jpc cra1082-10.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 1082 OF 2010 Vandit Developers (India) Pvt. Ltd. and others ... Applicants Versus Satellite Towers Co-op. Housing Society Ltd. and others ... Respondents Mr. S. A. Patwardhan for the Applicants Mr. Amogh Paradikar for the Respondents. CORAM: R. M. SAVANT, J. DATED : 29th November, 2011 P.C. : 1. The above Civil revision application takes exception to the order dated 24th September, 2010 passed by the learned 4th Joint Civil Judge, Junior Division, Pune by which order, the application Exh.20 filed by the petitioner herein under Order 7 Rule 11 of the Code of Civil Procedure came to be dismissed. 2. The petitioners herein are the original defendant Nos. 2 and 3 in the suit, being Regular Civil Suit No. 606 of 2010 filed by the Respondent No.1- Society through its ad hoc committee inter alia for various reliefs which are mentioned in prayer Clauses (a) to (j) of the jpc cra1082-10.sxw 2 said suit, which reads thus: a) (i) The Defendants no. 1 to 3 be directed to execute and register a proper deed of Conveyance of the Suit Property in favour of Plaintiff Society in conformity with the provisions of the Maharashtra Ownership Flats Act, 1963 and Agreement of Sale executed there under and as per the draft of Conveyance Deed approved by the Plaintiff Society on 16-1-2007, and to convey the free and marketable title of the entire property along with all the buildings and structures constructed thereon, including the recreational open space of the layout and all common area sand facilities etc. along with the right in perpetuity to use and enjoy the existing access/approach road, in favour of the Plaintiffs. ii) If the Defendants fails to execute the Conveyance Deed as per prayer clause (a)(i) above, the Court Commissioner may kindly be appointed to execute and register the Conveyance Deed as per approved draft dated 16-1-2007 and clause (a)(i) above. b) The Defendants may kindly be directed to demolish the structure/sheds which have been marked "to be demolished" in the last PMC approved lay out and Building plans of the said property, and to hand over the vacant and peaceful possession of the said portion of the property to the Plaintiff prior to execution of Conveyance. c) That, the Defendants No.1 to 3 be directed to give detailed accounts of the deposit amount paid to and kept by the Members of Plaintiff with the Defendant No.1, towards the one time maintenance/corpus fund. d) The Defendants may kindly be directed to pay over to the Plaintiff Society the 75% amount of the total Corpus Fund and other amounts collected by them from all the Flat/unit Purchaser and the interest accrued thereon, and Decree to that effect may kindly be passed. e) That Defendants no.1 to 3 may kindly be directed to hand over to the Plaintiff Society,l the Original title deeds and documents, and originals of all records, registers, Annual jpc cra1082-10.sxw 3 Maintenance Contracts Record, Building Plans, Electrical/drainage/wager/Fire fighting/ internal cables drawings, all Departmental NOCs and Occupancy/Completion Certificate/s, statutory permissions obtained, Receipts of deposits paid to MSEDCL etc., pertaining to the project, and certified copies of the Agreements to Sale executed with the Purchasers or any subsequent Agreements of Transfer executed by them. f) That, the Agreement executed by the Defendant Nos. 1 to 3 in favour of Defendant No.4 in respect of the Cosmos Club Premises being illegal, the Defendant no. 1 to 3 may kindly eb directed to cancel said Agreement by executing a proper Deed of Cancellation and registering the same with the Office of Sub-Registrar, and the said Cosmos Club premises along with all the equipments be ordered to be conveyed and handed over to the Society in good working condition, along with and as part of the sanctioned lay out of the said property, failing which, the Hon'ble Court be pleased to cancel the same and sub-register be directed to take note of Cancellation and remove the same from its records. g) That until the said Agreement dated 19-8-2005 of Premsagar Hotels Pvt. ltd. is declared illegal and legally canceled by executing a registered Cancellation Deed, the entire amounts are refunded back to the subscriber members along with accrued interest, the Club House along with all the equipments etc. therein are handed over and the Conveyance Deed is executed, whichever is later, the Defendant no.4 be stopped from looking after the managing the Club House, and Court Commissioner be appointed on behalf of the Plaintiff to look after, manage and run the Club House. h) The Defendants be restrained by Order of injunction, from dealing with, allotting, selling or disposing off the common areas and facilities, parking spaces, open spaces, common terraces etc. and /or from allowing the unauthorized user thereof by any Flat Purchaser/s or any other outsider persons. i) The Defendants be restrained by Permanent Injunction from disturbing or curtailing the right of the Plaintiff and its members to use and enjoy the existing access/approach road jpc cra1082-10.sxw 4 which has been approved as the means of access by the PMC in the sanctioned layout and Building Plans, and the Defendants be ordered to convey to the plaintiff, the rights in perpetuity to use the said access/approach road along with the said property. j) The Defendants be restrained by permanent injunction ion from revising the lay-out and building plans of the said property and/or from developing or constructing any new/additional buildings/structures on the said property or on any part/portion thereon. Suffice it to say that some of the reliefs claimed would be the ones which can be adjudicated upon by the Competent Authority constituted under Section 5-A of the Maharashtra Ownership of Flats Act, 1963 ( for brevities sake, referred to as the MOFA). The petitioners herein are the developers of the property in question. The reliefs claimed in the suit, as indicated above, are from prayer clauses (a) to (j). The main substantive relief sought in the said suit is a direction to the petitioners who are the defendant Nos. 1 to 3 to execute and register prepare a deed of conveyance of the suit property in favor of the plaintiff society in conformity with the provisions of the Maharashtra Ownership Flats Act, 1963 and Agreement of Sale executed there under and as per the draft of Conveyance Deed approved by the Plaintiff Society dated 16th January, 2007. The rest of the reliefs sought are in respect of the property in question which has jpc cra1082-10.sxw 5 been developed by the petitioners. The said application Exh. 20 was filed invoking Order 7 Rule 11 of the Code of Civil procedure Code read with Section 151 of the Code, inter alia, on the ground that in view of the powers vested in the competent authority under Section 5A of the MOFA, the jurisdiction of the Civil Court is impliedly barred and it was for the respondents herein i.e. the plaintiffs to approach the competent authority under the MOFA for redressal of their grievance. The said application was considered by the trial Court and has been rejected by the impugned order dated 24th September, 2010. 3. It appears that the trial Court considered each of the prayers of the said suit and upon such consideration of the prayers on the touchstone of the provisions of the MOFA, and especially Section 5A thereof, reached the conclusion that prayer clauses (a) (c) and (d) would be within the ambit of the Competent Authority under the MOFA. However, in so far as the other prayers are concerned, it has held that the trial Court would have jurisdiction. 4. It would be necessary to advert to section 5A of the MOFA. Section 5A, as can be seen from the reading of the said section, provides for competent authority to be appointed by the State jpc cra1082-10.sxw 6 Government for an area or areas to be specified in such notification and different officers may be appointed as Competent Authority for different local areas and the powers to be used by the Competent Authorities are those under section 5, 10 and 11 of the said Act. In so far section 5 is concerned, the said section enjoins upon a promoter to maintain a separate account of sums taken as advance or deposit and to be trustee therefor and disburse disburse them for the purpose which they are given. Now coming to section 10, the said provision enjoins upon the promoter to take steps for formation of cooperative society or company as soon as a minimum number of members as required to be form the cooperative society or company have taken flats. In so far as section 11 is concerned, it enjoins upon the promoter to convey title, etc. . and execute documents according to the agreement. 5. If prayer clauses (a) (c) and (d) are seen, the said prayer clauses can be said to fall within section 5, 10 and 11 of the MOFA and the Competent Authority would therefore have jurisdiction. In so far as the other prayers are concerned, for pesting the jurisdictional aspect reference could be made to prayer clause (b) by which the plaintiffs are seeking direction that that dependents be directed to demolish the jpc cra1082-10.sxw 7 structure/shed which have been marked to be demolished in the last PMC approved layout and building plain of the said property. By way of prayer clause (f) reliefs in respect of an agreement being declared as illegal in respect of the Club premises and by way of prayer clause (g), declaration of an agreement entered into by one Premsagar Hotels Pvt. Ltd. dated 19th August, 2005 as illegal is sought. Therefore, in my view, the trial Court was right in holding that except prayer clauses (a) (c) and (d) the trial court would have jurisdiction in respect of the other prayers. In that view of the matter, I do not find any error of jurisdiction committed by the trial Court. There is no illegality or infirmity in the order passed by the trial Court for this Court to interference in its revisionary jurisdiction under Section 115 o the Civil Procedure Code. 6. Civil Revision Application is accordingly dismissed. (R. M. SAVANT, J.)