Informed consent under MOFA mandates full disclosure by promoters regarding construction potentials and changes, affecting rights of flat purchasers.

JUDGMENT:
GAURI GODSE, J.

1. This appeal is preferred by defendant nos. 1 to 3 to challenge the interim order passed in a suit filed by respondent no.1. Respondent no. 1 is a purchaser of one flat in the building developed by the appellants. The agreement in favour of the plaintiff is executed under the provisions of The Maharashtra Ownerships Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (“MOFA”) by the appellants, i.e. defendant no. 1 as promoter. The partners of the promoter are joined as defendant nos. 2 and 3. Defendant no. 4 is the Pune Municipal Corporation [“corporation”], and defendant nos. 5 and 6 are officers of the corporation. Defendant no. 7 is the Architect of the project. Defendant nos. 8 to 105 are the flat purchasers in the building in question.

2. The suit is filed to seek rectification in terms of the agreement and specific performance of the rectified agreement, and challenge the amendment to the sanctioned layout. Various other reliefs are prayed, including a declaration that the additional floors constructed as per the amended plan are illegal and thus also challenged the flat purchase agreements in favour of the flat purchasers of the additional floors. By the impugned order, the application filed by the plaintiff seeking the grant of a temporary mandatory injunction and a temporary prohibitory injunction is decided. The prayer for a temporary mandatory injunction to hand over possession of the suit flat is rejected. However, the trial court partly allowed the interim application and granted a temporary injunction restraining defendant nos. 1 to 3 (promoters) from carrying out any activity in the said project with respect to the additional construction and from dealing with or creating any further third party interest and handing over the possession to the flat purchasers of the additional floors. The defendant nos. 4 to 6 are restrained from sanctioning and revising any plan, issuing any permission, sanction with respect to additional construction not forming part of the disclosure made to the plaintiff, and restrained defendant nos. 8 to 105 from creating any third-party interest.

3. The appeal was admitted vide order dated 21^st January 2025, and by way of ad-interim relief, the order of temporary injunction was stayed. Being aggrieved by the ad-interim relief granted by this court, the plaintiff filed a Special Leave Petition in the Hon’ble Apex Court. The Special Leave Petition is allowed, the ad-interim relief granted by this court is vacated, and this court is directed to hear and finally decide the appeal. Hence, in view of the directions issued by the Hon’ble Apex Court, this appeal was heard for final disposal on 2^nd May 2025.

Facts in Brief:

4. By a registered agreement dated 20^th January 2017 entered into by defendant no.1 as promoter and the plaintiff as flat purchaser a residential flat No. 502, admeasuring 67.11 square meters carpet area on the 5^th floor of Wing “A” of the housing complex known as Lotus Court (“the suit flat”) was agreed to be sold to the plaintiff for a total consideration of Rs.43 lakhs. Out of the total consideration, an amount of Rs. 5,22,500/- was paid by the plaintiff as recorded in paragraph 8 of the agreement. The payment schedule regarding balance consideration was agreed between the parties as per the Third Schedule attached to the agreement. Thus, the balance consideration out of the total consideration of Rs . 44,93,500/- was to be paid slab-wise as indicated in the payment schedule.

5. The plaintiff filed a suit to challenge the amendment to the sanctioned layout on the ground that it was altered without the informed consent of the plaintiff. The plaintiff also prayed for a declaration that certain clauses in the agreement were violative of the provisions of MOFA and, therefore, be declared to be duly rectified to the effect that such clauses do not exist in the agreement. The plaintiff thus prayed for specific performan