1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.327 OF 2009 WITH CIVIL APPLICATION NO.395 OF 2009 Cosmos Co-operative Housing Society Ltd. .... Appellant Versus Kapadia Development Co-operative Housing Society Limited & Anr. ....Respondents. Mr. A. Bookwala, Sr.Counsel i/b. M/s.Mohit Gadkari & Co. for the Appellant Mr. Ravi Kadam, Sr.Counsel i/b. M/s. I.C. Legal for Respondent No.2. Mr. B. Saraf, i/b. Mr.Yogesh Adhia for Respondent No.1. CORAM : R. V. MORE, J. DATED : 29TH APRIL, 2009. P.C. Heard learned Senior Counsel for the respective parties. 2. The Appeal takes exception to the order dated 11th December, 2008 passed by the 6th Ad-hoc Addl. Sessions Judge, City Civil Court, Dindoshi, Mumbai in Notice of Motion No.1498 of 2009. The Appellant filed Short Cause Suit No.3485 of 2003 against the Respondents for mandatory injunction directing them to convey the suit property and the four buildings more appropriately described in schedule (c) of the plaint. The Appellant also claimed decree 2 directing the Respondents to carry out and complete all their obligations and duties as provided in the agreements entered into by members of the Appellant under the provisions of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963. The Appellant further claimed permanent injunction directing Respondents to furnish accounts to them. The permanent injunction was also claimed for restraining the Respondents from providing and/or constructing any internal road or access through the suit property to another plot. 3. The Respondent No.1 is the owner of the property being land Survey No.5 Hissa No.1(pt.), Survey no. 9 Hissa No.1, Survey No.10 Hissa No.30(pt), Survey No.15 Hissa no.10(pt) and tank total admeasuring about 92325.1 sq. mts. situated at village-Marol. The Respondent No.2 is the promoters under the development agreements between the Respondent No.1 and Respondent No.2. The layout plan submitted by the Respondent No.2 in respect of the above properties is sanctioned by the Municipal Corporation of Gr. Mumbai on 3rd March, 1976. Pursuant to the said layout, the above properties were sub- divided into 19 plots bearing nos. 1 to 19 for the construction of buildings thereon and 4 other plots being A to D for the purpose of garden. The Respondent No.2 developed and constructed four buildings consisting of ground plus four stories, comprising of 18 flats each, on one of the sub- divided plot i.e. Plot No. 15(hereinafter referred to as the “suit property”). An occupation certificate was issued by the Corporation on 30th May, 1985 in respect of the ‘suit property’. The Appellant’s members have purchased tenements in the suit property from the year 1981 to 1987 under agreement, from Respondent No.2. It is the case of the Appellant that under the various clauses of the agreement, the Respondent No.2 agreed to execute conveyance in respect of the Respondent No.1 and the Respondent No.1 in turn was to transfer and convey the said sub- 3 divided plots (In the present case Plot No.15 i.e. the suit property) to the society to be formed and registered by the flat purchaser of the respective plot. It is also the contention of the Appellant that under the provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 the Respondents are required to execute the conveyance of the suit property in favour of the Appellant Society. However, the said obligation is not discharged and therefore, the above suit came to be filed. 4. The Appellant filed the Notice of Motion No.1498 of 2008 for injunction restraining the Respondents from committing any act and interfering with peaceful use, occupation and possession of the Appellant over the suit plot. The Appellant also sought injunction restraining the Respondents from obtaining any permissions or committing any acts in furtherance of the amended layout plan of 2005. This Notice of Motion was taken out as the original area of the suit property as per sanctioned plan of 1976 was 2957.14 sq. mtrs. and this area was reduced to 2564.70 sq. mtrs by the amended plan dated 14th October, 1997 and now again by the amended plan of 2005 the said area is increased to 3003.90 sq. mtrs.. 5. The Respondents on the contrary submitted that the conveyance in respect of the suit property viz. plot no.15 would be executed only after development of the entire property. It is also submitted that the development of the entire property is not yet complete and therefore, Appellant’s suit is pre- mature and liable to be dismissed. It was also submitted that by the amended layout plan of 2005, the area of the suit plot is increased and therefore rights of individual flat owners of the existing building are not affected. 4 6. The learned Judge by the impugned order dismissed the Appellant’s Notice of Motion and hence present Appeal from Order is filed. There is no dispute that the original area of the suit plot was 2957.14 in accordance with the layout plan of 1976. It is true that this area was reduced to 2564.70 sq.mtrs. in view of the amendment to the layout plan in the year 1997. However, by subsequent amendment to the layout plan in the year 2005, the original area of the suit plot was restored and additional area was assigned to the said property. The area of the suit plot is 3003.90 sq. mtrs. under layout plan of 2005. In that view of the matter, I do not find any loss or prejudice to the Appellant by amendment to the layout plan in the year 2005. 7. Admittedly, there is no alteration in the structure of the building in which members of the Appellant- Society are residing. Under the provisions of section 7 of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, the builder cannot make any alteration in the structure once he discloses the plans and specifications of the buildings to the proposed purchaser i.e. the flat owners. It is also not disputed by the Appellant that the development of the said plot is to take place in phases and conveyance in respect of suit plot can be executed only after development of the said plot. The development is not yet completed. The learned Judge of the City Civil Court considered all aspects and came to the conclusion that the Appellant has failed to make out prima- facie case. It was further concluded that balance of convenience also does not lie in favour of the Appellant and no irreparable loss would be caused to the Appellant in case of refusal of the interim relief. In the facts and circumstances discussed above, I do not find any error in conclusion arrived at by the learned Judge of the City Civil Court. The Appeal from Order being devoid of substance is dismissed. 5 8. The learned Counsel for the Appellant seeks expeditious hearing of the Short Cause Suit No.3485 of 2003. Common statement is made by the learned Counsel for the respective parties that the issues are already framed. In that view of the matter, and in the interest of justice, the Trial Court is directed to dispose of the Short Cause Suit No.3485 of 2003 expeditiously and preferably within the period of one year from the date of the receipt of this order. Needless to mention that the said suit shall be decided independently on its own merit and without being influenced by the impugned order or the observations made in the present Appeal from Order. 9. In view of the disposal of the Appeal from Order, the Civil Application No.395 of 2009 will not survive and therefore, the same is disposed of. (R.V.MORE, J.)