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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
KAMAL KHATA
Cable Corporation of India Limited – Appellant
Versus
Western Edge II Premises – Respondent
JUDGEMENT :
KAMAL KHATA, J.
1. This Appeal has been preferred by the Appellant/Original Defendant No.1 (“the Owner”) under Order XLIII Rule 1(r) challenging the Order dated 30th October 2023 passed by the Learned Additional Principal Judge, City Civil Court at Dindoshi, in Notice of Motion No. 2989 of 2022 in S.C. Suit No. 2103 of 2022 ("Impugned Order").
2. By the Impugned Order, the Learned Trial Court allowed the Notice of Motion filed by Respondent No. 1 ("the Society") and has granted injunction restraining the Appellant-Owner from utilising any FSI/TDR, creating third-party rights, and or commencing any construction on the land bearing CTS Nos. 165 and 163A admeasuring approximately 31,123 sq. mtrs. at Village Magathane, Borivali, Mumbai (“Suit Land”).
3. The Owner's grievance against the impugned Order is threefold.
i. The Trial Court has granted sweeping and drastic interim reliefs which effectively freeze the entire development potential of the Suit Land, even though the Society has failed to establish any prima facie case entitling it to the Owner's reserved and contractually demarcated FSI/TDR rights.
ii. Second, that the Trial Court has completely overlooked the express terms
Landowner granting limited FSI/TDR rights to independent developer, reserving balance acknowledged by purchasers, not 'promoter' under MOFA; cannot be injuncted from using reserved rights; bare injun....
Third-party purchasers cannot enforce rights against a society after the termination of the developer's agreement; their remedies lie solely with the developer.
The Competent Authority under MOFA cannot adjudicate title disputes; it must fulfill statutory obligations to issue deemed conveyance to the Society.
Deemed conveyance must only cover completed areas of a property, reserving rights of the developer for ongoing and future construction under applicable law.
The court affirmed that deemed conveyance under MOFA can apply to composite societies, despite differing member agreements, emphasizing equitable treatment and the necessity of proper procedural comp....
The court ruled that a developer's right to complete construction cannot be denied due to the execution of a deemed conveyance; proportional land conveyance is valid under the Maharashtra Ownership F....
A covenant in a Deed of Conveyance runs with the land and binds successor parties, holding statutory presumption of validity unless specifically challenged.
The court established that an agreement recognizing tenants as owners of flats, coupled with the receipt of consideration for those flats, qualifies the landlord as a promoter under the Maharashtra O....
Developers must disclose full development potential under MOFA, and construction exceeding this potential without consent from all flat purchasers is impermissible.
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