: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.763 OF 2009 IN SUIT NO. 410 OF 2009 Man-Viraj Construction .. Plaintiffs V/s. Soman Raghvan Pillai & Anr. .. Defendants ..... Mr. Sandeep Parikh i/by Shantilal & Co. for the plaintiffs Mr. Lancelot Lewis for defendant No.1 Mr. Sunil Patel i/by Sunil & Co. for defendant No.2 Mr. G.W. Mattos, AGP for defendant No.3. ..... CORAM : S.C. DHARMADHIKARI, J. DATE : 31st AUGUST, 2009. P.C. : 1. This Notice of Motion for interim reliefs has been moved in a suit which is filed by the plaintiffs herein claiming specific performance of an Agreement of documents more particularly referred to in prayer clause (a) of the plaint. The suit property is described by the plaintiffs at Exh."C", page 29. 2. It is stated by the plaintiffs that they are developers. The 1st defendant is occupying the suit premises / property and 2nd defendant is a Co-operative Housing Society joined as a formal party. The 2nd defendant is the owner of the property more particularly described in para 2 of the plaint. The plaintiffs have acquired rights of re-development in the property of defendant No.2. However, it came to their notice that the : 2 : 1st defendant is the only person claiming his occupancy in respect of the suit property and the proposal of re- development and reconstruction of the properties of the 2nd defendant is being obstructed by him. There is a substantive Agreement in favour of the plaintiffs by defendant No.2 dated 28th July, 2006. All members of the 2nd defendant have vacated their premises, and the buildings were ready for demolition. It is stated that now they are demolished. It is only the 1st defendant s property which according to the plaintiffs has not been vacated despite an Agreement which is claimed to have been entered into with him. The stand of the 1st defendant is that there is no Agreement with him and that the alleged Agreement is nothing but an attempt to oust him from the property and depriving him of his rights. The Agreement i.e. allegedly spelt out from a declaration / confirmation / affidavit dated 9th October, 2006 is vitiated by fraud. 2. At this interlocutory stage, I am not concerned with the merits of the rival contentions. The plaintiffs will have to prove their case at Trial. The 1st defendant claims to be in occupation of the suit property. However, he cannot obstruct the development of the other properties. That is even fairly conceded by the 1st defendant. The 1st defendant through his advocate makes a statement that he is in possession of the suit property and that he will not : 3 : alienate, encumber, part with possession or create third party rights in manner thereof or in any manner dispose off the suit property. Statement is accepted as an undertaking to this Court. In the light of this statement, there is no necessity to pass any interlocutory order. However, the statement and the order passed today shall be restricted to the suit property and the development rights conferred on the plaintiffs by 2nd defendant in respect of other properties shall not be in any manner interfered with or obstructed by 1st defendant. The order protects only the 1st defendant's physical possession and nothing more. In such circumstances, it is clarified that the development of the properties covered by the Agreement dated 28th July, 2006 between plaintiffs and 2nd defendant can go on subject to their compliance with the relevant Rules and Regulations of the Statutory Body namely MHADA. Since the suit land is stated to be belonging to MHADA and it is alleged that the defendant No.1 has only occupancy rights therein, this order shall not be construed as preventing the local bodies / statutory authority / defendant No.3 from initiating such proceedings under the relevant statute against defendant No.1 and all pleas and contentions in that behalf are kept open. Notice of Motion is disposed off in the aforesaid terms with no order as to costs. (S.C. DHARMADHIKARI, J.)