1 908.nms-2148-nms-3987 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO. 2148 OF 2009 IN SUIT NO. 1439 OF 2009. Shakti Prints Private Limited. ..Plaintiffs. vs. Municipal Corporation of Brihan Mumbai & Ors. ..Defendants. WITH NOTICE OF MOTION NO. 3987 OF 2008 WITH CONTEMPT PETITON NO. 82 OF 2009 IN SUIT NO. 1226 OF 1986. Dr. Ravindra R. Trivedi & Ors. ..Plaintiffs. vs. Shri Shakti Prints Private Limited & Ors. ..Defendants. .... Mr. Sirshikar, i/b. V.K. Khatu, for Defendant Nos. 1 to 3 in Suit No. 1439/2009 Mr. Pradeep Sancheti, Senior Counsel, a/w. Deepak Chitnis, for Plaintiffs in Suit No. 1439/2009 & for Defendant in Suit No. 1226/1986. Mr. H.J. Thakkar, Senior Counsel, a/w. Mr. Gautam Bhagwat, i/b. Divekar & Co., for Defendant Nos. 4 to 7 & 9 in Suit No.1439/2009 & for Plaintiffs in Suit No. 1226/1986. Mr. Girish Godbole, a/w. Mr. Aniruddha Joshi, i/b. Nivit Srivastava, for Defendant No.8 in Suit No.1439/2009 .... CORAM : S.J. KATHAWALLA, J. DATE : 26TH APRIL 2011. P.C. : According to the Plaintiffs in Suit No. 1439 of 2009 (Shakti Prints Private Limited) they are in adverse possession of the Suit property to the extent of 1202.3450 square meters (the said 2 908.nms-2148-nms-3987 property) which is admittedly less than one-fifth portion of the entire Suit property being developed by the Defendants. According to the Plaintiffs, the Defendants whilst developing the remainder of the Suit property are wrongly utilising the FSI as well as the TDR in respect of the said property which is in possession of the Plaintiffs and therefore the Defendants be restrained by an order and injunction from doing so. It is contended on behalf of the Defendants that the Plaintiffs are not in possession of 1202.3450 sq.mtrs. and are not entitled to an injunction as sought by them. However pending the hearing and final disposal of the Suit without going into the merits of the case and keeping all the rights and contentions of the parties open, the following order is passed by consent of the parties : (i) Defendant Nos. 4, 5 and 6 in Suit No. 1439 of 2009 have stated that they have already transferred all their right, title an interest in the entire Suit property in favour of the Defendant No.7 by way of a registered Conveyance Deed dated 24th July 2002. The statement is accepted. (ii) Defendant Nos. 7, 8 and 9 in Suit No. 1439 of 2009 undertake to this Court that in the event of them utilising the FSI along with proportionate TDR pertaining to the property claimed by the Plaintiffs i.e. 1202.3450 sq.mtrs. and in the event of the Plaintiffs ultimately succeeding in establishing their title in the said property, they shall, without claiming any equities in their favour demolish the portion of the structure constructed by them by using the FSI along with proportionate TDR pertaining to the said property within a period of twelve weeks from the date of the final order passed by the Appeal Court/ Supreme Court of India in favour of the Plaintiffs. The undertaking is accepted. (iii) Defendant Nos. 7, 8 and 9 further undertake that they shall not create any third party rights in respect of the portion 3 908.nms-2148-nms-3987 of construction carried out by them by using the FSI along with proportionate TDR in respect of the said property, viz. the entire seventh floor in ‘D’ wing, the entire fifth, sixth and seventh floor in ‘E’ wing of the building constructed by Defendant Nos. 7, 8 and 9 to the Suit No. 1439 of 2009. However they shall be at liberty to give such constructed premises on leave and license basis not exceeding 33 months at a time after making a mention of this order in the said leave and license Agreement and also annexing a copy of this order to such leave and license Agreement/s. The undertaking is accepted. (iv) Defendant Nos. 7, 8 and 9 further undertake not to carry out any physical construction on the said property comprising of 1202.3450 sq.mtrs. which according to Defendant Nos. 7, 8 and 9 is shown in the plan at page 38 of the Plaint annexed to their Suit being No. 1226 of 1986 and according to the Plaintiffs in Suit No. 1439 of 2009 is as shown by the Commissioner in his report dated 3rd November 1987. (v) Liberty to apply. (vi) Notice of Motion No. 2148 of 2009 and Notice of Motion No. 3987 of 2008 stand disposed of. (vii) The Contempt Petition No. 82 of 2009 also stands disposed of. However, the Plaintiffs in Suit No. 1226 of 1986 shall be at liberty to contend in the Written Statement in Suit No.1439 of 2009 that the Suit filed by Shakti Prints Private Limited being Suit No. 1439 of 2009 is liable to be dismissed and their defense in Suit No.1226 of 1986 is liable to be struck off for alleged breach of the interim order dated 6th July 1987 passed in Notice of Motion No. 1266 of 1986 in Suit No. 1226 of 1986. 2. Hearing of both the Suits is expedited. The Defendants 4 908.nms-2148-nms-3987 to file their Written Statement / counter claim on or before 15th June 2011. Place both the Suits/Counter Claims for framing of issues on 27th June 2011 high on board. [ S.J. KATHAWALLA, J. ]