-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 174 OF 2008 IN NOTICE OF MOTION NO. 3440 OF 2000 IN SUIT NO. 4905 OF 2000 Victor D' Mello and others ... Appellants versus Ratan K. Marrott and others ... Respondents Sri D.H. Mehta with Sri S.K. Shetty, instructed by M/s. Shetty & Associates, for the appellants. Sri J.P. Sen with Ms. Neeta Solanki and Sri Sunil Kanojia, instructed by M/s. Kiran Jain & Company, for respondent Nos. 1 to 6. Sri Rajeev Ravi, instructed by M/s. Bilawala & Co., for respondent Nos. 12 (a) to (d). CORAM: SRI R.M.S. KHANDEPARKAR & SRI P.B. MAJMUDAR, JJ. DATE: JUNE 30, 2008. P.C. Heard. The appellants challenge the order dated 27th September, 2007, passed in Notice of Motion NO. 344 of 2000 in Suit No. 4905 of 2000. By the impugned order, the learned single Judge has merely directed maintenance of status quo in relation to an area of 949 sq.mtrs. of the total -2- area of 3287.04 sq.mtrs. of the appellants. Such an order has been granted on the basis of an agreement entered into between the prospective purchasers of the flats in the building to be constructed in the area of 949 sq.mtrs. of the said property of the appellants, pursuant to the agreement for development entered into between the appellants and the developer on 3rd May, 1994 and undisputedly an amount of Rs. 58,22,000/- was paid to the developer by those purchasers. It is not in dispute that under the agreement dated 3rd May, 1994 entered into between the appellants and the developer, the appellants had received a sum of Rs. 4,00,000/-, while permitting the development of an area of 949 sq.mtrs. of the said property by the said developer by delivering the possession of the said area to the developer and permitting him to construct the building and also sell the flats in such building in such area to be developed. Though it was sought to be contended that the said agreement was terminated by the appellants under letter dated 3rd August, 1999, admittedly no such letter was placed on record nor any contemporaneous evidence was placed on record to show that the agreement between the appellants and the developer was in fact terminated. It is also not in dispute that the construction activity in the land continued till 1997 pursuant to the agreement having been entered into between the developer and the purchasers. In these circumstances, the learned single Judge, after going through the entire material on record, has clearly observed that the effective control of the concerned area was with the -3- developer and under the authority given by the appellants the developer had created rights in favour of the purchasers of the flat. In this view of the matter, taking into consideration the provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 as also Section 56 of the Transfer of Property Act, we find no fault with the impugned order whereby the learned single Judge has merely directed maintenance of status quo in relation to the area of 949 sq.mtrs. till the dispute is resolved on merits after giving opportunity to both the parties to lead evidence in support of their rival contentions. While directing the maintenance of status quo, the learned single Judge has clarified that the appellants are free to develop the remaining area in the said property without encumbering the said area of 949 sq.mtrs. in any manner. Being so, the discretion having been judiciously exercised, it warrants no interference in appeal, more particularly bearing in mind the law laid down in that regard by the Apex Court in the case of Wander and another vs. Antox India P. Ltd., 1990 (Supp.) SCC 727. Appeal is, therefore, dismissed. R.M.S. KHANDEPARKAR, J. P.B. MAJMUDAR, J.