1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Amk NOTICE OF MOTION NO. 3522 OF 2008 IN SUIT NO. 3474 OF 2004 Gyaneshwar Co-operative Housing Society Ltd. .. Plaintiff Vs. Gyaneshwar Builders Pvt. Ltd. & Ors. .. Defendants. Mr. D. S. Chandnani i/b Lexim Associates for the Plaintiff. Mr. A. Y. Bookwalla Senior Counsel along with Mr. O. A. Das for the Defendant Nos. 3, 5 & 6. Mr. K. M. John for Defendant No.4. CORAM : MRS. R. S. DALVI, J. DATE : 22nd June, 2010. P.C. 1. The Plaintiff society has applied for its statutory right of obtaining the execution of the conveyance in its favour of the property developed by Defendant No.1 and owned by Defendant No.4 under the provision of Section 11of the Maharashtra Ownership Flats Act, 1963 (MOFA). The Plaintiff has also applied for another ancillary relief of declaration and compensation which cannot be granted in the Notice of Motion. 2. It is true that it is the Plaintiff’s statutory right to be conveyed the property by the owners of the land on which the development has been carried out as also of the land appartent thereto which forms a part of the 2 development of the Plaintiff’s building in accordance with law. The Plaintiff has relied upon the agreement for the purchase of flats executed by Defendant No.1 as the developers and Defendant No.4, the owner of the land, as the confirming party under such agreement for sale. The entire land which Defendant No.4 owned and possessed was shown in the schedule to the agreement. 3. The plan of the entire property is at Exhibit B to the plaint. It shows the Plaintiff’s building on the southern side of the property and the United Western Apartment building on the northern side of the property which are both on Survey No. 935. 4. Under recital (xii) of the said Agreement, the conveyance was to be executed in favour of the Plaintiff subject to rights of the confirming party (Defendant No.4) as regards another building one United Western Apartment and the tenanted portions of the said entire property. 5. Under Clause 12 of the Agreement the conveyance was contemplated in favour of the common organization. This was contemplated in view of the fact that the entire plot which was being developed was a large plot on which the Plaintiff society building as also the building of United Western Apartment as also several other tenanted structures were constructed. For such construction the flat purchasers, who are the vendees under the Agreement, are stated to have given their consent for modification and alteration of the building plan. 6. Under Clause 33 of the Agreement after the said 3 entire property was developed and all the flats, shops and offices were sold a conveyance was to be executed in favour of the society which would be registered. 7. Under Clause 37 of the Agreement aside from the formation of the society or a limited company the vendors could have form the condominium. 8. A reading of these clauses, including the aforesaid recital, show that the entire plot had to be developed. There could have been one conveyance with regard to the entire plot upon the development of the entire plot including United Western Apartment and the other tenanted portion. The Plaintiff’s statutory right to obtain a conveyance would, therefore, be the same conveyance from Defendant No.4 to one society consisting of the Plaintiff’s building, the United Western Apartment as also the tenanted portions which were contemplated to be developed on the land shown in the schedule annexed to the Agreement. 9. Since the building is on a small part of this entire land the Plaintiff may be conveyed a part of the land under and around its building if the sub-division of the plot as per law and rules is allowed by the Mumbai Municipal Corporation (MMC). This was because the conveyance which was contemplated was to be subject to the rights of Defendant No.4 as regards the other portion of the property owned by him consisting of United Western Apartment and other tenanted portions. 10. The Plaintiff cannot be conveyed the entire land 4 upon a plain reading of recital (xii) and Clause 33 as sought to be done by Mr. Chandnani until the society of United Western Apartment as also the tenants of the tenanted portions are made party Defendants to the suit. Hence the following order :- :: O R D E R :: (i) The Plaintiff is entitled to be conveyed the land under its own building and the land appartent thereto used for car parking spaces, access to the building, terrace, compulsory open space etc. if and upon the Plaintiff making its application and the Plaintiff being granted sub-division of the suit plot of land under Survey No. 935 by the MMC in accordance with law. (ii)The Plaintiff cannot be granted any conveyance in respect of any other portions of the suit land under Survey No. 935. (iii)The Notice of Motion is disposed off accordingly. ( R. S. DALVI, J.)