1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1629 OF 2008 IN SUIT NO. 1396 OF 2008 Hajra Zakaria Aghadi & Ors. ...... Plaintiffs. V/s Virendra Kumar Jhamb & Ors. ...... Defendants. ------- Ms. Usha Purohit with Mr. S.I. Menon for the plaintiff. Ms. Divya Shah for defendant No.1. Mr. D.C. Shah for defendant No.2. Mr. D.D. Madon, Senior advocate with Mr. Robin Jaisinghani i/b Jacinta D'Silva for the defendant No.3. Mr. Mukesh Vashi with Ms. Kanchan Khare and Ms. Archana Khan for defendant Nos. 4 and 5. Ms. Shweta Joshi for the defendant No.6. Mr. N.V. Gangal with Ms. Divya Shah and Ms. Dhanashree Shende for defendant Nos. 7 to 14. Mr. K.N. Gaikwad for defendant No.16. ------ CORAM: V.M.KANADE, J. DATE : 7TH AUGUST, 2008. 2 P.C.: 1. Heard the learned Counsel appearing on behalf of plaintiffs and the learned Counsel appearing on behalf of defendants. 2. Plaintiffs have filed this suit, challenging the conveyance dated 6/10/2006 and the development agreement dated 8/10/2006, power of attorney dated 9/10/2006, deed of conveyance dated 16/11/2006, development agreement dated 16/11/2006, power of attorney dated 16/11/2006, all of which are registered and also for a declaration that defendant Nos. 1 to 5 are not entitled to carry out construction on the said plots described in Exhibit-A & Exhibit-B to the plaint and also for damages and for a declaration that the construction on the aforesaid land is illegal and for other consequential reliefs. 3. The notice of motion is taken out by the plaintiffs, seeking injunction restraining the defendants from carrying on the said construction and for other consequential reliefs. 4. Plaintiffs claim to be the legal heirs of one Zakaria Aghadi. It is the case of the plaintiffs that the suit property belonged to one Todiwalla who entered into development agreement with defendant No.1 - V.K. Jhamb. The said development agreement permitted the defendant No.1 - V.K. Jhamb to enter into further development agreement with other parties. In view of the said clause in the said agreement, defendant No.1 entered into development agreement with other builders viz. defendant Nos. 4, 5 etc. Defendant No.6 - M/s Sabri Builders constructed two buildings on the aforesaid plots of land 3 and sold the said flats to flat purchasers. The flat purchasers took possession of the flats after payment of the price of the said flats to Sabri Builders and formed a Co-operative Housing Society which was registered with the Registrar of Co-operative Societies. The conveyance in favour of the Society, however, was executed on 6/10/2006. It is the case of the plaintiffs that they are still in possession of the said plots of land and without their consent the defendant - Society is reconstructing two new buildings after demolishing the two buildings which were constructed by them some time between 1981 and 1983. It is the case of the plaintiffs that the original owner Todiwalla had no right to convey the property in favour of the Society since that right was given to the plaintiffs. It is the case of the plaintiffs that by virtue of the power of attorney which is executed by defendant No.1 and by virtue of a declaration made by defendant No.1, they had purchased the suit property. Plaintiffs claim that as legal heirs of Zakaria Aghadi, they have right to file the present suit and claim reliefs as prayed in the suit. 5. The learned Counsel appearing on behalf of the plaintiffs submitted that the plaintiffs have right in respect of the said property. She invited my attention to various clauses in the agreement between the original owner and defendant No.1 and also development agreement executed by defendant No.1 with the said Zakaria Aghadi as also the other documents on which reliance is placed by the plaintiffs. It is submitted that, therefore, the conveyance executed in favour of the Society and the construction on the aforesaid plots, therefore, is illegal and they are entitled for an order of injunction restraining the Society from further developing the property. 4 6. In my view, no prima facie case is made out for grant of any interim relief. The conveyance has been made in favour of the Society which is registered Under the various clauses in the agreement executed by the original owner with defendant No.1 and also with Zakaria Aghadi and defendant Nos. 4 and 5, it was agreed that after the flats are sold, the property would be conveyed in favour of the Society formed by the flat owners. Accordingly, in view of the said clauses, the property has now been conveyed by the original owner in favour of the Society. Since the buildings were in dilapidated condition, Society has taken a decision to demolish the old buildings and to construct two additional new buildings. The builder who has undertaken this task has also demolished the two old buildings and has given an alternative accommodation to the members of the said Society. The photographs which are shown by the learned Counsel appearing on behalf of the developer, reveals that the construction is almost over. Even otherwise, irreparable loss would be caused to the members of the Society if the construction is stayed at this stage. This is obviously an attempt made by the plaintiffs to harass the members of the Society. 7. In my view, no case is made out, therefore, for grant of any interim relief as prayed by the plaintiffs in the notice of motion. Notice of Motion is, therefore, dismissed. Under the circumstances there shall be no order as to costs. V.M. KANADE, J. 5