-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CIVIL CIVIL CIVIL APPLICATION NO.2142 OF 2007 APPLICATION NO.2142 OF 2007 APPLICATION NO.2142 OF 2007 IN IN IN FIRST FIRST FIRST APPEAL NO.2620 OF 2007 APPEAL NO.2620 OF 2007 APPEAL NO.2620 OF 2007 Ms Rekha Punjabi ...Applicant vs. Shree Rameshwar Towers Co-op Housing Society Ltd. & Ors. ...Respondents Mr.Navin Parekh i/b Mr.V.V.Apte for the Applicant Mr.J.M.Chodankar for Respondent No.1 Mr.J.P.Shah for Respondent No.5 CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : FEBRUARY 7, 2008 : FEBRUARY 7, 2008 : FEBRUARY 7, 2008 P.C.: P.C.: P.C.: 1. Heard learned Counsel appearing for the parties. The Applicant in this Application is the Appellant in the First Appeal. The Appellant is the original first defendant in a suit filed by the first Respondent. The fifth Respondent is the second defendant in the suit filed by the first Respondent. 2. The operative part of the decree passed by the trial court which is the subject matter of challenge in the Appeal reads thus : ". Suit is partly decreed as under : i) It is hereby declared that clause 23 of the Agreement for -2- Sale executed between Defendant No.1 and the individual members of the Plaintiff No.1 society including Plaintiffs 2 to 4, as is seen from the agreement Exh.10, is null and void and not binding upon Plaintiff No.1 and its individual members, being contrary to the provisions of the Maharashtra Ownership Flat (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act,1963 and the Rules made thereunder. ii) Defendants 1 and 2 are hereby restrained perpetually from installing accessories or any other structure or construction on the 11th floor terrace of Shree Rameshwar Tower ‘B’ of Plaintiff No.1 society situated on Plot No.708-709, Shimpoli Road, Borivli (West), Bombay 400 092 on the basis of purported agreement dated 29-1-1997 without the consent of the Plaintiff No.1 society. iii) Plaintiffs’ prayer for mandatory order and injunction as per prayer clause (d) and for declaration as per prayer clause (b-i) stands dismissed. iv) In the facts and circumstances of the case, parties shall bear their own costs of the suit. v) Decree be drawn up accordingly." -3- 3. The submission of the learned counsel for the Applicant is that the fifth Respondent (second defendant) has put up a tower antenna on the terrace of the building and as of today there is no order passed in favour of the first Respondent directing removal of the existing tower antenna. His submission is that as a result of the impugned decree, the existing tower antenna cannot be maintained and if the same is not maintained it will affect several telephone subscribers of the fifth respondent. 4. Without prejudice to the rights and contentions of the Applicant in the pending Appeal, the learned counsel for the applicant on the instruction of the Applicant states that 30% of the monthly consideration received by the Applicant from the fifth Respondent will be paid to the first Respondent with effect from 1st February 2008. He stated that after the existing agreement between the Applicant and the fifth Respondent is over, the fifth Respondent will directly pay to the first Respondent 30% of the monthly consideration payable to the Applicant directly to the first Respondent. He submitted that the impugned decree deserves to be stayed. 5. The submission of the learned counsel for the first Respondent is that though there is no specific decree directing removal of the existing tower antenna, the first Respondent is proposing to file appropriate proceedings for -4- removal of the said antenna. He submitted that no case is made out for grant of stay. The learned counsel for the fifth Respondent stated that the fifth Respondent has not challenged the decree. He further submitted that the employees/representatives of the fifth respondent are required to enter the terrace only for the purpose of maintenance or repairs of the existing tower antenna. 6. I have considered the submissions. As of today, there is no direction in favour of the first respondent for removal of the tower antenna. So long as the tower antenna remains on the terrace, the fifth Respondent will be entitled to maintain and repair it and for that limited purpose, an entry of the employees/representatives of the fifth Respondent will have to be permitted to the terrace on the 11th floor of the building Shree Rameshwar Tower ‘B’. Tower. The first Respondent can accept the payment offered by the Applicant without prejudice to its rights and contentions in the pending Appeal and without prejudice to its right of filing an appropriate proceedings for removal of the tower antenna. As and when the first Respondent succeeds in the appropriate proceedings for removal of the tower antenna, the first Respondent can always apply for vacation/modification of the interim relief granted. However, considering the nature of the impugned decree except for a limited interim relief as indicated above, the prayer for stay cannot be granted. -5- 7. Hence, I pass the following order : i) The statement made by the learned counsel for the Applicant that from 1st February 2008, the Applicant will pay an amount equivalent to 30% of the monthly consideration paid to the Applicant by the fifth Respondent is accepted. Further statement of the learned counsel for the Applicant that after the period of the existing arrangement between the Applicant and the fifth Respondent is over, the fifth Respondent will directly pay to the 1st Respondent 30% of the monthly amount payable to the Applicant by the fifth Respondent is also accepted. ii) It is obvious that payment of the said amounts to the first Respondent and receipt thereof by the first Respondent will be without prejudice to the rights and contentions of the parties in the pending Appeal and the same will also be without prejudice to the right of the first Respondent to initiate appropriate proceedings for removal of the tower antenna. iii) Till the final disposal of the Appeal, the first Respondent will permit the entry of the employees/representatives of the fifth Respondent to the -6- terrace on the 11th floor of the Shree Rameshwar Tower ‘B’ for a limited purpose of carrying out the work of maintenance and repairs to the existing tower antenna. As far as possible, the fifth Respondent will give an advance intimation of the visit of their representatives to the first Respondent. iv) The Applicant shall give inspection of the agreement entered into between the Applicant and the fifth Respondent to the first Respondent. v) The prayer for stay is rejected. vi) Civil Application is disposed of in above terms. There will be no order as to costs. JUDGE JUDGE JUDGE