1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.1039 of 2008 IN Suit No.1305 of 2004 Devshi Narayan Makwana … … Plaintiff v/s. Ajinkyatara Co-Op.Hsg. Sty.Ltd. … Defendant Mr.R.C. Shah with Mr.K.M.Sangani for Plaintiff. Mr.G.A. Tambe for Defendant. ----- CORAM : SMT.ROSHAN DALVI, J. DATED : 17 th July, 2008 P.C. : 1. The Plaintiff is the contractor who had agreed to construct 11 flats for the Defendant- Society under two Agreements dated 2.6.1995. The Plaintiff was to be paid at the rate of Rs.4400/- per sq. ft. of construction. The Plaintiff was to construct 400 sq. ft. of area. The Plaintiff constructed 6 flats and consequently put up 2400 of construction. The Plaintiff has, therefore, to be paid at the rate of Rs.400/- for 2400 of construction so far put up. The Plaintiff claims that amount. 2 2. The Plaintiff’s agreed rate is required to be paid by the Defendant. The Plaintiff is impliedly obligated to put up construction of reasonable quality. 3. There is a dispute as regards the Plaintiff’s construction. There has been correspondence between the parties. The Plaintiff has claimed that the amount of the construction cost is not paid. Part payment has also made. The Defendant has claimed that in fact the Plaintiff is required to refund some amount because excess amount of Rs.1,26,760/- has been paid by the Defendant. The Plaintiff also claims development charges and the right to further construction of the remaining FSI. However, the fact remains that out of the agreed 11 flats, the Plaintiff has constructed only 6 flats and has not shown even his readiness and willingness to construct further by way of any overt act. The fact that other flats are already got constructed by the Defendant shows impliedly the Plaintiff neglect to perform his part of the contract. 4. There are some disputes with regard to the Administrator Mr.B.S. Gamre who entered into the Agreement with the Plaintiff and in respect of whom certain other litigations are pending. The Plaintiff’s 3 claim is essentially for the recovery of the cost of construction put up and the amount for development charges. The particulars of the development charges under Exhibit- I are not substantiated. That will have to be considered in the Suit. 5. The fact remains that the two Agreements were entered into with the Plaintiff on 2.6.1995. The Defendant claims that these Agreements have been terminated because the Plaintiff did not put up construction as agreed and the Defendant has got their own flats constructed. The Defendant has also not shown the particulars of the construction put up by them and the cost incurred for such construction either through another contractor or directly by themselves. 6. It is the Plaintiff’s case that he has not put any of the Defendant’s members in possession and hence, juridical possession remains with him, but because some of the members had dire need, they were made allowed to occupy. Though in the Suit the amount due and payable to the Plaintiff for the construction actually put up would have to be seen and determined, the Defendant's members who are occupying some of the flats constructed by the Plaintiff, cannot be allowed 4 to further create third party interest therein pending the Suit. The Plaintiff requires the amount of construction work to be paid. The Defendant has required their flats to be constructed and to obtain the juridical possession of the flats. This dispute is amenable to the settlement, essentially by mediation. Both Advocates state that Court may appoint any Mediator to bring to end the dispute between the parties. Mr.Abhaykumar M. Shah is appointed Mediator to work out options for an amicable settlement of the entire dispute between the parties. 7. Consequently, the Notice of Motion is made absolute in terms of prayer (a). The Defendant shall not create any third party rights in the flats which are now occupied by 6 occupants shown in the prayer clause (a), pending the Suit. 8. The Notice of Motion is disposed of accordingly. (SMT.ROSHAN DALVI, J.) 5