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High Court of Judicature at Bombay
B.R. GAVAI
Malad Kokil Co-operative Housing Society Ltd. & Another
Versus
The Modern Construction Co. Ltd. & Others
NOTICE OF MOTION NO. 1359 of 2011 IN SUIT NO. 1005 of 2011 ALONGWITH APPEAL FROM ORDER No. 383 of 2012 (CIVIL APPELLATE JURISDICTION) IN NOTICE OF MOTION NO. 2953 of 2010 IN L.C. SUIT NO. 2348 of 2010
Decided on: 07-09-2012
Suit for injunction restraining defendants from making construction in furtherance to commencement certificate dated 13th October, 2010 alongwith other ancillary reliefs. Appeal against order (AO) arises out of the order passed by the learned Judge of the City Civil Court dated 18th April, 2011 thereby dismissing the notice of motion. Plaintiffs have also taken out a notice of motion for grant of certain interim-reliefs during the pendency of the suit. Plaintiffs had initially constructed four floors i.e. ground + 3 on the area shown for construction of S-5 building in the plans which were disclosed to the flat takers. However, it is the contention of the plaintiffs that on 3rd September, 2010 some unknown persons entered into the property and started demolishing the framework of the building. It is also the contention of the plaintiff's that these unknown persons had caused damage to the garden as well as the common passage and amenities belonging to the plaintiff-society. There has been certain correspondence between the plaintiffs and defendants thereafter. It is the contention of the plaintiff-society that after they pursued the matter under the Right to Information Act, they came to know about the Commencement Certificate granted in favour of the defendants by the Corporation on 13th October, 2010 and the Approval Report dated 5th December, 2009. The plaintiffs noticed that the proposed development by the developer was about 7722 sq. meters. According to plaintiffs since the entire FSI was almost exhausted, no such construction as permitted under the Commencement Certificate could have been permitted. In these premises, the suit as aforesaid along with Notice of Motion has been filed. As already discussed herein above the learned Single Judge has already granted an ad-interim relief on 7th July, 2011.
Fact of the Case:
Plaintiffs had initially constructed four floors i.e. ground + 3 on the area shown for construction of S-5 building in the plans which were disclosed to the flat takers. However, it is the contention of the plaintiffs that on 3rd September, 2010 some unknown persons entered into the property and started demolishing the framework of the building. It is also the contention of the plaintiff's that these unknown persons had caused damage to the garden as well as the common passage and amenities belonging to the plaintiff-society. There has been certain correspondence between the plaintiffs and defendants thereafter. It is the contention of the plaintiff-society that after they pursued the matter under the Right to Information Act, they came to know about the Commencement Certificate granted in favour of the defendants by the Corporation on 13th October, 2010 and the Approval Report dated 5th December, 2009. The plaintiffs noticed that the proposed development by the developer was about 7722 sq. meters. According to plaintiffs since the entire FSI was almost exhausted, no such construction as permitted under the Commencement Certificate could have been permitted. In these premises, the suit as aforesaid along with Notice of Motion has been filed. As already discussed herein above the learned Single Judge has already granted an ad-interim relief on 7th July, 2011.
Finding of the Court:
The Court found that the developer was duty bound to execute the conveyance in favour of the plaintiff and the appellant societies. Though it is tried to be urged on behalf of the developer that time to execute conveyance would be only after the entire project is complete i.e. after the completion of building S-5 and, as such, time to execute conveyance is yet to arrive at, the Court was unable to accept this contention. If the developer does not complete the project for decades together, does it mean that the statutory rights available to the society to get the conveyance executed would stand defeated. It is further to be noted that the advocate on behalf of the developer, on 11th March 1993 has communicated to the advocate for the appellant that the conveyance could not be executed since there was no sub-division of the property falling to the share of the plaintiff-society and the appellant-society and it has further been stated that the developer was willing to execute the conveyance jointly in favour of both the societies. Not only that but the developer has also applied for sub-division of plot on 8th February 2000. However, it appears that the developer has not pursued the matter thereafter. In this view of the matter, the Court found that the contention that the time to execute the conveyance is yet to arrive is without any substance. The plaintiff- society was registered on 9th November 1982 whereas the appellant- society was registered on 24th May 1993. In that view of the matter, the developer was duty bound to execute the conveyance within a period of four months from the date of registration of the societies.
Issues: 1. Whether the developer was duty bound to execute the conveyance in favour of the plaintiff and the appellant societies? 2. Whether the contention that the time to execute the conveyance is yet to arrive is without any substance?
Ratio Decidendi: 1. Yes, the developer was duty bound to execute the conveyance in favour of the plaintiff and the appellant societies. 2. Yes, the contention that the time to execute the conveyance is yet to arrive is without any substance.
Final Decision: The Court held that the developer was duty bound to execute the conveyance in favour of the plaintiff and the appellant societies. The Court also held that the contention that the time to execute the conveyance is yet to arrive is without any substance. The Court allowed the motion and the appeal and directed the developer to remove the fencing from the area which is provided for additional recreational ground under the 2010 plans and clear all the machinery, material etc from the area provided in the plans for the additional recreational ground. The Court also made it clear that the aforesaid order passed in the Notice of Motion as well as the Appeal from Order would not come in the way of the Defendant developer in constructing the building as per the plan sanctioned by the Corporation dated 23rd April, 2001.
Suit No. 1005/2011 has been filed by the plaintiff Society for a decree directing the defendants 1 and 2 or any other person found to be the owner of the property to convey the suit property admeasuring about 10,208.40 sq. meters and for declaration that the concessions/relaxations granted by the defendant no.7 on the Approval Report dated 5th December, 2009 are bad in law, malicious etc. The plaintiffs have also prayed for cancelling the said approval report. The plaintiffs have also prayed for declaration that commencement certificate dated 13th October, 2010 is null and void. The plaintiffs have also prayed for an injunction restraining the defendants from making any construction in furtherance to the commencement certificate dated 13th October, 2010 alongwith the other ancillary reliefs. The plaintiffs have also taken out a notice of motion for grant of certain interim-reliefs during the pendency of the suit. The plaintiffs had also moved the Court for grant of ad-interim orders. This Court vide order dated 7th July, 2011 had granted ad-interim relief in favour of plaintiff society.
2. The Appeal against order (AO), arises out of the order passed by the learned Judge of the City Civil Court dated 18th April, 2011 thereby dismissing the notice of motion no. 2953/2011. The learned Single Judge of this Court vide order dated 7th July, 2011 which is a common order passed in the notice of motion in the aforesaid Suit and C.A. (st) No. 14310/2011 in the A.O. has allowed the civil application and admitted appeal against order. In pursuance to the orders passed by the Hon'ble Chief Justice both the matters are clubbed together, directed to be heard and decided together. As such the motion as well as appeal are heard finally by me.
3. The plaintiffs in Suit No. 1005/2011 are hereinafter referred to as plaintiff-society, the appellants in AO No. 383/2012 as appellant-society. The defendants 1-2 in Suit No. 1005/2011 who are respondents 1 and 2 in the AO No. 383/2012 are hereinafter referred to as developers.
4. The facts in brief giving rise to the present proceedings are as under:
The defendants 1 and 2 have developed buildings consisting of residential tenements and shops, total four in number. The purchasers of the units in building nos. S-1, S-2 and S-3 have collectively formed Malad Kokil Co-operative Housing Society which is the plaintiff in the suit whereas the purchasers of the unit in building no. S-4 have formed and registered Sundervan S-4 Cooperative Housing Society Limited which is defendant no.6 in the suit and appellant in the AO. The buildings have been constructed over span of period between 1974 to 1989. The Occupation Certificates in respect of the building no. S-1 has been granted on 26th February, 1975 for an area of 2271.13 sq. meters, in respect of building no. S-2 on 26th November, 1975 for an area of 2536.84 sq. meters, in respect of building no. S-3 granted on 17th April, 1976 for an area of 2060.29 sq. meters whereas in respect of S-4 it is granted on 22nd October, 1996 for an area of 2976.51. The total occupants in the four buildings are 208. The plaintiff-society was registered on 9th November, 1982 whereas the appellant-society is registered on 24th May, 1993. It is the contention of the plaintiffs that developers had initially constructed four floors i.e. ground + 3 on the area shown for construction of S-5 building in the plans which were disclosed to the flat takers. However, it is the plaintiff's case that on 3rd September, 2010 some unknown persons entered into the property and started demolishing the framework of the building. It is also the contention of the plaintiff's that these unknown persons had caused damage to the garden as well as the common passage and amenities belonging to the plaintiff-society. There has been certain correspondence between the plaintiffs and defendants thereafter. It is the contention of the plaintiff-society that after they pursued the matter under the Rig
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