1 caf815-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION rpa CIVIL APPLICATION NO.815 OF 2011 IN FIRST APPEAL NO. 433 OF 2011 Noopur Developers .. Applicant V/s. Megh Co-Operative Housing Society Ltd. .. Respondent ..... Mr.G.S.Godbole and Mr. Sanjay Jain i/b. M/s. L. J. Law for the applicant. Mr. Kishore Jain & Mr. Niranjan Lapashiya i/b. M/s. Niranjan & Co. for the respondent. ..... CORAM : A. S. OKA, J. DATE : MARCH 25 , 2011. P.C. :- Heard the learned counsel appearing for the parties. This is an application for stay of execution of the Judgment and decree impugned in the Appeal. The First Appeal against the decree has been admitted for final hearing. The applicant is the defendant and the respondent Society is the plaintiff. The operative part of the impugned decree reads thus: “ Defendants are directed to complete their title and convey to the plaintiffs society their right, title and 2 caf815-11 interest in the land and buildings mentioned in the schedule of the agreement and execute all relevant documents therefor in accordance with the agreement executed u/section 4 of the MOFA within two months from the date of the decree. It is ordered that the accounts be taken of what was due to the plaintiffs at the date of decree and defendants are directed to deposit the amount due if any within two months from the date on which the court confirms and countersigns the account. The mandatory injunction is granted against the defendants to demolish the Wing 'C' within 4 months from the date of decree. Defendants shall pay the cost of the suit and bear their own cost. Preliminary decree be drawn accordingly” 2. The learned counsel appearing for the applicant on instructions submitted that the applicant is ready and willing to execute the conveyance in terms of the decree subject to final outcome of the Appeal, provided the applicant is permitted to carry out and complete the construction in terms of the order passed by the Apex Court on 4th August, 2010 in Special Leave Petition filed by the applicant. He invited attention of the Court to the relevant clauses of the said order. He pointed out that in terms of clause (6) of the said order of the Apex Court, on 2nd December, 2010, the Applicant 3 caf815-11 has obtained permission from the Municipal Corporation for construction of a multi level parking. He submitted that recreation ground having area of 330 square meters has been provided in the plan approved on 2nd December, 2010. He submitted that as during the pendency of the suit, the applicant was permitted to carry out the construction, the said arrangement may be continued. The learned counsel submitted that considering the drastic nature of the impugned decree and considering the fact that the Appeal has been admitted, the impugned decree deserves to be stayed. 3. The submission of the learned counsel appearing for the respondent-original plaintiff is that there is no compliance made by the applicant with clauses (6) and (7) of the order of the Apex Court. His submission is that there is no provision made for 39 open car parking spaces. He submitted that recreation ground which is purportedly provided by the applicant is not a recreation ground as the vehicles will have to pass through the said recreation ground. He submitted that in fact the trial Court has recorded a finding against the applicant on the aspect of making a recreation ground available. He submitted that the construction of Wing 'C' was found to be illegal 4 caf815-11 and unauthorized by the trial Court. He submitted that the applicant has not complied with the assurances given to the Apex Court and considering the findings recorded by the trial Court, no case is made out for grant of stay. 4. The learned counsel appearing for the applicant submitted that the applicant never agreed to provide 39 open car parkings spaces and now in the sanctioned plan dated 2nd December, 2010 there is a provision for 39 car parkings in a multi level car parking. He submitted that provision has been made for parking of 17 vehicles on the ground level and rest of the 22 car parkings will be on upper level. He stated that the recreation ground provided in the sanctioned plan dated 2nd December, 2010 is no different from the original recreation ground and even through the original recreation ground, the entry of the vehicles was inevitable. He stated that the compliance has been made with the order of the Apex Court by the applicant. He submitted that the applicant never agreed to provide 39 open car parking spaces on the land as contended by the respondent. 5 caf815-11 5. I have given careful consideration to the submissions. Appeal has been admitted and, therefore, the drastic order of mandatory injunction of demolition of Wing “C” will have to be stayed. Considering the dispute involved in the Appeal, the decree regarding execution of the conveyance will have to be also stayed. 6. It is true that during the pendency of the suit, an order was passed by the Apex Court which permitted the applicant to continue the construction. Now there is a finding based on evidence that the construction made by the applicant of Wing 'C' is illegal and in fact there is an order of demolition of the said construction. Therefore, in view of the decree of demolition, now the applicant cannot be permitted to carry out further construction. 7. The Apex Court in the Special Leave Petition filed arising out of interim order passed in the suit has noted the assurances of the applicant. The relevant part of the order of the Apex Court reads thus : “Learned senior counsel appearing for the parties have assured that their respective clients will cooperate in final disposal of the suit at the earliest and also the statement 6 caf815-11 made by Mr.Shekhar Naphade, learned senior counsel appearing for the petitioner that his client will provide 39 car parking spaces in the lay out to the flat/shop purchasers of Megh 'A' and 'B' of the dimension specified in the plaint and also provide recreation ground of an area not less than 331 sq. meters and further further that his client will immediately give consent for registration of the society of flat/shop purchasers of Megh 'A' and 'B'. We deem it proper to dispose of this petition by modifying the interim order passed by the trial Court. ” The petitioner before the Apex Court was the present applicant. It appears that the modification of the interim order passed by the trial Court and confirmed by this Court was made by the Apex Court on the basis of the aforesaid assurances of the applicant. Clause 6 of the order of the Apex Court reads thus : “6. The petitioner shall provide 39 car parking spaces in the layout to the Flat/Shop purchasers of Megh 'A' and 'B' of the following dimension :- (i)13 flat/shop purchasers = 2.5 x 4.5 sq. mtrs. and (ii) 26 flat/shop Purchasers = 2.3 x 4.5 sq. mtrs.” 8. There is a serious dispute between the parties as to whether 39 car parking spaces ought to have been provided on open land or whether the applicant had assured to provide 39 car parking spaces in a multi level car parking. There is no reference in the order of the 7 caf815-11 Apex Court that applicant will construct a multi level car parking where 39 car parking spaces will be made available to the flat/shop purchasers of “A” and “B” wings. The order of the Apex Court refers to parking spaces in the layout. Even going by what is argued by the applicant, the car parking facility for 39 cars is not ready as of today. Thus, prima facie, it appears that the applicant has not complied with the assurances given to the Apex Court as regards the car parking. 9. In any event, as there is a finding of the trial Court that the construction of Wing 'C' is illegal and as there is a decree for demolition passed, now further construction cannot be permitted during the pendency of the Appeal. 9. Hence, Civil Application is disposed of by passing following order : :: O R D E R :: i. Till the final disposal of the Appeal, the execution of that part of the decree which directs the execution of the conveyance and demolition of the wing “C” will 8 caf815-11 remain stayed subject to condition that no further construction shall be carried out by the applicant on the property in question and no further third party interests shall be created by the applicant as regards the construction which is already carried out. ii. As far as decree regarding accounts is concerned, it appears that it is a preliminary decree and, therefore, as of today, it is not necessary to grant stay with liberty to the Applicant to apply at appropriate stage. iii. Hearing of the Appeal is expedited. JUDGE