Bombay High Court
Kedar C Berde vs Rishabraj Housing And Anr on 20 October, 2015
Bench: V.M. Kanade
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APPL/531/2015
bdpps
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL (L) NO. 531 OF 2015
IN
NOTICE OF MOTION NO.1519 OF 2013
IN
SUIT NO.760 OF 2013
Kedar Chandrakant Berde )
having address at Flat No.2 )
Virangula Co-op. Hsg. Soc. Ltd., )
Ram Mandir Road, 51st Road, )
TPS III, Borivali (W),
Mumbai - 400 091 and
ig )
)
temporarily residing at )
A-101, Parkland 1, Raheja Estate, )
Kulupwadi Borivali (E), )
Mumbai - 66 ) ....Appellant.
(Original Plaintiff)
V/s
1. Rishabraj Housing, )
a partnership firm carrying on its )
business from 101, Raj Bhavan, Daulat )
Nagar, Road No.1, Borivali (E), )
Mumbai - 400 066 and also )
having address at 2nd floor, Hari Om )
Plaza, M.G. Road, Opp National Park, )
Near Omkareshwar Mandir, )
Borivali (E) Mumbai 400066 )
)
2. Virangula Co-operative Housing )
Society Limited, )
A co-operative Housing Society, )
registered under the Maharashtra )
Co-operative Societies Act, 1960 and )
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APPL/531/2015
having its registered office )
at Plot No.224, TPS III, )
Borivali (W), Mumbai - 400091 ) Respondents
(Original Defendants)
ALONGWITH
NOTICE OF MOTION(L) NO.1769 OF 2015
IN
APPEAL (L) NO.531 OF 2015
IN
NOTICE OF MOTION NO.1519 OF 2013
IN
SUIT NO.760 OF 2013
Kedar Chandrakant Berde ..... Applicant.
In the matter between
Kedar Chandrakant Berde ..... Applicant.
V/s
Rishabraj Housing & Anr. ...... Respondents.
Mr. Milind Sathe, Senior Counsel alongwith Mr. Kaushal Tamhane,
Meenakshi Dhanuka, Mr. Pranesh Gada i/b Dhanuka & Partners for
the Appellant in Appeal (L) No.531 of 2015 and for the Applicant in
Notice of Motion (L) No. 1769 of 2015.
Mr. P.S. Dani, Senior Counsel alongwith Mr. Sunil R. Sharma for
Respondent No.1 in Appeal (L) No.531 of 2015 and in Notice of
Motion (L) No.1769 of 2015.
CORAM: V. M. KANADE &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
Judgment reserved on : 19/10/2015
Judgment pronounced on 20/10/2015
APPL/531/2015
ORAL JUDGMENT: (Per V.M. Kanade, J.)
1. Appellant/original Plaintiff has filed this appeal challenging the
Judgment and Order passed by the learned Single Judge. By the said
Judgment and Order dated 15/06/2015, the learned Single Judge
was pleased to restrain Defendant No.1 from creating third party
rights in respect of Flat No.702 admeasuring 830 sq. ft. carpet area in
the suit building. The learned Single Judge further held that the
Plaintiff was entitled to the judgment in terms of prayer clause (b) in
respect of Flat No.702 admeasuring 830 sq. ft. carpet area in the suit
building which was to be constructed by Defendant No.1 as per the re-
development agreement. It was further held that the Plaintiff was
entitled to 562.5 sq.ft. carpet area free of cost from 830 sq.ft. of carpet
area of the flat and that the Plaintiff was entitled to purchase
remaining 267.5 sq. ft carpet area for Rs 14 lakhs.
2. Brief facts which are relevant for the purpose of deciding this
appeal are as under:-
3. Appellant is a member of Respondent No.2 Society and was in
possession of Flat No.2 which was admeasuring 417 sq. ft.
Redevelopment agreement was executed between Respondent No.1 -
Developer and Respondent No.2 - Society, which was registered on
14/10/2010. In the said agreement, Developer had agreed to give
25% additional carpet area free of cost to each existing member.
Accordingly, as per the said agreement, the Appellant was entitled to
APPL/531/2015
get additional carpet area of 104 sq. ft. Appellant also wanted to
purchase additional carpet area admeasuring 309 sq.ft and,
accordingly, as per the agreement the Appellant was to pay total
consideration of Rs 27,98,810/- for the additional area and, as such,
became entitled to get the Flat admeasuring 830 sq.ft. carpet area in
the new building.
4. The Society and the members demarcated the flats that were to
be sold to existing members. Appellant and Respondent No.1 entered
into agreement dated 31/12/2010 wherein it was agreed that
Respondent No.1 would allot Flat bearing No.102 on the first floor
admeasuring 830 sq. ft carpet area to the Appellant. Thereafter,
Respondent No.1 started work of reconstruction. Appellant paid an
amount of Rs 2,79,881/- for additional area and the balance
consideration was to be paid on Respondent No.1 handing over
possession of the new flat to the Appellant.
5. In the meantime, however, Respondent No.1 amended the
sanctioned plans without seeking consent of Respondent No.2 -
Society or its members. After amended plans were made available to
the Appellant on RTI application being made, the Appellant realized
that one bedroom that was forming part of the Flat was not shown in
the amended plans. Respondent No.1 then informed the Appellant
that they would be allotting Flat No.702 admeasuring 830 sq. ft carpet
area on the 7th floor of the new building and provisional allotment
APPL/531/2015
letter was received in his favour.
6. Appellant therefore filed a suit and took out Notice of Motion
seeking an order of appointment of Court Receiver of all the flats on
7th and 8th floor of the building which was constructed by Respondent
No.1.
7. On 07/08/2013, this Court restrained Respondent No.1 from
selling, alienating, encumbering, parting with possession and/or
creating any third party rights in respect of any of the Flats on the 7 th
and 8th floor of the new building. Respondent No.1 filed an affidavit-
in-reply and it was stated in the reply that Flat Nos.701 and Flat
No.801 on the 8th floor were sold by Respondent No.1 to the third
party viz. Mr. Suresh Oza. Details of the said transaction, however,
were not given to the Appellant. Appellant added Mr. Suresh Oza as
Defendant in the suit. In the meantime, Development Control Rules
were amended and additional FSI became available to the Developer.
Appellant claimed that he was entitled to 50% of the additional area
which was made available to the Builder and therefore claimed a flat
admeasuring 1000 sq. ft.
8. The learned Single Judge was pleased to pass the Judgment and
Order in terms of prayer clause (b) in favour of the Plaintiff by relying
on admission of Defendant No.1. Appellant/Plaintiff had also filed
Chamber Summons seeking leave to amend the plaint in view of the
APPL/531/2015
additional FSI which was made available to the Developer. The said
Chamber Summons was allowed and the Plaintiff was permitted to
amend the Plaint.
9. Mr. Sathe, the learned Senior Counsel appearing on behalf of the
Appellant submitted that the learned Single Judge has not considered
the case of the Appellant seeking additional FSI to the extent of 35%
which was to be shared equally between the Developer and members.
He submitted that in view of the amendment which was allowed, the
Judgment could not have been passed in terms of prayer clause (b) of
the Plaint. He submitted that proviso to amended Development
Control Rules clearly provided that FSI for rehabilitation component
could not be used for free sale component. He invited our attention to
proviso No.3 of the Development Control Rules. He submitted that
therefore the learned Single Judge has clearly committed an error of
law which is apparent on the face of record and, therefore, the entire
judgment and order is liable to be set aside.
10. On the other hand, Mr. Dani, the learned Senior Counsel
appearing on behalf of Respondent No.1 submitted that Respondent
No.1 had already created third party rights in respect of the said flat
and Respondent No.1 was ready and willing to give to the
Appellant/Plaintiff the flat admeasuring 830 sq. ft. carpet area. He
submitted that the Appellant was not entitled further 35% of the area
as contended.
APPL/531/2015
11. After having heard both the parties at length, we are of the
view that there is much substance in the submission made by Mr.
Sathe, the learned Senior Counsel appearing on behalf of the
Appellant. The learned Single Judge has not taken into
consideration the plea raised by the Plaintiff by way of
amendment, claiming additional area towards the fungible FSI
which was made available to the Developer and, therefore, the
learned Single Judge has clearly erred in passing the Judgment
and Order in terms of prayer clause (b) in favour of the Plaintiff.
Secondly, no material is brought on record to show that, in fact,
the adjoining Flat to Flat No.702 was sold to one Mr. Suresh Oza
or for that matter Flat No.801 on the 8 th floor. We are therefore
of the view that the Appellant has clearly made out a prima facie
case for being entitled to claim an area of 1000 sq.ft i.e. 830 sq.ft
carpet area plus additional area which was made available as a
result of fungible FSI being made available to each member.
12. We therefore set aside the Judgment and Order passed by
the learned Single Judge and by an order of injunction restrain
Respondent No.1 from creating any third party rights in respect of
Flat No.701 and Flat No.801 on the 8th floor of the building.
Respondent No.1 is also restrained from carrying out any further
construction in respect of 7th and 8th floor of the new building.
APPL/531/2015
13. Appeal is accordingly allowed in the aforesaid terms.
Hearing of the suit is expedited. Since Appeal has been allowed,
Notice of Motion (L) No.1769 of 2015 does not survive and the
same is accordingly disposed of.
(DR. SHALINI PHANSALKAR-JOSHI, J.) (V.M. KANADE, J.)
