1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.342 OF 2009 IN NOTICE OF MOTION NO.2691 OF 2008 IN SUIT NO.2314 OF 2008 1. Shailaja Kamalakar Limaye Aged about 70 years, Residing at Flat No.7. 2. Shankarrao Chimaji Meher Aged about 85 years, Residing at Flat No.5. 3. Sulbha V. Samant Aged about 90 years, Residing at Flat No.3. 4. Jagannath Shankar Shringarpure Aged about 74 years, Residing at flat No.2. 5. Surekha V. Joshi Aged about 54 years, Residing at Flat No.4. 6. Jaivantiben Ramnik Shah Aged about 48 years, Residing at Flat No.6. 7. Maniben Hirji Shah Aged about 80 years, Residing at Flat No.1. 2 8. Priyamvada Hiren Merchant Aged about 40 years, Residing at Flat No.8, 442, Pethe Building, Baburao Parulekar Marg, Off. Bhavani Shankar Road, Dadar (W), Mumbai 400 028. .. Appellants (Original Plaintiffs) Versus 1. Nilkanth Ganesh Pethe Dr. M.B. Raut Road, Shivaji Park, Dadar, Mumbai 400 004. 2. M/s. Pethe Engineering & Construction Co., A registered Partnership Firm, Having their office at Pethe Building, Thakurdwar, Mumbai 400 004. 3. Pooja and Poonam Builders, A Partnership Firm, Through their partners Shri Shantilal Ramji Gala, Shri Jitendra Lalji Gala. Anil Dungarshi Gala and Shri Ganesh Dungarshi Gala Having their office at Navneet Bhuvan, Baburao Parulekar Marg, Bhavani Shankar Marg, Dadar, Mumbai 400 028. 4. The Municipal Corporation of Greater Bombay, having their Office at Mahapalika Bhavan, Fort, Mumbai 400 001. .. Respondents (Oirginal Defendants) 3 Mr. S.U. Kamdar, Senior Advocate with Mr. S.J. Ghogre for the appellants. Mr. Virag Tulzapurkar, Senior Advocate with Mr. Sanjay Jain, Mr. Rajmani Varma and Mr. Navdeep Vora i/by M/s. Navdeep Vora & Associates for the respondents. CORAM : ANIL R. DAVE, C.J. & S.C. DHARMADHIKARI, J. DATE OF RESERVING THE JUDGMENT : 9TH MARCH, 2010 DATE OF PRONOUNCING THE JUDGMENT : 25TH MARCH, 2010 JUDGMENT (Per S.C. Dharmadhikari, J.) Admit. Respondents waive service. By consent of parties heard forthwith. 2. This appeal under clause 15 of the Letters Patent challenges the order of the learned Single Judge passed in the above Notice of Motion. By the order under challenge delivered on 16th April, 2009, the learned Single Judge has dismissed the appellants’ Notice of Motion. 3. The appellants before us are the original plaintiffs whereas the respondents are the original defendants. 3. The appellants filed a suit in this court being Suit No.2314 of 2008 against the original defendants for a declaration that the Deed of Conveyance 4 dated 25th October, 2004 executed between the original defendant No.1 and original defendant No.3 in respect of a plot of land No.442, TPS IV, Mahim Division, Mumbai is illegal, bad in law and not binding on the plaintiffs. The original defendant Nos.1 to 3 are respondent Nos.1 to 3 to this appeal. 4. The further relief that the plaintiffs claim is a permanent injunction restraining the defendants, their servants or anybody claiming through them from utilizing the FSI available on the plot in respect of the portion of the building viz. Building No.2, Pethe Building, Baburao Parulekar Road, Off. Bhavani Shankar Road, Dada (West), Mumbai-400 028. It is the case of the plaintiffs that they have occupied this building. 5. The other final relief claimed is a direction to the defendants to convey the said plot to the Co-operative Housing Society formed by the plaintiffs viz. Space Co-operative Housing Society Limited. 6. It would be convenient to refer to the parties by their original description. 5 7. Final Plot No.442 TPS IV, Mahim Division admeasures about 1998 sq. yards. It was owned by Hindu Undivided Family of the defendant No.1. A portion of the plot admeasuring about 900 sq. yards together with the structures standing thereon was acquired by the respondent No.4 (original defendant No.4) Municipal Corporation of Greater Bombay under a Town Planning Scheme. Compensation was awarded to defendant No.1. Remaining portion of the final plot No.442 admeasuring about 1098 sq. yards viz. 918 square meters is the subject/suit plot. It is alleged in the plaint that the first defendant by an agreement for sale dated 11th April, 1966 in his capacity as Karta of Hindu Undivided Family consisting of his wife and minor son sold the plot to M/s. Pethe Engineering and Construction Company i.e. original defendant No.2. 8. The original defendant No.1 also in his capacity as Karta executed an agreement of Leave and Licence dated 16th April, 1966 with the original defendant No.2 for entering upon the said plot and constructing building thereon and also to sell the flats constructed therein. 9. Then it is alleged that there was an oral partition in or about 1968 between the defendant No.1 and his family in respect of the properties of the 6 Joint Hindu Family. The oral partition was then put in writing in the form of Registered Deed of partition dated 26th April, 1968. Pursuant to the arrangement between defendant Nos.1 and 2, the defendant No.2 undertook construction of two buildings on the plot. Defendant No.2 constructed a building on the area admeasuring 590 sq. mts. of the said plot consisting of stilt plus four upper floors being Building No.2, Pethe Building, Baburao Parulekar Road, Off. Bhavani Shankar Road, Dadar (West), Mumbai-400 028. However, second defendant partly constructed building No.1 on an area admeasuring 328 sq.mts. of the said plot but it was not completed by defendant No.2. 10. Reference is then made to a certificate issued by the Architect in this behalf (Annexure `C' to the Plaint) to support the allegation of incomplete construction. 11. It is alleged thereafter that by registered agreement for sale dated 10th October, 1968, plaintiff No.1 purchased flat being Flat No.7 on the 3rd floor with parking space in the said building No.2 from M/s. Pethe Engineering and Construction Company viz. defendant No.2. Likewise, the other plaintiffs 7 purchased the flats in their occupation which have been constructed by the defendant No.2. 12. In para 12 of the plaint, it is alleged that as per the approved plan of the plot, defendant No.2 was to construct two buildings being Building No.1 and Building No.2 on the plot. Building No.1 consisted of ground plus three upper floors whereas building No.2 consists of stilt plus four upper floors. A copy of the approved plan is annexed to the plaint. It is common ground that construction of Building No.1 was not completed whereas each of the plaintiffs are occupants of Building No.2. They, therefore, claimed to have formed a Co- operative Housing Society and reasons leading to the said formation are set out in subsequent paragraphs of the plaint. 13. It is also alleged that an application made by the defendant No.2 for subdivision of plot came to be rejected on the ground that there were temporary structures on the portion subdividing the plot. 14. It is alleged that in May, 2006, defendant No.3 undertook demolition of the incomplete building in Building No.1 on the portion of the plot and at that time, it was revealed that defendant No.3 had purchased the plot from 8 defendant No.1. The plaintiffs were under a bonafide impression that defendant No.3 intends to put up a new building on the said plot. However, in December, 2007, defendant No.3 started digging activities and to the knowledge of the plaintiffs, he started excavating from below the building of the plaintiffs. The plaintiffs, therefore, approached the original defendant No. 4 Corporation by making an application under the Right to Information Act. They were shocked to receive the information that defendant No.3 had submitted a proposal for additions and alterations of the existing building through their Architect M/s. Space Age Consultants. The plaintiffs alleged that the plans submitted by defendant No.3 are such that it poses grave danger to the building occupied by them. Therefore, they approached the City Civil Court, Bombay by filing L.C. Suit No.525 of 2008 against the third defendant and the Bombay Municipal Corporation. During the course of suit, it was revealed that defendant No.3 has stated that by Deed of Conveyance dated 25th October, 2004 between defendant No.1, his wife, the third defendant purchased the entire final plot No.442 TPS IV. A copy of the Deed of Conveyance is annexed to the plaint as Annexure `Q’. Thus, it is stated that once the suit plot was sold in the year 1966 to defendant No.2 and defendant No.2 had carried out construction so also entered into agreements in respect of the flats which are in occupation of the plaintiffs, then, defendant No.1 has no 9 right, title or interest to convey the plot and particularly, the portion on which the building occupied by the plaintiffs stands, to defendant No.3. 15. It is in these circumstances that the challenge to the conveyance has been raised and the permanent injunction claimed by the plaintiffs. 16. In the Notice of Motion, interim reliefs in furtherance of the aforementioned final prayers have been claimed. 17. The application for interim reliefs was supported by the affidavit of one of the plaintiffs. 18. The Notice of Motion was contested by the contesting party. The defendant No.3 through its partner filed an affidavit in reply and contended that the suit is liable to be dismissed because it is bad for misjoinder of causes of action as well as of parties. It is alleged that the plaintiffs are not the only owners in asmuch as in some cases there is joint ownership and some of the plaintiffs have not been able to establish even prima facie their title to the flats. 10 19. It was alleged that the suit is barred by virtue of Order II Rule 2 of the Civil Procedure Code in asmuch as the suit filed in the City Civil Court being Long Cause Suit No.525 of 2008 concerning the same subject matter is pending. 20. It is alleged that the plaintiffs are seeking reliefs contrary to the express terms and conditions of the agreements under which they were put in possession of the respective premises. It is stated that each of the agreements entered into by defendant No.2 with the plaintiffs as purchasers preclude the purchasers from transferring their alleged rights without the written consent of defendant No.2. Further, the defendant No.3 has acquired the plot in the month of October, 2004 and the present suit is filed in the year 2008. The application for interim reliefs is also made after four years of this conveyance and hence, no interlocutory orders in favour of the plaintiffs be passed. 21. The third defendants then contended that the suit Plot of Land admeasures about 1098 sq. yds. and is referred as final Plot No.442 of Town Planning Scheme No.IV, Mahim. The said plot was originally owned by Mr. Ganesh Hari Pethe and subsequently inherited by Mr. Nilkanth Ganesh Pethe and his children Prasad and Preeti Pethe ("The Pethe Family"). In or 11 about 1964 when the Town Planning Scheme was finalized, out of the original plot admeasuring about 1,998 sq. yds., a portion of plot admeasuring about 900 sq. yds. was acquired by the competent authority for the purpose of road widening, leaving the balance area of 1,098 sq. yds. as aforesaid. In or about February, 1965, the Pethe Family submitted plans for construction of two buildings i.e. Building No.1 and Building No.2, which were approved by the Defendant No.4 herein (wrongly mentioned in the cause title as Defendant No. 5) on 10th June, 1965. On 11th April, 1966 by an Agreement of Sale executed between Mr. Nilkanth Ganesh Pethe i.e. Defendant No.1 as Karta of his Joint Hindu Family and M/s. Pethe Engineering i.e. Defendant No.2, the free hold land bearing Final Plot No.442, admeasuring 1096 sq. yds. was agreed to be sold. However the actual conveyance in favour of Defendant No.2 did not take place. On 16th April, 1966, a Leave and License came to be executed between the Pethe Family on the one hand and M/s. Pethe Engineering and Construction Company on the other hand inter alia permitting the said M/s. Pethe Engineering and Construction Company to construct the said two buildings with power to sell the flats, as may be constructed by the said Company. It may be mentioned here that the said plot has been attempted to be developed in Three Phases. 12 22. It is then urged that pursuant to the agreements referred to above, the second defendant was able to construct only building No.2. They sold the eight flats therein and the agreements with flat purchasers stipulate that subject vendor has almost completed the construction on the said plot consisting of eight residential flats and the sub-vendors will have no right to construct any additional floors in Building No.2 until the conveyance is executed in favour of conveyance of the Housing Society. Thus, as far as building No.2 which is in occupation of the plaintiffs is concerned, there was an agreement between the defendant No.2 and the flat purchasers that no additional floors on this building can be put up. 23. However, the agreement itself clarified that nothing contended therein confers upon the flat purchasers any right, title or interest of any kind whatsoever into or over the said land or buildings or any part thereof and such conferment can take place only upon execution of the conveyance to the limited company or Co-operative Society. 24. Clauses 17 and 21 of the agreement with the flat purchasers have been relied upon and they read as under: 13 “17. The Sub-Purchasers shall not let, transfer, convey, mortgage, charge or in any way encumber or deal with, or dispose of his flat nor assign under let or part with his/her interest under or the benefit or this Agreement or any part thereof till all his/her dues or whatsoever, nature owing to the sub-vendors are fully paid only if the sub-purchaser has not been guilty of breach of or non-compliance with any or the terms and conditions of this Agreement and until be obtain previsous consent in writing of the Sub-Vendors. 21. In the event of the society or Limited Company or Incorporated Body formed and registered before the sale and disposal by the Sub-Vendors of all the flats in the said building, the powers and authority of the society of the society so formed or of the Sub-Purchase and other Sub-Purchaser of the flats shall be subject to the overall control or the Sub-Vendors in respect of any of the matter concerning the said buildings, the construction and completion thereof and all amenities appertaining the same and in particular the Sub- Vendors shall have absolute authority and control as regards the unsold flats of which the agreements are cancelled at any stage for some reason or other and the Sub-Vendors have absolute authority regarding the disposal thereof." 25. Therefore, it was the stand of the third defendant that not only the original flat purchasers but all persons claiming through them are bound by the terms and conditions recorded in these agreements. The original flat purchasers have accorded their express consent under clause 8(a) of the agreement to allow defendant No.2 to make additions, alterations in and raise storeys or put up additional structures in and raise storeys or put up additional 14 structures on building No.1 at any time as may be permitted by the Municipal Corporation. Since the defendant No.4 Corporation has approved plans for construction of building No.1, none of the plaintiffs have any right to object to interfere with the same. The original sanctioned plan permitted construction of two buildings on the final plot No.442. However, defendant No.2 was able to complete only building No.2 and as regards building No.1, the defendant No.2 was unable to construct the same because the front portion of the plot was occupied by various occupants/tenants' contravening structures and they were not willing to cooperate. It was pointed out by defendant No.3 that as per the IOD and CC in respect of building No.1, it was clearly stipulated that the distance between two buildings was 30 feet. Therefore, sanction was given for construction of two buildings way back in 1975 and the IOD in that behalf was relied upon. As to why construction in the second phase of building No.1 could not proceed has been then pointed out in paras 4.11 to 4.20 and it was alleged that building No.2 is constructed about 40 years ago. The plaintiffs in the year 2005 had approached defendant No.3 for reconstruction of building No.2. Defendant No.3 expressed its willingness to reconstruct building No.2 and contended that instead of working in cooperation, the plaintiffs started making unreasonable demands and in these circumstances, their claim is without any merit and substance. 15 26. It is stated that the entire FSI available on the plot in accordance D.C. Regulation 33(15) has now become available and that is how the plans were submitted. In these circumstances, when the plans have been sanctioned on 26th March, 2007, commencement certificate is issued on 10th August, 2007, then, no interlocutory reliefs should be granted. All the more, when the plaintiffs have caused harassment and have made it impossible for defendant No.3 to carry on the work by making complaints to the Municipal Corporation, as a result of which a stop work notice had been issued. Thereafter, the clarification has been given to the Municipal Corporation of Greater Bombay stating therein that construction of independent building No.1 does not require consent from the occupiers of building No.2 i.e. present plaintiffs. For all these reasons, by denying the plaint allegations, it is urged that motion be dismissed. 27. From the records it appears that a rejoinder affidavit was filed by the plaintiffs wherein they reiterated their earlier contentions and stated that the construction at site is contrary to the agreements entered into with the flat purchasers. It is clear from a perusal of the terms that unless and until the plaintiffs’ consent is obtained, the construction could not have been 16 commenced and completed. For these reasons, they reiterated that the Notice of Motion be made absolute with costs. 28. It is this notice of motion which was placed before the learned Single Judge and by the impugned order, he held that the FSI utilized for construction of building No.2 and the land under it is not being so utilized and, therefore, the apprehension in that behalf is misplaced. Further, he held that the plaintiffs are not prima facie entitled to stop the construction of building No.1. Concluding thus, he dismissed this notice of motion. 29. Aggrieved thereby, the appellants-plaintiffs are before us in appeal. 30. Shri Kamdar, learned Senior Counsel appearing on behalf of the plaintiffs contended that the learned Single Judge has committed an error in dismissing the motion. He submits that the order under challenge is contrary to the terms and conditions of the agreements between the parties and the provisions of the Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA). He submits that the learned Judge has failed to notice the clear stipulations in the agreements and the statutory provisions in the field. Shri Kamdar submits that 17 the learned Judge framed wrong questions for consideration at this interlocutory stage. Once the questions as framed by him are on an erroneous assumption and basis, then, ultimate prima facie conclusion is also vitiated. Shri Kamdar was at pains to point out that building No.2 has been fully constructed and is occupied by the plaintiffs. The flats have been sold to them. It is a construction on a portion of the land being final plot No.442. Any building on the said plot cannot come up unless plaintiffs’ consent is obtained for such construction. It may be that the original plan envisages construction of two buildings, however, once the building No.1 was complete and on the own showing of the defendant Nos.1 to 3, the construction of building No.2 was complete and they were not able to complete building No.1 at site, then, now to make such construction and by utilizing additional FSI means that the terms and conditions with the flat purchasers have been violated. The promoters and builders are obliged to disclose the entire plan of construction to the flat purchasers before the flats are offered to them. Further, the lay out plan has to be annexed to the agreement together with the necessary details. If such lay out plans are annexed to the agreement and any construction is provided therein, then, alone the same could have been permitted at site. However, no additional construction or building is permissible unless compliance with the statute is made. Shri Kamdar has invited our attention to 18 the terms and conditions of the agreements, the allegations in the plaint and the definitions in MOFA. Further, he invites our attention to section 3 of the said Act and contends that sub-section (2) Sub-clauses (k) and (l) thereof make it abundantly clear a full and true disclosure of such other information and document in such manner has been prescribed so also true copies of the documents referred to in sub-section should be provided by the promoter. This obligation remains from 1963 onwards and merely because some amendments have been made to the statute in question does not mean that the interpretation of section 3(2)(k) is controlled by such amendments. In any event, Shri Kamdar submits that section 7 was on the statute book. Section 7 makes it amply clear that after plans and specifications are disclosed, no alterations or additions without consent of persons who have agreed to take the flats can be made. He submits that introduction of section 7-A would not mean that the promoter’s obligation to form a Co-operative Society under section 10, to convey title and execute documents in accordance with the agreements to flat purchasers under section 11 can be brushed aside or given a go-bye by the promoter. Shri Kamdar has also invited our attention to section 13 of the Act. Shri Kamdar submits that the fallacy in the learned Judge’s prima facie conclusion is that not only he fails to take into account the averments in the plaint and the contents of the agreements but there is no 19 reference to MOFA in the judgment. In such circumstances, the conclusion that the learned Judge reaches with regard to the FSI is erroneous and illegal. He submits that the learned Judge was not required to go into the computations of FSI and more particularly make reference to D.C. Regulation 33(15). There is no question of the additional FSI being available to the defendant No.3. The proposed building cannot be said to be authorized and legal merely because introduction of D.C. Regulation 33(15). 31. Shri Kamdar submits that the conclusion on the second question also is vitiated because the learned Judge has proceeded on the basis that the claim is restricted to the plot of land under building No.2 and the FSI available with regard to the same. His assumption and basis itself is erroneous and illegal because unless and until property is conveyed, the promoter is not discharged from his obligation under MOFA. Once the flat purchasers are put in possession pursuant to the agreements for sale of the flats, then, unless and until the flat purchasers are organized into a Co-operative Society or otherwise and their consent is obtained, there cannot be any further construction at site. In such circumstances, the assumption that the plaintiffs’ rights are restricted to building No.2 and the FSI in respect thereof is erroneous and even on question No.2, the conclusion of the learned Judge cannot be sustained. For 20 all these reasons, he submits that the order be set aside and the appeal be allowed. Shri Kamdar places reliance upon the following judgments in support of the above contentions: 1. Jayantilal Investments v/s. Madhuvihar Coop. Housing Society and others, (2007) 9 SCC 220. 2. Harsharansingh Pratapsingh Gujral & others v/s. Lokhandwala Builders Ltd. & others, 1998(1) Bom. C.R.