1 ao796.11-783-784judg..sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION. Appeal from Order No. 796 of 2011 Mrs. Veena S. Makhija ....Appellant v/s. Budhrani Housing Developers Pvt. Ltd. ....Respondents WITH Appeal from Order No. 783 of 2011 Mohan B. Mathani ....Appellant v/s. Budhrani Housing Developers Pvt. Ltd. ....Respondents WITH Appeal from Order No. 784 of 2011 Mr. Kishore L. Narang ....Appellant v/s. Budhrani Housing Developers Pvt. Ltd. ....Respondents Mr. Rohan Cama a/w. Durgesh Singh i/b. M/s. India Law for the appellants. Mr. Girish Paryani for the respondents. CORAM: R.M. BORDE, J. 04th October, 2011 ORAL JUDGMENT: These Appeals from Order are directed against the order passed by the City Civil Court on 13th December, 2010 directing return of plaint on the ground that the Court has no pecuniary jurisdiction to entertain the suit. 2. It is the case of the appellants-original plaintiffs that they booked units 2 ao796.11-783-784judg..sxw bearing different numbers ad measuring around 500 sq. ft in proposed industrial building on the plot of land bearing City Survey No. 41, Village Tangaw, Sakhi Vihar Road, Andheri (E) for a sum of Rs. 6,75,000/- and has paid sum amounting to Rs. 67,500/- as advance. The respondent builder issued allotment letter allotting the units and acknowledged the payment of advance money. The entire sale consideration was paid to the respondents and the request was made to the respondent developer to execute the agreement as per clause 5 of the allotment letter. Inspite of several requests and reminders, the respondent developer-original defendant failed to execute the agreements to hand over the possession of the premises to the plaintiffs. As such the plaintiffs were constrained to file suits before the City Civil Court, Mumbai seeking direction against the respondent builder to execute the registered agreement of sale in favour of appellants-original plaintiffs and enforce the statutory obligations under Maharashtra Ownership Flats Act, 1963. 3. The respondents-original defendants raised the objection in respect of undervaluation of the claim and contended that provisions of Section 6(iv)(j) of the Bombay Court Fees Act are not attracted and the plaints presented by the plaintiffs are required to be returned on account of want of pecuniary jurisdiction of the Court. Entertaining the request made by the respondent- original defendant, the trial Court has passed impugned order. 4. At the outset, it will be appropriate to note that in similar circumstances different suits were presented impleading defendant as party. The objection to the jurisdiction of the Court was raised by the same defendants and that was turned down by the trial Court. The matters were carried to this Court being Civil Revision Application No. 31/2011 and other companion matters. This Hon’ble Court while considering the identical objection raised by the defendant turned down the same and confirmed the order passed by the trial Court holding 3 ao796.11-783-784judg..sxw that the Court does have jurisdiction to entertain the suits. 5. It has been observed by this Court while dealing with the matters in para nos. 6-10 as quoted below:- “6. I have carefully considered the submissions. The consistent view taken by this Court in the decisions in the case of Vrindavan (Borivali) Co-op Housing Society Ltd. Vs. Karmarkar Brothers and others [1983 (2) Bombay Cases Reporter 267], Maria Philomina Pareira Vs. M/s.Rodrigues Construction (supra) and Parekh Market Premises Co-op. Society Ltd. Vs.Padmanabh Builders & Org. [Bombay Case Reporter (1998) Vol. 100 (1)] is that when a flat purchaser files a suit for enforcing the obligations of the developer under the said Act, the subject matter of the suit is not susceptible of monetary evaluation and hence, section 6(iv)(j) of the Court Fees Act will apply. 7. The case made out by the respondent is that the applicant agreed to sell a commercial unit in the proposed building to the respondent and accordingly a letter of allotment was issued by the applicant. The case is that the entire consideration has been paid by the respondent from time to time to the applicant. It is contended that under section 4 of the said Act it is the obligation of the developer to execute a registered agreement for sale in favour of the flat purchaser. There are further obligations of the developer such as handing over possession of the flat agreed to be sold, the execution of conveyance etc. 8. The averments made in the plaint clearly make out a case that the applicant had agreed to sale a flat/unit in the building proposed to be constructed and that the transaction was in accordance with the provisions of the said Act. 9. Looking to the prayers made in the suit which are quoted above, it is crystal clear that the respondent- plaintiff is trying to enforce obligations of the applicant-developer under the said Act. There is no prayer made seeking specific performance of a contract. The fact that the agreement for sale has not been executed is totally irrelevant as it is admittedly an obligation of the developer to execute an agreement for sale in accordance with section 4 of the said Act. 10. Therefore, as far as nature of the suit and valuation thereof made by the respondent is concerned, the view taken by the 4 ao796.11-783-784judg..sxw trial Court is legal and proper. Whether the respondent proves the case made out on merits and whether the respondent is entitled to relief of enforcement of the obligations under the said Act are the questions which will have to be decided at the time of final hearing of the suit. Even the issue whether there is a subsisting and binding contract between the parties is a matter to be decided at the time of final hearing of the suit. Suffice it to say that no fault can be found with valuation of the suit made in accordance with section 6(iv)(j) of the Court Fees Act. The law consistently laid down by this Court has been followed.” 6. The plaintiffs are also similarly circumstanced and the same view which is adopted by the learned Single Judge of this Court in the similar matter needs to be adopted here also. Section 4 of the MOFA Act reads thus “4. Promoter before accepting advance payment or deposit to enter into agreement and agreement to be registered.(1) Notwithstanding anything contained in any other law, a promoter who intends to construct or constructs a block or building of flats, all or some of which are to be taken or are taken on ownership basis, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than 20 per cent. Of the sale price enter into a written agreement for sale with each of such persons who are to take or have taken such flats, and the agreement shall be registered under the (Registration Act, 1908 (XVI of 1908); (and such agreement shall be in the prescribed form); {1A The agreement to be prescribed under sub-section (1) shall contain interalia the particulars as specified in clause (a); and to such agreement there shall be attached the copies of the documents specified in clause (b)- (a) particulars- (i) if the building is to be constructed, the liability of the promoter to construct it according to the plans and specifications approved by the local authority where such approval is required under any law for the time being inforce; (ii) the date by which the possession of the flat is to be handed over to the purchaser; (iii) the extent of the carpet area of the flat including the area of the balconies which should be shown separately; 5 ao796.11-783-784judg..sxw (iv) the price of the flat including the proportionate price of the common areas and facilities which should be shown separately, to be paid by the purchaser of flat; and the intervals at which installment thereof may be paid; (v) the precise nature of the organization to be constituted of the persons who have taken or are to take the flats; (vi) the nature, extent and description of the limited common areas and facilities; (vii) the nature, extent and description of limited, common areas and facilities, if any; (viii) percentage of undivided interest in the common areas and facilities appertaining to the flat agreed to be sold; (ix) statement of the use for wh ich the flat is intended and restriction on its us, if any; (x) percentage of undivided interest in the limited common areas and facilities if any appertaining to the flat agreed to be sold; (b) copies of documents,- (i) the certificate by an Attorney-at-Law of Advocate under clause (a) of sub-section (2) of section 3; (ii) Property Card or extract of Village Forms VI, VII and XII or any other relevant revenue record showing the nature of the title of the promoter to the land on which the flats are constructed or are to be constructed; (iii) the plans and specifications of the flat as approved by the concerned local authority.” 7. It is a statutory obligation on the part of the respondent-defendant to execute registered agreement after receiving advance sum in respect of alienation of the units. The defendant has failed to perform the statutory obligations under the provisions of MOFA Act and as such the suits presented by the plaintiffs seeking directions to the respondent-defendant to perform the 6 ao796.11-783-784judg..sxw obligations under the Act comes within the purview of Section 6(iv)(j) of the Bombay Court Fees Act. Reliance is placed by appellant on the judgment in the matter of A.K. Velu v/s. K.S. Ramkrishnan & anr. 1983(1) Bom. C.R.338 decided by the Single Judge of this Court. The respondents in the reported matters were the complainants who had presented criminal complaint making grievance in respect of violation of provisions of MOFA Act, 1963. It was found that agreement was not registered in favour of the complainant. As such the Court took the view that no criminal liability can be fastened as against the developer and as such allowed the criminal application presented to the High Court. 8. The facts giving rise to the dispute before the Court in the reported matter are totally different and it relates to imposition of the criminal liability whereas instant suits presented by the plaintiffs are for direction to the defendant-builder to perform the statutory obligations under Section 4 of the MOFA Act. 9. The ratio laid down in the judgment cited does not apply to the facts of the instant case and is, therefore, not relevant for consideration of this matter. I deem it appropriate to adopt the same view as has been adopted by the learned Single Judge in Civil Revision Application No. 31/2011. The Revision Petitions were presented by same defendant and in respect of same property, however, the suits were presented by different individuals. There can be no dual opinion about applicability of precedence in the instant matter. The Appeal from Order, therefore, need to be allowed. The same are accordingly allowed. 10. The orders passed by the Judge, City Civil Court on 13th December, 2010 in the different Suit Nos. being S.C. Suit No. 816/2010, 818/2010, 817/2010 are quashed and set aside. 7 ao796.11-783-784judg..sxw 11. In the facts and circumstances of this case there shall be no order as to costs. (R.M.BORDE, J)