: 1 : SD IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.3403 OF 2008 OF MOTION NO.3403 OF 2008 OF MOTION NO.3403 OF 2008 IN IN IN SUIT SUIT SUIT NO.1823 OF 2008 NO.1823 OF 2008 NO.1823 OF 2008 Dilip Jamnudas Giyanani & Ors. ...Plaintiffs V/s. Kumar Bhatija & Ors. ...Defendants Mr.Charanjeet Chandrapal for the Plaintiffs. Mr.Vishal Kanade i/b. Kumana & Co. for Defendant Nos.1 to 4. . Ms.Rajani Iyer, Sr. Counsel, a/w. Mr.R.A. Shah i/b. Mansukhlal Hiralal & Co. for Defendant Nos.6 to 8. . Ms.U.M. Jhaveri for Defendant No.9. CORAM CORAM CORAM : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. : A.V. NIRGUDE, J. DATE DATE DATE : 2ND APRIL, 2009. : 2ND APRIL, 2009. : 2ND APRIL, 2009. P.C.: P.C.: P.C.: 1. Heard. 2. This is a Notice of Motion taken out by the Plaintiffs to prevent the Defendants from selling, alienating etc. the flats in the suit building by name "Shiv Shakti Tower" and in any other building attached thereto located on the suit land. The facts leading to this litigation are as under. 3. The Defendant Nos.1 to 4 way back prior to 1981 agreed to purchase a plot of land. They : 2 : represented then that they were promoters of a proposed co-operative housing society. The Plaintiffs claimed that they were members of such proposed co-operative housing society and had made contribution to the cost of the land. Subsequent to the acquisition of this land, the land was subjected to development and as many as three buildings came to be constructed on it. The suit building "Shiv Shakti Tower" is the latest and the third building. The two other buildings constructed earlier are not in dispute so far as this Notice of Motion is concerned. 4. It is the case of the Plaintiffs that being the members of the proposed co-operative housing society as well as being the contributors to the consideration for the land, the promoters, the Defendant Nos.1 to 4 entered with them certain agreements and agreed to sell one flat each to them in the proposed buildings on the suit plot. In 1993, supplementary agreements were executed in favour of the Plaintiffs promising them allotment of the flats in the suit building. The Defendant Nos.1 to 4 even admitted having received consideration from the Plaintiffs towards the cost of construction. But, in 2004 the Defendant Nos.1 to 4, unilaterally, sending letters to the Plaintiffs, cancelled the agreements : 3 : with the Plaintiffs. 5. In those days there was dispute between the Defendant Nos.1 to 4 on one side and the Plaintiffs on the other over the cost of construction. Soon thereafter the Defendant Nos.1 to 4 executed a deed of development with right to sell flats in favour of Defendant Nos.6 to 8 and then onwards, the suit building is being constructed by Defendant Nos.6 to 8. It is obvious that in view of the unilateral cancellation of agreements with the Plaintiffs, the Plaintiffs would not have prospects of getting flats in the suit building. The Plaintiffs do have grievance about this deprivation, but while drafting the plaint they have not challenged the cancellation of their agreements and sought specific performance of the same. Instead, they filed this suit saying that they are joint owners of the land and together they have 5/20th undivided share in the land. They also sought mesne profits. Surprisingly, they did not seek partition of the suit plot by metes and bounds. In this background one has to decide the Notice of Motion. 6. Through this Notice of Motion, as said above, the Plaintiffs are seeking temporary injunction to : 4 : prevent the Defendants from selling the flats in the suit building. The fact that the suit building is being constructed by Defendant Nos.6 to 8 is not in dispute. They have independent agreement with the Defendant Nos.1 to 4. But, the development of this building is very remotely related to the prayers in the plaint. As said above, if the Plaintiffs did not challenge the cancellation of their agreements to acquire their flats in the suit building, they are not entitled to prevent either the development of this building and/or the sale of the flats because these transactions are rather too remotely related to the Plaintiffs’ prayers in the suit. Apparently the prayer clauses of the plaint are rather misconceived. The Notice of Motion should fail. 7. In view of the above, the Notice of Motion stands dismissed. [A.V. [A.V. [A.V. NIRGUDE, J.] NIRGUDE, J.] NIRGUDE, J.]