Usha Mehra ( 1 ) R. L. BHARDWAJ, plaintiff herein, is one of the membershareholder of defendant Co-operative Group Housing Society consisting of 50members as its shareholders. With the funds contributed by the members and thefinancial assistance availed from institutions, work of construction of flat was takenup and completed by the Society in the year 1986-87. The constructed Apartment/building was given the name of shivalik Apartments . The price of each allottedflat on the ground floor, first floor, second floor and third floor was fixed. The costfor additional fixture with an individual flat was also fixed. In a meeting ofmembers held on 10/08/1986 each member was allotted a flat. Plaintiff wasallotted flat No. 47. It is the case of the plaintiff that terrace attached to the flat i. e. roof above flat No. 44 was allotted to the plaintiff. The roof above flat No. 44 issituated on second floor in Block-B of the complex. It is further the case of theplaintiff that price of each category of flat was inclusive of the terrace/roof. Defendant society entered into an agreement with the plaintiff. The flat No. 47 isassessed in the name of the plaintiff in the assessment list of the Municipalcorporation of Delhi. All taxes are paid by him. Plaintiff is in exclusive use,enjoyment and possession of the premises in question. The Delhi Apartmentownership Act, 1986 (In short the Act) provides for the ownership of an individualapartment in multi-storeyed building and of an undivided interest in the commonareas and facilities pertaining to such apartments. The said Act defines apartmentas well as common areas and facilities and the rights of the owner of the flat vis-a-visbuilding society. ( 2 ) IT is in this background that the present application was filed seekinginterim relief. Defendant Society filed the reply therein and denied the applicability of the Act and also denied the exclusive right of the plaintiff in the use andenjoyment of the terrace attached to his flat. Defendant Society also took the pleathat if the relief sought is granted by this Court it would amount to decreeing thesuit as a whole. Moreover, the terrance/ roof of flat No. 44 was never in theexclusive use, possession and enjoyment of the plaintiff nor it formed part of hisflat No. 47. The roof or the terrace as the case may be is a common area to be usedand enjoyed by all the members of the Society. Moreover, the terrance/ roof of flat No. 44 was never in theexclusive use, possession and enjoyment of the plaintiff nor it formed part of hisflat No. 47. The roof or the terrace as the case may be is a common area to be usedand enjoyed by all the members of the Society. The exclusive use and possessionclaimed by the plaintiff amounts to depriving other members of the Society of thisfacility. In fact all the members of the Society contributed towards the commonfacilities including the terrace and roof. "the price of the carpet area of the flat wascharged excluding the area of the terrace. ( 3 ) I have heard Mr. A. K. Singhla for the plaintiff and Mr. S. K. Rungta fordefendant-Society and perused the record. ( 4 ) ADMITTEDLY, the main relief sought in the suit seeking declaration that thesociety is governed by the provisions of Delhi Apartment Ownership Act, 1986 andthat the terrace above the roof of flat No. 44, attached to flat No. 47 formed part ofplaintiff s apartment. Mr. Rungta rightly contended that any relief given as aninterim measure would amount to decreeing the suit, because in the main suit alsoplaintiff has sought relief of declaration that the terrace/roof belonged to him. Ifthis Court as an interim measure hold that the plaintiff is the exclusive owner of theroof/terrace, it would amount to accepting the suit of the plaintiff qua this reliefeven without going through the trial. The plaintiff has placed on record a copy ofan agreement. It has not been signed by any one on behalf of the Society. It onlybears the signature of the plaintiff but on behalf of the Society no one signed, thoughaccording to the plaintiff reference of the terms of this agreement were read andapproved in the General Body Meeting of the Society. This fact is yet to be proved. The contention of Mr. Singhla that alongwith the agreement there was a scheduleattached as Annexure-B indicating that flat No. 47 was inclusive of roof of flat No. 44. I am afraid, prima fade this view cannot be taken. Because reading of thealleged typed agreement and the typed schedule and annexure attached with itshow that initially it was printed that flat No. 47 was excluding the roof butsubsequently it appears the word excluding had been deleted in hand and theword including was inserted. I am afraid, prima fade this view cannot be taken. Because reading of thealleged typed agreement and the typed schedule and annexure attached with itshow that initially it was printed that flat No. 47 was excluding the roof butsubsequently it appears the word excluding had been deleted in hand and theword including was inserted. It is not known at what stage it was so inserted. This has yet to be established. That apart the fact remains that these documentshave not been signed on behalf of the Society. Time was sought by the plaintiff inorder to place the original agreement on record duly signed by both the parties. Butinstead of filing such documents, the plaintiff has filed two affidavits, one of Sh. R. P. Mehta and other of Sh. Ramesh Chand besides giving break-up of cost of flatson the first, second and third floors. Affidavits of Mr. Mehta as well as Mr. Rameshchand have been relied by the plaintiff mainly to show that open terrace/roof oftheir own flat or that of the flat adjacent to their flat were meant for their exclusiveuse. ( 5 ) AS a matter of fact in order to establish a prima fucie case the plaintiff oughtto have placed on record the duly executed agreement between the parties, but theplaintiff has miserably failed to place any such record. As already observed above,the purported agreement appears to have not been executed as it is not signed byany authorised representative of the society. The Society in fact had taken specificstand that no agreement was executed. To rebut the same the burden was heavyon the plaintiff to discharge. Therefore, without recording the evidence, it cannotbe declared that open terrace/roof formed part of the plaintiff s flat or that it wasmeant for his exclusive use and enjoyment. To strengthen his arguments Mr. Rungtaplaced reliance on the price list/index and the cost charged for the carpet area ofthe flat as well as for the common areas and facilities provided. This prima fadeproves that open terrace was not part of or in the ownership of any individual. From the allottee of first floor flat. Society charged the cost for the balcony. The areaunderneath the balcony on the first floor was inclusive of the carpet area of that flat. Therefore, it cannot be said that the balcony provided on the first floor would be acommon area. From the allottee of first floor flat. Society charged the cost for the balcony. The areaunderneath the balcony on the first floor was inclusive of the carpet area of that flat. Therefore, it cannot be said that the balcony provided on the first floor would be acommon area. It has been exclusively used by the occupier of that flat because itform part of the carpet area. Balcony formed part of the flat, therefore, the flatowner paid full price of the carpet area inclusive of the balcony area. Prima fadeit cannot be said that the plaintiff or the like have been discriminated. Similarlyopen space on the ground floor, according to defendant, has always been used byall flat owners of the complex as common facility. Hence it cannot be said that theopen space provided on the ground floor is in the exclusive use of the flat owner ofthe ground floor flat. Hence, no analogy can be drawn from the use of the balconyarea exclusively by the first floor owner. Hence, flat owners on second and thirdfloor will not automatically become entitled to the exclusive use of the area on theirroof top or of the terrace of the adjacent flat. In fact, like the plaintiffotherindividual flat owners also paid Rs. 900. 00 for the use of the terrace/roof. Plaintiffhaving paid only Rs. 900. 00 like other flat owners, prima fade cannot stake betterright on the terrace of flat No. 44 by simply paying that Rs. 900. 00. Other flat ownersmay not be in need of using the roof/terrace but that does not mean plaintiff has abetter right. In fact till such time evidence is recorded, it cannot be said that plaintiffhas exclusive right of enjoyment of this area. By use of this common area by otherflat owner no right of the plaintiff would be infringed, nor any prejudice would becaused to the plaintiff. On the other hand, if injunction is granted, it would conferabsolute individual right on the plaintiff to the detriment of other members of thesociety. According to Society, roof being a common area nominal rates werecharged. Society was not fool enough to permit by giving away an area of 49. 2sq. mt. for mere Rs. 900. 00 in case of LIG flats. Whereas for LIG flat, carpet area asper Society s record is 68. 85 sq. mt. for which Society charged Rs. 1,42,813. According to Society, roof being a common area nominal rates werecharged. Society was not fool enough to permit by giving away an area of 49. 2sq. mt. for mere Rs. 900. 00 in case of LIG flats. Whereas for LIG flat, carpet area asper Society s record is 68. 85 sq. mt. for which Society charged Rs. 1,42,813. 00 and forhalf the carpet area Society charged only Rs. 900. 00. Society distributed the price listamongst all the allotees in which the roof/terrace has been shown as a commonarea. Hence, to my mind, plaintiff has failed to prima fade make out any case forinjunction. Even the balance of convenience is also not in favour of the plaintiffbecause in case plaintiff succeeds this area will fall to his exclusive use andenjoyment and can also be compensated. However, in case he looses then in thateventuality other flat owners would have been deprived of the use of this areabecause of being injucted by this Court. ( 6 ) MR. Singhla also took up legal submissions. Section 3 (j) of the Act defines"common areas and facilities" but parties by agreement can say that particulararea is not a common area. This is so provided under Sections 3 (g) and 24 of the Act,which Sections are reproduced as under:-Section 3 (g): "authority" includes any authority constituted or established byor under any law for the time being in force;section 24 : Act to be binding on apartment owners, tenants, etc.- (1) Theprovisions of this Act shall have effect notwithstanding anything inconsistenttherewith contained in any other law for the time being in force or in anycontract, undertaking or other instrument and all apartment owners, tenantsof owners, employees of owners and tenants, or any other person who may,in any manner, use the property or any part thereof to which this Act applies,shall be subject to the provisions of this Act and the bye-laws and the rulesmade thereunder:provided that nothing contained in this sub-section shall affect the right, titleor interest acquired by any allottee or other person in common areas and facilitiesfrom any promoter on or before the 28th day of February, 1986. (2) All agreements, divisions and determinations lawfully made by theassociation of Apartment Owners in accordance with the provisionsof this Act and the bye-laws shall be deemed to be binding on allapartment owners. (2) All agreements, divisions and determinations lawfully made by theassociation of Apartment Owners in accordance with the provisionsof this Act and the bye-laws shall be deemed to be binding on allapartment owners. Reading of Section 3 (j) of the Act makes it clear that roof falls under thedefinition of "common areas and facilities", therefore also the plaintiff is notentitled to the interim relief. . Besides the legal submission, on merits the contentionof Mr. Singhia that the architect had given classification before allotment of the flatthat terrace/roof was not a common area. Reference in this regard can be had tothe letters dated 3/06/1988 and 6/11/1989. But I am afraid this doesnot prima facie amounts to concluded contract. The agreement including scheduleannexure-B are not signed on behalf of the Society. In the absence of any agreementprotection under Section 3 (g) and 24 of the Act cannot be claimed by plaintiff. Section 3 (j) (ii) of the Act provides that roofs of the building to be a common areaand common expenses were charged from each of the individual flat owner. Carpet area of the LIG flat is 68. 85 sq. mt. and roof area is 49. 2 sq. mt, therefore, fromeach of the flat owner of LIG a sum of Rs. 900. 00 was charged besides the price ofthe flat. Reference can be made to Section 4 of the Act which indicates how muchcharges are to be collected for the common area i. e. of the undivided interest of eachapartment owner. Sub-Section (5) of Section 4 of the Act provides that commonareas and facilities shall remain undivided and no apartment owner or any otherperson encroach upon the same. However, exception has been carved out undersection 3 (g) and 24 of the Act which stipulates exclusion of other s right byagreement and this must take place before the allotment and that agreement musthave been entered into prior to 28/02/1986. ( 7 ) AS already observed, the copy of the agreement and the Schedule placed onrecord do not bear signature on behalf of the Society. The minutes of the Generalbody Meeting in which reference of this agreement was made is yet to be proved. ( 7 ) AS already observed, the copy of the agreement and the Schedule placed onrecord do not bear signature on behalf of the Society. The minutes of the Generalbody Meeting in which reference of this agreement was made is yet to be proved. Hence in the absence of the agreements having been executed before the allotee ofthe individual flats as stipulated under the Act, prima fade it cannot be said thatplaintiff has exclusive right of use and enjoyment of the terrace/roof of flat No. 44. Nor the balance of convenience is in his favour. For the reasons stated above I find no merit in the application. The sames accordingly dismissed.