2020 Supreme(Bom) 730

IN THE HIGH COURT OF BOMBAY
R.D. Dhanuka, J.
Dilip B Raja - Appellant
Versus
Shree Arihant Apartment Co-op Housing Society - Respondent
First Appeal No. 1642 of 2012, 31 of 2016
Decided On : 19-05-2020

Headnote:

JUDGMENT R. D. Dhanuka, J. - By First Appeal No. 1642 of 2012 filed by the appellants (original defendant nos. 1 and 2), the appellants have impugned the judgment and award dated 12th September, 2012 passed by the learned Judge, City Civil Court, Mumbai in S.C. Suit No.1642 of 2009 thereby decreeing the suit filed by the respondent no.1 and declaring the agreement dated 28th December, 1993 as bad in law, null and void and stood cancelled to the extent of the 'sale of portion of terrace' and directing the appellants to handover the possession of the alleged common terrace is concerned.

Fact of the Case:

Respondent Nos. 3 to 5 in First Appeal No. 1642 of 2012 had carried out construction on a plot of land bearing City Survey No.2/248 of Tardeo Division and admeasuring 1958.20 sq. yards equivalent to 1687.35 sq. mtrs. or thereabouts and situate at 31, Dr. Bhadkamkar Marg. The respondent nos.2 to 5 executed various agreements in support of various flats sold by them in favour of various flat purchasers. By a letter of allotment dated 30th June, 1992, the respondent nos. 2 to 5 had allotted flat bearing nos.701, 701-A on the 7th floor and part of the terrace above the 7th floor in the building known as Arihant Appartment 'C' Building to Suresh M. Jain and S.P. Choudhary for the total consideration of Rs.8,00,000/-. By an agreement dated 28th December, 1993, the respondent nos. 2 and 3 agreed to sell the said flats no. 701, 701-A on the 7th floor and part of the terrace, above the 7th floor which was allotted to Suresh M. Jain and S.P. Choudhary for total consideration of Rs.9,00,000/-. The said Suresh M. Jain and S.P. Choudhary were confirming parties to the said agreement for sale. In clause 11 of the said agreement, it was provided that the promoters had confirmed and agreed that the purchasers shall be exclusively entitled to a portion on terrace shown in green colour in the plan annexed to the said agreement and shall be exclusively entitled to use, occupy, possess and enjoy the said portion of the said terrace in such manner as the purchasers may deem fit. It was further provided that the purchasers shall be entitled to put separate staircase to have direct access to the said terrace through their flat no.701 and the promoters and/or the purchasers of the other premises in the said building shall not be entitled to raise any objection of any nature whatsoever in that respect. In clause 11(d) of the said agreement, it was provided that the promoters had represented and confirmed that there was about 145 sq.ft. balance and unutilized FSI out of the permissible FSI as per the rules and regulations in respect of the said property which FSI of 145 sq.ft. could not be consumed and utilized by the promoters as the same was not possible as per the Development Control Rules and Regulations of Bombay Municipal Corporation applicable at that time. It was provided that the purchasers shall be entitled to put temporary or permanent construction or erection or shelter or enclosure on the said terrace, if the same was permitted by the Municipal Corporation by utilization and consumption of balance unutilized FSI of about 145 sq.ft. and/or if permitted free of FSI or even otherwise. It was further provided that the owners, promoters and confirming parties however shall have no responsibility or liability for such works if any that may be carried out by the purchasers. The promoters will not use the said FSI of 145 sq.ft. anywhere. The owner and the promoters shall not permit any one else to utilize the said balance FSI of 145 sq.ft. In clause 11(f) of the said agreement, it was provided that the said promoters and/or the purchasers of the other premises shall not interfere with the right, title and interest of the purchasers in respect of the said portion of the said terrace thereby allotted. In clause 12 of the said agreement, it was provided that the purchasers shall have no claim save and except in respect of the particular premises inclusive of terrace area, common area, facilities and limited common areas and facilities, thereby agreed to be acquired and all other open space/unalloted parking space/flats/rules/offices/shops/ garages/ lobbies/staircases/terraces etc. will remain the property of and/or any part thereof is transferred to the said organization as mentioned in the said agreement but subject to the rights of the promoters under the said agreement. In Seventh Schedule of the said agreement, the list of the portions of the properties not allowed to be utilized were terraces except allotted to the particular premises and various other portions of the properties specifically mentioned therein. The said agreement was duly registered with the Registrar of Assurance.

Finding of the Court:

The impugned judgment and order passed by the learned trial Court is contrary to the pleadings, evidence and the principles of law laid down by the Supreme Court and this court referred to in the aforesaid paragraphs of the judgment and thus deserves to be set aside.

Issues: 1. Whether the suit filed by the respondent no.1 was barred by law of limitation? 2. Whether the agreement dated 28th December, 1993 between the appellants and the respondent nos. 2 and 3 was void ab-initio? 3. Whether the relief of possession, does not prescribe any limitation unless adverse possession is shown by the defendants?

Ratio Decidendi: 1. The suit for declaration that the suit agreement in so far as portion of terrace is concerned, since was executed in the year 1993 was ex facie barred by law of limitation on the date of filing the said suit by the respondent no.1 before the City Civil Court and also on the date when this Court passed the said order on 20th August 2008 in the said Writ Petition No.1718 of 2008. Granting liberty to initiate the appropriate proceedings would not commence fresh cause of limitation since the suit had already become time barred on the date of said order. 2. The finding of the trial Court that since the suit for enforcement of statutory obligation under MOFA and since the agreement to the extent of sale of terrace is not just voidable but void-ab-initio, such agreement in contravention of law and public policy could not have been entered into between the parties. It was also erroneously held that for the relief of possession, law does not prescribe any limitation unless adverse possession is shown or that the suit is filed for enforcement of the statutory obligation under MOFA thus limitation is saved is ex facie perverse and thus deserves to be set aside. The suit filed by the respondent No.1 was ex facie barred by limitation. 3. The impugned judgment and order passed by the learned trial Court is contrary to the pleadings, evidence and the principles of law laid down by the Supreme Court and this court referred to in the aforesaid paragraphs of the judgment and thus deserves to be set aside.

Final Decision: Both the judgments and orders passed by the City Civil Court allowing the suits filed by the respondent no.1 thus deserve to be set aside.