1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.313 OF 2011 IN NOTICE OF MOTION NO.1990 OF 2009 AND NOTICE OF MOTION NO.476 OF 2007 IN SHORT CAUSE SUIT NO.3943 OF 2005 WITH CIVIL APPLICATION NO.452 OF 2011 M/s. National Building Corporation & Anr. ...Appellants. v/s. Dev Gyan Co-operative Hsg. Society Ltd. ...Respondent. Mr. Satish Singh i/by Gabriel Pillai ,advs. For the Appellants. Mr. Dinesh Purandare a/w Amol Joshi i/by Poorvi Kamani, advs. For the Respondent. CORAM : J.H. BHATIA, J. DATED : JULY 27, 2011. P.C. 1 Heard the learned counsel for the parties and perused the documents. 2 Original defendants, who are the builders and developers have preferred this appeal against the impugned order passed in notice of motion taken out by the plaintiff/respondent. Plaintiff is the co-operative society of the owners of the flats situated in 1st to 5th floor of the building. Sixth and seventh floor are in exclusive possession of the builder. According to the plaintiff, as per the sale agreements with the 2 flat purchasers, builder had agreed to provide amenity of two automatic lifts of OTIS make with stainless steel doors. Initially only one lift was installed and the possession of the flats were given. Second lift is installed recently and the defendants want to make that second lift operational exclusively for the 6th and 7th floor, which are in their possession and want to deprive other flat owners from using that lift. In view of this, the plaintiff/society filed suit and by notice of motion sought direction that the second lift be made operational for all the floors of the society. This notice of motion was opposed by the defendants on the ground that at the time of giving possession of the flats, it was agreed that only one lift will be made available for the use of the flat purchasers and, therefore, plaintiff/society can not claim such a relief. After hearing the parties, the trial Court rejected the contention of the defendants and passed the impugned order directing the defendants to make the 2nd lift operational for all the floors. 2 Agreements for sale executed sometimes in 1995 clearly reveal that Exhibit B with that agreement contained list of amenities to be provided in the Dev Gyan building under construction. It specifically provided that there would be two automatic lifts of OTIS make with stainless steel doors for the building. In another notice of motion no.476 3 of 2007 taken out by the defendants seeking some relief, defendant no.2 had filed an affidavit on 12th December, 2007. In paragraph 12, he contended that the plaintiffs by mutual consent have agreed and accepted use of 1st lift as against the provision of two lifts as provided for in the list of amenities as set out in the agreement for sale as recorded subsequently and set out in the letter of possession dated 4.12.1995, copy of which was annexed and marked Exhibit IV. That letter dated 4th February, 1998, from the builders to Narayan Mirchandani one of the flat purchasers, shows that flat purchaser was put in possession and he was to confirm that said flat was complete in all respects as per the provision of the agreement for sale and amenities had been provided as detailed in the said Agreement for Sale. In the last paragraph of that letter, it was stated that the flat purchaser was informed that the elevator would be made operative on receipt of N.O.C. from P.W.D. Department. This possession letter nowhere shows that in spite of the original terms of the contract of the sale of the agreement, flat purchasers had agreed for one lift only against two lifts assured in the list of amenities. In fact, this letter confirmed that the possession was to be given and the amenities were being provided as per the terms of the sale agreement. The sale agreement clearly provides for the facility of 4 two lifts. In view of this, builder can not be allowed to deprive flat purchasers from using both the lifts and he can use one of the lifts exclusively for himself. Taking into consideration these facts , it appears that the defendants/appellants are trying to harass flat owners, who are the members of the plaintiff/society without any valid reasons. The trial Court has taken note of this fact and passed the impugned order. I find no illegality or mistake in the said order. Defendants have without any reason and justification preferred this appeal against that order and dragged the plaintiff into the unnecessary litigation and cost. 3 Therefore, appeal stands dismissed with cost of Rs.25,000/- to be paid to the respondent within two weeks. 4 As the appeal itself is dismissed, civil application does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)