1 8 caf.4682.08 n 3658.08 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 4682 OF 2008 IN FIRST APPEAL NO. 1008 OF 2010 Naushad P. Panjwani. ... Applicant Versus Municipal Corporation of Greater Mumbai and others. ... Respondents ALONGWITH CIVIL APPLICATION NO. 3658 OF 2008 IN FIRST APPEAL NO. 1992 OF 2008 Naushad P. Panjwani. ... Applicant Versus Panjumahal Co-operative Housing Society Limited and others. ... Respondents ----- Mr. Atul Damle i/b Mr. Manoj N. Nikose for the Applicant in both the Applications. Mr. Vinod Mahadik for BMC in both the Applications. Mr. Prasad Dhakephalkar, Senior Counsel, with Mr.Vijay Nair i/b Mrs.Neha Palshikar Bhide for Respondent No.2 in Civil Application No. 4682 of 2008. Ms. Shobha Salvi with Ms. Manasi Karandikar i/b Mrs.Neha Palshikar Bhide for Respondent No.1 in Civil Application No.3658 of 2008. ----- 2 8 caf.4682.08 n 3658.08 CORAM : A.S.OKA, J. DATE : 02 nd August, 2011. P.C. 1 These two applications can be disposed of by a common order. The Civil Application No.4682 of 2008 has been filed in the First Appeal No.1008 of 2010 wherein the challenge is to decree passed in the Suit No.6362 of 1999. The Civil Application No.3658 of 2008 has been preferred in the First Appeal No.1992 of 2008 wherein the challenge is to the decree passed in the Suit No.2717 of 1999. Both the suits have been decided by a common judgment. In both the suits, the Panjumahal Co-operative Housing Society Limited, a co-operative society formed by the purchasers of flats in a building constructed by M/s.Panju Sons (a partnership firm) is the plaintiff. The Appellant is the original Defendant No.10, who is a partner of M/s.Panju Sons. 2 Operative part of the decree passed in both the suits reads thus: “ORDER IN SUIT NO. 2717 OF 99 1. Suit No. 2717/99 is hereby decreed in terms of prayer clause (a-i) to (a-x) against Defendant Nos.1 and 4 to 3 8 caf.4682.08 n 3658.08 9. 2. Suit against Defendant Nos.2 and 3 is abated. 3. If Defendants failed to execute the deed of conveyance in favour of the Plaintiffs society, the Plaintiff shall move the Court for getting executed and registered deed of conveyance through the Registrar of this Court. 4. Defendants are permanently restrained from making any addition, alterations to the use of old existing structure. 5. In the circumstances no order as to costs. 6. Decree be drawn up accordingly. ORDER IN SUIT NO. 6362 OF 99 1. Suit No. 6362/ 99 is hereby decreed in terms of prayer clause 39(a), (b), (f-i) and (h-iii) against Defendant Nos.1, 2 and 5 to 10. 2. Suit against Defendant Nos.3 and 4 is abated. 3. In the circumstances no order as to costs. 4. Decree be drawn up accordingly.” Prayer clauses (a), (b) (f-i) and (h-iii), which have been granted in Suit No.6362 of 1999 reads thus: “(a) That this Hon'ble Court be pleased to declars that Plaintiffs by themselves and through their members alone 4 8 caf.4682.08 n 3658.08 are entitled for the benefit of development rights on the Suit plot of land including T.D.R. rights, being plot bearing Survey No.239/B, situated at 112, B.J. Road, Band Stand, Bandra (West), Mumbai-400 050. (b) That this Hon'ble Court be pleased to grant a mandatory order and direction upon the Defendant No.1 to cancel and revoke any proposal submitted by Defendant Nos.2 to 10 for consumption of T.D.R. rights on the Suit plot of land being plot bearing Survey No.239/B, situated at 112, B.J. Road, Band Stand, Bandra (West), Mumbai-400 050, and plans and I.O.D. issue in respect thereof ; (f) ... (i) applying for development by way of T.D.R. rights or in any manner, whatsoever, by applying for sanctioning of plans, issue of I.O.D. and C.C. in respect of the Suit plot bearing Survey No.239/B situated at 112, B.J.Road, Band Stand, Bandra (West), Mumbai-400 050 in any manner, whatsoever. (h) .... (iii) Defendant Nos.2 to 10 be restrained from dealing with, disposing of, alienating, encumbering and/or and/or creating any third party rights in respect of the benefit of T.D.R. and/or development rights on the suit plot of land, being plot bearing Survey no. 239/B, situated at 112, B.J. Road, Band Stand, Bandra (west), Mumbai-400050 if any, in any manner, whatsoever.” Prayer clauses (a-i) to (a-x) in Suit No.2717 of 1999 reads thus: (a) that this Hon'ble Court be pleased to order and direct the Defendants by Mandatory order and direction to comply with all the statutory obligations under the 5 8 caf.4682.08 n 3658.08 Maharashtra Ownership Flats Act, as under: (i) to demolish the old existing structure, agreed to demolished ; (ii) to provide compulsory open space all around the building ; (iii) to provide parking space to all the flats purchasers as agreed ; (iv) to provide garage/parking space to one of the previous tenant and subsequent flat purchaser being one Mr. Khatau, with who consent terms have been filed in the Court of Small Causes Court in RAD suit No.516/91; and Mr. Chabaria (flat No.701), Mr.Malhotra (Flat No.807). (v) to give particulars and full disclosure to the sanctioned plan; I.O.D., C.C. in respect of the said plot of land; (vi) to give account of all the monies collected from the flat purchasers and hand over the said account after deducting cost, charges and expenses, to the Plaintiffs' society so formed ; (vii) to apply and obtain I.O.D., Occupation and completion Certificate of the building ; (viii) to apply and obtain direct water connection to the Plaintiffs' building ; (ix) to remove all the unauthorised construction carried out in the compound including the 9th floor of the plaintiffs' society building, which is unauthorised ; 6 8 caf.4682.08 n 3658.08 (x) to convey the title to the said Society by giving conveyance of the structure and assignment of the land and to delete the name of the deceased Pyarali B. Punjwani and instead add the name of Plaintiffs in the records of the Collector.” 3 The learned counsel appearing for the Applicant has tendered an affidavit in Civil Application No.3658 of 2008. In the said affidavit, it is contended that the partnership M/s.Panju Sons has been dissolved. In paragraph No.3 of the affidavit, the alleged understanding amongst the partners of the dissolved firm has been referred to. It is pointed out that an arbitration petition arising out of partnership dispute is pending in this Court and the parties to the arbitration petition have been directed to maintain status-quo in respect of the properties of the said partnership firm. 4 There is an old structure in existence on the property. As per clause (a-i) of Suit No.2717 of 1999, there is a decree to demolish the said structure. It is not in dispute that the said structure is in possession of the Applicant and as per the sanctioned plan and I.O.D. 7 8 caf.4682.08 n 3658.08 condition, the said structure is required to be demolished. Unless, the said structure is demolished, compliance cannot be made with the decree passed in terms of prayer clauses (a-ii) to (a-iv) of the plaint. The trial Court has found that there is certain unauthorized construction including the unauthorized construction of 9 th floor. The submission of the learned counsel appearing for the Applicant is that the application for regularization of the said structures has been made on 21 st September, 1998 to the Municipal Corporation, which is pending. Occupation certificate has been granted, which contains a condition that the old structure will have to be demolished. The submission of the learned counsel appearing for the Applicant is that if T.D.R. / additional F.S.I. is granted, the old structure as well as other unauthorized work can be regularized. 5 The development of the property has been completed long back. The partnership firm which is the promoter/ builder has not performed its statutory obligation of conveying the property to the society. From the affidavit of the Applicant, it is apparent that there is 8 8 caf.4682.08 n 3658.08 an order of status-quo passed by this Court in a dispute to which the partners of the said firm are parties and therefore, none of the partners are in position to deal with the partnership property. 6 As far as decree passed in the Suit No.6362 of 1999 is concerned, the decree in terms of prayer clause (a) cannot be stayed as it is in the nature of declaratory decree. After there is a decree passed against the builder to execute conveyance, the proposal for consumption of T.D.R. on the suit plot cannot be processed. Hence, there cannot be any stay of the decree passed in terms of prayer clause (a). As far as decree in terms of (f-i) is concerned, it prevents the builder from completing for development by way of T.D.R. rights. Clause (h-iii) restrains the defendants in the suit from creating any third party rights in respect of the benefit of T.D.R. or development rights on the suit plot. This part of the decree cannot be stayed. 7 In short, in both the application, stay cannot be granted. The members of the society have faced several difficulties and 9 8 caf.4682.08 n 3658.08 hardships due to gross delay on behalf of the builder in executing the conveyance. 8 Hence, I pass the following order: i. The Civil Application No.4682 of 2008 as well as the Civil Application No.3658 of 2008 are hereby dismissed ; ii. However, it is made clear that execution of the conveyance will be subject to final outcome of the appeal ; and iii. Though, the prayer for stay is rejected, for a period of three months from today, the original plaintiff shall not execute the decree passed in the suit No.2717 of 1999. [ A.S.OKA, J ]