The court held that consent for additional construction must be informed, and the plaintiffs failed to demonstrate a prima facie case for injunctive relief due to significant delay and third-party rights created.

JUDGMENT :-

1) This Appeal is directed against a common order dated 16th March, 2023, passed by the learned Judge, City Civil Court, Borivali Division in Notices of Motion taken out by the appellants-plaintiffs in L.C. Suit No. 11 of 2021 and Notice of Motion No.2812 of 2021, taken out by the Koshal Co-operative Housing Society Ltd., in L.C Suit No.2579 of 2021 to the extent the Notice of Motion bearing No.804 of 2022, Notice of Motion No.1756 of 2022 and Notice of Motion No.827 of 2023 came to be rejected.

2) For the sake of convenience and clarity, the parties are hereinafter referred to in the capacity in which they are arrayed in L.C. Suit No. 11 of 2021.

3) The background facts necessary for the determination of this Appeal, can be summarized as under :-

(a) Mithila Co-operative Housing Society Limited (Mithila), plaintiff No.1 is a Society registered under the Maharashtra Co-operative Societies Act, 1960 (“the Act, 1960"). Plaintiff No.2 is a member and one of the original flat purchasers. Nahachal Laloochand Pvt. Ltd., (Nahalchand), defendant No.1 is a Company registered under the Companies Act, 1956. Municipal Corporation of Greater Bombay (MCGM), defendant No.2 is the Planning Authority.

(b) Nahalchand - defendant No. 1 had floated a scheme of construction of buildings for residential purposes on a parcel of non-agricultural land being Survey No.63, City Survey No. 369- B (Part) of village Malad, Taluka Borivali, Mumbai, admeasuring about 7365.90 Sq.mtrs ("the suit land").

Defendant No.1 constructed the building (Mithila) and the occupation certificate was granted on 19th June, 1986. Respondent No.1 had executed agreements for sale in favour of the flat purchasers in accordance with the provisions of the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 ("MOFA, 1963"). The flat purchasers in the said building formed themselves into plaintiff No.1 -Society, in the year 1987.

(c) Under the terms of the said agreement for sale the respondent No.1 was obligated to convey the title of the suit land to plaintiff No.1 - Mithila after the Society was formed. Respondent No.1 did not discharge its statutory obligation under the provisions of MOFA, 1963 to convey title. Instead of conveying the title of the suit land in favour of the plaintiff No.1, defendant No.1 - Nahalchand went on constructing additional buildings over the suit land in breach of the obligations under the MOFA, 1963. In the process, the defendant No.1 constructed three more buildings namely Koshal, Avanti and Takshashila.

(d) It is the claim of the plaintiffs that the defendant No.1 unlawfully and unjustifiably availed the FSI, fungible FSI and TDR pertaining to the suit land, which vested in the plaintiff No.1. Defendant No.1 thus was not entitled to utilise the said FSI, fungible FSI and TDR. The plaintiffs further asserted that the MCGM - defendant No.2 had issued the I.O.D., Commencement Certificate and Occupation Certificate in respect of the new buildings, which were being erected in breach of the statutory provisions, and to the grave prejudice of the rights of the plaintiffs. The plaintiffs, thus, approached the Court seeking diverse reliefs including a decree for conveyance of the suit land, prohibitory and mandatory injunctions and other consequential reliefs.

(e) In the said suit, the plaintiffs took out Notices of Motion, seeking interim reliefs. In Notice of Motion No.804/2022, the plaintiffs, inter alia, sought a temporary order and injunction against defendant No.1 to forthwith remove at its own costs all buildings/structures on the suit land other than Mithila apartment, to restrain the defendant No.1, from carrying out any further construction or submitting any proposal to MCGM- defendant No.2 for construction/development into and upon the suit land, restrain the defendant No.1 from in any manner dealing with, disposing off or creating any third party rights into and upon the suit lan