1 51-caa.289.11 ndm FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 289 OF 2011 IN APPEAL FROM ORDER NO. 189 OF 2011 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions and Registrar’s orders Court’s or Judge’s orders Mr. P.K.Dhakephalkar, Senior Counsel, i/b Mr.B.R.Bhatia for the Applicant. Mr. Pankaj Thatte for Respondent No.1. Mrs. K.K.Soraan for Respondent No.2 – BMC. CORAM : A.S.OKA, J. DATE : 08 th March, 2011. P.C. 1 Heard the learned senior counsel appearing for the Applicant and the learned counsel appearing for Respondent No.1. 2 Attention of the Court is invited to the relevant clauses of the agreement dated 3 rd March, 1993 and in particular clause (b) of the recitals. Attention of the Court is also invited to a sketch of the third floor annexed to the said Agreement, which shows that a portion of the terrace on the third floor was to be kept open to the sky. The agreement appears to have been executed under the provisions of the Maharashtra Ownership of Flats 2 51-caa.289.11 (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963. It is not in dispute that construction has been commencement on that part of terrace of the 3 rd floor, which is shown as open in the plan annexed to the agreement. 3 The learned counsel appearing for Respondent No.1 submits that construction has been started long back on the basis of the permission granted by the Respondent No. 2 – Municipal Corporation and as the notice of motion is pending, no ad-interim relief can be granted. He submits that the aspect of breach of Section 7 of the said Act of 1963 has been considered by the trial Court. 4 After having heard the submissions, prima-facie, I am of the view that the construction is in progress in breach of Section 7 of the said Act of 1963. The notice of motion is still pending. There is no proper consideration of the aspect of breach of Section 7 by the learned trial Judge while passing impugned order. Hence, interim relief will have to be granted in terms of prayer clause (a). 5 Hence, the application is disposed of by passing the following order: i. Pendency of this appeal will not operate as 3 51-caa.289.11 stay of the proceedings of the pending notice of motion and the notice of motion shall be decided as expeditiously as possible ; ii. The notice of motion shall be decided finally without being influenced by the tentative observations made by this Court in this order ; iii. There will be interim relief in terms of prayer clause (a) till the disposal of the appeal or till the disposal of the pending notice of motion, whichever is earlier. [ A.S.OKA, J ]