Final Order 1

Order Details: Notice of Motion
Pdf Text: 1
MHCC010072012019
Presented on : 15-07-2019
Registered on : 15-07-2019
Decided on : 09-03-2020
Duration : Seven months 24 days
IN THE COURT OF CITY CIVIL COURT AT GR.BOMBAY
NOTICE OF MOTION NO.2622 OF 2019
IN
S.C. SUIT NO.2912 OF 2015
1. Terra Co-operative Housing Society Limited,
a Society registered under the Maharashtra
Co-operative Societies Act, 1960 having its
address at Old Simplex Mills Compound, 30,
Keshavrao Khadye Marg, Near Jacob Circle,
Sant Ghadge Maharaj Chowk, Mahalaxmi
(East), Mumbai-400 011
2. Aqua Co-operative Housing Society Limited,
A Society registered under the Maharashtra
Co-operative Societies Act, 1960 having its
address at Old Simplex Mills Compound,30,
Keshavrao Khadye Marg, Near Jacob Circle,
Sant Ghadge Maharaj Chowk, Mahalaxmi
(East), Mumbai-400 011
3. Strata Co-operative Housing Society Limited,
A Society registered under the Maharashtra
Co-operative Societies Act, 1960 having its
address at Old Simplex Mills Compound,30,
Keshavrao Khadye Marg, Near Jacob Circle,
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Sant Ghadge Maharaj Chowk, Mahalaxmi
(East), Mumbai-400 011 ..Plaintiffs
Vs
1. Simplex Realty Limited
(formerly known as Simplex Mill Company
Limited)
a company deemed to be incorporated under
the provisions of Companies Act, 1956 having its
address at Old Simplex Mills Compound,30,
Keshavrao Khadye Marg, Near Jacob Circle,
Sant Ghadge Maharaj Chowk, Mahalaxmi
(East), Mumbai-400 011
2. Godrej Properties Limited
A company incorporated under the
provisions of Companies Act, 1956 having
its registered office at Godrej Bhavan,
4th floor, 4A Home Street, Fort, Mumbai
400 001.
3. Electra Co-operative Housing Society
Limited, A Society registered under the Maharashtra
Co-operative Societies Act, 1960 having its
address at Old Simplex Mills Compound,30,
Keshavrao Khadye Marg, Near Jacob Circle,
Sant Ghadge Maharaj Chowk, Mahalaxmi
(East), Mumbai-400 011
4. Celesta Co-operative Housing Society
Limited, A Society registered under the Maharashtra
Co-operative Societies Act, 1960 having its
address at Old Simplex Mills Compound,30,
Keshavrao Khadye Marg, Near Jacob Circle,
Sant Ghadge Maharaj Chowk, Mahalaxmi
(East), Mumbai-400 011 ..Defendants
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APPEARANCE
Ld. advocate Mr.Chaudhary with Adv. Ranbir Singh alongwith
Naser Rizvi i/b Thakore Jariwala and Associates for plaintiff
Ld. advocate Mr.Bhadang alongwith Thakkar, Paulomi Mehta,
Heena Panchal i/b Federal and Co. for defendant no.1
Ld. advocate Chandana Salgaonkar for defendant no.2
CORAM : HIS HONOUR JUDGE
SHRI M.SALMAN AZMI
(C.R.NO.01)
DATE : 9th March, 2020
ORAL ORDER
1. This notice of motion is tendered by the
plaintiffs
interalia for restraining defendant nos.1
and 2 from carrying out any construction,
development activity on any portion of the property
described in Ex.A-1 and Ex.A-2 to the plaint and or
any portion of the suit property, beyond save and
accept the area of 579.71 sq. meters.
2. Heard.
CASE OF THE PLAINTIFFS IN SHORT
3. The suit was initially filed by the
plaintiffs restraining defendant no.1 from
encroaching, interfering, disturbing or dispossessing
the plaintiffs and also seeking permanent injunction
against the defendants from carrying out any
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construction activity on the said portion of the suit
properties or any part thereof. The property at Ex.A-1
to the plaint is piece and parcel of free hold land
admeasuring 28717.62 sq. meters and Ex.A-2 is piece
and parcel of lease hold land admeasuring 7836.18
sq. meters. Further relief was claimed for restraining
defendant nos.1 and 2 from carrying out
development activity on the portion of land
admeasuring 579.71 sq. meters save and except for
construction of commercial building.
4. The present notice of motion is filed on
the premise that on or about 08/12/2018 the
member of the society noticed marking on free hold
land portion of the suit plot adjoining the
demarcated portion of 579.71 sq. meters. The
construction material was dumped at the site. The
member of the plaintiffs society issued e mail dated
08/12/2018 and called upon the director of
defendant no.1-Mr.Nandan Damani to explain about
the markings and any intention to undertake any
construction on the said portion of the suit
properties. Defendant no.1 commenced digging
activity and started bringing pre construction
material on the said portion of the suit property. The
plaintiffs issued letter dated 10/12/2018 through
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their advocate to defendant no.1 and called upon
them to confirm that they are not acting in breach of
order dated 23/12/2013. Defendant no.1 vide letter
dated 12/12/2018 raised frivolous issues and denied
the contention of the plaintiffs. The plaintiffs vide
their advocate’s letter dated 17/12/2018 once again
pointed out that activity carried out by defendant
no.1 suggest that defendants are carrying out the
construction activities beyond the scope of the order
dated 23/12/2013 and the plaintiffs also called upon
them to give inspection of the plan/permission on
which the purported construction activity is sought to
commence. Defendant no.1 failed to give inspection.
On 21/12/2018, defendant no.1 attempted to change
the existing boundaries by erecting MS metal sheets
in the connecting passage between the Planet Godrej
compound and the disputed plot. Defendant no.1
attempted to illegally demarcate and/or sub-divide
the suit properties and to prevent the plaintiff’s
access to about 4000 sq. meters of the portion of the
suit properties. The complaint was lodged with
Agripada police station. After complaint, the work of
fencing was stopped by the defendants. However,
the digging and earth-clearing work with heavy
earth-moving equipment was continued on the
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portion of the suit property. Defendant no.1 vide
reply dated 07/01/2019 refused to give inspection of
the sanctioned plan. The contention of the plaintiffs
is that the construction activity is in breach of the
provisions of MOFA Act and MOFA agreement.
Defendant no.1 and 2 can only reconstruct or
refurbish beyond the existing portion of land
admeasuring 579.71 sq. meters. Defendant nos.1
and 2 cannot construct on any portion of the suit
properties beyond the plinth area of the old office
structure situated on the land admeasuring 579.71
sq. meters. The said reconstruction on the existing
portion of the land admeasuring 579.71 sq. meters
has to be limited to non-residential commercial
building. On this premise, the present notice of
motion came to be filed.
5. The plaintiffs sought ad interim relief
which was rejected by this Court. Subsequently the
plaintiffs have filed additional affidavit in support of
the notice of motion. While rejecting the interim
application the Court has given direction to
defendant no.1 to disclose and supply copies of the
building plans and permission etc. relating to the
construction activities within eight weeks from the
date of passing of the said order. The plaintiffs have
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filed additional affidavit and contended that plans as
now amended is also contrary to the Development
Agreement agreed between defendant no.1 and 2
which is expressly for the development of suit
property. The development agreement does not
provide development of commercial land. No
disclosure towards such amended layout plans as
originally disclosed to the flat purchasers of the
plaintiffs society and any informed consent of the flat
purchaser was obtained to amend plan. Defendant
no.1 is in breach of the MOFA agreement. The
proposed construction vacant portion of the suit
properties (apart from and beyond the exempted
portion of 579.71 sq. meters) is in violation of Clause
40 of the MOFA agreement. The amended plan
discloses that the proposed construction is of the
structure having a plinth area of 42.5 meters x 28
meters, resulting in a structure having a plinth area
of 1190 sq. meters. The entire F.S.I. in the entire
open land is encroached upon is already been used
for the construction of the existing residential
buildings including those of the plaintiffs societies.
By clause 40 of the MOFA agreement, defendant
no.1’s right is restricted to either ‘re-construction’ or
‘re-furbishing’ existing office building. After 3 to 4
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weeks, the plaintiffs noticed that defendant no.1 had
brought heavy construction machinery on the site
and carrying out certain pre-construction activity and
may again start excavation work. The defendant no.1
served affidavit-in-reply to plaintiffs on 28/06/2019.
Additional affidavit was filed seeking ex-parte
injunction. Thereafter this Court rejected the prayer
for interim relief. The matter was carried before the
Hon’ble High Court and the Hon’ble High Court
directed to decide this notice of motion expeditiously.
Contention of defendant no.1
6. The contention of defendant no.1 is that
plaintiffs assertion that they do not have notice
of/are not in possession of the sanctioned plan based
on which the defendant no.1 is intending to carry out
development of the commercial premises is false and
is only intended to harass defendant no.1. Defendant
no.1 has pointed out the instances by which it can be
said that the plaintiffs were aware about the plans.
The notice of motion is in contradiction to the
plaintiffs own admission in paragraphs 3(n) and 4 of
the plaint that defendant no.1 is in possession of land
to the excess of 579.71 sq. meters which has not
been handed over to the plaintiffs. No conveyance
till date is executed nor any case for the same is
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pleaded in the present suit. Defendant no.1 admitted
to be the owners of the subject property i.e. portion
of free hold land admeasuring 28137.91 sq. meters
and is presently under no obligation to execute any
conveyance as per the agreed terms. Plaintiff’s only
objection was for construction of residential building.
Defendant no.1 is not constructing residential
building and in fact defendant no.1 is intending to
develop commercial premises. Hence, no case is
made out in the notice of motion. Defendant no.1
obtained IOD dated 04/06/2007 and
Commencement certificate dated 07/01/2009 and
same have been duly re validated by re-validation
letter dated 07/12/2018. Defendant no.1 has
already partially demolished the old building. It is
further the contention of defendant no.1 that
application for interim reliefs suffers from substantial
and inordinate delay. Defendant no.1 commenced
construction activities and appointment project
management consultant. The built up area of the
existing old office structure as set out in the IOD
dated 19/05/2003 is 1685 sq.meters. Under
Regulation 32 of the Development Control
Regulations for Greater Bombay, 1991, the land
component of the old office structure with built up
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area of 1685 sq. meters with an FSI of 1.33 would be
1267 sq. meters. It was only the plinth area of the
old office structure which was 579.71 sq. meters and
was recognized and identified as such in the MOFA
agreement. Defendant no.1 prayed for dismissal of
the notice of motion.
7. On the rival submissions of the parties,
following points arise for my determination and
findings to it are recorded for the reasons stated
hereinafter:-
POINTS
1. Whether the plaintiffs have made out
case in it’s favour?
2. Whether needle of balance of
convenience tilt in favour of the
plaintiffs?
3. To whom the irreparable loss would be
caused?
4. What order?
FINDINGS
1. In the affirmative
2. In the affirmative
3. To the plaintiffs
4. As per final order
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REASONS
Point Nos. 1 to 3
8. The entire dispute at present revolves
around two issues. The pleadings of the parties are
exhaustive and even the arguments were lengthy.
The core issue is that whether defendant no.1 is
entitled to carry out construction on free hold land
i.e. construction to be restricted on the existing
commercial structure. The second issue is that the
construction can only up to 579.71 sq. meters plinth
area. As far as first issue is concerned, the argument
of the Ld. Counsel for the plaintiffs is that clause
(XIV) of the MOFA agreement clears the doubt that
defendant no.1 has to carry out the construction of
the commercial structure at the place where the
structure exist. For the ready reference clause (XIV)
of the MOFA Agreement is reproduced as under:-
“There exists an old office structure(for commercial
use)on a portion of the said entire land admeasuring
579.71 square meters approximately and which
portion is demarcated on the said Plan No.1 in green
colour boundary line and more particularly described
in the Second Schedule, hereto which is occupied by
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the Owner, its Associates and Tenants. The owner
may decide to refurbish or demolish the said old
office structure and construct a new commercial
building consisting of ground and upper floors on a
portion of the said land described hereinafter.”
9. Ld. Counsel for defendant no.1 argued
that plaintiffs and defendant nos.3 and 4 societies are
not the owners of the free hold land vide Ex.A-1 to
A-3 of plaint. Defendant no.1 is still the owner of the
free hold land. He pointed out that clause (40) of
the MOFA agreement contemplates that the owner
may decide to demolish and/or refurbish the said old
office structure and construct in its place or on any
portion admeasuring 579.71 square meters
approximately of the freehold land a new commercial
building. Therefore, the argument that the defendant
no.1 has to restrict it’s construction of the
commercial structure at the place where it exists is
not contemplated in MOFA Agreement. For the ready
reference clause (40) of the MOFA agreement is
reproduced as under:-
“The owner may decide to demolish and/or refurbish
the said old office structure and (construct in its
place or on any portion) (admeasuring 579.71 sqater
meters approximately) of the free hold land a new
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commercial building (consisting of ground and upper
floors)with the approval permission and consent of
all local and Government bodies and authorities
concerned and on such terms and conditions as may
be mutally agreed upon between the owner and
developer.”
10. It is also argued on behalf of defendant
no.1 that clause 41(d) of the MOFA agreement makes
clear that in case defendant no.1 decides to form a
separate society of the refurbished or reconstructed
commercial structure and also decides to merge all
its rights in respect of the land and commercial
building retained by defendant no.1, then five
societies would be formed of four residential tower
and one of non residential commercial tower. After
completion of the development of the said lands and
after all available FSI in relation to the said lands are
fully consumed and all residential buildings and non-
residential commercial building and structures in
Planet Godrej have been completed then a Federal
Society of purchasers of flats units and premises in
the buildings and structures in Planet Godrej shall be
formed and registered and in whom the said lands
and the buildings and structures shall be legally
vested as the owner or lessee. He further argued that
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as per clause 41(e) of the MOFA agreement, if the
owner decides not to form a separate society of the
refurbished or reconstructed non residential
commercial building and not to merge all its right,
title and interest in respect of the land and
commercial building retained by it, defendant no.1
may execute lease in respect of freehold land and
sub-lease of leasehold land in favour of the five
societies jointly. He would submit that as on day
neither such conveyance in favour of Federal Society
in respect of freehold land is executed nor any lease
is executed jointly in favour of five societies. He
would submit that the land of the five societies and
that of the owner are separate. The same cannot be
identified and demarcated at this juncture.
Therefore, defendant no.1 can carry out construction
at any portion of freehold land.
11. As far as the contention of defendant
no.1, at this prima facie stage is concerned that still
the ownership is with defendant no.1 is not valid
ground for the claim of defendant no.1 to carry out
construction on any portion of free hold land.
Defendant no.1 is bound by development agreement
and also by the MOFA agreement. The clause (40) of
the MOFA agreement is clear and unequivocally
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suggest that defendant no.1 can carry out the
construction on the free hold land. Prima facie from
plain reading of clause (XIV) and 40 of the MOFA
agreement it appears that there is no restriction for
defendant no.1 for construction of commercial
premises in place of existing commercial premises
exist. Therefore the argument of the Ld. Counsel for
the plaintiffs that defendant no.1 cannot construct
the commercial premises at any place except on the
existing place where the commercial premises exist
does not find place in the MOFA agreement.
12. The learned counsel for the defendant
No. 1 argued that defendant No. 1 has obtained IOD
dated 19 May 2003. The fact is within the knowledge
of the plaintiffs. This plan shows that the building
No. 1 was to be constructed in a Y shape design as
opposed to how they now have been actually
constructed in a T-shape. This plan also shows
various mill structures as being retained since no
permission of closure of mill had been obtained till
this stage. This plan also shows parking for industry
on portion of the freehold and leasehold land which
is not falling within the portion of the land
admeasuring 579.71 m² on which old office structure
was then standing. This plan does not show any
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podium or land to be handed over to
MCGM/MHADA. It is argued on behalf of defendant
No. 1 that with respect to the existing old office
structure and the entitlement of the defendant No. 1
the plan of the year 2003 expressly record built-up
area of the existing old office structure as 1694.22
m². Even it is argued on behalf of the defendant No.
1 that the pro forma of IOD makes a specific
reference to the land component of the existing built-
up area in terms of 2003 clarification Urban
Development Department of Government of
Maharashtra(hereinafter referred to as ‘UDD’). The
plaintiffs were disclosed with the plan of 2003 had
express knowledge that the existing office structure
was having a built-up area of 1685 m². So the land
component with an FSI 1.33 for area of
1685 m² will be 1267 m².
13. The learned counsel for the plaintiffs
argued that the IOD dated 19 May 2003 and 17th
September 2003 is the only plan disclosed to the flat
purchasers at the time of entering into the MOFA
agreements. He argued that the relevance of this IOD
and plans disclosed in the MOFA agreements was to
the limited extent of demonstrating the plans
disclosed to the flat purchasers in the MOFA
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agreements and showed the building of defendant
No. 1 occupying an area of 579.71 m² and did not
show any commercial structure beyond that area of
the said land. It also argued on behalf of the plaintiff
that if land or land component in excess of 579.71
m² was to be retained by defendant No. 1, then, since
the UDD clarification predates the MOFA agreements
and unequivocally provided for retention of larger
land or land component if that had been the
agreement between the parties. The MOFA
agreements restrict land on which
refurbished/reconstructed or retained structure of
even can exist as being on 579.71 m² only.
14. The UDD clarification is dated 28 March
2003 it provides that,
“As per Regulation 58 (1) (b),
open lands and balance FSI shall be considered as
per column (2) of the table therein. This area is to be
worked out by deducting the land component at FSI
1.33 in city and 1.00 in suburbs required for existing
built-up from total plot area. Further, the land
available after demolition of the existing structures,
even if these same are proposed to be reconstructed
as per sub regulation (6) and user is proposed to be
changed from Industrial to that of Commercial or
Residential as per sub regulation 1 (a) (iii) shall not
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be accounted for applicability of DCR 58 (1) (b).”
15. The argument of the learned counsel for
the plaintiffs appears to be acceptable for the reason
that the IOD is after the above clarification
clarification. The clause 4 of Development Agreement
dated 24/09/2004 between the defendant No. 1 and
defendant No. 2 provides development of the
freehold land admeasuring 28717.62 m² excluding
579.71 m² on which the commercial building is
existing. If the clause xiv and 40 of the MOFA
agreements are read carefully it prima facie suggests
that defendant No. 1 is entitled for construction of
building on any portion admeasuring 579.71 m². At
the time of the development agreement and the
MOFA agreements the clarification of UDD was
already in existence. Had it been the case that the
defendant No. 1 intended to retained the land more
than 579.71 square metre as was entitled as per the
said clarification, then same would have been
conveniently incorporated in the development
agreement and the MOFA agreements. The plan of
2003 shows only built up area of existing office
building as 1685 m² but by itself it does not mean
that defendant no.1 is entitled to land component
proportionate to it. Although as per UDD
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clarification, defendant no.1 is entitled for same but
but the development agreement and MOFA
agreements prima-facie speaks about entitlement of
area of 579.71 m² by defendant No.1. The parties
are bound by the agreements. At this juncture the
argument learned counsel for the defendant No. 1 is
not acceptable in that regard.
16. The learned counsel for the plaintiffs
argued that since October 2004 onwards plans
appears to have been amended time to time. Fresh
IOD was obtained showing a new commercial
building proposed in the area adjoining the existing
old commercial building. The old existing office
structure was proposed to be demolished. IOD plans
were amended on 19 September 2008 we showed a
commercial building for IT user for the 1st time a
different location, in the area adjoining the existing
old office structure. The learned counsel for the
plaintiffs further pointed out that none of these plans
were disclosed to the plaintiffs or even those have
not been the part of the subsequent MOFA
agreements. Defendant No. 2 started giving
possession after occupation certificate for towers 1
(Terra) and 2 (Aqua) was received on or around 18
January 2008. Full occupation certificate for wings
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C(Electra) andD (Strata) were received on 13 April
2009 and 25 June 2010. The plans were not attached
to the possession letters issued by defendant No. 2 to
the flat purchasers. Therefore, the flat purchasers had
no occasion to know about the IOD dated 19
September 2008 and the commencement certificate
dated 7 January 2009.
17. The learned counsel for the defendant
No. 1 argued that the plaintiffs were aware about the
IOD dated 4 June 2007, 19 September 2008 and the
commencement certificate dated 7 January 2009. He
pointed out instances to demonstrate the knowledge
of the plaintiffs which are summarised as under: –
(i)Plaintiff No. 3 filed application for registration as a
Co-operative Housing Society in or around 2009
which discloses that the building occupation
certificate has been obtained from the promoter.
(ii)In some of the correspondences, the Societies
called upon the defendants to complete the
construction of the boundary wall to separate the
land in physical possession of defendant No. 1 being
an area admeasuring 4000 m² known as the Simplex
Compound from the land occupied by the 5 Co-
Operative Societies.
(iii)The written statement dated 4 March 2014 filed
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by defendant No. 1 oppose the application for
deemed conveyance filed by plaintiff No. 1 expressly
refers the OC plan dated 13 April 2009.
(iv)The order of the Registrar Co-operative Societies
dated 12 September 2014 records the documents
submitted by the society and one of the documents is
an attested copy of OC plan dated 13 April 2009. The
plaintiff No. 3’s averments in application for deemed
conveyance makes clear that the plaintiff No. 3 was
aware of the plans.
(v)Defendant No. 1 had filed writ petition No. 8393
of 2015 challenging order dated 30 July 2015
granting deemed conveyance to defendant No. 3 and
wherein the defendant No.1 had fully disclose details
of the commercial premises.
(vi)Defendant No. 3 is supporting the plaintiffs
issued a letter dated 21 July 2015 to the
Commissioner, MCGM seeking withdrawal of IOD/CC
proposed building No. 2 on freehold land.
18. The learned counsel for the defendant
No. 1 argued that the plaintiffs were well aware
about the IOD obtained on 4 June 2007, amended on
19 September 2008. Now it does not lie in the mouth
of the plaintiffs to state otherwise. They did nothing
for years together and with malafide intention filed
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this notice of motion. Their conduct amounts to
waiver of the right. He also pointed out the minutes
of the AGM plaintiff No. 3 society dated 26 August
2018 set out the reasons for filing of the suit by the
plaintiffs and record the purpose of the suit is solely
to put pressure on defendant No. 1. The notice of
motion is nothing but an abuse of process of law to
pressurise the defendant No. 1 to bow down to the
irrelevant demands of the plaintiffs.
19. The plaintiffs have annexed with the
plaint a MOFA agreement dated 21 September 2007
in respect of a flat in Tower-4 . The said agreement
shows IOD dated 19 May 2003 and CC dated 17
September 2003. On the day of said agreement fresh
IOD dated 4th of June 2007 was in existence, then for
what reason the IOD dated 19 May 2003 was
annexed is not explained either by the defendant No.
1 or defendant No. 2 . Therefore, it gives prima facie
strength to the argument of the plaintiffs that the
fresh IOD and CC were not passed to them or to the
individual flat purchasers.
20. The learned counsel for the plaintiffs
argued that the application for formation of societies
were made by defendant No. 2 and the forms were
verified by the employee of defendant No. 2. The
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application and the documents were annexed by the
defendant No. 2. Neither the societies nor individual
flat purchasers made application.
21. On the date of application for
registration of individual societies, the plaintiff
societies were not in existence. Further there is no
material at this stage to suggest that the applications
were made & signed by the individual flat
purchasers. It prima facie appears that the
applications were made by defendant No. 2 on behalf
of the proposed societies.
22. Even if it is assumed from the above
circumstances pointed out by the defendant No. 1
that the plaintiffs had knowledge of the amended
IOD dated 19 September 2008, if they failed to take
objection at the relevant time will amount to waiver
of their right and they estopped from challenging the
same. The learned counsel for the plaintiffs placed
reliance upon the following judgments to
demonstrate that mere plaintiffs not objecting as
soon as they got the knowledge of the amended IOD
will not amount to waiver.
(1) All India Power Engineer Federation and Ors.
V/s. Sasan Power Limited and Ors., (2017) 1
Supreme Court Cases 487.
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(2) P. Dasa Muni Reddy V/s. P. Appa Rao, (1974) 2
Supreme Court Cases 725.
(3) Dr. Karan Singh V/s. State of J & K and Anr.,
(2004) 5 Supreme Court Cases 698.
(4) Gyarsi Bai and Ors., V/s. Dhansukh Lal and
Ors., AIR 1965 SC 1055.
23. I had given conscious consideration the
above cited judgments. In the case of All India Power
Engineer Federation, the Hon’ble Apex Court held
that,
“21. Regard being had to the aforesaid decisions, it
is clear that when waiver is spoken of in the realm of
contract, Section 63 of the Contract Act, 1872 governs.
But it is important to note that waiver is an intentional
relinquishment of a known right, and that, therefore,
unless there is a clear intention to relinquish a right that
is fully known to a party, a party cannot be said to waive
it. But the matter does not end here. It is also clear that if
any element of public interest is involved and a waiver
takes place by one of the parties to an agreement, such
waiver will not be given efect to if it is contrary to such
public interest. This is clear from a reading of the
following authorities.”
24. In the case of P. Dasa Muni Reddy
(supra) it is held by the Hon’ble Apex Court that,
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“13…….Waiver actually requires two parties, one party
waiving and another receiving the beneft of waiver.
There can be waiver so intended by one party and so
understood by the other. The essential element of waiver
is that there must be a voluntary and intentional
relinquishment of a right. The voluntary choice is the
essence of waiver. There should exist an opportunity for
choice between the relinquishment and an enforcement
of the right in question……..”
25. There is no material prima facie at this
stage to ascertain that the plaintiffs waived their
right to challenge the fresh IOD pursuant to which
the defendant No. 1 intended to carry out
construction beyond the area 579.71 m² on the
freehold land. In view of the above exposition of law
it is clear that mere knowledge to the plaintiffs about
the same and immediate inaction of the plaintiffs will
not amount to waiver.
26. In the case of Gyarsi (supra) the Hon’ble
Apex Court held that,
“8….To invoke the doctrine of
estoppel three conditions must be satisfed: (1)
representation by a person to another, (2) the other shall
have acted upon the said representation, and (3) such
action shall have been detrimental to the interests of the
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person to whom the representation has been made……
”
27. The principle laid down in the case of
Gyarsi was reiterated in the case of Dr. Karan Singh.
Thus it is clear that there is nothing at this stage
prima facie to demonstrate the defendant No.1 made
express representation to the plaintiffs that they will
act upon the amended IOD and pursuant to the same
plaintiffs have acted upon. Therefore, the argument
of defendant No. 1 at this juncture is not sufficient to
consider that the plaintiffs by principle of estoppel
are estopped from challenging the amended IOD.
28. The other question which remains
unanswered by the defendant No. 1 is that the
knowledge of IOD dated 4 June 2007 and amended
IOD dated 19 September 2008 amounts to previous
consent of the flat purchasers. Section 7 of the
Maharashtra Ownership Flats (Regulation of
Promotion of Construction, Sale, Management &
Transfer) Act, 1963 envisage previous consent of the
flat purchasers is required for alteration in the
structures described in the plans and specifications of
the building approved by the local authority which
are disclosed to the flat purchasers. There is nothing
from the side of the defendant No. 1 to suggest that
any previous consent was taken from the flat
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27
purchasers or the respective societies for getting the
plan amended for the commercial structure to be
constructed by the defendant No. 1. The learned
counsel for the plaintiffs argued that fresh IOD dated
4th of June 2007 and amended on 19 September
2008 are obtained without previous consent of the
plaintiffs or of the individual flat purchasers, thus the
same are in contravention with provisions of section
7 Of the Act. To buttress his stand, the learned
counsel for the plaintiffs placed reliance upon the
following judgments;-
(1) Eternia Co-Operative Housing Society Ltd. &
Ors. V/s. Lakeview Developers and Ors., (2015) 5
Bom CR 680.
(2) Malad Kokil Co-Operative Housing Society Ltd.
& Anr. V/s. Modern Construction Co. Ltd. & Ors.,
2013(2) Bom. C.R.414.
(3) Madhuvihar Co-operative Housing Society &
Ors. V/s. Jayantilal Investments & Ors., 2010(6)
Bom.C.R. 517.
4) Ravindra Mutenja & Ors. V/s. Bhavan
Corporation & Ors., 2003(5) Bom.C.R. 695.
(5)Lakeview Developers and Ors. V/s. Eternia Co-
operative Housing Society Ltd. & Ors., 2015 SCC
Online Bom 3824.
28
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28
29. I have considered the law laid down in
the above judgments. The Hon’ble Bombay High
Court in the above judgments held that if the
construction which is sought to be made was not a
part of layout which was placed before the flat taker
at the time of agreement, the consent as required
under section 7 of the Act would be necessary. Prima
facie there is no such consent of the flat purchaser
and therefore the argument of knowledge to the
plaintiffs or the flat purchasers will not dilute the
requirement of section 7 of the Act.
30. The Ld. Counsel for defendant no.1 has
placed reliance upon the judgment of Hon’ble
Bombay High Court in the case of Grand Paradi Co-
operative Hsg. Society Ltd. & Ors. V/s. Mont Blanc
Properties & Industries Pvt. Ltd. & Anr., (2011) 5
Bom CR 249.. I failed to understand as to how the
law laid down in this judgment is applicable in
present case. In the case of Grand(supra) the
consent was given by the members of the plaintiff’s
society in the year 1971 with full knowledge of law
then in force. There is no such contingency in the
present case. On the contrary, the said judgment
reiterate the position of obtaining previous consent of
flat owners for raising additional structures if the
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29
same is not disclosed and it has been held that “
It is
thus clear that the builder is always entitled to raise
additional structures if he discloses the additional
structures in the lay-out plan itself at the time when
he sales the flats. No consent of the flats owners is
necessary for raising additional structures. But if the
additional structures are not disclosed in the layout
plan then previous consent of the flat owners is
necessary.”
31. It is argued on behalf of the defendant
No. 1 that the suit was basically for injunction
restraining the defendant No. 1 and 2 from carrying
out any development activity on the said portion of
land measuring 579.71 m² save and except for
constructing a commercial building as per the
agreements. He would submit that the entire nature
of the suit has been changed. The fresh IOD was in
existence on the day of filing of the suit. Now the
plaintiffs cannot claim the relief of temporary
injunction from carrying out the construction by the
defendant No. 1. The relief claimed by the plaintiffs
in that regard appears to be barred by law of
limitation.
32. The learned counsel for the plaintiffs
argued that inspite of obtaining fresh IOD, the
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30
defendant No. 1 did not commence the construction
activity pursuant to the said IOD. Therefore, there
was no occasion for the plaintiffs to claim relief
against the defendant No. 1. It is further argued that
the right to sue has accrued as soon as the defendant
No. 1 started the construction activities. In order to
support his contention, the learned counsel for the
plaintiffs placed reliance upon following judgments:-
(1) MST Rukhmabai V/s. Lala Laxminarayan &
Ors., AIR 1960 SC 335.
(2) Mohanlal V/s. State of Madhya Pradesh and
Ors., AIR 1980 Madhya Pradesh 1.
33. The question of limitation is a mix
question of fact and law. It would not be proper at
this stage to jump to the conclusion that the relief
claimed by the plaintiffs by way of this notice of
motion at the face is barred by limitation. In this
regard the law laid down in the case of Rukhmabai
(supra) would be helpful to the case of the plaintiffs.
It has been held by the Hon’ble Apex Court, “34. The
legal position may be briefy stated thus: The right to sue
under Article 120 of the Limitation Act accrues when the
defendant has clearly and unequivocally threatened to
infringe the right asserted by the plaintif in the suit.
Every threat by a party to such a right, however
31
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31
inefective and innocuous it may be, cannot be
considered to be a clear and unequivocal threat so as to
compel him to fle a suit. Whether a particular threat
gives rise to a compulsory cause of action depends upon
the question whether that threat efectively invades or
jeopardizes the said right.”
34. The commencement of construction
activities by the defendant No. 1 prima facie appears
to be infringement of the right of the plaintiffs and
accordingly the relief in that regard is claimed. Thus
in view of the law laid down in the above cited
judgment of Rukhmabai the argument of the learned
counsel for the defendant No. 1 does not hold good.
35. It is further argued if at all the fresh IOD
was obtained in the year 2007 and amended in the
year 2009, then also fresh cause of acttion for a suit
for injunction would be the date on which the
defendant No. 1 started construction activity. The
plaintiffs contention finds assurance in the above
cited judgment of Mohanlal. So prima facie at this
stage it would be proper to uphold the contention of
the plaintiffs that the act and omission of the
defendant No. 1 to undertake the construction
activity in or around December 2018 gave rise to a
fresh cause of action to the plaintiffs to claim relief of
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32
injunction in that regard against the defendant No. 1.
Even otherwise the dispute between the parties
should be resolved in a single compass . There should
not be room for multiple litigations in respect of
these similar nature of the disputes. Therefore at this
stage the argument of defendant No. 1 in that regard
is not convincing.
36. The argument is canvassed that the
entire construction of defendant no.1 is only to the
extent of 379 sq. meters which is less than 579.71 sq.
meters. The other portion is used for parking and it
will not be considered as a plinth area. The
argument of Ld. Counsel for defendant no.1 is that
the definition of plinth as per section 2(71) of
Development Control Regulation Rules Greater
Mumbai is that the portion of structure between the
surface of the earth and surface of the floor
immediately above the ground. The reply of
defendant no.1 dated 16/09/2019 under the head
‘Development Timetable’, clause (vi) clearly shows
that defendant no.1 has disclosed to the flat
purchasers in the MOFA agreement that defendant
no.1 and his tenants having a plinth area of 579.71
sq. meters and built up area of 1685 sq. meters.
Further statement in clause (vii) that it was known to
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33
the flat purchasers that it was only the plinth area
that was 579.71 sq.meters and not the proportionate
land of the building. Further they stated that the flat
purchasers were aware and must be deemed to be
aware that the old office structure having a greater
built up area would be deemed to occupy a
proportionate land greater than 579.71 sq. meters.
The fact that 579.71 sq. meters is the plinth area and
it has been admitted by the plaintiffs in their affidavit
and pleadings. On perusal of the map which is
attached with the additional affidavit dated
25/07/2019 which is at page no.25 shows ground
floor plan. The constructed portion on ground floor
is in T-shape and attached to the construction is
parking area wherein the recommendations of
parking has been shown. The argument of the Ld.
Counsel for the plaintiffs is that area of the parking
cannot be said to be a plinth area but the plan shows
that there are pillars and the entire area of the
ground has been utilized. The other map is typical
ground floor map which shows that the construction
is raised above the parking area. The map which is
at page no.37 is terrace floor plan shows that parking
is at basement and ground floor in double height
above the ground floor of the parking four floors are
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34
raised wherein IT office has been shown. The plan
thus shows the construction on the ground over and
above 579.71 sq.meter area.
37. The plaintiffs are seriously disputing the
construction of the defendant no.1 beyond the area
579.71 sq. meters. The defendant no.1’s contention
is that as per the clarification of 2003, he is entitled
to a land component of 1273.85 sq. meters. As
discussed above, the clarification were in existence
before the development agreement entered between
defendant no.1 and defendant no.2 and the MOFA
agreements. From the plan, it reflects that the
construction of the plaintiffs is extending to an area
of 1190 sq. meters on the ground. The entitlement
of the plaintiff to a land component of 1273.85 sq.
meters and extending the construction beyond
579.71 sq. meters on the ground is a question to be
decided at the trial. At this juncture, the
development agreement and the MOFA agreements
are the important documents governing the rights of
the parties which prima facie does not disclose the
right of the defendant no.1 to extend beyond 579.71
sq. meters. The Ld. Counsel for the plaintiffs argued
that if the defendant no.1 proceeds with the
construction it would give rise to complications and
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-- 34 of 37 --
35
multiplicity of proceedings. He would further submit
that situation would be irreversible. To support his
case, he placed reliance of judgment of Hon’ble Apex
Court in the case of Gangubai Bablya Chaudhary and
others V/s Sitaram Bhalchandra Sukhtankar and
others (1983)4 Supreme Court cases 41.
38. I have considered the law laid down in
the above cited judgment. In case injunction is not
granted and defendant no.1 proceed with the
construction and if the plaintiffs succeed in the trial,
the situation may become irreversible by that time.
39. The Ld. Counsel for the plaintiffs also
placed reliance upon the judgment of Hon’ble
Bombay High Court in the case of Shri. Cutchi Visa
Oswal Derawasi Jain Pathshala, through its Chairman
Virchand Koonverji Korani V/s, Shri. Cutchi Visha
Oswal Derawasi Jain Mahajan, through its Chairman,
Popatlal Bharmal Sah and Anr., (2005) 107 (2) Bom
LR 483 to point out the parameters for grant of
interim injunction. There is no quarrel about the law
laid down by the Hon’ble Bombay High Court in the
above cited judgment.
40. After considering the facts of the case
prima facie it is apparent from the plan that the
defendant no.1 intended to cover ground area of
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36
42.50 x 28 sq. meters=1190 sq. meters. Thus, the
proposed construction on an area of 1190 sq. meters
is prima facie contrary to the MOFA agreements and
Development agreement.
41. At this stage, the issue is that if
defendant no.1 proceeds on the basis of the amended
plans and construct the building and create third
party interest it would lead to complications. It
would cause serious prejudice to the plaintiffs.
Therefore needle of balance of convenience tilt in
favour of plaintiffs.
42. As pointed above, if defendant no.1
proceeds with the construction and create interest of
third party, it would cause irreparable loss to the
plaintiffs which would not be compensated in terms
of money and hence it is necessary to restrain
defendant no.1 to carry out the construction in terms
of the IOD dated 04/06/2007 and amended on
19.09.2008. Hence, I answer point nos.1 to 3 in the
affirmative.
Point No.4
43. In view of the above discussions and
findings to point nos.1 to 3, notice of motion needs
consideration. Hence, it is expedient to pass
following order:-
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37
ORDER
1. N/M No.2622/2019 is allowed.
2. The defendant no.1 is hereby restrained
from carrying out the construction pursuant to the
IOD issued under no.EB/2791/E/A dated 04.06.2007
and amended approval issued under letter dated
19.09.2008 and commencement certificate issued
under no.EB/2791/E/A dated 07.01.2009
revalidated on 07.12.2018.
3. Costs in the cause.
4. N/M No.2622/2019 is disposed off
accordingly.
09/03/2020 M.SALMAN AZMI
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 09/03/2020
Transcribed on : 14/08/2020
Signed on : 05/01/2021
'CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
05/01/2021 at 3.20 pm.
MRS.T.C.KAMBLE
Name of the Judge HHJ SHRI M.S.AZMI, CR NO.1
Date of Pronouncement of judgment/order 09/03/2020
Judgment and order signed by P.O. 05/01/2021
Judgment/order uploaded on 05/01/2021
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