1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. APPEAL NO.413 OF 2008 IN NOTICE OF MOTION NO.1360 OF 2008 IN SUIT NO.1080 OF 2008 WITH NOTICE OF MOTINO NO.3510 OF 2008 Umesh Gandhi ..Appellant. Vs. M/s. Bhagyalaxmi Builders and Developers and others ..Respondents. .... Mr. Rajiv Narula with Mr. Basant Tilokani i/b M/s. J. Narula & Associates for the Appellant. Mr. Akhilesh Dube with Mr. A.A. Khan i/b Tripathi & Co. for Respondents 1 to 3. Mr. Atul Rajadhyaksha, Senior Advocate i/b P. Fernandes for Respondent No.4. .... CORAM: SWATANTER KUMAR, C.J. & DR. D.Y. CHANDRACHUD, J. 1st April, 2009. P.C. : The challenge in the present appeal is to the order passed by the Learned Single Judge dated 26th August, 2008 vide which the Notice of Motion taken out by the Appellant for injunction in a suit for specific performance was declined. During the course of hearing, the 2 learned counsel appearing for the parties state that there is some factual error in the judgment of the Learned Single Judge which is in appeal inasmuch as it was not admitted that there is a change in the policy of the BMC and it has been decided by the Corporation not to grant permission for the construction of the additional floor on the existing building. It is stated that though there was a change in the policy, but the change contemplated did not affect the agreement in question. It is also stated that though the contract of the developer was terminated by the society, but the execution of the agreement in favour of the Appellant was prior to the date of termination. This has not been considered particularly in the light of the fact that according to the Appellant under the Maharashtra Ownership of Flats Act, 1963, the Appellant gets status as owner being purchaser of the land. The society being the owner would also be covered under the provisions of the Act. This contention is not admitted by Counsel appearing for the Respondents. In the light of these facts and particularly that the contentions raised have not been considered, we set aside the order under appeal and request the Learned Single Judge to hear the Notice of Motion afresh in accordance with law. Parties are directed 3 to appear before the Learned Single Judge and make a mention of the matter within one week from today and any transaction will be subject to order of the Learned Single Judge. The Appeal is accordingly disposed of. In view of the disposal of the Appeal, Notice of Motion 3510 of 2008 does not survive and shall stand disposed of. CHIEF JUSTICE DR. D.Y. CHANDRACHUD, J.