1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.471 OF 2006 IN SUIT NO.386 OF 2006 Sayed Ali Mohfil Alias Sayed Ali Khan .. Plaintiff vs. M/s.Shanil Builders & 10 ors. .. .. Defendants WITH NOTICE OF MOTION NO.472 OF 2006 IN SUIT NO.385 OF 2006 Sayed Amina Begum Shane Ali .. Plaintiff vs. M/s.Shanil Builders & 10 ors. .. .. Defendants WITH NOTICE OF MOTION NO.474 OF 2006 IN SUIT NO.342 OF 2006 Abdul Vahab Khan .. Plaintiff vs. M/s.Shanil Builders & ors. .. .. Defendants WITH NOTICE OF MOTION NO.475 OF 2006 IN SUIT NO.340 OF 2006 Abdul Mazid Kureshi .. Plaintiff vs. M/s.Shanil Builders & ors. .. .. Defendants 2 WITH NOTICE OF MOTION NO.476 OF 2006 IN SUIT NO.341 OF 2006 Haji Mohamed Sami Khan .. Plaintiff vs. M/s.Shanil Builders & 11 ors. .. .. Defendants Mr.M.P. Wamorkar i/by M/s.Maravoor Wamorkar & Co. for Plffs. None for Defts. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 17th July,2009 P.C. : 1.The Plaintiffs claim to be flat purchasers in each of the aforesaid Suits. The Plaintiffs claim their rights under the Maharashtra Ownership Flats Act (MOFA)against Defendant Nos.1 to 3 as the developers and Defendant Nos.4 to 10 as the owners of the suit property. 2.The agreement of each of the Plaintiffs is unregistered. It is insufficiently stamped. It is contended on behalf of the Plaintiffs that since the Plaintiffs are claiming their rights under the MOFA, the agreements need not be registered. These rights 3 would be against Defendant Nos.1 to 3 alone since they are the developers and the promoters of the building on the suit property. 3.The suit property belongs to and is owned by Defendant Nos.4 to 10. It is the case of the Plaintiffs that there was an agreement between Defendant Nos.1 to 3 as the developers and Defendant Nos.4 to 10 as the owners, executed on 7.3.2000, under which the owners agreed to allow the developers to develop the suit property. The Plaintiffs have not relied upon or annexed the said agreement. The Plaintiffs Advocate has been unable to show that agreement when called upon. 4.The developers and the owners entered into another Agreement dated 20th October 2000. That agreement is relied upon by Defendant Nos.4 to 10, which is at Exhibit-1 to their Written Statement. The Plaintiffs Advocate drew my attention to that agreement. Under that agreement, it is agreed between the developers and the owners that the developers would be entitled to develop the entire property as per the sanctioned plans and would be entitled to 45% of the total built up area from the flats constructed on the suit property. The owners would be entitled to 55% of the total built up area and would be entitled to retain the same for their own use or to sell those flats themselves. 4 5.Therefore, the developers could enter into agreements with prospective flat purchasers in respect of 45% share which would come to the entitlement of the developers. It would, therefore, have to be ascertained what is that 45% share. The flat purchasers would, therefore, have to see whether their flats fall within that 45% and whether the construction of that 45% share is as per the sanctioned plans and specifications. 6.It is the case of Defendant Nos.4 to 10 that the builder has developed the property far in excess of FSI and has jeopardised their 55% share which rightfully belonged to them as per their agreement with the developers. Consequently, the Bombay Municipal Corporation (BMC) sent reinstatement notices for demolition of the unauthorised portion of the construction. 7.It is in view of this defence that it would be material to see whether the agreements relied upon by the Plaintiffs, as having been entered into by them with the developers, were actually entered into on the dates specified therein. The agreement of the Plaintiffs with the developers is an unregistered, short, cryptic agreement. It recites about the agreement of the owners with the developers. It also mentions about the 5 approved plans of the BMC and the CC having been obtained. It then mentions about the agreement for sale of the specified flats and the flat area for a specific amount which the Plaintiffs agreed to purchase. The receipt clause shows payment for a specified sum. It is not shown how the sum was paid. It is not shown to be paid by cheque. It is simplicitor signed as receipted by the developers. 8.It is seen that though it is admitted that Defendant Nos.4 to 10 are the owners and the developers have entered into the agreement, the specific rights of the owners are not shown. In fact, those rights are not heeded. Those rights are in respect of 55% of the total built up construction. Since the developers are stated to have far exceeded the FSI and developed far in excess of the approved plans, it will have to be seen whether the Plaintiffs agreements would fall specifically within the 45% share of the developers. That is not shown. 9.No prima facie case is made out for grant of any relief. All the Notices of Motion are dismissed. No order as to costs. (SMT.ROSHAN DALVI, J.) 6