1 NMS1182.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION kj NOTICE OF MOTION NO.1182 OF 2009 IN SUIT NO.756 OF 2009 Umesh Y. Salvi ..Plaintiff Vs Kanjibhai R. Barot & Ors. ..Defendants ---- Mr.S. S. Ghogre i/by S.J.Ghogre for the plaintiff. Mr.M.J.Jamdar for the defendants. ---- Coram : S.C.DHARMADHIKARI,J Date : 19TH OCTOBER, 2010. PC 1 The plaintiff is seeking an injunction against the defendants restraining them from dispossessing of or creating any 3rd party rights in the suit premises being flat no.702, 7th Floor, Bhakti Sagar SRA Co-operative Housing Society Ltd., Shyam Baugh, Sitaram Jadhav Marg, Lower Parel (West), Mumbai-400 013. 2 NMS1182.09.sxw 2 The plaintiff has filed the suit claiming specific performance of an agreement which is stated to be an agreement for sale dated 15.8.2001 and registered on 16.8.2006. A copy of this agreement is annexed at Annexure-A and it is stated that this flat was agreed to be sold by the defendant no.1 to the plaintiff and on the date of execution of the said agreement, certain sum was paid (Rs.14 lakhs) for which receipt is issued to the plaintiff. 3 It is stated that defendant nos.2 & 3 have their flats bearing 2/203 and 6/603 in this building. The construction of 6th floor has been completed and 7th floor is under construction. The flat purchasers from floors 1 to 6 have been put into possession and they are proposing to form a Co-operative Housing Society. It is learnt that the defendant no.1 is trying to wriggle out of this agreement and therefore, the Consumer Forum was approached by the plaintiff but after filing of this suit in the meanwhile, very same flat was agreed to be sold by defendant no.1 to defendant nos.2 & 3 and that is how proceedings between defendant no.1 and defendant nos.2 & 3 are referred to in paragraph-1 of the plaint. It 3 NMS1182.09.sxw is alleged that despite having the knowledge of the prior agreement of the plaintiff, defendant no.1 entered into consent terms with the defendant nos.2 & 3 before the Consumer Forum and the execution of such consent terms and the endorsement thereon would jeopardize the rights of the plaintiff and to protect the same, he has filed this suit. 4 In the affidavit-in-reply filed by defendant no.1 dated 28.4.2009, it is stated in paragraph-17 as under :- “I say that both the plaintiff and defendant No.2 and 3 are not the bonafide purchaser of the suit premises the plaintiff has not paid the entire amount of Rs.29 lakh for the total sale consideration of the suit premises and Defendant No.2 & 3 has by misleading the Consumer Dispute Redressal Forum Central Mumbai District has obtain a false exparte decree against me. Thereby entered into registered a false agreement by pressurising me.” There is a rejoinder affidavit filed by the plaintiff but there is 4 NMS1182.09.sxw also an affidavit filed by defendant nos.2 & 3. It is stated in the affidavit of defendant nos.2 & 3 that their agreement would take precedence over the alleged agreement of the plaintiff because their’s is a registered agreement. The plaintiff has approached the Consumer Forum after institution of this suit, Consumer Forum has directed that he should be given a flat by the 1st defendant or else sum of Rs.14,45,000/- as compensation. Mr.Jamdar makes this statement and further submits that aggrieved by the quantum of compensation, the plaintiff has filed an appeal being Appeal no. 506 of 2010 before the Maharashtra State Consumer Dispute Redressal Commission and that is pending. 5 Having heard Mr.Jamdar at some length so also the plaintiff’s Counsel and perusing with their assistance all the affidavits on record, I am of the view that interest of justice would be served if it is directed that the defendant no.1 so also defendant nos.2 & 3 shall maintain status-quo as of today in relation to the flat no.703 (suit flat) meaning thereby even if the same is constructed, it shall not be transferred or disposed of in any manner by these 5 NMS1182.09.sxw defendants. This order will be without prejudice to the rights and contentions of all parties before the Consumer Court and the appellate Court. Since the flat is yet to be constructed the question of handing over possession has not arisen but this order and direction will not prevent the defendant no.1 from handing over possession of the said flat to defendant nos.2 & 3 subject to the final orders in this suit. However, they will not transfer or dispose of the flat in any manner. 6 Notice of Motion is allowed in these terms. No costs. (S.C.DHARMADHIKARI,J)