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2016 Supreme(Bom) 954
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.M. SAVANT, J.
M/s. Shree Parshwa Heights - Appellant
Versus
Smt. Nirmala Dhandukhlal Thakkar - Respondent
Appeal From Order No.272 of 2016, Appeal from Order St. No.35261 of 2015, Civil Application Nos. 816, 803 OF 2016
Decided On : 05-08-2016
Advocate Appeared:
For the Appellant :Mr. D. D. Madon Senior Advocate a/w Mr. Sandeep Dadwal i/b Mr. Prakash Mahadik
For the Respondent: Mr. Pravin Samdhani, Mr. Sanjay Jain a/w Mr. Hemant Mehta i/b Mehta & Co., Mrs. M. R. Bhoir, Mr. G. S. Godbole a/w Mr. A. R. Mishra, Mr. S. D. Patil
A promoter is required to obtain the consent of the flat purchasers before carrying out additional construction, unless the entire project is placed before the flat purchasers at the time of the agreement and the builder puts up additional construction in accordance with the layout plan, building rules and Development Control Regulations.
Headnote:
MOFA - Promoter - Consent of flat purchasers - Additional construction - Development potentiality - FSI - TDR - Termination of agreement - Deemed conveyance.
Fact of the Case:
The Plaintiff, a society member, filed a suit against the Defendant No.1, the owner of the land, and the Defendant No.2, the builder, seeking a declaration that the original layout plan cannot be amended without the Plaintiff's consent, a declaration that any amendment to the original layout plan is not binding on the Plaintiff, a declaration that plot C6 is part of plot C and the act of showing it as an independent plot is illegal, a declaration that the plan dated 20-9-2013 is contrary to the MOFA and not binding on the Plaintiff, and an injunction restraining the Defendant Nos.1 and 2 from proceeding with the construction on plot C6. The Defendant No.1 contended that there is no duly stamped and registered agreement executed in terms of MOFA in favor of the Plaintiff, that it is not a promoter within the meaning of the term in the MOFA, that the Plaintiff is not a party to the agreement dated 23-11-1971 executed between the Defendant No.1 and K.K.Verma, and that there is no privity of contract between the Plaintiff and the Defendant No.1. The Defendant No.2 contended that the agreement dated 23-11-1971 executed between the Defendant No.1 and K.K.Verma is not in respect of the subject matter of the suit property, that the Defendant Nos.1 or 2 are not promoters in respect of the two buildings of the Defendant Nos.10 and 11 societies, that the Defendant No.1 being the sole and absolute owner of the entire property including the suit plot C6, the Defendant No.1 has executed Deed of Indenture in perpetuity in favor of the ICICI Bank on 13-11-2002 and the ICICI Bank has transferred those rights in favor of the Defendant No.2 on 4-9-2006, and that the Defendant No.2 is a bonafide lessee and transferee of interest of the Defendant No.1 in respect of plot C6. The Defendant Nos.10 and 11 supported the Plaintiff's case and referred to the agreement executed by the said K.K.Verma in favor of the Chief Promoters. The Trial Court partly allowed the Plaintiff's Notice of Motion and restrained the Defendant Nos.1 and 2 from carrying out any construction on the plot of land C6 till the final disposal of the Suit.
Finding of the Court:
The Court held that the Defendant No.1 can be said to have caused the construction of the buildings through K.K.Verma and therefore qualifies as a promoter within the meaning of the term in Section 2(c) of the MOFA. The Court also held that the Defendant No.1 was obligated to execute a Conveyance in favor of the societies having regard to Section 4 of the MOFA. The Court further held that the agreement dated 23-11-1971 cannot be terminated legally as the said agreement can be said to be an irrevocable agreement considering the object and intent of the said agreement. The Court also held that the consent of the Plaintiff and the Defendant Nos.10 and 11 societies is necessary for carrying out construction on plot C6. The Court lastly observed that at the prima facie stage there is no document/agreement to show that K.K.Verma had kept the right to construct the building on plot C.
Issues: Whether the Defendant No.1 is a promoter within the meaning of Section 2(c) of the MOFA.
Ratio Decidendi: The Court held that the Defendant No.1 can be said to have caused the construction of the buildings through K.K.Verma and therefore qualifies as a promoter within the meaning of the term in Section 2(c) of the MOFA. The Court also held that the Defendant No.1 was obligated to execute a Conveyance in favor of the societies having regard to Section 4 of the MOFA. The Court further held that the agreement dated 23-11-1971 cannot be terminated legally as the said agreement can be said to be an irrevocable agreement considering the object and intent of the said agreement. The Court also held that the consent of the Plaintiff and the Defendant Nos.10 and 11 societies is necessary for carrying out construction on plot C6.
Final Decision: The Court dismissed the Appeals from Order.
1. Admit. With the consent of the Learned Counsel for the parties taken up for hearing forthwith.
2. The grant of injunction to the Plaintiffs by the impugned order dated 31-10-2015 passed by the Learned Judge of the City Civil Court, Borivali Division, Dindoshi Mumbai, has given rise to the filing of the above Appeals From Order.
3. The Respondent No.1 herein is the original Plaintiff. The Respondent Nos.2 to 5 are the original Defendant Nos.1 and 9 to 11. The Appellants in Appeal From Order No.272 of 2016 are the original Defendant Nos.2 to 7. Appellant No.1 is a partnership firm and the Appellant Nos.2 to 7 are its partners. By the impugned order the Appellants have been restrained from carrying out construction work on the plot of land identified as C6 till final disposal of the Suit. The Appellant in Appeal From Order St No.35261 of 2015 is the original Defendant No.1. Since both the Appeals From Order involve a challenge to the same order, they are heard together.
4. The facts involved in the above Appeals can in brief be stated thus:
The Defendant No.1 herein is the owner of lands totally admeasuring 43621.40 sq.yds equivalent to 36472 sq.mt. The said lands bore various survey numbers, however it seems that since the said lands are of the ownership of the Defendant No.1, the said survey numbers have been given a common CTS No.104 of Village Gundavli, Taluka Andheri, Mumbai Suburban District. It seems that the Defendant No.1 got a lay out sanctioned in respect of the said CTS No.104 and the said CTS No.104 was on account of the same divided into CTS Nos.104/1 to 104/5 as per the lay out sanctioned in the year 1968. The Defendant No.1 it seems divided the entire lands i.e. 43621.40 equivalent to 36472 sq.mt into three distinct plots identified by alphabets A, B and C. The Defendant No.1 sold and conveyed the entire land to one Keshavlal K. Verma (for short K.K.Verma) vide agreement dated 23-11-1971. The Defendant No.1 put the said K.K.Verma in possession of the plots including possession of plot C1, C3 and C6. The said K.K.Verma who was a developer entered into agreements with the promoters of the proposed societies. In the instant case the societies being the Defendant Nos.10 and 11, the sanctioned lay out plan and the proposed building plans for the entire plot C were disclosed to the said Chief Promoters. In the sanctioned lay out plan, plot C is shown as consisting of plot C1 to C6 and plot No. C6 is shown to be for parking. In so far as the plot C is concerned, building Nos.7 and 8 are constructed on plot C1 and C3. The construction of the said building Nos.7 and 8 is over which are the buildings of the Defendant Nos.10 and 11 societies which are situated on the said plots. It seems that the Defendant No.1 terminated the agreement dated 23-11-1971 entered into with the said K.K.Verma by issuing a public notice in that regard. It seems that after the sanctioned lay out of 18-8-1972, the said K.K.Verma had got sanctioned revised lay out on 17-9-1974 showing the said plot C6 which was earlier shown for parking as open land. Thereafter there was a further revision of this plan on 12-1-1975 wherein also plot C6 was shown as open land. A further revision took place on 16-5-1975 in which plan for the first time plot C6 was shown as open land for construction of a building. The promoters of the societies after entering into an agreement dated 29-1-1972 with the said K.K.Verma which is the package deal agreement in respect of sale of 82 flats, issued allotment letters to the flat purchasers on 11-10-1976. The Defendant Nos.10 and 11 which as indicated above are the societies registered in respect of plot C1 and C3, on 12-10-1987 and 8-8-1988 under the Maharashtra Cooperative Societies Act. It seems that on 13-11-2002 the Defendant No.1 executed a registered agreement for perpetual lease together with sale of development rights in favour of the ICICI Bank Ltd, in respect of plot C6 admeasuring 950 sq.mtrs with developmen
