1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.253 OF 2009 IN NOTICE OF MOTION NO.2220 OF 2007 IN SUIT NO.3938 OF 2001 1.Jamuna Darshan Co-op. Housing Society Ltd. & others. ...Appellants. vs. 1.M/s.J.M.C. & Meghani Builders and others. ...Respondents --- Mr.A.V.Anturkar i/b. Ms.Sukeshi Bhandari, for Appellants. Mr.P.K.Samdhani, Sr. Advocate with Ajay Panicker, for Respondents. CORAM: D.K.DESHMUKH & R.S.MOHITE, JJ. DATED: 22nd June,2009. 2 P.C.:- 1. By this appeal, the appellants challenge the order dated 12.1.2009 passed by the learned Single Judge of this Court in Notice of Motion no.2220/07. By that order, the learned Single Judge has rejected the notice of motion taken out by the appellants- plaintiffs. The appellants-plaintiffs had taken out the notice of motion for temporary injunction restraining the defendants from carrying out further construction on the plot. The plaintiff no.1- a co- operative housing society has filed the suit for a decree for execution of sale deed of flats in its favour and also for declaration that the builder is not entitled to consume the balance FSI and construct additional buildings on the plot. The learned Single Judge after taking into consideration the arguments of both the sides and all the documents produced on record has held that the plaintiffs do not have prima facie case in their favour. 2. Three contentions were urged before us by the 3 appellants. The first contention urged before us is based on the judgment of the Supreme Court in the case Jayantilal Investments Vs. Madhuvihar Co-op. Housing Society and others , specially what was contained in paragraph 19 of that judgment. Perusal of the judgment of the learned Single Judge shows that the learned Single Judge has dealt with that judgment in detail and after having gone through the record, he also found that the plans of the builder to construct further building on the plot was fully disclosed to the appellants, and therefore, in our opinion, the learned Single Judge has rightly held that the plaintiffs-appellants cannot rely on the judgment of the Supreme Court in the case of Jayantilal Investments Vs. Madhuvihar Co-op. Housing Society and others referred to above . 3. The second submission advanced before us was that because there was an obligation under the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management & Transfer) Act, to execute conveyance of the property 4 in favour of the Housing Society within a stipulated period, after expiry of that period the builder holds the land in trust on behalf of the Society and therefore, if any balance FSI is available, it is being held for the benefit of the society and does not belong to the builder because he is holding the land in trust on behalf of the society. However, perusal of the order of the learned Single Judge shows that this contention was not urged before the learned Single Judge, and therefore, in our opinion, it will not be appropriate to permit the appellants to urge this contention for the first time in the appeal. 4. The next contention was that the consent which is contained in paragraph 1, 8 and 9 of the agreement between the flat purchasers and the builder is general consent and therefore, it will not amount to the consent contemplated by the MOFA. The learned Counsel appearing for appellants relied on the judgment of the learned Single Judge of this Court in the case Bajranglal Eriwal & others vs. Sagarmal Chunilal & others, 2008(5) Mh.L.J. 571 . Firstly, 5 perusal of the annexures to the agreement shows that the flat purchasers were clearly told that there will be future construction on the plot and in the plan the place where further construction was to be carried out is also indicated, and therefore, the submission of the learned Counsel that the consent contained in paragraph 1, 8 and 9 of the agreement between the flat purchasers and the builder is general consent is incapable of being accepted. Further it is seen that the learned Single Judge in his judgment in the case Bajranglal Eriwal & others vs. Sagarmal Chunilal & others, 2008(5) Mh.L.J. 571 referred to above has relied on the judgment of another Single Judge in the case Neena Sudarshan Wadia Vs. Venus Enterprises, 1984(2) Bombay C.R. 505 . That Judgment was rendered considering the provisions of Section 7(1) and the construction in that case was in relation to the same building in relation to which the agreement was entered into. Same is the case in the another judgment considered by the learned Single Judge, in the case Tejal Residency Co-op. Housing Society Ltd. Vs. Brihan Mumbai Municipal Corporation,2007(6)All MR 6 861 . In that case also the additional flats were being constructed in the same building. In our opinion, taking overall view of the matter, therefore, as the learned Single Judge has considered the every aspect of the matter in detail and as we do not find any fault with the order, the Appeal has to be dismissed. It is accordingly dismissed. Notice of motion no.2080/09 is also disposed of. (D.K.DESHMUKH, J.) (R.S.MOHITE, J.)