1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION A.O. 400/2008 M/s Om Sai Promotors andBuilders Appellants Vs. Mrs.Asha @ Chhaya Jadhav Respondent Mr.J.Shekhar i/b M/s J.Shekhar and Co.for appellants Shri.S.V.Sadavarte,for the respondent Coram : S.J.Vazifdar,J. Date : 24th November,2008 P.C. 1] Admit.Heard finally. 2] By order dated 2.6.2008 the parties were put to notice that the matter may be heard finally at the admission stage . 3] The A.O. is against an order granting an injunction restraining the appellant from proceeding with further development work and from putting the proposed purchasers of the flats in possession. 4] The respondent had filed a suit alleging that the development agreement dated 26.5.2005 had not been adhered to by the appellant. The respondents filed a suit for 2 a declaration that the development agreement has been validly canceled ; that the appellant does not have any right to continue with the construction and for an injunction restraining the appellant from entering upon or carrying out the construction work .Finally damages of Rs.3,50,000 are prayed for. 5] In the facts and circumstances of the case interference is warranted even at the interim stage. There is no dispute that the construction of the building was at least substantially completed even when the suit was filed. Prima facie in any event by the time the impugned order was passed it appears that at the highest only completion work was to be done. It is not in dispute that the building comprises 8 flats. It is not in dispute that as on date 7 flats have been occupied by the purchasers. There are no allegations by the respondent against these seven purchasers. 6] Added to all this it is not the respondent's case that the construction came up suddenly .The respondent was aware of the construction coming up. In fact the respondent issued certain directions regarding the internal work in respect of her flat .This is disputed by the respondent. 3 7] It is not possible at this stage to reject the appellant's case that the alterations/modifications were with the consent and approval of the respondent. It is not denied that the Appellant was aware about the construction work at all times .The only suggestion is that the details thereof were not known. 8] The main grievance is that the flat on the ground floor has not been made available as required by the development agreement. Further it is contended that the garden is provided but at a lower level than the flat. 9] Thus, a flat admeasuring 600 sq.ft.is available . A garden admeasuring 300 sq.ft. is also available. The main difficulty appears to be that the flat and the garden are at different levels. The garden is about 5 to 6 feet below the level of the flat. 10] Solely in view of this dispute it would not be equitable to stop the remaining construction work . This would seriously prejudice not only the appellant but all the occupants of the building who are innocent third parties.The same would in fact prejudice the respondent herself. For instance if the completion certificate and the occupation certificate are not obtained it would have adverse financial implications to all the occupants of the building in terms of 4 electricity charges, taxes,etc.. It is thus,in the interest of all the parties and the respondent is permitted to occupy the said flat admeasuring 600 sq.ft.and the garden subject to certain terms and without prejudice to the rights and contentions of the respondents. In the circumstances the A.O.is disposed of by the following order :- O R D E R 1] The impugned order is set aside. 2] The appellants shall be permitted to complete the construction work in accordance with the plans sanctioned by the concerned authority. 3] The said flat admeasuring 600 sq.ft.and the garden shall be made available to the respondent. 4] The respondent shall be entitled to utilise the said flat and the garden without prejudice to her rights and contentions in the suit. 5] The appellants shall raise the level of the garden up to the level of the flat subject to obtaining the necessary permissions, if required . The appellants shall make an application in respect thereof within four weeks from today . 5 The costs thereto shall be paid entirely by the appellant. Liberty to the respondent to apply in this regard ,if necessary. 6] The appellant has agreed to allot one car parking space without any cost to the respondent in the event of this arrangement continuing as above. Pending the suit the Appellant shall be entitled to use the said parking space without prejudice to the rights of all the parties. 7] Further the appellant agrees to complete the internal work in all respects of the said flat within twelve weeks from today .It is so ordered. 8] It is clarified that this order is without prejudice to the rights and contentions of the parties in the suit as well as in any other proceeding. 6