AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.397 OF 2008 IN NOTICE OF MOTION NO.3228 OF 2007 IN SUIT NO.2428 OF 2007 Pankaj Golecha & Ors. .... Appellants Vs. Ansal Housing & Construction Limited. .... Respondent Mr. Pradeep Sancheti i/b M/s. Paras Kuhad & Associates for the appellants. Mr. V.A. Thorat, senior advocate with Mr. S. Dutt, Mr. Vikas Tiwari, Mr. S.P. Dalal and Ms. Kranti Kalekar i/b Dalal & Co. for the respondent. CORAM : SMT. RANJANA DESAI & K.K. TATED, JJ. DATED : 19TH NOVEMBER, 2008. P.C. :- 1. The appellants are original plaintiffs and the respondent is the original defendant/developer. It is the case of the appellants that the appellants were allotted an apartment of 1600 sq. feet (approximately) of built-up area on the 21st floor in the building, AJN 2 which was to be constructed by M/s. Utility Premises Private Limited on Shri Ram Mills Land. The total consideration of the said flat was Rs.56,00,000/-. The appellants made a payment of Rs.2,00,000/- as earnest money. According to the appellants on the same date, M/s. Utility Premises Private Limited issued an allotment letter in their favour. 2. Admittedly, the respondent took over as new developer of the said building from M/s. Utility Premises Private Limited in the year 1996. According to the appellants, an agreement was entered into between the appellants and the respondent on 17/10/1997 as contemplated under the Maharashtra Ownership of Flats and Apartments Act. In the said agreement, the allotment of earlier flat on 21st floor got shifted to the 13th floor because of the revised approval of building plan from the Municipal Corporation and Flat No.1301 admeasuring 1600 sq. feet (approximately) was allotted to the appellants under the new agreement. The appellants made further payment of Rs.2,25,000/-. Thus, according to the appellants, the total payment made by the appellants by that time was to the tune of Rs.4,25,000/-. It is the case of the appellants that the respondent called upon the appellants to make further AJN 3 payment of Rs.8,47,600/-. However, no work, in fact, was started at the building site. Even then the appellants paid an amount of Rs.4,00,000/- out of the total amount asked by the respondent vide letter dated 9/3/1998. It is the case of the appellants that by letter dated 27/2/2004, the respondent communicated to the appellants that the area of the flat allotted to them would be 1595 sq. feet. However, the typical floor plan accompanying the brochure given to the appellants mentioned the flat area as 1274 sq. feet. 3. Dispute arose between the parties about the identification of the flat. Thereafter, there was correspondence between the appellants and the respondent. According to the appellants since the respondent was not prepared to accept the appellant's rightful case, the appellants along with other flat purchasers were compelled to file a suit in the City Civil Court at Mumbai. It appears that in the said suit, the appellants and others had taken out a notice of motion for interim reliefs, which came to be dismissed on 6/10/2008. Admittedly, the other plaintiffs in the said suit entered into compromise with the respondent. However, since the appellants were not inclined to compromise the suit, they withdrew AJN 4 the suit on 24/2/2007 with liberty to file a fresh suit. 4. On 16/4/2007, the respondent is said to have terminated it's agreement with the appellants. 5. The instant suit came to be filed on 28/8/2007, inter alia, for a declaration that the appellants are the allottees in respect of Flat No.A/1301 situated towards the north end of the building in Wing “A” of Ansal Heights and that the letter dated 16/4/2007 terminating the allotment made in respect of the said flat was bad in law and cannot be acted upon and for an injunction restraining the respondent from creating any rights in respect of Flat No.A/1301. Learned Single Judge by the impugned order dismissed the notice of motion and, hence, this appeal. 6. We have heard Mr. Sancheti, learned counsel appearing for the appellants at some length. Mr. Sancheti drew our attention to the agreement dated 17/10/1997. He submitted that flat which was allotted to the appellants was Flat No.A/1301 situated on the 13th floor of the building having approximate area of 1600 sq. feet. Mr. Sancheti further submitted that in addition to Rs.2,00,000/- which AJN 5 the appellants had earlier paid, the appellants paid an amount of Rs.2,25,000/- to the respondent on 17/10/1997. By letter dated 9/3/1998, the respondent called upon the appellants to pay additional amount. In this letter, the flat allotted to the appellants was described as having an area of 1616 sq. feet. The appellants paid an amount of Rs.4,00,000/- to the respondent. Thus, in all, the appellants have paid an amount of Rs.8,25,000/- to the respondent. Mr. Sancheti submitted that the respondent delayed the construction and almost six years thereafter sent letter dated 27/2/2004 asking for more amount. In this letter, the area of the flat was reduced to 1595 sq. feet. However, in the typical floor plan accompanying the brochure received by the appellants it was shown as 1274 sq. feet. Mr. Sancheti submitted that it is clear, therefore, that not only the respondent did not expeditiously take steps to carry out construction but the respondent illegally offered to provide to the appellants a flat having lesser area. Learned counsel submitted that the appellants were always ready and willing to pay rest of the amount on the respondent fulfilling all the conditions and supplying necessary information which the respondent failed to do. Mr. Sancheti submitted that it is in these circumstances that the instant suit is filed. He submitted that the AJN 6 appellants are entitled to an order of injunction and learned Single Judge erred in rejecting the motion. 7. We have heard Mr. Thorat, learned counsel appearing for the respondent. He submitted that the conduct of the appellants dis- entitles them from getting any reliefs from this court. He submitted that in the agreement dated 17/10/1997, there is no mention of any specific wing. Similarly, in letter dated 9/8/1998, there is no mention of any wing. Learned counsel pointed out that till 1998, building plans were not sanctioned. He drew our attention to paragraph 6 of the agreement dated 17/10/1997 wherein it is stated that the developers will execute in favour of the purchaser an ownership agreement in respect of the said flat in accordance with the Maharashtra Ownership Flats Act, 1963 upon the revised building proposal being sanctioned by the Municipal Corporation of Greater Bombay. The paragraph further reads that the purchaser requested the developer to execute the said agreement recording an amicable settlement and agreed to the ownership agreement being executed in accordance with the said Act upon the revised building proposal being sanctioned. Learned counsel submitted that it is pertinent to note that the area was reduced after the AJN 7 building plans were sanctioned. Consequently, the respondent also reduced the cost of the flat. He drew our attention to the letters which indicate that the appellants were called upon to make payment. The appellants, however, failed to make payment. Learned counsel pointed out that even after the notice of motion was dismissed by the City Civil Court on 6/12/2006, the respondent by letter dated 15/12/2006 called upon the appellants to make payment of Rs.56,69,125/- and take the flat which shows the bonafides of the respondent. The respondent only asked for interest. The respondent could have easily sold the flat at higher rate. The appellants did not make payment even at that stage. Learned counsel submitted that in the facts and circumstances, the appellants are not entitled to get any reliefs. 8. On the last date of hearing, a statement was made by Mr. Thorat, learned counsel appearing for the respondent that third party interest has already been created in the flat in question. In the compilation, we found two receipts indicating acceptance of amount, but no agreements were shown to us. We had, therefore, called upon Mr. Thorat to bring the agreements entered into by the respondent with the prospective purchasers. Today, in the court, AJN 8 we have been shown two agreements one in respect of Flat No.A/1301 and the other in respect of Flat No.B/1301. The receipts indicate that an amount of Rs.10 lakhs each was accepted in respect of both the flats on the respective dates of receipts. The agreements shown to us today, no doubt, are unregistered documents. However, they show that in respect of the said flats, further payments have been received on 16/10/2008. Prima facie, it does appear, therefore, that third party interest has been created. Since, third party rights have been created, any order of injunction, in our opinion, as prayed cannot be granted at this stage. 9. In our opinion, the appellants have not made out prima facie case for grant of interim relief. We have already mentioned that the appellants had filed a suit in the City Civil Court at Mumbai. In that suit, notice of motion was taken out by the appellants praying for similar reliefs. That motion was dismissed by the City Civil Court by passing a reasoned order. We are informed that that order was not challenged by the appellants. The appellants withdrew that suit with liberty to file another suit and then filed this suit. Thus, similar prayers made by the appellants have been once rejected. AJN 9 10. It is true that in the agreement and letter dated 9/3/1998, the area of the flat is mentioned as 1616 sq. feet. However, no wing is mentioned. We have already referred to paragraph 6 of the agreement dated 17/10/1997. It appears that at that time the plans were not sanctioned and upon the revised building proposal being sanctioned, ownership agreement was to be executed. If the area was reduced after the building plan was sanctioned, the cost was also reduced. Instead of paying subsequent instalments, the appellants went on asking for some information. Even after the notice of motion was dismissed by the City Civil Court, the respondent called upon the appellants to pay the outstanding amount together with interest. The appellants ought to have made the payment at that stage and taken the flat. The appellants did not do so. The appellants are, therefore, not entitled to interim relief as prayed for by them. Impugned order merits no interference. 11. We are informed that construction of “A” wing is going on. In our opinion, interest of justice would be served if the respondent is directed to intimate the purchaser of one flat on the 13th floor of “A” AJN 10 wing, that the purchase of the said flat is subject to final decision of the appellants' suit being Suit No.2428 of 2007 pending in this court. Order accordingly. Upon complying with the above condition, the respondent shall file affidavit in the suit to that effect giving necessary particulars, within four weeks from the date of the agreement. Appeal is dismissed with above direction. [SMT. RANJANA DESAI, J.] [K.K. TATED, J.]