1 AO : 1031/2010 11.4.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO.1031 OF 2010 WITH CIVIL APPLICATION NO.1254 OF 2010 M/s Kale & Associates .... Appellant (Ori. defendant) Vs. Jai Bajrang Sahakari Gruha .... Respondent Rachana Sanstha Maryadit (Ori. plaintiff) Mr. P.K. Dhakephalkar, Senior Counsel i/by Mr. Girish Badiger & Deepak S. Shinde, for appellant. Mr. S.S. Kanetkar, Advocate for respondent. Coram : SMT. R.P. SONDURBALDOTA, J. Date : 11th April, 2011 P.C. 1. This appeal is preferred against the interim order dated 28th July 2010, by which the trial Court allowed the application for interim reliefs in the suit filed by the 2 AO : 1031/2010 11.4.2011 respondent. By the interim relief, the appellant has been restrained from carrying out further construction on the suit property and from creating third party interest therein either by it or by anybody on its behalf. 2. The respondent-Society has 85 members. It owns the suit land being survey no. 25 at village Ambegaon Budruk having total area of 284 R. It is the tenant ownership society. Originally the suit land consisted of different plots, which for the sake of convenience were amalgamated with the members agreeing for joint development. The respondent, therefore, entered into development agreement with Bhakti Developers and thereafter with the appellant herein. By the development agreement dated 9th June 2005, it was agreed between the parties that the work of development would started on presumption of F.S.I. available over land as 1 or 0.9 though the F.S.I. available officially on the land was 0.33. With the additional presumed F.S.I., the appellant had agreed to carry out construction of 84,115 sq. ft. area for the members of the respondent as per the specifications mentioned in the 3 AO : 1031/2010 11.4.2011 agreement. The specifications consisted of construction of the bungalows, twin bungalows, row houses and flats, thereby accommodating each and every member of the society. The appellant had agreed that the houses for the members of the respondent-society would be constructed first and thereafter it would proceed to construct flats by utilising balance F.S.I. for sale. Unfortunately, the expectations of the appellant of increase in the F.S.I. over the suit property from 0.33 to 0.9 or 1 could not be fulfilled. In the year 2007, it was realised by the appellant that there would not be any increase in the F.S.I. and the development can be carried out with the F.S.I. of 0.33 only. This substantially reduced the total area available for construction to the appellant. The agreement for development contained a clause that in the event of the F.S.I. not being increased, the agreement shall stand cancelled. The appellant, however, proceeded to act further with the agreement contending that it had received a letter from the Secretary of respondent- society requesting it to proceed with the development of the property provided, the society 4 AO : 1031/2010 11.4.2011 received 50% of the area available on the land for construction based on the F.S.I. of 0.33. In the letter, the Secretary of the Society promised that it would put the proposal before the Annual General Meeting and get the necessary resolution passed authorising the construction. Undisputedly no such resolution has been passed. Instead there has been a resolution passed for termination of the development agreement with the appellant. According to the appellant, based upon the promise given in the letter, it, on 31st March 2007 got building plan sanctioned for three buildings i.e. one building with 2 Wings and another building with one Wing. Construction of the buildings has been substantially completed. 3. Mr. Dhakephalkar, the learned Senior Counsel, submits that, since construction of the buildings has been substantially completed, the trial court ought not to have granted the interim relief restraining the appellant from carrying out further construction or from creating any third party rights in the premises constructed. 5 AO : 1031/2010 11.4.2011 4. At the time, the appellant received the letter dated 3rd January 2007, there was no resolution passed by the society supporting the proposal given in the letter. The appellant has not been able to produce any material before the Court to show that after the receipt of letter dated 3rd January 2007, it had made any enquiries about the resolution from the Society or had entered into any correspondence informing the members of the society about the plans sanctioned for their building. Since admittedly the development agreement sets out in detail the specifications as regards, the different types of constructions to be carried out for the members of the society, with varying area, the first thing that the appellant would have done after receiving the letter dated 3rd January 2007 was enquire from the respondent about area of the construction to be carried out for each of it s members. The ’ appellant could not have proceeded further on the basis of the development agreement which was impossible to be performed without modifications. Mr. Dhakephalkar, makes an attempt to submit, that the appellant was under an 6 AO : 1031/2010 11.4.2011 impression that it was an internal matter for the respondent- society and that the members had to sought out the problem amongst themselves. The argument is only stated to be rejected. 5. Considering the facts of the case, the respondent-society which is owner of the property, must get an opportunity to establish its case at the time of trial as regards the letter allegedly written by the society. If the appellant is allowed to carry out further construction or create any third party interest over the property, it is bound to create further complications in the matter. The very purpose of passing interim orders, is to ensure that no further complication is created in the matter and the property is available to the parties at the time of final hearing of the suit in the same position, as it was at the time of filing of the suit. In these circumstances, I find no merit in the appeal. The appeal is therefore dismissed. 6. Mr. Dhakephalkar made a request for expeditious hearing of the suit, in view of the substantial expenses 7 AO : 1031/2010 11.4.2011 incurred by the appellant in carrying out the work of construction on the suit property. The ground set out for expeditious hearing is not sufficient to get priority in hearing of the proceedings. Hence, request for expeditious hearing is rejected. 7. In view of dismissal of the Appeal from Order, the Civil Application No.1254 of 2010 does not survive, the same is accordingly disposed off. (SMT.R.P. SONDURBALDOTA,J)