Interim Order 1

Order Details: Other
Pdf Text: 1 Ad-Int Order-NM 4973-19 in SU17-2020
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT MUMBAI.
ORDER ON AD INTERIM RELIEF ON
NOTICE OF MOTION NO. 4973 OF 2019
(CNR no. MHCC010135572019)
IN
SUIT NO. 17 OF 2020
(CNR no. MHCC010135552019)
Diamond Hill Cooperative Hsg. Soc. Ltd. ]
a Society, Registered and Incorporated ]
under the provisions of Maharashtra Cooperative ]
Societies Act, 1960, and having its Registered Office ]
at CTS No.13/13, Sion Trombay Road, ]
Kurla (E), Chunabhatti, Mumbai400022 ]
Through Badshah Mehmood Ansari ]
Chairman of Diamond Hill CHS Ltd. ]
Age : 53 years, Occ – Business ]... Plaintiff
Versus
M/s. M. K. Realty ]
Through its Partners ]
Mr. Kunal Pankaj Rawal & ]
Mr. Manoj B. Vora ]
Having address at F14, 1 st Floor, ]
Prime Mall, Irla Lane, Vile Parle (W), Mumbai400056. ]....Defendant
Appearances:
Ld. Advocate Mr. Akshay Shah for the Plaintiff.
Ld. Advocate Mr. Bipin Joshi for the defendant.
CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 4)
DATED : 8th January, 2020
O R A L O R D E R O N A D I N T E R I M R E L I E F
1. Perused Plaint, Notice of Motion, documents annexed to
the plaint and heard both sides. The defendant/developer developed
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two wings A and B of the plaintiff society consisting of residential and
commercial tenements. The purchasers have collectively formed ths
society which is the plaintiff. The plaintiff's Society has filed instant suit
against the defendant/developer for declaration and permanent
injunction restraining the said defendant/developer from dealing with
suit property or any part or portion thereof, as also not to deal with or
sell, transfer and/or dispose of any flats or units in the proposed
building/additional structure to be constructed on the suit property as
well as the FSI relating to the suit property or any part or portion
thereof to third party and/or from carrying on any activity of
construction on the suit property or any part or portion thereof. Ld.
Advocate for the plaintiff has shown approved plan dated 26.07.2004
(page no.103 and 104 of the plaint) and the proposed lay out plan
(page no.102 of the plaint) and pointed out that the
defendant/developer has increased length of the plinth and he is also
making an attempt to construct G+16 storied building of “C” wing
when disclosure of “C” wing, as required by the provisions of The
Maharashtra Ownership Flats Act, 1963 (hereinafter "MOFA”), was
G+4 storied building only and therefore, if the defendant/developer is
permitted to construct G+16 building then it will directly affect
occupants of “A” and “B” wing as ventilation will be affected, toilets of
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“B” wing shall not be accessible in future for further maintenance
hence, ventilation of toilet will be blocked. According to him the letter
of architect dated 30.11.2019 (page no.30 of plaint) also shows that the
plinth area in the earlier proposal was 19.64 X 12 mtrs. And in the new
proposal it is 28 X 12 mtrs. From the above, Ld. Advocate for the
plaintiff alleges that if temporary injunction is not granted against
defendant/developer, he will complete construction of the building
G+16 floors which will not only affect the above rights of the plaintiff
but it is also in contravention of the provisions of MOFA.
2. Ld. Advocate for the defendant/developer argues that the plaintiff
society was registered on 06.01.2017 subject to condition that the
members of the plaintiff society would not obstruct the construction of
the building by defendant/developer and this facts is suppressed by
plaintiff society, all things are disclosed by the developer to the
planning authority i.e. Municipal Corporation of Greater Mumbai. He
has also argued that the flats are sold at a very cheaper rate the
plaintiffs and the said concession was given to them so that they would
not obstruct the construction of C wing in future. Ld. Advocate for the
defendant/developer has also shown one Flat Purchase Agreement in
2008 wherein it is shown that wing C consists of G+7 or more upper
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floors. The learned advocate submits that perusal of various clauses of
the agreements with flat takers would reveal that there is specific
provision that the developer reserves right to make additional
construction so as to use full potential of the plot. From all these
arguments, Ld. Advocate for the defendant/developer wants to suggest
that there was full disclosure of the scheme to the members of plaintiff
society and therefore, the project of the defendant/developer need not
to be stopped which will cause irreparable loss to him or to prospective
flat purchasers.
3. Both the Ld. Advocates have relied upon various case laws. After
going through the said cases, the judgment in Malad Kokil Co
Operative Housing Society Vs. Modern Construction Co. Ltd. and
others [2012 SCC online Bombay 130] holds the field. It lays down
that at the time of execution of the agreement with the flat takers the
promoter is obliged statutorily to place before the flat takers the entire
project/scheme, be it a one building scheme or multiple number of
buildings scheme. These judgments further propound that the promoter
is not only required to make disclosure concerning the inherent FSI, he
is also required at the stage of lay out plan to declare whether the plot
in question in future is capable of being loaded with additional
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FSI/floating FSI/TDR and if promoter has placed entire scheme before
the flat takers at the time of flat purchase then the promoter is not
required to prior consult with flat taker as long as construction is as per
lay out plan, building rules and DCR.
In this matter, it is very clear that the defendant/developer is
making impugned construction not in accordance with the full
disclosure made to the flat takers. The construction which is now sought
to be made is in total contrast with the project layout that was
presented to plaintiff society members at the time of the agreements.
There is horizontal increase in the area under construction. In such
circumstances, the defendant/developer cannot be permitted to start
the construction unless there is consent of the members of the plaintiff's
society. If the structure of G+4 is converted in towering structure of
G+16 stories, the entire scenario would change. The number of
additional members that would reside on the same plot would increase
by substantial numbers thereby laying down an additional load on the
infrastructure, amenities, facilities etc. available on the said flats. In any
case, if the construction of the defendant/developer is permitted, the
very purpose of requiring him to make full and complete disclosure
would stand frustrated. In view of the above legal exposition and
factual backdrop, this is a fit case to grant adinterim relief. Hence,
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following order:
ORDER
1. Adinterim relief in terms of prayer clause (6) of the Notice of
Motion is granted till next date.
2. However, the above order will not prevent the
defendant/developer from making construction of the building (c
wing) in accordance with the approved lay out plan of the said
wing dated 26.07.2004.
(C. V. Marathe)
Judge,
Date : 08.01.2020 City Civil Court, Gr. Mumbai.
Dictated on : 08.01.2020
Transcribed on : 09.01.2020
Signed by HHJ on : 09.01.2020
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 10.01.2020 at 12.06 a.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With
Court Room no.)
HHJ Shri. C. V. Marathe
C.R. no.04
Date of Pronouncement of
JUDGMENT/ORDER
08/01/2020
JUDGMENT/ORDER signed by
P.O. on
09/01/2020
JUDGMENT/ORDER uploaded
on
10/01/2020
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