NMS1266-09 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.1266 OF 2009 IN SUIT NO.823 OF 2009 Raj Rajeshwari Builders and Ors. .. Plaintiffs Versus Savita Prakash Aggarwal & Ors. .. Defendants Mr.Sarosh Bharucha i/b.Purohit & Purohit for plaintiffs Ms.Aditi Chavan i/b. Ashwin Ankhad & Co. for defendants CORAM : S.C.DHARMADHIKARI, J. DATE : 6th October 2010. P.C.: 1] This suit is filed by the plaintiffs for a declaration that they have validly terminated the agreement for sale in respect of the three flats more particularly described in the agreement in that behalf. 2] It is stated that defendant Nos. 1 and 2 purchased flat No.3 on the fifth floor, defendant No.3 purchased flat No.4 on the same floor and defendant No.4 purchased flat No.5 on the same fifth floor. These NMS1266-09 2 agreements are more particularly described in the suit and stated that the relevant clauses thereof would show that the purchaser has to pay his proportionate share of muncipal tax and other charges. Attention of the court is invited to clauses 27, 28 and 37 to 39 to contend that there is breach of the said obligations and although, the building was completed on or about 1997, defendants were put in possession in September 2003. Plaintiffs allege that the shares of the municipal taxes and other duties has not been paid and from September 2003, the defendants have stopped making payment altogether. It is stated that the plaintiffs as promotors, in accordance with the provisions of Apartment Ownership Act, 1970 complied with their obligation to form a Condominium of apartment by making necessary declarations and forwarding certified copies thereof. Yet, certain flat purchasers led by defendant No.2 unlawfully proceeded to obtain registration certificate on 15th March 2004 for a cooperative housing society. 3] This is contrary to the statutory scheme and further there are defaults committed of the obligation and proceedings are also pending NMS1266-09 3 before the Authorities, under the Maharashtra Cooperative Societies Act, 960. There is correspondence which is referred to and ultimately, the agreements were terminated and that is how this suit is filed. 4] In answer, the written statement of the defendants is filed stating that the suit is time barred, it is not maintainable because condominium is necessary party. Thirdly, there are no breaches committed by the defendants and instead it is the plaintiffs, who have committed several illegalities by enclosing open spaces and letting out the same for commercial use. Further, there is no maintenance of lift and there is no conveyance executed. The breaches are highlighted in para 5 of the affidavit in reply. 5] After hearing both sides at some length and considering that there are triable issues so also to preserve the subject matter of litigation, interest of justice would be served if this notice of motion is made absolute in terms of prayer clause (b). This order will not prevent the parties from making appropriate submissions and all NMS1266-09 4 contentions so also objections are kept open. It is only because arguable points are raised and prima facie case to the extent of preservation of subject matter of litigation is made out that this order has been passed. (S.C.DHARMADHIKARI, J)