IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1360 OF 2008 NOTICE OF MOTION NO. 1360 OF 2008 NOTICE OF MOTION NO. 1360 OF 2008 IN IN IN SUIT NO. 1080 OF 2008 SUIT NO. 1080 OF 2008 SUIT NO. 1080 OF 2008 Umesh H. Gandhi ...Plaintiff vs. M/s.Bhagyalaxmi Builders and Developers & Ors. Ors. ...Defendants Mr.Rohin Jaisinghani with Mr.B. Tilokani i/b. M/s.Jhangiani Narula & Associates for the Plaintiff. Mr.S.U. Kamdar i/b. M/s.M. Tripathi & Co. for Defendant Nos.1 to 3. Mr.Atul Rajadhyaksha with Mr.V.R. Walawalkar i/b. Mr.Patrick Fernandes for Defendant No.4. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : AUGUST 26, 2008 DATED : AUGUST 26, 2008 DATED : AUGUST 26, 2008 P.C. :- P.C. :- P.C. :- 1. The plaintiff has filed the suit for Specific Performance of agreement dated 11th March, 2004. The plaintiff has taken out a Notice of Motion for appointment of Court Receiver and for an order of injunction restraining the defendants from creating the third party rights in respect of three flats which are referred to in the said agreement. 2. Shri Jaisinghani, learned Counsel appearing on - 2 - behalf of the plaintiff submitted that the society had entered into development agreement with defendant no.1. In the said agreement, the society had permitted defendant no.1 to sell five flats which were to be constructed. He submitted that pursuant to the said development agreement, the plaintiff entered into an agreement with defendant no.1 on 11th March, 2004. Defendant no.1 was entrusted with the work of construction of additional floors on the existing building no.6 of the defendant no.4 society. Defendant no.1 agreed to allot and sell flat nos.53 and 54 on the fifth floor and flat no.63 on the sixth floor each admeasuring 678 sq.ft. built up area. There was agreed consideration of Rs.15,96,000/-. The plaintiff paid amount of Rs.5 lakhs vide cheque drawn on Bank of India dated 11th March, 2004. The balance was agreed to be paid in suitable instalments. It is the case of the plaintiff that defendant no.1 did not construct the additional floors and did not handover possession of the said flats. Since no construction was carried out by defendant no.1, the plaintiff did not pay the other instalments. - 3 - 3. Shri Jaisinghani, learned Counsel for the plaintiff submitted that the society is a promotor within the Section 2(c) of the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963. He submitted that the agreement dated 11th March, 2004 is binding on the society. 4. On the other hand, Shri Kamdar, learned Counsel appearing on behalf of defendant no.1 submitted that the development agreement between defendant no.1 and defendant no.4 had been terminated. He further submitted that there was change in policy and as a result, the permission to construct the additional floors on the existing building could not be given by the BMC. He submitted that therefore, the agreement dated 11th March, 2004 could not be implemented on account of change in the policy by the Corporation and on account of termination agreement by the society. 5. Shri Walawalkar, learned Counsel appearing on - 4 - behalf of the society submitted that notice under Section 164 was not given by the plaintiff and therefore, the suit is not maintainable. 6. After having heard both the learned Counsel for the plaintiff and the defendants at length, I am of the view that no case is made out by the plaintiff for grant of interim relief. It is an admitted position that the society already has terminated the development agreement which it had executed with defendant no.1. Defendant no.1 had filed the suit for Specific Performance of the development agreement. In that suit, the parties have filed Consent Terms and the said agreement has been terminated by Consent Terms by both the parties. The society has now entered into the development agreement with a new builder. That being the position, the agreement dated 11th March, 2004 cannot be executed in its present form. Apart from that, admittedly, there is a change in the policy of BMC and it has now been decided by the Corporation not to grant permission for construction of additional floors on existing building. Though Shri Jaisinghani, learned Counsel appearing for - 5 - the plaintiff tried to point out that proposal in respect of the existing building was already submitted, the BMC was authorised to grant permission, the letter on which reliance is placed by the learned Counsel for the plaintiff appears to be a circular which is issued by the Under Secretary to the Government of Maharashtra, it cannot be said that the said letter has in it a statutory force. Apart form that the plaintiff has only paid an amount of Rs.5 lakhs. He has not offered or shown his willingness to pay the balance amount to the defendants. Under the the circumstances, no case is made out for interim relief. 7. Notice of Motion, accordingly, is dismissed. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)