1 ap1120.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 1120 OF 2010 WITH CIVIL APPLICATION NO. 1380 OF 2010. Smt. Bamubai Laxman Manera & Ors. ... Appellants. Vs. M/s Roma Builders Pvt. Ltd. and others ... Respondents. ...... Mr. R.S. Apte, Sr. Counsel i/by Shivraj R. Patil for the Appellants. Ms Gauri Godse for Respondent No.1 ...... CORAM : J.H. BHATIA, J. DATE : 25TH OCTOBER, 2010. P. C. 1. Heard the learned Counsel for the parties. 2. The appellants before this Court are the original plaintiffs. Admittedly, they are the owners of suit property i.e. land bearing survey No. 156 hissa No. 1(P)/1-D, admeasuring 3300 sq. meters of village Kolshet, Tal. and Dist. Thane. Permission was taken for the conversion of the lands from agricultural to non agricultural use. There is no dispute that some time in 1999, the plaintiffs and the defendant No.1 entered into an agreement for development of the property. It appears that shortly certain dispute arose between the parties and defendant No.1 had 2 ap1120.10.sxw filed RCS No. 1373 of 2001 in the Court of Civil Judge, J.D. Thane for certain reliefs. Admittedly, the suit was disposed of on the basis of consent terms signed by both the parties on 6th January, 2004. As per the consent terms the development was to take place within two and half years and the plaintiffs i.e. the owners of the land were to be put in possession of the certain shops. Neither development took place nor defendant No.1 developer put the plaintiffs in possession of the shops within stipulated period, as per the consent terms. Therefore, the plaintiffs issued notice in July, 2009 terminating the development contract as well as the consent terms. Thereafter, the plaintiffs filed Special Civil Suit No. 884 of 2009 seeking declaration that the terms and conditions of the consent terms are not binding on them and that the defendant No. 1 is not entitled to develop or to retain constructive possession of the suit property. They also sought decree of declaration that the development agreement stands cancelled/terminated or revoked. Certain other reliefs were also sought. They also filed application Exh.5 for temporary injunction restraining defendant No.1 from carrying out any sort of development activities on the suit property and from disturbing their possession over the same, as well as utilizing any FSI/TDR of the suit land and from creating any third party interest on it. 3 ap1120.10.sxw 3. The application was contested and it was contended that the defendant No.1 was always willing and ready to perform its part of contract as per consent terms and that the said land has been already amalgamated and merged in several other lands for which a large development plan has been submitted and now the injunction cannot be granted. The trial Court after hearing the parties, accepted the contention of defendant No.1 and rejected the application Exh.5.Hence the appeal. 4. From the facts and circumstances noted above, undisputed fact is that the suit land is the property of the plaintiffs. The defendant No.1 entered into an agreement with plaintiffs for development of the land in the year 1999. After initial dispute, the parties settled the same by consent terms singed on 6-1-2004. The period for compliance of the said consent terms was two and half years. That period come to an end in July 2006. The notice terminating the contract and the said consent terms was issued in July, 2009 i.e. 3 years after expiry of the period, within which the defendant No.1 was required to put the plaintiffs in possession of certain constructed area. Admittedly, till that time defendant No.1 had not put the plaintiffs in possession of any such constructed area and thus, prima facie, it had failed to comply with the consent terms. The learned Counsel for defendant No.1 contended that the notice has been issued to the plaintiffs to accept the possession but they are not willing to accept. 4 ap1120.10.sxw The learned Counsel points out that in para 5(f) of the written statement it is contended that the defendant No.1 handed over the gala i.e. shop admeasuring 435 sq. ft. in Atlanta building within stipulated period to plaintiff No.9. In para 5(g) also there is mention about some talks about offer of certain galas. However, except that the plaintiff No.9 has been put in possession of one shop, there is nothing to show that remaining 12 plaintiffs have been put in possession of the shops as per the consent terms. 5. In view of these circumstances, it appears that except in the case of plaintiff No.9, defendant No.1 has prima facie failed to comply with the consent terms in respect of other plaintiffs. The learned Sr. Counsel for the plaintiffs contends that even there is no full compliance in respect of plaintiff No.9, because no document has been executed in his favour though the possession is with him. Development plan prepared by defendant No.1 pertains to large property, including the suit land and the map clearly shows that no development has been made in the suit land so far. In fact on the portion of the plan showing survey No.156/1p there is mention that the property will be developed in future. It means that the land is still lying vacant. If the defendant No.1 could not comply with the consent terms during last about 6 to 7 years, it is difficult to find fault with the plaintiffs. Admittedly, plaintiffs are owner of the land and the 5 ap1120.10.sxw defendant No.1 got constructive possession only under the development agreement. The learned Counsel for defendant No.1 contends that FSI of this land has been already utilised elsewhere. Prima facie this statement does not appear to be correct because in the map it is specifically noted that the land will be developed in future. It it is to be developed in future, it means its FSI is still available. Therefore, I see no difficulty in restraining defendant No.1 from making any development or using FSI/TDR available for that land for any construction on any other land. The learned trial Court did not consider this aspect. 6. In view of the above circumstances, the appeal is allowed. Impugned order rejecting Exh.5 is hereby set aside. The defendant No.1 is hereby restrained from making any development or construction on the suit land belonging to plaintiffs and also from using FSI/TDR of the suit land for construction on any other land. 7. As appeal itself is disposed of, Civil Application No. 1380 of 2010 does not survive and stands disposed of accordingly. J. H. BHATIA, J.