Pallavi IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4509 OF 2019 Shri. Harshwardhan Shrikrishna Dole … Petitioner Versus M/s. Goldminar Developers Pvt. Ltd.

& M/s. Soham Real Estate Development Co. Pvt. Ltd. … Respondents -----------

Mr. S.S. Butala i/b S.S. Butala & Associates, for the Petitioner.

Mr. Jaydeep S. Deo a/w Mr. Sanjay K. Gunjkar for the Respondent No.1.

Mr. Jayesh Joshi for the Respondent No.2.

Mr. Rohit Joshi for the Respondent No.4.

Mr. Pushkar Nagpurkar i/b. Rohit Sakhadeo for the Respondent No.6 (TMC). -----------

CORAM: MADHAV J. JAMDAR, J.

DATE : NOVEMBER 25, 2022 P.C.:

1. The Petitioner who is original plaintiff by way of the present writ petition filed under Article 227 of the Constitution of India has challenged legality and validity of order dated 16th November 2018 passed by learned 3rd Joint Civil Judge, Senior Division, Thane below Exh.23 in R.C.S. No.522 of 2018. The said application bearing Exh.23 was filed by Respondent No.4 i.e. Defendant No.4 seeking prayer that inquiry be conducted under section 8 of the Maharashtra Court Fees Act (Act No. XXXVI of 1959) (hereinafter referred to as “the said Act”) regarding the valuation of the suit as to the reliefs claimed and the Court fees paid and plaintiff be directed to value the suit correctly and properly and also be directed to pay deficit Court fees as may be ascertained after such inquiry. By the impugned order dated 16th November 2018 the said application of Respondent No.4 at Exh.23 was allowed and the petitioner was directed to pay the requisite Court fee as per the prayer clause of the avoidance of agreement as prayed, within two months from the date of the order.

2. It is the contention of the petitioner that the petitioner is a flat purchaser and he has filed suit for enforcement of statutory obligations as per the various provisions of the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management, and Traders) Act, 1963 (for short “MOFA”). It is the contention of the petitioner that defendant no.1 i.e. Respondent No.1 who is developer has constructed the buildings and bungalow on the land bearing Gat No.64, Hissa No.1, village Chitalsar Manpada, Near Tikujini Wadi, Thane. Respondent No.1 – developed the suit property and constructed the buildings and bungalows on the said land. The bungalow owners formed “Raj Vilas Haveli Kothi CHS Ltd.” and flat owners formed “Raj Villas Hawa Mahal CHS Ltd.”. It is the plaintiff’s contention that MOFA is applicable to the said development carried out by the Respondent No.1. According to the Petitioner, Respondent No.1 is the promoter as contemplated under the MOFA.

3. In view of above position, it is the submission of Mr. Butala, learned counsel appearing for the Petitioner that as the suit is filed for enforcement of statutory obligations as per MOFA, therefore, Court fee, as envisaged under section 6(iv)(j) of the Bombay Court- Fees Act will be required to be paid and accordingly, same is paid. Mr. Butala relied on the decision of this Court in the case of Maria Phitomina Pereira Vs. Rodrigues Construction1. He also relied on the decision of this Court dated 9th January 2018 passed in Civil Revision Application No.483 of 2017 (Kiran Suresh Bhagiya Vs. M/s. Kakade Construction Co. Pvt. Ltd. and Anr.). He also relied on the judgment of this Court in the matter of Niraj s/o. Narendra Walle Vs. Smt.

Vijaya w/o. Narendra Walle & Ors.2

4. Mr. Rohit Joshi, learned counsel appearing for Respondent No.4 i.e. purchaser of bungalow under the agreement which is the subject matter of suit submitted that what is sought to be done by prayer clause (d) is seeking declaration that agreement/ registered sale deed executed in favour of Respondent Nos.4 and 5 are sought to be declared as null and void. He submits that therefore, that relief will not come under the purview of the MOFA. He relied on the judgment of this Court in the matter of Chandrika Chunilal S