1 JPP IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3489 OF 2006 IN SUIT NO. 2897 OF 2006 WITH NOTICE OF MOTION NO. 2926 OF 2007 IN SUIT NO. 2897 OF 2006 M/s. Sangeeta Constructions. ... Plaintiffs. V/s. Chand Co-op. Hsg. Society Ltd. ... Defendants. Mr. Yadunath Chaudhari i/b. Sonal Doshi and Co. for the Plaintiffs. Mr. Sanjay Jain with Ms. Yogini Gada and Bhavin Gada i/b. Harakhchand & Co. for the Defendants. CORAM : R.Y. GANOO, J. DATED : 16th JUNE 2010. P.C. :- The Plaintiffs are a developer whereas the Defendants are a Co-operative Society. The Plaintiffs entered into an agreement with the Defendants on 15th February 1984 with a view to have development of the property owned by the Society in the following manner that is to say the existing building of the society was to be demolished and in place of 2 that new building was to be constructed so as to allot every occupant of the society same area which is presently occupied by him. In addition to that, the Plaintiffs were to obtain appropriate Government permissions/TDR Sanction in order to have equal amount of TDR and construct a building on the property of the society and sell the said building to outsiders to be called as saleble property. Another agreement dated 1st June 1996 came to be entered into between the parties for the purposes of some clarifications/adjustments. Since thereafter, no specific development has taken place at site inasmuch as the property is falling within the CRZ regulations and that is why the Plaintiffs could not procure additional FSI in the nature of TDR as well as get the property out of the CRZ restrictions. 2. The Plaintiffs moved the Court for appropriate reliefs in the terms of the aforesaid Motion and the Plaintiffs were granted the order dated 6th October 2006 and by the said order, injunction was granted in favour of the Plaintiffs in terms of prayer clause (b) except the words bracketed in the red as well as prayer clause (c). 3 3. I have perused prayer clause (b) of the Notice of Motion. By prayer clause (b) of the Motion, the Defendants are restrained from disposing off, alienating, encumbering, parting with possession or creating third party rights in respect of the property more particularly described in Schedule Exhibit ‘A’. By prayer clause (c), the Defendants were restrained from entering into a development agreement with a new developer. Parties have completed the pleadings. 4. The learned Advocate Mr. Chaudhari, appearing on behalf of the Plaintiffs across the bar stated that the Plaintiffs hope to secure appropriate orders from the Government of Maharashtra and other authorities so as to have a property released out of CRZ restrictions and the Plaintiffs would be able to get appropriate TDR for the purposes of constructing structures as per the agreement dated 15th February 1984. Mr. Chaudhari submitted that he expects to get an order very soon. He therefore submitted that if the order of injunction granted on 6th October 2006 is not continued, it is quiet likely that the Defendants would enter into an agreement with another developer and defeat the claim of the Plaintiffs. 4 5. Learned Advocate Mr. Jain, appearing on behalf of the Defendants oppose the submissions and contended that since 1994, i.e. the date of the first agreement, no specific construction activities are carried out at site and today the Society has suffered for a substantial period of about 16 years and the future of the Society as well as the construction is in limbo. He submitted that the stand of the Plaintiffs that the Plaintiffs would get out of the CRZ restrictions is a hope and therefore, the Plaintiffs should not get the benefit of the order of injunction and the Defendants should be free to enter into any transaction as they may like with the third party. 6. I have considered the rival submissions. In my view, if a situation is prevailing since 6th October 2006 and if the Plaintiffs expect that they are likely to get orders in their favour so as to get additional TDR, etc. in the interest of justice, a chance can be given to the Plaintiffs to get the said order and then the agreement dated 15th February 1984 read with agreement dated 1st June 1996 can be complied with. It is not as if that the Plaintiffs are incapable of performing the agreement on account of their incompetence. The present agreement dated 15th February 1984 appears to have not 5 been complied with on account of CRZ regulations. 7. In my view, in the interest of justice and in order to protect the rights of the Plaintiffs as of today, it would be proper if the order of injunction is continued till 31st December 2010 so that if the Plaintiffs procure appropriate orders from the necessary authorities, the Plaintiffs would be able to go ahead with the transaction. Naturally, if the Plaintiffs are unable to procure orders by 31st December 2010, surely, the Defendants should be left to decide their fate with effect from 1st January 2011. In my view, this arrangement would meet the ends of justice inasmuch as rights of the Plaintiffs would get protected upto 31st December 2010 and after 31st December 2010, the Defendants would be able to plan their future. 8. Across the bar, a submission was made by the Counsel for the Plaintiffs that today the Plaintiffs are prepared to demolish the existing structure of the Society and construct the new building for the benefit of the members and try to perform his obligations under the agreement partially. In my view, looking to the project as a whole, it may not be feasible 6 as of today to permit the Plaintiffs to demolish the building of the Society particularly, when there are as many as 160 occupants. Hence, that proposal does not find favour with the Court. 9. In view of the aforesaid, following order is passed :- (i) There shall be an order of injunction in terms of prayer clause (b), except bracketed portion viz. “dealing with” as also in terms of prayer clause (c). It is clarified that this order of injunction shall operate against the Defendants upto 31st December 2010. (ii) If the Plaintiffs do obtain appropriate orders from the Government of Maharashtra or from other authorities as regards getting the property of the Society out of CRZ regulations and loading the building with additional TDR, the Plaintiffs are free to attend to the matter in accordance with the provisions of law. If the Plaintiffs are unable to get appropriate orders upto 31st December 2010 on or after 1st January 2011, the order of injunction will not operate against the 7 Defendants. (iii) In the peculiar facts and circumstances, there shall be no order as to costs. 10. Written statement is already filed. The Suit to come up for framing of issues in due course. 11. In view of the disposal of Notice of Motion No.3489 of 2006, Notice of Motion No. 2926 of 2007 in Suit No.2897 of 2006 does not survive and is disposed of accordingly. There shall be no order as to costs. (R.Y. GANOO, J.)