Judgment The plaintiffs are the unit owners in the building known as "Kotia Nirman" constructed on Plot No.2, Shah Industrial Estate, Link Road, Andheri (West), Mumbai 400 053 on Final Plot No.138, TPS-III, Mahim Division at Senapati Bapat Marg, Matunga (West), Mumbai 400 016. 2. The defendant Nos.1 and 2 are the promoters within the meaning of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (Act IV of 1963) (hereinafter referred to as MOFA). 3. The defendant No.3 is the Planning Authority for Greater Bombay under the Maharashtra Regional Town Planning Act and that is also the authority to sanction and approve the plans under the Mumbai Municipal Corporation Act, 1888. The defendant No.4 is the son of defendant No.2. He is impleaded because he has converted his proprietary concern M/s.Asian Marble into a partnership firm. The defendant No.4 as a partner has been inducted for development of defendant No.2's share in the suit property. This firm is stated to have entered into Development Agreement with defendant No.5. The defendant No.4 is claiming that the partnership between he and his father has been dissolved on 10th December 2004 and as per the terms of dissolution he is entitled to certain premises on the ground and sixth floor. 4. Be that as it may, it is not presently the subject matter under dispute. 5. It is stated that two brothers Mr. Durgalal Ramprasad Kotia and Mr. Murarilal Ramprasad Kotia were seized and possessed of the above mentioned plot which admeasures 2417 sq.mts. With regard to this property and certain obligations, there was a dispute and thereafter what is referred to in para 4 is that the land admeasuring about 1208.50 sq.mtrs stands in the name of Murarilal Ramprasad Kotia and the rear portion of 1226 sq.mtrs out of the total area stands in the name of Durgalal Ramprasad Kotia. 6. It is then alleged that Durgalal Kotia being the owner of the rear portion entered into Development Agreement dated 14th December 2004 with M/s.High Class Developers for the construction of a commercial building known as "Kotia Nirman" consisting of ground plus six floors as per the plans that may be approved by the Municipal Corporation. 6. It is then alleged that Durgalal Kotia being the owner of the rear portion entered into Development Agreement dated 14th December 2004 with M/s.High Class Developers for the construction of a commercial building known as "Kotia Nirman" consisting of ground plus six floors as per the plans that may be approved by the Municipal Corporation. The plaintiffs state that both the brothers then jointly applied to the Additional Collector and Competent Authority under the Urban (Land Ceiling and Regulation) Act, 1976 for permission to develop the property and the Letter of Intent was issued on 2nd November 2002. 7. Both the brothers had jointly applied for development of their respective property. This is a joint development by construction of a commercial building. The building plan for the construction of the said new building named as "Kotia Nirman" was approved and Intimation of Disapproval (IOD) dated 26th December 2002 was issued in their joint names. In the proposed building consisting of "A" and "B" side, building "A" is in the share of Durgalal Ramprasad Kotia and building "B" is in the share of Murarilal Ramprasad Kotia. 8. On 14th July 2003 a commencement certificate was issued by defendant No.3 Municipal Corporation for a period valid up to 13th July 2004 for construction upto the top of the basement. Thereafter, the said permission was extended from time to time upto sixth floor. 9. The development work on the portion of the land belonging to Murarilal was entrusted to his son Madan Mohan in partnership in the name and style of M/s.Asian Marble Industries. It appears that they did not have necessary funds and, therefore, they appointed a developer M/s.Shree Balaji Developers to complete the said balance work under the Development Agreement dated 18th June 2004 and it appears that M/s.Shree Balaji Developers agreed to give constructed area admeasuring 9000 sq.ft carpet area on the entire second, third and forth floors in the "B" side of the building known as "Kotia Nirman" as consideration for completing entire "B" side. However, the said M/s.Shree Balaji Developers failed to complete the building and, therefore, their Agreement was terminated by a Memorandum of Understanding dated 30th December 2005. 10. Thereafter, there was a Deed of Dissolution dissolving the partnership between the defendant No.2 and his son. However, the said M/s.Shree Balaji Developers failed to complete the building and, therefore, their Agreement was terminated by a Memorandum of Understanding dated 30th December 2005. 10. Thereafter, there was a Deed of Dissolution dissolving the partnership between the defendant No.2 and his son. In para 11 of the plaint, there is a reference to diverse agreements for sale between Durgalal Kotia and M/s.High Class Developers and Ashok Punjabi and another as "purchasers" for sale of unit and thereafter there is reference to a Agreement for Sale dated 28th February 2006 between Murarilal Kotia and its proprietary concern and one Rakhi Tandon. Thus, the sample Agreements for purchase of the units in the property under development by both Durgalal Kotia and Murarilal Kotia are annexed and what has been relied upon is that the obligations under the MOFA are duly incorporated in the said Agreement. Equally, the mandate of section 7 of the said enactment was to the knowledge of the parties. It is in such circumstances, that it was stated that several amounts were paid by the flat purchasers who had entered into individual agreements and what has been then pointed out is that physical possession of the units have been handed over under the respective possession letters. It is also stated that total 76 number of units are there in "A" and "B" side building known as "Kotia Nirman". More than 60% of the total units in the building were sold by the defendant Nos.1 to 4 before June 2006 and thereafter the other obligations, namely, to register the entity of the flat purchasers has to be discharged. 11. I am not concerned with the disputes in relation to discharging of these obligations of registering and forming the legal entity of the unit purchasers or flat purchasers. 12. For the present Motion, what has been put in issue is the fact that the unit purchasers before they purchased the premises, were furnished and disclosed the plans showing that the building will consist of two sides/wings comprising of ground plus six upper floors and there shall be only four units and rest of the area shall be terrace, which will be common amenity in the building. In para 29 of the plaint, it is stated that as per the OCC building plan executed by the Executive Engineer, Building Proposal on 8th June 2006, on the sixth floor of the said building only four units are seen and rest of the area is shown as terrace. Therefore, as against the total plot area of 2417 sq.mtrs, promoters have availed of entire 100% set back area FSI of 340 sq.mtrs and after adding the said set back area FSI, the total FSI availed is 2417 sq.mtrs as against this plot area. They have also availed of that FSI of 1737 sq.mtrs making the total entitlement to 52.39 sq.mtrs. Thus, it is the case of the plaintiffs that 1.99% of the entire FSI has been availed of. 13. However, what has been then contended is, after entire FSI is consumed and availed of, the architect of one of the promoters has submitted application dated 17th May 2010 to defendant No.3-Corporation for amending the plan so as to construct two more office units at the terrace of sixth floor known as "Kotia Nirman" by misrepresenting that the set back FSI has not been availed of and they want to construct two more units by availing only 25% of the set back FSI. That amendment has been approved so as to enable construction of two more units on the sixth floor and the documents in that relation thereto are annexed as Annexure V. 14. Then, what is put in issue is the 38 parking spaces for the unit holders and two additional parking spaces for the transport vehicles. Out of 40 parking spaces, 24 parking spaces are approved at basement and 16 parking spaces are approved on the ground open space. There are total 76 units as against that only 38 parkings are provided. 15. It is stated that the parking spaces have to be utilised only for parking of vehicles and they cannot be disposed of or sold as independent property. 16. It is stated that the proposal was submitted for amendment of the basement parking space plan so as to convert it into godown. That application was rejected by the Corporation on 20th May 2009. 17. 16. It is stated that the proposal was submitted for amendment of the basement parking space plan so as to convert it into godown. That application was rejected by the Corporation on 20th May 2009. 17. There was an objection lodged by the Chief Promoter of the proposed cooperative housing society with the Executive Engineer, Building Proposal requesting his office not to approve any application of the promoters for amending the building plan putting up additional construction and for converting the parking space at the basement. Annexures W, X, Y and Z are in relation to this aspect and it is stated that several visits to the Executive Engineer's office and even application under the Right to Information Act, 2005 did not deter the promoters, save and except, informing the proposed society that the plans are missing from the records but no decision will be taken contrary to the building plans. 18. It is stated that later on the plans have been approved and the plaint has been amended by pleading in para 36 that certain permissions have been obtained by the defendant Nos.1 and 2 for converting 12 parking spaces in the basement into rooms. 12 parking spaces have thus been converted and, therefore, a declaration is claimed that the same is illegal as the consent of all the unit holders has not been taken. Further, with regard to alterations what has been pleaded is that the alterations have been done so as to make construction on the terrace portion and that is also made subject matter of the instant suit. 19. It is stated that the construction made and the conversion effected is without obtaining the consent in terms of section 7 of the MOFA. 20. Therefore, the instant suit is filed claiming the declarations and specifically with relation to the conversion of the parking spaces and additions and alterations which have been made. 21. It is in such a suit that the notice of motion for interim reliefs has been moved in which an affidavit in support is filed wherein what has been stated is that the interim relief be granted or else the suit may be rendered infructuous. 22. There is an affidavit in reply filed on behalf of the defendants and it is stated that as far as 38 parking spaces are concerned, 24 are in the basement and 14 are in the open. 22. There is an affidavit in reply filed on behalf of the defendants and it is stated that as far as 38 parking spaces are concerned, 24 are in the basement and 14 are in the open. Neither of them involve any consumption of FSI. It is admitted that there is a conversion of 12 basement spaces into rooms for storage but 12 additional elevated parking spaces have been provided in the basement. No provision of DC Regulations or law has been violated. Conversion of basement areas into enclosed rooms has been done in accordance with law and premium has been charged by MCGM after obtaining necessary permissions. The plans in respect of this conversion have been duly sanctioned. In fact, there are no more parking spaces now available and apart from this there are two other parkings allowed by BMC for the purpose of loading and unloading of goods brought in by trucks. 23. It is then stated that the basement parking spaces were not sold as a part of the Sale Agreements and no rights were created in respect thereof in favour of the plaintiffs. No allotment letters in respect of the 12 spaces were issued to the deponents of the affidavit. This is the statement made in para 7 and what is alleged in para 8 thereafter is that the plaintiffs have appropriated to themselves more parking spaces than what they would be entitled to. 24. It is then stated that as far as the four units on sixth floor with terrace are concerned, there are four units on sixth floor with terrace attached to the said units and to the plaintiffs knowledge three units with attached terrace belong to the defendant No.1 and one unit/office with attached terrace belongs to Madanmohan Kotiason of defendant No.2. The owners of the sixth floor units alongwith the terrace are the absolute owners. There is a false statement that the terrace of the building is above the seventh floor but as the position is admitted by the plaintiffs on pages 66 and 98 of the plaint in paragraphs 24 and 31, respectively, of the registered Agreements between M/s.High Class Developers and Ashok Panjabi and between M/s.Asian Marble Industries and Rakhi Tandon. The rest of the averments pertain to the utilisation of FSI. 25. The rest of the averments pertain to the utilisation of FSI. 25. In the affidavit that is filed by Murarilal Kotia, there is a reference to the proceedings in relation to registration of the society and with the same, I am not concerned in the present Motion. 26. Then there is further affidavit in which what has been asserted is the rights of the parties in respect of project under the Partnership Deed and the consequences post dissolution of the firm. 27. As far as the amendment to the plaint is concerned, there is an affidavit filed on 16th December 2010 wherein once again what has been raised is an issue with regard to the appropriation of the parking spaces unto themselves by the plaintiffs. 28. The defendant No.5M/s.Shree Balaji Developers has filed an affidavit in which reference is made to the rights of the said Shree Balaji Developers and what has been stated thereafter is that the plaintiffs themselves are aware that the owners and promoters will have exclusive rights over the unsold premises/garages/open spaces/parking spaces even after registration of the society or even after conveyance in favour of the society. It is in these circumstances, the storage in place of parking in the basement is not without the knowledge but within the permissible recitals and clauses of the Agreement. 29. The plaintiffs have filed an affidavit in rejoinder to all these affidavits and once again asserted that as far as the parking spaces are concerned, their conversion amounts to an alteration, which is not permissible in law. Further, reliance is placed on the plans to contend that there cannot be any changes or alterations as far as the structure is concerned and what has been depicted is a terrace and, therefore, the plans would disclose that the defendants have no saleable interest in amenity terraces and open spaces. Office No.601B with terrace thereto on sixth floor and basement parking, are not belonging to and owned by defendant No.4. The terrace and parking spaces being common amenity in the building, exclusive ownership thereof cannot be claimed. As far as the computation and calculation of FSI is concerned, what has been asserted is, even if there is any residue FSI left, the promoters cannot sale or utilise the same without the consent of the unit owners as required under section 7 of the MOFA. 30. As far as the computation and calculation of FSI is concerned, what has been asserted is, even if there is any residue FSI left, the promoters cannot sale or utilise the same without the consent of the unit owners as required under section 7 of the MOFA. 30. It is on the above material, that I have heard Mr.Jain appearing for the plaintiff, Mr. Andhyarujina appearing on behalf of the promoters defendant Nos.2 and 4. With their assistance, I have perused the plaint and the annexures thereto including all affidavits on record, I have also perused the relevant statutory provisions. 31. As has been submitted by Mr. Jain, the controversy is restricted with regard to the utilisation of the portion marked as terrace and the conversion of the parking spaces. Mr. Jain submits that the Agreement for Sale with the unit owners is clear inasmuch as the obligations therein are to give possession of the units in terms of the amenities and fittings so also fixtures. What has been then agreed between the purchaser and the seller is that the residual FSI not consumed to be available to the promoter even after registration of the Society but that is subject to the rider in Clause 4 of the Agreement which is executed with the purchaser Rakhi Tandon and copy of which is annexed at page 77. Then reliance is placed on other clauses and it is submitted that clause 26 which records the irrevocable consent to the promoter to develop the property by putting up additional buildings/wings/floors as may be permitted by the Municipal Corporation/Authorities in that behalf either by utilising balance floor space, or by amalgamation of any adjoining areas and or by purchase or acquisition of any T.D.R and or otherwise without any separate consideration, consent, permission, reference of the purchaser and/ or any one claiming through him/her, would not be of any assistance to the promoters because the specific acts alleged and complained of, are not in relation to the consumption of FSI. 32. Inviting my attention to clause 31, it is submitted that the sixth floor as proposed, sanctioned and under construction is only a part of the floor as such common terrace available to the purchaser and its society shall be at the seventh floor above the part sixth floor. 32. Inviting my attention to clause 31, it is submitted that the sixth floor as proposed, sanctioned and under construction is only a part of the floor as such common terrace available to the purchaser and its society shall be at the seventh floor above the part sixth floor. The terrace portion attached to this floor shall exclusively belong to the promoter and he is at liberty to sell, assign, transfer, let, lease charge, mortgage either to the purchaser of sixth floor office or to other as the promoter may deem fit proper in his absolute discretion. Mr.Jain submits that this clause denotes very clearly that sixth floor as proposed sanctioned and under construction is only part of the floor and as such common terrace available to the purchaser and society shall be on the seventh floor above the part sixth floor. The consent is with regard to the terrace portion attached to the sixth floor. That would not be of any assistance. In such circumstances and when what has been shown on the plan is very clear inasmuch as there is a clear demarcation of parking areas in the approved and sanctioned plans, there is no question of the parking area or basement being converted into storage or commercial units. All this is contrary to the sanctioned plans to which my attention is invited by him. Further, he relies upon section 7 and submits that the said section clearly states that after the plans and specifications of the buildings as approved by the local authority, are disclosed or furnished to the person who agrees to take one or more flats, the promoter shall not make any alteration in the structures described therein in respect of the flat or flats which are agreed to be taken without the previous consent of that person or any other alterations or additions in the structure of the building without the previous consent of all the persons who have agreed to take the flats in such building. 33. Mr. Jain would submit that clause 1 of sub-section 1 of section 7 deals with situation of alteration of the structure described as flat or flats which are agreed to be taken. 33. Mr. Jain would submit that clause 1 of sub-section 1 of section 7 deals with situation of alteration of the structure described as flat or flats which are agreed to be taken. There, the previous consent of the flat purchaser would be necessitated and the other aspect dealt with by sub-section 1 is any alteration or addition other than in clause 1 and in relation to the entire structure of the building. That addition or alteration is impermissible without the previous consent of all the persons who have agreed to take flats in such building. In such circumstances, according to Mr.Jain both acts were without the previous consent and, therefore, the temporary injunction as prayed be granted. No part of the claim of the plaintiff is rendered infructuous merely because some of the basement parkings have been converted into storage rooms. However, there is no disclosure of third party rights in relation thereto. It is in such circumstances, that the Motion be made absolute. 34. On the other hand, Mr. Andhyarujina would submit that section 7 of the Act would have no application because what has been not placed before the Court is the fact that the unit purchasers have been informed that there is a formation of a private company. That is an entity which is contemplated by sections 10 and 11 of this very enactment. Therefore, if the association of the flat takers who have formed themselves into a private limited company have granted a consent, then, section 7 would not have any application. Here there are specific cases of the plaintiffs being informed about the formation of the private limited company. They were informed about the share certificates and membership of such a company. They have not availed of the opportunity to obtain shares. In such circumstances, it cannot be said that there is any violation. There is absolutely no illegality, much less, the one complained of. In any event, the requirement of section 7(1) of MOFA sub clauses (1) and (2) have been complied with, with the consent of the unit purchasers Pvt. Ltd. Company. There is a divergence in the intent of both clauses and that is to enable the collective consent of all persons who have now organised themselves into a private limited company. In any event, the requirement of section 7(1) of MOFA sub clauses (1) and (2) have been complied with, with the consent of the unit purchasers Pvt. Ltd. Company. There is a divergence in the intent of both clauses and that is to enable the collective consent of all persons who have now organised themselves into a private limited company. In such circumstances and when the acts of the defendants/promoters are complete, substantial part of prayer clause (a) of the Notice of Motion is rendered infructuous and no relief can be granted. 35. After having heard both counsel at some length, firstly, I am not in agreement with Mr. Andhyarujina that any collective consent is contemplated by the sub-clauses of section 7(1) of MOFA. What his argument over looks, is the intent of the legislature. The Act has been enacted to regulate, in the State of Maharashtra, the Promotion of the construction of the sale and management, and the transfer of flats on ownership basis. This statement of objects and reasons themselves indicate that regulatory mechanism was necessary as there were complaints of sundry abuses, malpractices and difficulties relating to the promotion of the construction of and the sale and management and transfer of flats taken on ownership basis. The Act has been extensively amended. What the Act provides is "General Liabilities of Promoter" vide section 3. By section 4 the promoter before accepting advance payment or deposit must enter into agreement and that agreement must be registered. The fact of non registration of the agreement required to be registered under section 4 is dealt with by section 4A. Then, the promoter is required to maintain separate account of sums which have been taken and that is requirement of section 5. Section 5A provides for competent authority. Section 6 comes thereafter and by which there is a responsibility for payment of outgoings till the property is transferred by the promoter. Thereafter, comes section 7, which reads thus: "7 After plans and specifications are disclosed no alterations or additions without consent of persons who have agreed to take the flats; and defects noticed within (three years) to be rectified. Thereafter, comes section 7, which reads thus: "7 After plans and specifications are disclosed no alterations or additions without consent of persons who have agreed to take the flats; and defects noticed within (three years) to be rectified. (1) After the plans and specifications of the buildings as approved by the local authority as aforesaid, are disclosed or furnished to the person who agrees to take one or more flats, the promoter shall not make (i) any alteration in the structures described therein respect of the flat or flats which are agreed to be taken, without the previous consent of that person; or (ii) any other alterations or additions in the structure of the building without the previous consent of all the persons who have agreed to take the flats in such building. (2) Subject to sub-section (1), the building shall be constructed and completed in accordance with the plans and specifications aforesaid; and if any defect in the building or material used, or if any unauthorised change in the construction is brought to the notice of the promoter within a period of (three years) from the date of handing over possession, it shall wherever possible to be rectified by the promoter without further charge to the persons who have agreed to take the flats, and in other cases such persons shall be entitled to receive reasonable compensation for such defects or change. Where there is a dispute as regards any defect in the building or material used, or any unauthorised change in the construction, or as to whether it is reasonably possible for the promoter to rectify any such defect or change, or as regards the amount of reasonable compensation payable in respect of any such defect or change which cannot be, or is not rectified by the promoter, the matter shall, on payment of such fee as may be prescribed, and within a period of three years from the date of handing over possession, be referred for decision, (i) in an urban agglomeration as defined in clause (n) of section 2 of the Urban Land (Ceiling and Regulation) Act, 1976 (33 of 1976), to such competent authority authorised by the State Government under clause (d) of section 2 of that Act, and (ii) in any other area, to such Deputy Chief Engineer, or to such other officer of the rank equivalent to that of Superintending Engineer in the Maharashtra Service of Engineers, of a Board established under section 18 of the Maharashtra Housing and Area Development Act, 1976 (Mah.XXVIII of 1977), as the State Government may, by general or special order, specify in that behalf, Such competent authority, Deputy Chief Engineer or, as the case may be, the other officer of a Board shall, after inquiry, record his decision, which shall be final." 36. A bare perusal of section 7, sub-section 1 would indicate that the same is to provide for a situation where after plans and specifications are disclosed, alterations or additions taking place. That section provides that no alteration or addition without consent of persons who have agreed to take the flats, shall be carried out. One aspect covered is the alteration of the flat or flats which are agreed to be taken and that cannot be without previous consent of the flat purchaser. That is the "person" dealt with by clause (i) of sub section (1) of section 7. By clause (ii), the alteration or addition in the structure of the building is dealt with and that has to be with previous consent of the persons who have agreed to take the flats in such building. Apart from the fact that collective consent that, Mr. By clause (ii), the alteration or addition in the structure of the building is dealt with and that has to be with previous consent of the persons who have agreed to take the flats in such building. Apart from the fact that collective consent that, Mr. Andhyarujina would press into service would not arise and is thus not contemplated at this stage because the words used are "consent of that person" and "consent of all the persons who have agreed to take the flats" which is supposed to be taken. The Promoters' obligation to form and register a cooperative society or company which is provided in and dealt with by Section 10 of MOFA and question of consent by the society or company could be raised provided the steps taken under section 10(1) of the MOFA are indeed taken and proof in relation thereto is before the Court. Apart therefrom, sections 8 and 9 which fall under the same set of sections would indicate that first deals with refund of amount paid with interest for failure to give possession of a flat within specified time or further time. Section 9 provides a mortgage of the flat or the land not to be created without consent of parties after execution of Agreement for Sale. Then, comes section 10 where under there is a obligation to take steps for formation of co-operative society or company and then the further obligation to convey title and execute title documents according to the agreement comes in section 11. The general liabilities of flat-taker and then the offences by promoters and the consequences on conviction are provided in sections 12 and 13. This leaves me in no manner of doubt that each stage is provided by the legislature distinctly. However, if flats are agreed to be sold and there is a written agreement, then, the flat purchaser having been disclosed the plans and specifications, no alterations therein are permitted nor any additions and both have been dealt with separately by section 7. If possession is not given to them, the amounts collected from them have to be repaid and refunded with interest. No mortgage can be created in relation to the property without consent of the parties. Thus, after the flat is sold and the purchaser is put in possession, there is an obligation to take steps for formation of Co-operative Society or company. No mortgage can be created in relation to the property without consent of the parties. Thus, after the flat is sold and the purchaser is put in possession, there is an obligation to take steps for formation of Co-operative Society or company. That is the stage at which the collective consent or the organised group being approached and informed and its approval taken in accordance with law, would arise and not prior thereto. Therefore, there is no substance in the submission of Mr. Andhyarujina that alleged collective consent would satisfy the requirement of section 7(1) of MOFA. Even otherwise, no such collective consent has been placed or disclosed. What is argued that the promoters have incorporated private limited company, which also appears to be a unilateral act on their part. 37. As far as section 7 is concerned, the afore noted statutory compliance is admittedly not made. Prima facie, therefore, there is no denial of the factual assertion that there is a conversion of the basement areas which are clearly earmarked and demarcated in the plans for parking, into storage and that is by enclosing them. This is for commercial use. That having been done without obtaining the previous consent of the persons who have agreed to take the flats/units, prima facie, it is wholly illegal. 38. Equally, what has been disclosed and specifically stated in relation to the terrace is the clauses which have been noted by me above and the plans would show that there is common amenity or area demarcated as terrace that is for common usage. That could not have been appropriated and attached to any unit is the submission. That the allegation in that behalf appears to be that the defendants and particularly, the promoters have contrary to the provisions that terrace is not a distinct saleable and identifiable portion, have without amending the plans, carried out changes and additions. This is also not in accordance with what has been disclosed to the unit purchasers. The affidavit that is filed in reply shows that what the defendants assert is that on the sixth floor there are four units with terrace attached to the said units and to the plaintiffs knowledge, the units with attached terrace belong to defendant No.1 and one unit/office with one terrace belong to the son of defendant No.2. The affidavit that is filed in reply shows that what the defendants assert is that on the sixth floor there are four units with terrace attached to the said units and to the plaintiffs knowledge, the units with attached terrace belong to defendant No.1 and one unit/office with one terrace belong to the son of defendant No.2. The owners of the sixth floor units alongwith terrace are the absolute owners thereof. There is a reference made to paras 24 and 31 of the registered Agreement with Mr.Ashok Punjabi and Ms.Rakhi Tandon and pages 66 and 19 of the plaint are referred to in this behalf. What the said clauses which are referred to would indicate, is that the terrace adjacent to the sixth floor unit shall have entrance from the said unit and shall form part of the said unit and belong to the purchaser of the said unit exclusively and no other purchaser shall have any right on the said terrace. Clause 31 has been relied upon to indicate that the sixth floor as proposed, sanctioned and under construction is only a part of the floor and as such common terrace available to the purchaser and its society shall be on the seventh floor above the part sixth floor. The terrace portion attached to the sixth floor shall belong exclusively to the promoter and promoter is at liberty to sell, assign, transfer, let, lease charge, mortgage either to the purchaser of sixth floor office or to other as the promoter may deem fit proper in his absolute discretion. Thus, this is a terrace attached to a unit on the sixth floor which is the absolute property, either of the unit holder or of the promoter, if the unit holder does not wish to attach it. However, the sixth floor as proposed, sanctioned and under construction is only part of the floor and there is a clear reference to common terrace available to the purchaser and society which is on the seventh floor above the part sixth floor. The construction cannot be so altered or no addition can be made so as to deprive the purchaser of the common terrace. It is clear that the terrace attached to sixth floor cannot be claimed by the plaintiffs. However, nothing can be done in relation to the area or portion which has been clearly earmarked and demarcated as a common terrace. 39. It is clear that the terrace attached to sixth floor cannot be claimed by the plaintiffs. However, nothing can be done in relation to the area or portion which has been clearly earmarked and demarcated as a common terrace. 39. Mr. Jain could not point out to me anything which would even prima facie demonstrate that the plaintiffs are deprived of the common terrace. The plaintiffs cannot put in issue the portion earmarked as a terrace but attached to the sixth floor unit. That could be dealt with in terms of the stipulations in clauses 24 and 31 of the Agreements with the flat purchasers. That is the absolute discretion of the promoter in terms of the very clauses. In such circumstances, the apprehensions of the plaintiff in relation to the alleged deprivation of the common terrace do not seem to be well founded even at this prima facie stage. 40. What is lastly put in issue is conduct of the plaintiffs in trying to appropriate, as many as 31 parking spaces to them. Mr.Jain would submit that there are 19 plaintiffs but they have purchased 31 units. Therefore, their entitlement to the parking spaces is proportionate to their holding. Mr. Andhyarujina would counter this position and submit that this is not the correct position and it is not that every unit holder is given areas specified and earmarked for parking but that could not be as claimed by the plaintiffs. 41. I am not concerned with this allegation and counter allegation against the plaintiffs. The plaintiffs have clearly undertaken before me that if any organised legal entity calls upon the plaintiffs to surrender such of the excess parking spaces or areas, the plaintiffs would abide by the decisions and resolutions in that behalf, subject ofcourse to their legal rights. It is not as if the plaintiffs would not abide by the decisions post formation of the legal entity. It is not as if the plaintiffs would not abide by the decisions post formation of the legal entity. It is in such circumstances and leaving this issue open for being dealt with in an appropriate proceeding at an appropriate stage, I clarify that the plaintiffs are entitled to an injunction so as to prevent utilisation, post conversion, of 12 parking spaces as storage and in so far as the balance 12 spaces which are stated to be converted into storage units as well, they will be entitled to the reliefs at an interlocutory stage in terms of the relevant prayer of the Notice of Motion. They have made out a prima facie case atleast in relation to this relief. The balance of convenience is their favour. There would be irreparable harm and injury in case commercial activities including storage are permitted in these parking spaces which are said to be enclosed but without any prior consent of the plaintiffs. 42. It was also submitted that the Motion is rendered infructuous and no reliefs in terms of prayer clause (a) thereof can be granted. Prayer (a) of the Notice of Motion reads as under: "a. Pending the hearing and final disposal of the suit, the defendants be temporarily restrained by an order of injunction from amending the layout and building plan as approved on 8th June 2006 without obtaining prior special and specific consent of the plaintiffs in accordance with the provisions of section 7 of Maharashtra Ownership Flats Act, 1963; and further the defendant No.1 and 2, their agents, and servants be restrained by an order of injunction from putting up any additional constructions/floors to the Kotia Nirman building horizontally or vertically and from converting any parking spaces at the basement into godowns, contrary to the layout and building approved/ sanctioned on 8th June 2006, without obtaining prior special and specific consent of the plaintiffs in accordance with the provisions of section 7 of the Maharashtra Ownership Flats Act, 1963;" 43. A bare perusal of the prayer would indicate that there may be a conversion of the parking spaces at the basement into godowns but what the plaintiffs are seeking to enforce is the statutory obligation in terms of section 7 and, therefore, any additional construction/floors as indicated in the said prayer will not be permissible without the compliance with the relevant statutory provision and particularly under section 7 of the Maharashtra Onwership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963. Similarly, if there are 24 parking spaces in the basement and 12 have been converted into godowns, if the balance are not so converted, they shall not be converted into godowns or permitted to be used for commercial purposes without obtaining the consent in terms of section 7 of the Act. Therefore, I do not see how this prayer is rendered wholly infructuous by the alleged completed acts of the promoter. Equally, it is not the case of the contesting defendants that relief in terms of prayer clause (a1) is rendered infructuous in any manner. Whatever may be the present status in relation to conversion of the basement parking spaces, what is clearly sought to be prohibited by this prayer is to create any third party rights or induct any third party in the converted portions of parking spaces in the basement and particularly using them for any purposes other than parking of vehicles. 44. In such circumstances, I am not in agreement with the contesting defendants that no reliefs in terms of these prayer clauses would be granted. Even otherwise the Court has adequate powers to mould the reliefs in the circumstances of a given case and requirements in that behalf. 45. Accordingly, this Motion is made absolute by directing that in relation to the 24 parking spaces in the basement of the said building, no usage other than parking of vehicles shall be permitted, including for storage even if, the spaces stated to be 12 in number, are enclosed or covered as stated by the promoters. Equally, there will be injunction against creation of any third party rights or inducting any third party in the basement parking and the spaces allocated for the same. This area and spaces will be utilised only for parking of vehicles and not otherwise. 46. Equally, there will be injunction against creation of any third party rights or inducting any third party in the basement parking and the spaces allocated for the same. This area and spaces will be utilised only for parking of vehicles and not otherwise. 46. Motion is made absolute in above terms but with no order as to costs. 47. In view of what has been observed above, Mr.Jain states that the plaintiffs do not press clauses (c) and (d) of this Notice of Motion at this stage. 48. At this stage, it is requested that operation of this order be stayed so as to enable the contesting defendants to challenge the same in the higher Court. This request is opposed by Mr. Jain. 49. I have already adverted to the contents of the affidavit of the contesting defendants and while dealing with them, I have also observed that no particulars or details of any third party rights having been created are disclosed or mentioned in the said affidavits. Therefore, the oral statement that third parties have been inducted, cannot be accepted and based thereon, this order cannot be stayed. 50. I have already stated that some part of the basement area and to be precise, 12 parking spaces have been converted into godowns. In relation to such parking spaces, the conversion cannot be stayed. However, the spaces where the conversion is yet to take effect, defendant Nos.1 and 2 are restrained from effecting any such conversion thereof for storage or commercial use and as against the converted portion what is restrained is creation of third party rights or transfer or disposal thereof in any manner. Since no details of the same are forthcoming, this request cannot be granted and it is accordingly refused.