Point of Law: Contentions regarding title, in respect of the property in question or adjudication in respect of the property in question or adjudication in respect of entitlement of exact quantification of FSI on plot in question, cannot be gone into the proceedings under Section 11 of the MOFA.

JUDGMENT :

1. On 31st May 2016, Competent Authority under Section 5A of the Maharashtra Ownership Flats Act, 1963 (“said Act” for short), in exercise of powers under Section 11(4) of the said Act, issued a Certificate, in favour of Sukruti Apartment Co-operative Housing Society Limited- appellant, for enforcing unilateral execution of conveyance deed. M/s. Tirumala Developers (plaintiff-respondent no.1) questioned its validity in the suit instituted in the City Civil Court, Bombay. Pending suit, the learned Judge, by order dated 7th April, 2021 stayed the implementation of order of Competent Authority. Feeling aggrieved by that order, appellant-defendant no.1, has challenged it, in this appeal under Order 43(1)(r) of the Civil Procedure Code.

Background facts are as under :

2. M/s. Sukruti Builders-defendant no.3 (hereinafter called “Promoter”), by deed of conveyance dated 31st December, 1979 purchased land bearing Plot no.2, Survey No.161, C.T.S. No. 526/1 to 526/9, Mulund (E), Mumbai admeasuring about 1203.9 sq.mtrs (“said larger plot” for short) alongwith the structure standing thereon known as “Bhavani Shankar Bungalow” from its owners, Urmila K. Madeka and others, through its partners for the consideration and on terms and conditions, more particularly set out therein. Whereafter, Promoter constructed a building on part of the said plot of land, known as “Sukruti Apartments” consisting of ground and seven upper floors and sold fats, vide individual agreements. Later, the fat purchasers formed a Co-operative Housing Society-the appellant herein. A, recital in the agreements, executed by the Promoter reads as under :

“AND WHEREAS M/s. Sukruti Builders are constructing the building consisting of ground and seven upper foors on the portion of the said land (excluding the land under the existing structures), tentatively named “Sukruti Apartments” as per plans, specifications and designs sanctioned by the B.M.C and the said portion of land under the said new building under construction and land appurtenant thereto admeasures about 668 sq.meters, as shown on the plan annexed to the agreement. (emphasis supplied) The next recital, contains a stipulation that, the Co- operative Housing Society of the fat owners of the Sukruti Apartments, shall have ‘lessees interest’, in the said portion of the said land on which the new building is being constructed, as per details set out in Clause-28 of the agreement. Clause-28 of the agreement, reads as under :

“28. The title which is intended to be created in favour of the Co- operative Society Association or Limited Company, as the case may be in respect of the said new property shall be as under :-

(a). There will be a lease for a term of 98 years at a token rent of Rs.150/- per annum in respect of the said portion of the said land under the aforesaid new building named ‘SUKRUTI APARTMENTS’ and the land appurtenant thereto being part of the said land described in the Schedule I hereunder written and shown on the aforesaid sketch plan hereto annexed, and a Conveyance of the said new building constructed thereon.”

AND SCHEDULE I ABOVE REFERRED TO :

ALL THAT piece or parcel of land with hereditaments, premises and buildings, admeasuring 1203.90 square metres or thereabout, bearing Survey No.161, Pot No.2 and bearing City Survey No.526 and 526/1 to 9 of Mulund (East), bearing Municipal T-ward No.478 and 479 and situate at Lokmanya Tilak Road, Mulund (East), in the Registration Sub-District and District of Bombay City and Bombay Suburban and bounded on or towards North by Lokmanya Tilak Road, on or towards South by property known as Kesar Baug Dhayphule Private Scheme, on or towards East by the property of Lahensingh Shersingh and Ratanbai Bomanji Patel and on or towards West by property of Vasant Gauri Jadhavji Narbheram and Others.”

3. Thus, under the agreement for sale executed with fat purchasers, promoter had agreed to create ‘lease interest’ in respect of portion of larger plot admeasuring 668 sq.