It has been highlighted even in the terms and approvals of the local authorities. 11. Mr. Dhakephalkar urges that the plaintiff society has understood the transaction in the above manner. He invites my attention to the correspondence commencing with a letter dt.14.3.10 copy of which is at Annexure 'D' of the plaint. The query raised with regard to the conveyance deed by the Managing Committee is whether the builder conveyed to Avantika CHS the entire building, implicitly as it was approved by the authority at its commencement, or are certain areas being withheld by the builders. In answers to the queries raised at (i) to (iv) in this letter what has been replied by the builder is that queries are in the nature of fishing enquiry and builder is under no obligation to answer the same. 12. Mr.Dhakephalker submits that the plaintiffs have been persistent and raised the same queries vide their letter dt.12.4.10. However, Mr.Dhakephalkar 9 nms1941-10 submits that para 3 (b) of this letter would make it clear that the Co- op.Housing Society namely the plaintiff understood that it is not entitled to any other premises or land. The matter has been clarified and what has been stated by the builder is that the area of the society is a separate area and cannot be considered as common building on the same plot. In fact, it is to be bifurcated on the basis of conveyance deed to be given to the society. The plans have been approved as per the scheme. The society therefore, has no right on the plot, except the areas approved by the B.M.C. Further it is clarified by the builder that they have not sold any terrace to any of the flat purchasers. Certain purchasers have exclusive right to use the same and this is to the knowledge of everybody but there is no permission granted to construct any fence and walls. 13. Mr.Dhakephalkar therefore, submits that the stand has been reiterated and there is no departure therefrom. In such circumstances, the first contention of Mr.Kamdar must fail. According to Mr.Dhakephalkar equally untenable is the second contention with regard to access to certain common areas, garden and pathways to Juhu Beach, Mumbai. Mr.Dhakephalkar submits that once the entitlement of the society is clear, then, the other areas not belonging to it, cannot be claimed. The other portion of the plot has already a construction in the form of independent bungalows which are used and occupied by several persons. These bungalows, are understood as not part of the construction scheme evolved for the members of the co- op.housing society concerned. Therefore any gardens or open spaces adjacent to the bungalow, cannot be claimed by the plaintiff. Similarly, they 10 nms1941-10 have no right to use pathway or access to Juhu, Mumbai as they are through distinct plots of land. Plaintiff society must limit its entitlement to C.T. Survey No.568, 568/1 to 13 admeasuring 1059 sq.mt indisputedly. If that be the position, there is no question of any other plots and any portion thereon, being claimed. Therefore, the photographs shown to the court of the alleged access being blocked by iron gate is of no assistance. Further there is no apprehension that emergency vehicles cannot enter the plaintiffs building. The plaintiffs building is occupied by members who have other places of their own and have parking arrangement for themselves. There is a main gate which leads to the building from which the building can be entered and accessed. This main gate faces the road which is used by the members of the plaintiff. If that is a motorable road from which motor cars can enter the building, then, certainly their cannot be any apprehension that an emergency vehicle cannot enter the building from this road. Lastly, he submits that any grievance with regard to the acts of the members in usurping the terrace cannot be subject matter of a civil suit as bar under section 91 of the M.C.S. Act, 1960 would apply. For all these reasons, he submits that there is no prima facie case made out and motion be dismissed. 14. His contentions to the limited extent of Jurisdiction are adopted by other counsel and in addition, they submit that the terrace has not been blocked. They rely upon orders passed by this court at the ad interim stage and state that they have abided by the same. The keys of the terrace are deposited in the office of the plaintiff society. All that these members expect is an 11 nms1941-10 intimation from the Society that the others want to and desire to use the terrace. Upon such an intimation, they will always be allowed to use the terrace. 15. There are no complaints after the order passed by this court save and except certain correspondence in which a reference is made to the door and other blockages allegedly put up by the members. However, once the order passed by the court has been abided by them, this court should not pass any further orders more particularly because of the plea of Jurisdiction raised specifically by these defendants. They also therefore pray that the motion be dismissed. 16. With the assistance of the learned counsel appearing for the parties I have perused the plaint and the annexures thereto. From the affidavit in reply which is filed by the defendants to this Notice of Motion and particularly by defendant no.1 it becomes at once clear that the defendant no.1 is the owner of total plot admeasuring 6460.90 sq.mts. They have shown larger plot in a plan annexed at Exhibit 1 to the affidavit. They have clarified that much prior to the commencement of construction of the said building Awantika “ Apartment , there existed five structures namely (i) Bungalow No.1 with ’ surrounding area including garden area (ii) Bungalow No.2 with surrounding area including garden area (iii) Bungalow No.3 with surrounding area including garden area (iv) Bungalow No.4 with surrounding area including garden area and one structure consisting of ten parts/division. The Bungalow No.1 as shown in the plan with the surrounding area is the 12 nms1941-10 exclusive and personal property of the defendant no.1 whereas the ground floor of the Bungalow No.2 as shown in the plan was occupied by one Killick Nixon Ltd. Since 1973 and presently, the same is in occupation of Mrs.Betty Chunilal Kapadia & Ors and litigation is pending. As far as bungalow no.2 is concerned, it is occupied by one West End Hotels Pvt.Ltd. Since 1969. Bungalow No.3 as shown in the plan with the surrounding area is occupied by one Mrs.Shashi Binani as lesses and bungalow no.4 is occupied by one Sandoz Products Ltd (now known as Clariant (India) Ltd) as a Lessee since 1953. Thereafter they have given details of the other occupancies including 4 closed garages and five rooms/servant quarters. They have referred to the agreement dated 18.2.99, a copy of which has been annexed at Exhibit 2 . A perusal of this agreement would show that ‘ ’ Laxshmi Properties Ltd., who is the owner and BCI International Ltd., who is the developer agreed between themselves that owner i.e. defendant no.1 is entitled to pieces and parcels of land C.T. Survey No.568, 568/1 to 13 admeasuring 6460.90 sq.mtrs situated at Juhu Birla Lane, Mumbai. The owner as such owner of the entire land is entitled to and is desirous of developing a portion of the same being all that pieces or parcels of land bearing CTS No.568 facing the East side by CTS No.569 admeasuring about 1059 square meters. It becomes at once clear that what is sought to be developed is 1059 sq.mt., situated at Juhu, Birla Lane which is more particularly described in the Second Schedule to the agreement dated 18.2.99. Second Schedule reads thus. All that piece or parcel of land situated lying and being at “ 13 nms1941-10 Juhu in Bombay Suburban District now known as Greater Bombay in the Registration Sub-District of Bandra admeasuring about 1059 square meters bearing CTS No.568, and bounded as follows, on or towards the West by structures belonging to the owner, on or towards East by CTS No.569 on or towards the South by Road, on or towards the North by CTS No.567/61.” 17. Thereafter, it is agreed that the developer approached the owner to develop the property by constructing the building, car parking and certain amenities for sale / transfer to prospective purchasers for residential / commercial or any other authorized user to be converted into Co-op.Housing Society Ltd. 18. With the assistance of the counsel appearing for the parties, I have perused the agreement in its entirety and I have no doubt in my mind that the predecessor in title of the plaintiff have amply clarified that it may be that the ownership of the defendant no.1 is of a larger property namely 6460.90 sq.mt but what is agreed to be developed is only the portion in the second schedule reproduced above and it is that portion on which that building Awantika stood and it is that building in which flats and tenements were constructed and offered for sale. 19. If this agreement forms foundation of entire construction and that is how defendant nos.1 and 2 have jointly sold the flats to the plaintiffs and its members and the members have seen the plans together with the demarcation as reflected in their individual agreements, then, I have no 14 nms1941-10 doubt in my mind that plaintiffs cannot prima facie claim the larger property. 20. The first contention of Mr.Kamdar therefore must fail and I am in agreement with Mr.Dhakephalkar that a reading of the documents in question would make it clear that this entitlement of the plaintiff is to the land beneath the building or in any event 1059 sq.mt which is the subject matter of the agreement of 18.3.02. Beyond this they cannot claim any other property or land. Though there is no denial of the development agreement dt.18.2.99 and that the same is reflected duly with all its recitals in the individual agreements makes it abundantly clear that the plaintiffs were aware throughout of their entitlement. Prima facie, there is substance in the contention of Mr.Dhakephalkar that the schedule to the flat purchasers agreement is being read in isolation to indicate that the plaintiffs have a right to claim the conveyance in respect of 6460.90 sq.mtrs of land with the FSI and other attendant benefits attached thereto. Once the agreement has to be read in its entirety and so read the entitlement is clarified, then, I cannot accept the contention of Mr.Kamdar to the contrary. The reliance on clause 7 of the agreement with the flat purchaser and the plan to the extent of the entitlement is also misplaced. If particulars of the immovable property as disclosed in the schedule and the plan clarifies the entitlement then what clause 7 indicates is the availability of FSI. It confirms the owners declaration with regard to availability of FSI and if the common FSI is mentioned in recital that would be available to the society. Though this is admittedly clear even otherwise, but, the parties decided to insert a 15 nms1941-10 specific clause so that the plaintiffs are not deprived of the benefits attached to the land which is to be conveyed to them. It is in such circumstances that clause 7 must be seen. That it conveys what I have held above is also clear from clause 1 of the individual agreement, copy of which is annexed to the plaint and marked as Annexure B . ‘ ’ 21. In these circumstances reliance by Mr.Kamdar on the letter of the ULC dt. 2.12.98 is also misplaced. What permission was sought from the ULC is to develop the vacant land. That is indicated and permission under section 22 can be considered only after land becomes vacant and after all structures are demolished is the Reply of ULC Authorities. As to how this letter convey anything more or gives right to the plaintiff to claim 6460 sq.mt of land has not been clarified at all. 22. In fact the reliance by Mr.Dhakephalkar on the correspondence preceding the filing of the suit is clear because Laxmi Properties Ltd. throughout maintained therein that bungalow no.1 bearing CTS 568/1 is the private bungalow with surrounding area of the defendant no.1. Bungalow Nos.2, 3 and 4 bearing CTS 568/2, 568/3 and 568/4 to 13 is now numbered as CTS Nos.568/5 were occupied by various occupants in their surrounding area. The land area where Awantika building now exist consisted of CTS No.568, 568/1 to 13 occupied by defendant no.1 as servant quarters and garages. Development agreement dt.18.2.99 is referred to in the correspondence throughout and it has not been stated to