1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2367 OF 2008 IN SUIT NO. 1961 OF 2008 M/s. Manik Developers and Ors. ...... Plaintiffs. v/s M/s. Siddhivinayak Construction Pvt. Ltd. and Ors. ...... Defendants. ------ Ms. Usha Purohit for the plaintiffs. Mr. Sanjay Jain i/b L.D. Shah & Co. for Defendant Nos. 1 and 2. Mr. J.G. Reddy for Defendant No.3. Mr. H.C. Pimple for BMC. ------- CORAM: V.M. KANADE, J. DATE : 21st July, 2008 P.C. 1. Heard the learned Counsel appearing on behalf of the plaintiffs and the learned Counsel appearing on behalf of defendant Nos. 1 & 2. 2. Plaintiff has filed this suit seeking the following reliefs:- 2 "(a) That it be declared that the Defendant No.1 and/or 2 have no authority to enter into and register agreements with the members of Defendant No.5. (b) It be further declared that the agreements registered by Defendant No.1 and/or 2 with the members of Defendant No.5 are null and void as fraudulent for want of correct and true recitals and covenants. (c) That Defendant No.1 and 2 be restrained by a permanent injunction from entering into agreements with the members of Defendant No.5 independently and/or without making the Plaintiffs a confirming party to the agreements. (d) That Defendant Nos. 3 and 4 be restrained by a permanent injunction from granting occupation/completion certificate to Defendant Nos. 1 and 2 in respect of the saleable construction in the name and style of Siddhivinayak Horizon, Veer Nariman Road, Prabhadevi, Mumbai - 400 028. 3 (e) That interim and ad-interim reliefs in terms of prayer clause (c) and (d) be granted. (f) Cost of the suit be provided for." 3. It is the case of the plaintiffs that in the year 1994, a Society under the name and style of Narialwadi Sahakari Girha Nirman Sanstha was proposed. A resolution was passed on 01/09/1993 handing over authority to complete all the formalities necessary for the construction of a new building in lieu of the slum, under the proposed scheme of reconstruction to the plaintiffs. Accordingly, a Society under the name and style of Akanksha Co-operative Housing Society was formed which is defendant No.5 in the suit. The Society appointed plaintiffs as developers of the said plot. IOD was issued to the plaintiffs as the developers and to defendant No.5 on 14/08/1996. A completion certificate upto the plinth level was issued on 12/06/2000. After the commencement certificate was granted, the plaintiffs entered into agreement with defendant firm on 30/06/2000. Defendant Nos. 1 and 2 were permitted to dispose of the saleable component independently of the plaintiffs. Thereafter, a tripartite agreement was executed between the plaintiffs, defendant No.1 and the said Society on 03/09/2002, ratifying and confirming the earlier agreement dated 30/06/2000. A General Power of Attorney was 4 executed by Defendant - Society in favour of defendant No.1 on 03/09/2002. It is the case of the plaintiffs that after the agreement dated 03/09/2002 and the Power of Attorney was executed in favour of defendant No.1, they started acting in high handed manner and that no information was given to the plaintiffs regarding progress/development of the Society. Various illegalities were committed by defendant Nos. 1 and 2 and that the agreements in respect to original occupants were not registered and, therefore, occupation/completion certificate was not obtained and it is further case of the Plaintiffs that Defendant Nos. 1 and 2, in collusion with Defendant Nos. 3 and 5, have started registering certain agreements by substituting the earlier agreements entered into between the plaintiffs and the tenants in breach of the terms of the agreements dated 30/06/2000 and 03/09/2002. It is further submitted that one of the conditions for granting commencement certificate was that the agreements of tenants should be registered before the completion certificate is granted. It is, therefore, submitted that the plaintiffs are entitled to ad-interim injunction restraining the defendants from entering into agreements with the members of defendant No.5. and registering the said agreements and such registered agreements which are executed by Defendant Nos. 1 and 2 with the members of Defendant No.5 are null and void. It is further submitted that an order of injunction be passed in favour of the plaintiffs, restraining defendant Nos. 3 and 4 from granting occupation/completion certificate to defendant Nos. 1 and 2 5 in respect of saleable construction in the name and style of Siddhivinayak Horizon. 4. The learned Counsel appearing on behalf of Defendant Nos. 1 and 2, on the other hand, invited my attention to the various clauses of the agreement dated 30/06/2000 as also the agreement dated 03/09/2002 and the Power of Attorney executed in favour of defendant Nos. 1 and 2 by the said Society on the said date. He submitted that the entire development rights including rights to sell the tenements were transferred in favour of defendant Nos. 1 and 2 and that the plaintiffs and the Society, therefore, were confirming parties to the said agreements. He invited my attention to the various clauses of the said agreements which clearly stipulate that all rights including rights of sale of flats in the saleable component were given to defendant Nos. 1 and 2. He submitted that, apart from rights being transferred, no case was made out by plaintiffs for grant of interim relief because there was no averment in the plaint regarding the prejudice which was likely to be caused to the Plaintiffs if the agreements of the tenants were registered by Defendant Nos. 1 and 2. 5. In my view, no case is made out by the plaintiffs for grant of ad-interim relief. At the outset, it was made clear that the motion would be heard finally. The learned Counsel for defendant Nos. 1 and 2 has already made a statement that occupation certificate has already been granted by the 6 Corporation. Perusal of the relevant clauses of the agreements dated 30/06/2000 and 03/09/2002 which have been signed and accepted by the plaintiffs clearly demonstrate that all rights have been given to defendant Nos. 1 and 2 to develop the said plot of land. It is not open for the plaintiffs to claim that they have any other right in respect of the development of the said plot. There is much substance in the submissions made by the learned Counsel appearing on behalf of defendant Nos. 1 and 2 that no prejudice would be caused to the plaintiffs if the agreements of tenants are registered by defendant Nos. 1 and 2 since in either case that is the statutory obligation which has to be discharged either by Defendant No.1 or Defendant No.2. No case is therefore made out for grant of interim relief. Notice of Motion is accordingly dismissed and disposed of. V.M. KANADE, J.