Bombay High Court
Age-23 Years vs Sumer Set Co-Operative Housing on 22 November, 2013
Bench: Anoop V. Mohta
1 AOST.30848-2013
Dond
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER (ST) NO.30848 OF 2013
Anuj Hemant Sheth
Age-23 years, Indian Inhabitant of
Mumbai, residing at Bungalow No.2.,
Dev Ashish, High Land Complex,
Charkop Village, Kandivali (West),
Mumbai-400067. ...Appellant
(Original Plaintiff No.1.)
Versus
1.Sumer Set Co-operative Housing
Housing Society Limited
a Cooperative Housing Society registered
under the provisions of Maharashtra
Co-operative Societies Act, 1960 and
having its Registered Office at Plot
bearing CTS No.415, Survey No.2,
Hissa No.9, Charkop, Kandivali (West),
Mumbai-400 067.
2.Neo Housing And Infrastructure
Development Limited, a Company
incorporated under the Indian
Companies Act, 1956 having its
registered office at 1 & 2, Satyadeep
CHS Limited, Chikuwadi,
Borivali (West), Mumbai-400 092. ...Respondents
(Org.Def. Nos.1 & 2)
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3.Vishal H. Mandlani
Age 27 years, Indian Inhabitant of Mumbai
residing at Bungalow No.1, High Land Complex
Charkop Village,
Kandivali (West), Mumbai-400 067. ...Respondent No.3.
(Orig.Plff. No.2.)
---
Ms. Manjiri Shah a/w Mr. Tushar Shah and
A. D'Souza i/b Lex Firmus for Appellant.
Mr. V.A. Thorat, Senioir Adv. a/w Mr. Rohit Shetty
i/b Purav Domanra for Respondent No.1.
Mr. Atul G. Damle i/b Mr. K.S. Dubey and V.K. Damle
for Respondent No.2.
----
CORAM : ANOOP V. MOHTA, J.
DATE : 22 NOVEMBER 2013.
ORAL JUDGMENT:
Heard the learned Counsel appearing for the parties.
2 The Appellant-Original Plaintiff No.1 has challenged order
dated 22.10.2013 passed by the learned Judge, City Civil Court, Dindoshi,
Goregaon, Mumbai, thereby dismissed the Notice of Motion. The
Appellant along with Respondent No.3 filed the suit sometime in
September 2013 along with Notice of Motion in question thereby prayed
and sought declaration that the work of construction carried out by the
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Defendants is in contravention of Section 7 of Maharashtra Ownership
Flats (Regulation of the Promotion of Construction, Sale, Management and
Transfer) Act, 1963 (MOFA Act). They also prayed for interim
protection/injunction thereby prayed to restrain the Respondent-Society as
well as Builder-Developer to carry out any further work or construction
activity on the suit plot of the Society.
3 The averments so made in the plaint and the supporting
affidavit itself show that the Appellants were fully aware of the
development agreement/permission to develop the suit property wide
agreement dated 9 October 2010. Admittedly, 38 members of the Society
have already vacated the premises. The adjacent premises/flats and those
structure were demolished also. The construction is already commenced
which is up to the plinth level. The Developer, admittedly have been
paying the necessary charges and incurring expenses by providing the
compensation, in lieu of alternate accommodation since November 2012.
4 Admittedly, the Society-Respondent No.1 formed/registered in
the year 1992-93 covering the total land including the land below the two
bungalows in question. Though there is a specific Clause No.13, the
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Appellant/bungalow owners not become member of the Society, as
contemplated under MOFA Act. No steps have been taken to become
member of the Society. The bungalows though owned by the Appellant, is
admittedly on the plot in question of the Society. No justifiable reason
and/or averred by the Appellant-Plaintiff No.1 for filing such suit and/or
injunction
5 The plain reading of the plaint and the affidavit, itself shows
that there was no challenge whatsoever was raised with regard to the
agreement/conveyance. The Developer of the Society and its members
have proceeded on the basis of necessary clauses/permissions obtained
from the authorities since 2010.
6 The rights of the Appellant, even if any, though not member of
the Society as of today need to be tested by the competent Court. The
status as of today not being a member of the Society though bungalow in
question is on the plot of the Society, is again a matter of discussion,
basically when the present suit as filed is for the decision revolving around
the MOFA Act. The person who is not a member of the Society to what
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extent can file such suit for declaration that the Defendants have carried
out the construction in contravention of the MOFA Act, is again a matter of
detail material. Unless that declaration is sought by invoking appropriate
remedy by the Appellant, and the Society recognizes and/or accepts the
members, the suit so filed and the injunction so sought in view of above
facts and circumstances apart from the delay in invoking the equitable
jurisdiction of the Court, in my view, is a matter which goes against the
Appellant. The grievances of the Appellant just cannot therefore be decided
at this stage, in view of the above situation to deny the development of the
property, admittedly owned by the Society and its members.
7 All have already acted upon. The Society and its members
require their flats to be constructed at the earliest. The Developer is under
obligation to complete the construction as agreed within the prescribed
period. Therefore, halting of such project by the Appellant, in my view, is
in not in the interest of the majority of the members and so also the
Society. The balance of convenience and equity also lies in favour of the
members of the Society and the Society and certainly not in favour of the
Appellant. The irreparable injury, in view of above, also not the case made
out by the Appellant.
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8 The bungalow was damaged therefore police complaint was
lodged. The Appellant thereafter took steps and file the suit. That itself, in
my view, cannot be the reason as this itself means there was no steps taken
by the Appellant at the earliest based upon alleged ownership of the plot,
being the owner of the bungalow. Any right with regard to the F.S.I., as
alleged and/or sought to be contended need to be tested subject to the final
decision in the trial, Appellant is not the member, at least at this stage, the
entitlement of share of F.S.I of the Society and/or its members in the
present facts and circumstances can be compensated in terms of money.
The F.S.I even any, as contended, the Appellant wants to use for his own
purpose, in view of present averments in the plaint and/or supporting
affidavit cannot be accepted. The remedy is elsewhere.
9 The submission that the Appellant wants to amend the plaint
and/or wants to place on record the material which they sought/brought
after filing of the suit after filing of the present Appeal, in no way can be
the reason to halt the development of the property when majority of the
members are waiting of their house/premises since long.
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10 The aspect of delay and/or latches in taking steps as the deed
of confirmation obtained in June 2013 that itself cannot be the reason to
overlook the basic agreement of the year 2010, as that was the foundation
of development of such property.
11 The learned Judge by impugned order by considering various
aspects and points so referred above including the judgment cited by the
parties, not granted or continue with the interim relief and disposed of the
Notice of Motion. The status-quo was continued for six weeks on
22.10.2013. In vacation the same was extended by the Vacation Judge and
thereafter by this Court also. That itself cannot be the reason in view of
above to continue the status quo order which is nothing but to stay of
development of the property at the instance of the Appellant.
12 The damages to the bungalow even if any, and the cost
incurred for repairing of the same, the Appellant is entitled to recover from
the Developer. The learned Counsel appearing for the Developer also
offers reasonable amount for the same. The Appellant is not accepting the
same. The reason for non occupation of the bungalow as it was damaged as
averred is again a matter of damage and/or compensation.
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13 The Developer and/or Society not obtained no objection from
the bungalow owner is again a matter which only to be and/or can be tried
in appropriate proceedings. The effect of development of any property in
contravention of terms and conditions of the competent authority, just
cannot be overlooked. The consequences are known to all. In the present
facts and circumstances, therefore, no case is made out by the Appellant to
continue the status-quo order as passed by this Court during vacation on
5.11.2013 and lastly on 18.11.2013. However, I am inclined to observe that
the parties are still at liberty to settle the disputes/differences even if any.
14 In the result, the Appeal from Order is dismissed. Interim
order stands vacated.
15 The learned Counsel appearing for the Appellant seeks stay of
this order. For the above reasons itself no case is made out for stay of the
order as even otherwise no prejudice will be caused to the Appellant if the
construction is continued in accordance with law. The stay refused.
(ANOOP V. MOHTA, J.)
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