Research › Search › Judgment

Bombay High Court · body

2007 DIGILAW 1385 (BOM)

Jamuna Darshan Co-op. v. JMC & Meghani Builders

2007-09-21

A.M.KHANWILKAR

body2007
NOTICE OF MOTION NO.2220 OF 2007 IN SUIT NO.3938 OF 2001 Decided on: 21ST SEPTEMBER, 2007 1. Heard counsel for the parties. Perused the pleadings and documents on record. At the time of hearing, Mr.Navin Parekh appearing for the plaintiffs pressed for three reliefs at this stage. In the context of prayer clauses (b) & (c) to attach flat Nos.301-A and 302-A and shop Nos.5-A and 6-A in the suit building, insofar as this prayer is concerned, as it is agreed between the parties that defendant No.1 is willing to transfer the said flats in favour of the nominees of the defendant Nos.5, 6 & 7 upon realising sale proceeds thereof; and contemporaneously deposit amount payable towards society charges with the society, whereupon the society would have no objection to transfer the said two flats in favour of the prospective purchasers. In view of this arrangement agreed upon, the question of attachment of two flats to secure the outstanding amount towards society charges in relation to those flats does not arise. 2. Insofar as society charges in respect of two shops are concerned, counsel for the defendant Nos.3 and 4 submits that the outstanding society charges will be paid within four weeks from today. In this view of the matter, the society cannot be heard to insist that the said two shops should be attached. Insofar as society is concerned, the relief of attachment could have been considered only if the concerned defendants were contesting the claim of the society. As the concerned 3 defendants have assured to pay all the outstanding charges of the society as demanded by the society without any demur while accepting that assurance, there is no question of attachment of four units in the suit building referred to above. 3. The next relief claimed on behalf of the plaintiffs during pendency of this motion is of restraining defendant No.1 from entering upon or carrying on any construction or creating any third party right in respect of the property bearing final plot No.774 of the Bombay Town Planning Scheme No.III(BOM) situated at Off Natakwala Lane, opposite S.V.Road, Borivali(West),Mumbai – 400 092. Insofar as this relief is concerned, argument of the plaintiffs proceeds on the basis that defendant No.1 builder is not entitled to develop the remaining plot, both on account of contractual obligation as also statutory obligation. Insofar as this relief is concerned, argument of the plaintiffs proceeds on the basis that defendant No.1 builder is not entitled to develop the remaining plot, both on account of contractual obligation as also statutory obligation. Insofar as plea of contractual obligation is concerned, there is nothing in the agreement dated 5th May, 1982 executed in favour of the flat purchasers, who have incidentally become members of the society, that would prohibit the builder to carry out further construction on the suit property as such. On the other hand, there are recitals in the agreement which would enable the builder to exploit the remaining FSI available in respect of the suit land, if any. The argument of the plaintiffs is that the agreement relied by defendant No.1 do not expressly authorise defendant No.1 to exploit the remaining FSI available in respect of the plot in question. It is not possible to accept this submission. Moreover, in the absence of express provision prohibiting the builder from exploiting the available FSI in respect of the plot, the flat purchaser cannot be heard to obstruct the development activity in relation to the open plot so long as their original structure and flats remain unaltered and undisturbed. This position emerges from Section 7 R/w.7A of the Act. The legal position with regard to Section 7 and Section 7A is no more res integra. The Apex Court in the case of M/s.Jayantilal Investments v. Madhuvihar Co-operative Housing Society & ors, reported in 2007 AIR SCW 796 has had occasion to expound the principles that would govern such transaction. Counsel for defendant No.1 is jusitified in pressing into service the exposition of the Apex Court in the said decision. Besides, counsel for the defendant No.1 has also relied on unreported decision of this Court dated 2nd July, 2007 in Notice of Motion No.2305 of 2007 and unreported decision in the case of Ralph D'souza & ors Versus Danny D'souza & ors, reported in 2006(3) Bom.C.R.326. Suffice it to observe that the provisions of the Act would not preclude the builder from developing the plot in question by constructing a separate building thereon as per the sanctioned plan of the Municipal Corporation. 4. Suffice it to observe that the provisions of the Act would not preclude the builder from developing the plot in question by constructing a separate building thereon as per the sanctioned plan of the Municipal Corporation. 4. To get over this position counsel for the plaintiffs submits that the defendant No.1 intends to exploit the FSI which has now has become available on account of subsequent Municipal Laws releasing balcony and other areas from computation of FSI. According to the plaintiffs, such area which is released is in relation to the premises of the flat purchased the members. That FSI can be 6 exploited by the defendant No.1 only upon taking prior permission of the flat purchaser/owner. I see no basis to accept this contention. For, Section 7 of the Act is a provision to secure the rights of the flat purchaser/owner to the limited extent of any alteration in the structure/construction described in the agreement in respect of the flat or flats which are agreed to be purchased by them. So long as neither of this happens, the flat purchasers/owner cannot obstruct the developer from exploiting the available FSI in relation to the plot in question. The argument of the plaintiffs, if accepted, would result in incongruous situation. In as much as, the FSI is not ascribable to the flat but is associated with the land to be developed and exploited. So long as the flats purchased by the owners/purchaser are undisturbed and the structure in which the said flats are located is also unaffected, nothing can prevent the builder/developer to exploit FSI in relation to the plot, unless there was contractual obligation on the builder to the contrary. I have already answered in the earlier part of this 7 Judgment that there is no restriction on the builder to avail of FSI in respect of the suit plot. This argument of the plaintiff, therefore, cannot be accepted. 5. Counsel for the plaintiffs would then rely upon assertions in para 15 of the affidavit in support of the motion, wherein it is mentioned that open space was marked in the suit plot for amenities for recreation of garden etc. to the plot of such building. It is contended that the defendant No.1 wants to carry on unauthorised construction on such portion of the plot. to the plot of such building. It is contended that the defendant No.1 wants to carry on unauthorised construction on such portion of the plot. In support of this contention reliance was placed on a sketch handed across the bar by the counsel for the plaintiff. The area specified has open space and for recreation, garden has been identified in this plan. This document however, is not part of the record and has been handed in across the bar. Besides, it is not a copy of any official document. On the other hand, counsel for the defendant No.1 has produced sanctioned lay out plan of the year 1980 as well as amended lay out plan of the year 8 1996. Comparing the sanctioned plans which are the official documents, it is seen that the builder is required to set apart a portion of the plot as recreation garden. The plan sanctioned by the Municipal Authorities makes suitable provision in that behalf. Thus, there is no substance in the grievance made on behalf of the plaintiff that there is breach in relation to any contractual or statutory obligation by the developer/builder. 6. Counsel for the plaintiff would lastly contend that proposed building is likely to obstruct the path-way of the occupants of the existing building. Occupants have been using that path way since long. This plea clearly overlooks that the defendant No.1 intends to construct a new building on the plot which will be in conformity with the sanctioned lay out plan approved by the Municipal Authorities. That plan has not been challenged by the society so far. So long as that plan is allowed to operate, the builder cannot be faulted for constructing the building as per the said sanctioned plan. Nothing has been brought to my notice that provision for ingress and egress in the sanctioned plan is not in consonance with any rule or regulations of law. Accordingly, even this submission does not commend to me. 7. Plaintiffs have lastly prayed for a relief in terms of prayer clause (d) of the motion. Nothing has been brought to my notice that provision for ingress and egress in the sanctioned plan is not in consonance with any rule or regulations of law. Accordingly, even this submission does not commend to me. 7. Plaintiffs have lastly prayed for a relief in terms of prayer clause (d) of the motion. As observed earlier, for the arrangement accepted by the plaintiffs in relation to the two flats and two shops which have been agreed upon between the builder and original owner of the plot as well as defendant Nos.3 & 4, the question of restraining any of the defendants from transferring the respective units does not arise. This however, is upon accepting the undertaking given by the respective defendants that as and when sale proceeds are received, commensurate outstanding society charges will be deposited with the society forthwith and not later than two months from receipt of such sale proceeds. The undertaking given by the respective defendant Nos.5, 6 & 7 as well as defendant No.1 in this behalf is accepted. Insofar as the defendant Nos.3 & 4 are concerned, they have already assured through their counsel to deposit the entire outstanding society charges within four weeks from today. Even that assurance is accepted. On payment being made to the society, the society shall forthwith issue Share Certificate to the respective prospective purchasers/defendant Nos.3 & 4 as the case may be, not later than two weeks from the receipt of payment. The respective defendants have agreed to pay the society outstanding charges without any demur, for which reason it is in the interest of justice to direct the society to issue Share Certificates within the specified period as aforesaid. 8. Accordingly, there is no merit in the plaintiffs' claim for grant of ad-interim relief. That request is rejected for the reasons already observed. Notice of motion shall proceed for hearing to be listed on 14th January, 2008. Parties to exchange the pleadings to be filed in the Registry on or before 19th October, 2007. 9. As requested by the counsel for the 11 plaintiffs, it is ordered that defendant No.1 shall maintain status-quo as of today for a period of three weeks from today to enable the plaintiffs to carry the matter in appeal.