1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 1702 OF 2008 IN SUIT NO. 1121 OF 2008 Divyakant Indravadam Bhatt & Anr. ....Plaintiffs Versus M/s. Aakar Constructions & Ors. ....Defendants Mr. Ketan Parekh a/w. Kunjal Sanghavi i/b. M/s. K. R. Parekh & Co., Advocate for the Plaintiffs. Ms. Mamta Omle i/b. Mr.Rajendra Mishra, Advocate for Defendant No.3. Mr. P. K. Dhakephalkar, Sr.Advocate i/b. Mr. R. B. Khanolkar, Advocate for Defendant No.4. CORAM : R. V. MORE, J. DATE : 20TH JANUARY, 2010. P.C. : Heard Mr. Ketan Parekh, learned Counsel for the Plaintiffs, Miss Omle, learned Counsel for Defendant No.3 and Mr. Dhakephalkar, learned Senior Counsel for Defendant No.4. 2. The Plaintiffs have filed the present notice of motion for following reliefs:- “a) Pending the hearing and final disposal of the suit the Court Receiver, High Court, Bombay or such other person or persons be appointed as Receiver of the suit property as described in First Schedule to Exhibit “B” hereto, with all the powers under Order 40, Rule 1 of C. P. C. including power to take possession and put up construction of the said property 2 b) Pending the hearing and final disposal of the suit, the Defendants and their agents and servants and anyone claiming through them be restrained by an Order of injunction from encumbering and/or creating any third party right, title or interest and/or enter into any agreement of sale and/or Development Agreement and/or arrangements with regard to suit property as described in the First Schedule of Exhibit “B” hereto, without providing for the suit flat to the Plaintiffs”. 3. The Plaintiffs filed the above said suit under the provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (hereinafter referred to as “MOFA” for the sake of convenience and brevity) for enforcing an agreement dated 15th May, 2000 between themselves and Defendant No.1. At the outset, the learned Counsel for the Plaintiffs makes a statement that he does not want to press prayer clause (a) and he restricts his arguments so far as to the relief claimed under prayer clause (b) of the notice of motion. It is the case of the Plaintiffs that Defendant No.4- Society proposed to construct higher floors on the existing building and for that purpose entered into an agreement with Defendant No. 1 on 26th August, 1999. The Defendant No.1 in pursuance of the above agreement executed suit agreement i.e. Agreement for sale with the Plaintiffs on 15th May, 2000 whereunder they agreed to sale to the Plaintiffs Flat No.16 on 5th Floor. It is further case of the Plaintiffs that by way of earnest money, the Plaintiffs paid to Defendant No.1 an amount of Rs.1,01,000/-. Since, 3 the Defendant No.1 failed to discharge his obligation under the MOFA, the Plaintiffs were constrained to file the aforesaid suit for reliefs mentioned above. In the said suit the aforesaid notice of motion is filed. 4. The learned Counsel for the Plaintiffs took me through the agreement for sale executed between the Plaintiffs and Defendant No.1 on 15th May, 2000, the receipt of the earnest money executed by Defendant No.1 as well as the provisions of the MOFA and in particular the defination of “Promoter” given in section 2(c) of the said Act. He submitted that the Defendant No.4 – Society is a “Promoter” within the meaning of section 2(c) of the said Act and therefore, the rights of the Plaintiffs are required to be protected by granting relief claimed under prayer clause (b) of the notice of motion. 5. Mr. Dhakephalkar, learned Senior Counsel appearing for Defendant No.4, per contra pointed out the initial Development Agreement between the Defendant No.4 and Defendant No.1 executed on 26th August, 1999 and especially the provisions of clause 19(g) of the said agreement. He further invited my attention to the Consent Terms arrived between the Defendant No.1 and Defendant No.4 in Suit No. 1503 of 2001. He further submitted that there is no privity of contract between the Plaintiffs and Defendant No.1 and in that view of the matter coupled with the fact that the Plaintiffs did not take Defendant No.4’s approval, relief as claimed cannot be granted. He lastly submitted that the Development Control Rules are materially amended and now the Defendant No.4-Society cannot raise additional floors on the existing building and on this 4 ground also it is prayed that the relief as claimed cannot be granted. 6. I have gone through the pleadings of the parties alongwith the annexures thereto. I have also considered rival submissions of the learned Counsel. The Defendant No.4 entered into a Development Agreement with Defendant No.1 on 26th August, 1999 to raise higher floors on existing building. Clause 19(g) of the said agreement specifically makes clear that the intending buyer shall execute agreement only after approval of the society for membership. Perusal of the suit agreement annexed at Exhibit “B” to the plaint discloses that though the Defendant No.4-Society is made party to the said agreement, however, nobody on its behalf has signed the said agreement. The agreement clearly shows that same was executed between the Plaintiffs and Defendant No.1 only and there is no privity of contract between Plaintiffs and Defendant No.4. In the absence of any approval by Defendant No.4 to the transaction between the Plaintiffs and Defendant No.1, in my opinion, relief as prayed for, cannot be granted. 7. Things does not stop there, the Defendant No.1 filed Suit No. 1503 of 2001 in City Civil Court at Bombay against Defendant No.4 – Society for specific performance of the Development Agreement dated 26th August, 1999. The Consent Terms were arrived at between the parties and the same were filed before the Court on 10th August, 2001. Under clause (e), the Defendant No.1 was obliged to complete the construction within a period of two years from the date of the Order. Under clause (f) it was agreed that if the Defendant No.1 5 does not complete the project within a period of four years, then their right to construct additional floors would be forfeited, without payment of any cost, charges and compensation. It is also worth to mention that the said Consent Terms also provides that on failure on the part of the Defendant No.1 either to obtain the T.D.R. or Commencement Certificate for construction within a prescribed period, the Development Agreement dated 26th August, 1999 shall stand terminated automatically. In the light of above facts, the Defendant No.1 has lost right of development of the Defendant No.4’s property. 8. It is also not disputed that the Development Control Rules have under gone substantial changes since execution of the Development Agreement. In view of the amendment to the said Rules, the Defendant No.4 society cannot now raise higher floors on existing building. The Defendant No.4 now in pursuant of the amended provisions will have to demolish the entire building and undertake complete reconstruction. For this reason also, the relief claimed by the Plaintiffs cannot be granted. Taking totality of the facts and circumstances into consideration, I am of the opinion that the Plaintiffs have failed to make out any case for the relief claimed under prayer clause (b) of the notice of motion. Notice of motion is accordingly, dismissed. Sd/- (R. V. MORE, J.)