IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29/04/2011 CORAM THE HON'BLE MR.JUSTICE VINOD K.SHARMA O.A.Nos.566, 570, 572, 699 and 700 of 2010 ORDER : O.A.Nos.566, 570, 572, 699 and 700 of 2010 VINOD K.SHARMA.J., This order shall dispose off O.A.Nos.566, 570, 572, 699 and 700 of 2010. 2. In all these applications, the prayer made is for grant of interim injunction, restraining the respondents, their men, agents and subordinates from in any way breaching the agreement of sale and construction agreement dated 06.02.2008. 3. The applicants entered into an agreement of sale with M/s.EMAAR MGF Land Limited, 1st respondent herein, on 06.02.2008. The agreement was entered into in pursuance to advertisement, issued by the respondent no.1, declaring that it was in the process of constructing a world class apartment, exclusive in nature, which would satisfy the health care and aesthetics. It was declared that the project would be well-planned integrated community, consisting of 536 apartments, approximately 1,500 sq.ft. each as per the international standards of craftmanship. It was also pointed out that the project would also have premium amenities and finish, jogging track, swimming pool, recreation area, walk ways and adequate open space. Promise was also made to provide security, centralized piped cooking gas, modern elevators, wide internal roads, backup power for common usage areas and provision for river osmosis plant. It was also assured that construction of the building would be in accordance with the planning permission, which disclosed that the areas would be segregated into Block A, B & C, spreading over 80,841.92 square meters. The construction was stilt plus four floors. 4. The case of the applicants is that it was in pursuance to the representation made in the advertisement and of sale dated 06.02.2008. The respondents, under agreement, did not have any right to alter the nature of construction or burden the common amenities, by adding further floors, thereby diminishing the land holding by the applicants. 5. That while the development was going on, the respondents have taken steps to add few more floors as well as reduce the amenities that were originally assured. The applicants, being dissatisfied, raised objection and called upon the respondents not to alter or deviate from the planning permit. The applicants also approached the CMDA, requesting them not to permit deviation in the plan. However, no assurance was given by the CMDA. Rather admitted case is that necessary permission to alter the planning permission has been granted by the authorities, against which, applicants have preferred statutory appeal. 6. In particular, the plea raised by the applicants is that because of the representation made and accepted, the applicants had entered into an agreement on clear understanding that there would be 536 residential apartments in 24 blocks, each consisting of 20 residential flats, having four floors each. 7. The grievance, therefore, is that alternation of the plan would lead to congestion in the area, paucity of parking place, scarcity of water and unhealthy environment. It is the apprehension of the applicants that the Bank may recall the loan sanctioned to the applicants, because of the diminished value due to the changed planning permission. 8. The applications are opposed by the respondents by raising priliminary objection that the applications are false and frivolous and without any basis, as the respondents have committed no breach of terms of the construction agreement nor there is any change or modification of the applicants' apartments, therefore, there exists no cause of action to maintain the applications. 9. An objection is also raised that applicants are guilty of mis-statement of facts and disclosure of incorrect particulars to have mislead the Court in passing order dated 03.05.2010. 10. The contention that the applicants have not invoked arbitration, on the face of it, is not sustainable, as arbitration is already commenced. 11. It is also pleaded in the counter that the applicants wrongly contend that, there could be no modification by the developers. This, according to the respondents, is contrary to the terms of the allotment, wherein, it is clearly stipulated that the plans, designs, specifications, super built up areas and apartment numbers were subject to alternations, modifications, as the developers may consider necessary or directed by the competent authority or architect. Therefore, it is not open to the applicants now to question the modifications in the planning permission. 12. It is also the stand taken in the counter that there is no deviation from the planning permission either in respect of the flats of the applicants or in respect of any other Towers, as alleged by the applicants. The stand is also taken that the competent authority has refused to entertain the complaint of the applicants with regard to the deviation. The construction is being carried out strictly in accordance with the approval, granted by the competent authority. It is the stand of the respondents that construction qua flats of the applicants stands completed and planning certificate, has also been received from the CMDA. 13. The positive stand in the counter is that even by construction of additional apartments in the project, the amenities offered to the applicants and their rights in respect of their apartment and number of floors / apartments in the block or their undivided holding in the land underneath the building are not in any way altered or impacted. The stand taken is that the apartment of the applicants is a premium one, and there is no change in the area, fittings, fixtures or any other amenities, therefore, it is wrong for the applicants to contend that there is reduction in the amenities. 14. On merit, the contention of the applicants that the respondents could not alter nature of the construction, is disputed on the plea that it was one of the terms of the agreement between the parties, which entitle the respondents to alter the planning permission. 15. It is the stand taken in the counter that individual apartment holder cannot question the rights of the developers in connection with overall project. In substance, the stand taken in the counter, is that there is no deviation whatsoever with the constructing area to be sold, not any facilities are diminished or reduced. The stand is also taken that the apprehension of the applicants, that loan may be recalled, is misconceived. 16. Mr.V.Lakshmi Narayanan, learned counsel for the applicants vehemently contended, that in the brochure, it was mentioned, that Esplanade is one of the largest housing developments within the jurisdiction of the Chennai Metropolitan Development Authority, which is a well planned integrated community. The Esplanade comprises of 536 upscale, well appointed apartments approximately 1500 sq.ft. each, built to international standards of craftmanship with premium amenities and finish, where children can enjoy life's pleasures without a care and breathe clean and crisp air on the paved walkways or jog on the specially laid out jogging track, which will also have clubhouse and swimming pool. The children could play in the recreational area. 17. The contention of the learned counsel for the applicants was, that clear representation was made that the area is not going to be crowded, and that the flats would be premium flats. 18. Reference was also made to the documents filed by the respondents before Chennai Metropolitan Development Authority for issuance of planning permission. The contention of the learned counsel for the applicants, therefore, was that merely because the respondents have not been able to sell the flats, cannot be the ground to change the planning permission against representation made to the applicants. 19. In support of this contention, learned counsel for the applicants placed reliance on the judgment of the Hon'ble Bombay High Court in the case of Ramniklal Tulsidas Kotak and others vs. M/s.Varsha Builders and others (AIR 1992 Bombay 62), wherein the Hon'ble Bombay High Court, while considering the provisions of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, sale, management and Transfer) Act, dealt with the title of the promoters under the Act, but the Hon'ble High Court did not deal with the question, as to whether the promoters can alter the planning permission, after receiving applications from the applicants / public. 20. Learned counsel for the applicants also referred to the provisions of The Tamil Nadu Apartment Ownership Act, 1994, to show that the apartment holder has undivided interest in the common areas and facilities. The limited common areas of such apartment, which is heritable and transferable is immovable property. The apartment holder is also entitled to transfer his apartment and the percentage of undivided interest in the common areas and facilities of apartment by way of sale, mortgage, lease, gift, exchange or in any other manner whatsoever, which means that the apartment owner, under the Act, is entitled to undivided interest in the common areas and facilities in the percentage specified in the deed of apartment and the limited common areas and facilities. The Act also provides that such percentage is to be computed by taking as the basis the extent of the plinth area available in the apartment in relation to the total extent of the plinth area available in the building, which is not capable of being altered without consent of the apartment owners. 21. The contention of the learned counsel for the applicants, therefore, was that under the Act, it is not open to the developers to change the planning permission, as it is likely to affect the interest in the common areas and facilities. 22. Mr.T.V.Ramanujam, learned Senior Counsel appearing on behalf of the respondents, on the other hand, opposed these applications on the plea that there is absolutely no change in the ground areas and the change of planning commission is in no way affecting the rights of the applicants, as there is no change in the construction plan and the applicants are offered flats, as advertised. Even there is no change in ownership of the ground area, as far as the applicants are concerned nor facilities are going to be affected in any way, as flats as per revised planning permission fall in different blocks. 23. Learned Senior Counsel also referred to the terms of the allotment, which stipulated that the plans, designs, specifications, super built up areas and apartment numbers are subject to alternations, modifications, as the developers may consider necessary or directed by the competent authority or architect. 24. It was also the contention of the learned Senior Counsel that in the sale agreement executed, it was made clear that the sale is in terms of the registration form. The contention of the learned Senior Counsel, therefore, was that there is no deviation from the planning permission and in respect of the flat of the applicants or in respect of any other Towers, as also there is no reduction in the amenities. 25. It was also stated that necessary facilities would also not be affected. The contention raised by the learned Senior Counsel, was that there is no prima facie case to seek interim direction from this Court under Section 9 of the Arbitration and Conciliation Act. In order to succeed in an application under Section 9, the applicants are to show prima facie case, balance of inconvenience as well as irreparable loss and injuries. 26. On consideration, this Court finds that the facts pleaded above show, that in the agreement executed between the parties, the respondents were given rights to alter the design and in fact necessary permission for modification of planning commission, has also been granted by the Chennai Metropolitan Development Authority, though under challenge in appeal. 27. The ground area or construction area of the applicants has not been changed, mere construction of additional flats in another block cannot make out the prima facie case, in favour of the applicants to seek injunction, specially when as per the terms and conditions, right was reserved by the respondents to alter the design. 28. The respondents have also given assurance that no rights of the flat owners are going to be affected even with regard to usage of the common area, or undivided ground area. 29. Even balance of convenience cannot be said to be in favour of the applicants, as the delay in construction is likely to escalate prices of construction. Therefore, balance of convenience is in favour of the respondents. It cannot also be said that irreparable loss is likely to be caused to the applicants, as parties would be governed by the final order to be passed in arbitration proceedings. 30. The principles of promissory estoppel, would not be applicable in this case, as nothing has been shown that respondents had represented that there would no change in the planning commission, rather terms of allotment clearly stipulated the change of planning commission by the respondents. The only representation made was regarding area to be allotted and facilities to be provided, which is not deviated in any form. 31. Consequently, finding no merit, these applications are ordered to be dismissed. No costs. 32. However, it is made clear that any observation made, be not taken to be final expression of opinion on the merit of controversy between the parties, as it will be for the Arbitrator to adjudicate the right of the parties on the basis of pleadings and evidence lead before it. 29.04.2011 Index: Yes Internet: Yes ar VINOD K.SHARMA.J., ar Pre-Delivery order in O.A.Nos.566, 570, 572, 699 and 700 of 2010 Pronouned on 29.04.2011