Final Order 2

Order Details: Notice of Motion
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IN THE BOMBAY CITY CIVIL COURT FOR GREATER MUMBAI
NOTICE OF MOTION NO.4973 OF 2019
(CNR NO.MHCC010135572019)
IN
S. C. SUIT NO.17 OF 2020
Diamond Hill Cooperative Housing )
Society Limited. )..Plaintiff
V/s.
M/s. K. M. Realty )..Defendant
Appearances :
Ld. Adv. Ashish Mishra for plaintiff.
Ld. Adv. Pradeep Gandhy for defendant.
CORAM : HIS HONOUR JUDGE
SHAIKH AKBAR SHAIKH JAFAR
COURT ROOM NO.03
DATE : 22/02/2023.
ORDER
1 The instant suit is filed by Housing Society of building A and
B Wing constructed on CTS No.13/13, SionTrombay Road, Kurla (East),
Chunabhatti, Mumbai. The plaintiff Society has come with the case that
the defendant is a promoter of the site having CTS No.13/13, and the
plaintiff is housing Society of the flat owners of A and B Wing. The
defendant has not complied with the provisions of Maharashtra
Ownership of Flats Act, omitted to form the Society and to execute
conveyance in favour of the Society. The defendant also failed to
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provide audited accounts and did not hand over the papers and
documents of the Society. The defendant had also failed to provide the
required amenities i.e. water connection, electric meters, to pay arrears
of property taxes and to finish the incomplete works of A and B Wing. It
is further contended that without completing all this work, the
defendant has started the project of C Wing that is beyond the terms of
agreement, without disclosing the entire layout plan and intended to
construct 17 floors which is not mentioned in the agreement of sale,
proceeded to amalgamate the project and started the construction
thereon. Therefore, the plaintiff Society filed this suit restraining the
defendant from raising the construction in C Wing beyond the layout
plan with multiple reliefs and filed this notice of motion for interim
reliefs.
2 In response to notice, the defendant appeared resisting the
contention of plaintiff. Both the parties were heard by my Ld.
Predecessor on the point of entitlement of plaintiff for adinterim relief.
Rival parties have relied on various case laws during the argument.
Upon considering the facts of the case, the arguments of rival parties and
the cited case laws, my Ld. Predecessor granted adinterim relief in terms
of prayer clause (6) of notice of motion vide order dated 08/01/2020.
3 Heard rival parties at length. During the course of argument
and considering the rival pleading of parties, it is noticed that the
defendant has not filed reply to this notice of motion. Thus, the
defendant has adopted the reply filed to the notice of motion
No.200/2020 vide pursis Exh.16 as the reply to this notice of motion.
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The defendant has denied the allegations of the plaintiff Society and
submitted that the defendant has right and authority to construct the
additional TDR and FSI, which is potentially available and the consent of
flat purchasers is also obtained while executing the agreement for sale.
Lastly, the defendant prayed for rejection of the notice of motion.
4 Heard the Ld. Counsel for plaintiff and defendant. The
defendant has submitted written notes of argument in addition to oral
submissions.
5 On going through the order dated 08/01/2020 passed by
this Court granting adinterim injunction, it appears that the matter was
fully heard, citations mentioned in written notes of argument were also
cited before my Ld. Predecessor at the time of hearing of adinterim
relief. Perused the written notes of argument and reply. It is mentioned
in the agreements that the defendant is reserving the right to utilize
potential FSI available. According to the defendant, this clause of
reserving the right is sufficient to hold that the consent of flat purchaser
is obtained in the agreement and the defendant has every right to raise
the construction. Per contra, it is the contention of plaintiff that it is a
blanket consent obtained without full disclosure of future construction.
However, the copy of agreement dated 17/06/2005 enclosed with the
plaint shows that as per the agreement, C Wing consists of Ground floor
with 4 upper floors. The defendant has submitted a copy of agreement
dated 28/12/2007, it is mentioned that C Wing consists of ground floor
plus 7 or more upper floors. Thus, while executing the agreement filed
by plaintiff with plaint, defendant did not mention C Wing having
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ground plus 7 floors, thus, defendant did not disclose full layout plan
while executing agreement filed with plaint. The discrepancy regarding
the plan of construction of C wing in both agreements is sufficient to
draw the inference that the plaintiff has substance in its contention.
Thus, question arose whether full/extended layout plan was disclosed to
purchaser at the time of agreement ? It is to note that the defendant was
permitted to carry out construction of the building (C Wing) in
accordance with the approved lay out plan of the said Wing dated
26/07/2004.
6 It is well settled that the provisions and rules of
Maharashtra Ownership of Flats Act requires the promoters to put the
additional construction only in accordance with the layout plan disclosed
to the flat purchaser at the time of entering into the contract of sale of
flats. If the building site contains future development potentiality or
possibility of further construction, it is duty of the promoter to disclose
such future construction in the layout plan. This requirement is very
well observed by the Hon'ble Bombay High Court in para 11 of
judgment passed in the case of Vitthal Laxman Patil Vs. Kores (India)
Ltd. & Ors. reported in MANU/MH/0089/2019. In the instant case, the
plaintiff is claiming that the defendants are raising construction without
mentioning in the layout plan. Considering the inconsistency in the 2
agreement regarding C Wing, it is incumbent on the defendant to
establish that there is full disclosure as per the requirement of provisions
of the Maharashtra Ownership of Flats Act. The defendant is also
required to prove that the consent of flat purchasers obtained as
contemplated under Section 7(1) of the Maharashtra Ownership of Flats
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Act is an informed consent, which is to be obtained upon full disclosure
by the developer of the entire project, as held by Hon'ble Bombay High
Court in the case of M/S. Dosti Corporation Vs. Sea Flama Co
Operative Housing Society Limited & Ors. reported in 2016 (5)
Mh.L.J. 102. The defendant is required to adduce evidence to establish
these facts, which is not possible at this stage. Thus, I am of the view
that the adinterim relief granted by my Ld. Predecessor is proper and
deserves to be confirmed till pending of the suit.
7 It is pertinent to note that the plaintiff has taken out the
notice of motion No.269/2020, claiming disobedience of order of ad
interim granted by this Court on 08/01/2020, seeking the relief under
Order XXXIX Rule 2A of Code of Civil Procedure, praying to put the
authorised person of defendant in Civil Prison. In reply, the defendant
claimed that neither the plaintiff nor the defendant have challenged the
adinterim order, and sought dismissal of the contempt notice of motion.
It is to note that while granting the adinterim relief in this motion, the
Court had clearly observed that the defendant is not raising construction
in accordance with the full disclosure made to flat purchasers and
construction, and is in total contrast with the project layout which was
presented to the members of plaintiff Society at the time of agreement.
Thus, the contention raised by the defendant in notice of motion
No.269/2020, is also applicable to this notice of motion and adinterim
order required to be confirmed as defendant omitted to challenge the ad
interim order dated 08/01/2020.
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8 Considering the facts and circumstances and above
discussions, I am of the view that citations relied by defendant will not
help it at this stage, therefore, the adinterim order dated 08/01/2020
deserves to be confirmed till pendency of the suit. Hence, I proceed to
pass the following order :
O R D E R
1. Notice of Motion No.4973/2019 in S.C. Suit
No.17/2020, is disposed off as follows :
2. Adinterim order dated 08/01/2020 in notice
of motion No.4973/2019 stands confirmed till
the pendency of the suit.
3. Notice of Motion is disposed off accordingly.
(Dictated and pronounced in open Court).
(Shaikh Akbar Shaikh Jafar)
Judge, City Civil Court,
Dated : 22/02/2023 C.R. No.03, Gr. Mumbai
Dictated on : 21/02/2023
Transcribed on : 22/02/2023
Signed on :
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“Certified to be true and correct copy of the original signed order”.
22/02/2023
at about 05.45 p.m.
(Ms. Sonali S. Sawant)
Stenographer (GradeIII.)
Name of the Hon'ble Judge : Shaikh Akbar Shaikh Jafar,
Judge, City Civil Court &
Addl. Sessions Judge
Court Room No.03, Gr. Mumbai
Date of pronouncement of Order : 22/02/2023
Order signed by Hon'ble Judge on : 22/02/2023
Order uploaded on : 22/02/2023
at about 05.45 p.m.
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