MP -1- AO1121_10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1121 OF 2010 IN NOTICE OF MOTION NO. OF 2010 IN L.C. SUIT NO. 1077 OF 2010 WITH CIVIL APPLICATION NO. 1381 OF 2010 Mr. Jamaluddin A. Khan and others .. Appellants Versus M/s. Build Craft and others .. Respondents Mr. Dinesh Tiwari i/b. Dinesh Tiwari and Associates for Appellants. Mr. Aspi Chinoy, Senior Counsel with Mr. Harvinder Toor, Mr. S. B. Pawar and Mr. S. G. Bane i/b. S. K. Legal Associates for Respondent Nos. 1 to 4. Mrs. K. K. Soraan for BMC. CORAM : B.R. GAVAI, J. MONDAY, JANUARY 31, 2011 P. C. : Heard Shri Tiwari, the learned Counsel appearing on behalf of the appellants and Shri Chinoy, the learned Senior Counsel appearing on behalf of respondent Nos. 1 to 4. 2. By way of present appeal, the appellants take an exception to the order dated 3rd September 2010 passed by the learned Judge, City Civil Court of Greater Bombay vide which the Notice of Motion filed by the present appellants in Long Cause Suit No. 1077 of 2010 came to be rejected. MP -2- AO1121_10 3. The appellants who are the occupants of the flats constructed by the respondent Nos. 1 to 4 have filed the suit praying for direction to the respondent Nos. 1 to 4 for formation of the co-operative society in respect of the suit building namely Al-shams Apartments and for direction to obtain the completion certificate and for a direction for conveying the suit property in the name of the co-operative society. 4. The plaintiffs have also filed a Notice of Motion claiming for temporary injunction under Order 39 Rule 1C for a temporary injunction restraining the respondents from making any further construction on the suit site etc. The said Notice of Motion is rejected. Hence the present appeal. 5. Mr. Tiwari, the learned Counsel appearing on behalf of appellants, submits that in the original layout which was sanctioned in the year 1999, the building in question was shown of three Wings. A- Wing was to consist Ground plus one, B-Wing was to consist Ground plus one and C-Wing was to consist Ground plus three floors. He submits that, however in the year 2009, the plans have been drastically changed to have three Wings respectively A-Wing to consist ground plus six, B-Wing to retain ground plus one and C-Wing to consist ground plus six floors. He submits that the building in question initially was to have only 30 apartments, and by 2009 amendment, the number of apartments has been increased to 60. He further submits that the open space which was provided under the original plan is now being taken away, and as such, the amenities which were promised to the occupants are being taken away. The learned Counsel relies on the Judgment dated 7th October 2010 delivered by me in First Appeal No. 786 of 2004. He MP -3- AO1121_10 submits that in view of that Judgment since the consent which is obtained from the appellants is a blanket consent, the same would also not be valid in law. 6. Mr. Tiwari further submits that in the year 2009, for the first time, an additional TDR was sought to be loaded in the building in question, and as such, the appellants were entitled to raise the objection. 7. Mr. Chinoy, the learned Senior Counsel appearing on behalf of Respondent Nos. 1 to 4, on the contrary, submits that from the agreement itself, it would be clear that the building itself was to be constructed in the phased manner. He submits that not only that, the sanction which is granted by the Corporation is also granted for a phased development. He further submits that all the appellants are residing in C-Wing which is a separate building, and as such, has no concern with A-Wing which is sought to be constructed. He, therefore, submits that no case is made out for interference in the present appeal. 8. It appears to be in a disputed position that when the initial plan was sanctioned in the year 1999, the project in question consisted 3 wings. Wing-A was to have ground plus one floor, Wing-B was to have ground plus one floor and Wing-C was to have ground plus three floors. It further appears that subsequently, from time to time, the plans have been changed and finally in the Plan of 2009, the following position emerges: ➢ Wing-A is to have ground plus six floors; ➢ Wing-B is retain ground plus one floor; and ➢ Wing-C is to have ground plus six floors. MP -4- AO1121_10 9. One of the recitals in the preamble of the agreement, which has been entered into between appellants and the builder, reads thus: AND WHEREAS pursuant to the I.O.D. bearing Serial No. CE/3149/ BPES/A/L dated 25th February 1999 issued by the Executive Engineer Building Proposal, Eastern Suburbs, Ghatkopar (East), the Municipal Corporation of Greater Mumbai sanctioned the Building Plans for construction of phase-wise Buildings comprising of ground and such other floor as permitted by Local Authority upon the said property in favour of the said Lessees; (emphasis supplied) 10. The perusal of the said clause would clearly show that the project was for a construction of a phase-wise building comprising of ground and such other floors as permitted by the local authority. Not only that but the perusal of the communication dated 8th March 1999 addressed by the respondent Municipal Corporation to the Architect of the Builder would show that the proposal in question was for a phase- wise development. It is further pertinent to be noted that Wing-C was to initially have ground plus three floors. It is not in dispute that it has been subsequently changed to ground plus six floors. It is also not in dispute that all the plaintiffs-appellants are occupants of Wing-C. The learned Trial Court has specifically come to a finding that all the three buildings are the separate buildings. Though it is seriously disputed, as to whether the three buildings are three wings of same building or that they are independent, I do not find it is necessary to go into that issue at this stage. It is to be noted that taking advantage of the amended plan vide which the building has been increased from three floors to six floors, the appellants have purchased the flats in Wing-C. If the contention of the appellants is to be accepted then the building / wing-C MP -5- AO1121_10 which exist today, itself, would not be permissible. The appellants having taken advantage of the change in plans and purchasing the flats, now cannot be permitted to have grievance with respect to increase of floors in building / Wing-A. 11. It is pertinent to note that the appellants have signed letters on 29th April 2010 thereby giving their consent to make the necessary additions and alterations. It is contended that this consent is a blanket consent. I am of the considered view that the said question would be required to be gone into at the stage of trial. The Judgment of this Court in the case of Madhuvihar Co-operative Housing Society and others Vs. M/s. Jayantilal Investments and others, would not be prima-facie applicable to the facts of the present case. In that case, the consent which was sought to be relied was an implied consent on the basis of some clauses in the agreement entered into between the flat-purchasers and the builder. In the present case, there are specific letters of consent addressed on 29th April, 2010. Under what circumstances they were given is a question which has to be determined only after the evidence is led in that behalf. 12. Insofar as my Judgment in the case of Madhuvihar Co- operative Housing Society is concerned, in the said case, the brochure which was furnished to the flat-takers was showing that the project was of one building consisting of seven wings. However, by way of the plan which was amended, one separate additional building was provided for. It is further pertinent to be noted that the case which is considered by me, was not of the phased development. In the said case, the entire project was presented to the flat-takers which was showing one building of seven wings. In the present case, it is a specific recital in the MP -6- AO1121_10 agreement that the building would be constructed in the phased manner comprising of ground and such other floors as are permitted by Corporation. Not only this, but the perusal of the communication addressed by the Corporation to the architect of the builder would also fortify the said position. 13. In any case, the appellants who have themselves taken advantage of the change-in-plans by which the number of floors in the building, in which they are residing, has been increased from three to six, cannot be heard to have grievance in the another building wherein the number of floors is now sought to be increased. 14. It is not the case of the appellants that they have purchased the flats in a building which was constructed as per the sanctioned plan in the year 1999. It is their own case that many of them have purchased the flats which have been constructed as per the plans subsequently amended from time to time. In that view of the matter, at least prima- facie, the appellants can be said to have any grievance with regard to the amendments in the plan. 15. The scope of appeal against Order under 43(1)(r) of the Code of Civil Procedure is limited. Unless it is found that the view taken by the learned Trial Court is perverse, it would not be permissible for this Court to interfere with the same. Equally, it would not be permissible for this Court to interfere with the finding, only because the Courts find that two views are possible and had it exercised original jurisdiction, it would have preferred the other view. 16. The learned Trial Court after applying the tests of prima- MP -7- AO1121_10 facie case, balance of convenience and irreparable injury has refused the injunction. For the reasons given aforesaid by me, no perversity could be noticed in the approach adopted by the learned Trial Court. Hence rejected. 17. At this stage, Mr. Tiwari, the learned Counsel for the appellants, prays for extension of status-quo so as to enable the appellants to approach the Apex Court. Mr. Chinoy, the learned Senior Counsel for the respondents concedes that the respondents would maintain the status-quo for the period of four weeks from today. 18. In that view of the matter, after recording the statement of the learned Senior Counsel, no orders are necessary. 19. In view of the disposal of appeal, nothing survives in the civil application. The same is also disposed of accordingly. (B.R. GAVAI, J)