The suit agreement did not create an enforceable right in favor of the plaintiffs under the Maharashtra Ownership Flats Act, and the defendants were not promoters within the meaning of the Act.

JUDGMENT

1. Appellants- Plaintiffs, instituted suit, seeking enforcement of statutory obligations under the Maharashtra ownership Flats Act (MOFA for short). Pending suit, learned Trial Judge vide order dtd. 12/6/2021 refused to restrain defendants from creating third party rights in the Suit Property. Feeling aggrieved by the above said order, this appeal is preferred under Order 43 Rule 1 (r) r/w. Sec. 104 of the Code of the Civil Procedure.

2. Heard learned counsel for the parties at length.

3. Foremost question, that arises for consideration, in this appeal is whether suit seeking enforcement of obligations under the MOFA, was maintainable, especially against the Defendant Nos. 3 and 4, who admittedly were not party to the suit agreement dtd. 3/3/2010.

4. Briefly stated facts of the case are like this:

Jaibharat Cooperative Housing Society (Proposed) vide development agreement dtd. 29/1/2005 appointed M/s. Mahek Developers- Defendant No.1 to implement housing project under the Slum Rehabilitation Scheme in accordance with Development Control Regulation (DCR) No. 33(10), on a plot of land bearing CTS No. 471(Part) at Village Kandivali, Taluka Borivali, Mumbai - 400 067. M/s. Mahek Developers was a proprietary concern, of which Defendant No.2 was a proprietor. On 2/3/2010, M/s. Mahek, through its proprietor agreed to sell 6050 sq. ft. carpet area (Suit Property for short) in proposed, free-sale component of rehabilitation project known as 'Mahek Heights' to the plaintiffs, for total consideration of Rs.1.50 Crores. Plaintiffs paid entire consideration to Mahek Developers ('Mahek' for short) before July, 2010. In December, 2010, said Mahek, proprietary concern, was transformed into a partnership firm, consisting of Defendant Nos. 2 and 3. A year thereafter, on 9/2/2012, Jaibharat Cooperative Housing Society, represented slum rehabilitation authority, seeking cancellation of appointment of M/s. Mahek as its Developer, reasoning being nearly for seven years project did not progress at all. Whereupon, the authority under the Slum Act, revoked the appointing of Mahek, and in its' place appointed M/s. Raj Arcade - Defendant No.4, to implement the project. That order was passed in May, 2012. For whatsoever reasons, after appointing Defendant No.4 as a developer, Respondent No.3 retired from partnership in August, 2012. In the backdrop of these admitted facts, it is Plaintiffs' case that M/s. Mahek, in collusion with Defendant No.3, with an intention to wipe out its liabilities and obligations assigned development rights to Defendant No.4. Thus with ulterior motive, M/s. Mahek firstly admitted M/s. Sethia Estate Development Private Limited (Sethia for short) Defendant No.3, as a partner, of which Mr. Akshay Kothari was/ is director. Likewise, executed a power of attorney in favour of Mr. Akshay Kothari, who happened, to be director of M/s. Raj Arcade Homes Pvt. Ltd. (Defendant No.4), a new developer. Whereupon, M/s. Mahek, received huge amount from M/s. Raj- new developer, before even issuing LOI in its favour.(see complaint to SRA). To put it differently, Plaintiffs' case is M/s. Mahek, directors of M/s. Sethia Estate (Defendnt No.3) through common person Mr. Kothari, in collusion with M/s. Raj Arcade (Defendant No.4), in planned manner assigned development rights to Defendant No.4 and thereby deceived the plaintiffs and such other similarly situated persons, with sole intention to wipe out all liabilities of M/s. Mahek. As a result, complaint was filed by the Plaintiffs, against the Defendants with Slum Rehabilitation Authority. Even FIR was registered at the Kandivali Police Station. In the circumstances, Plaintiffs issued notice to all the Defendants, calling upon them to discharge their obligations under the suit agreement, dtd. 2/3/2010. After which, , Plaintiffs instituted Short Cause Suit No. 653/2015, to seek the, following reliefs:

(i) Mandatory orders, directing Defendants to execute agreement for sale in respect of suit p