Bombay High Court
Smt. Rakmabai Baliram Patil And ... vs Ravi Waman Mhatre And Ors on 4 May, 2023
Bench: Makarand Subhash Karnik
2023:BHC-AS:13618
AO-02-2021-854-2020.DOC
Andreza
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally
signed by
URMILA
APPELLATE SIDE CIVIL JURISDICTION
URMILA PRAMOD
PRAMOD INGALE
INGALE Date:
2023.05.04
17:22:32
+0530 APPEAL FROM ORDER NO. 854 OF 2022
Smt. Rakmabai Baliram Patil & Ors. ... Appellant
Versus
Ravi Waman Mhatre & Ors. ...Respondents
WITH
APPEAL FROM ORDER NO. 2 OF 2021
M/s. Vighnaharta Enterprises (partnership ... Appellant
Firm)
Versus
Ravi Waman Mhatre & Ors. ...Respondents
WITH
CONT. PETITION NO. 63 OF 2022
Ravi Waman Mhatre & Ors. ... Petitioners
Versus
M/s. Vighnaharta Enterprises (partnership ...Respondents
Firm)
WITH
CONT. PETITION NO. 252 OF 2021
Ravi Waman Mhatre & Ors. ... Petitioners
Versus
Smt. Rakmabai Baliram Patil ...Respondents
WITH
INTERIM APPLICATION NO. 17743 OF 2022
IN
APPEAL FROM ORDER NO. 854 OF 2022
Smt. Rakmabai Baliram Patil & Ors. ... Petitioners
Versus
Ravi Waman Mhatre & Ors. ...Respondents
Mr. Vijay Patil i/b. Mr Vivek Rane for Appellants in AO No.
854 of 2022
Page 1 of 22
4th May 2023
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AO-02-2021-854-2020.DOC
Mr. A. Y. Sakhare, Senior Advocate i/b Kalpesh Patil for
Appellant in AO No. 2 of 2021.
Ms. M. S. Bane, AGP for State.
Mr. N. V. Walawalkar, Senior Advocate a/w A. S. Rao &
Mr. Prashant Kamble for Respondent AO 854 of 2022 & AO 2 of
2021 and for Petitioner in CP No. 63 of 2022 and CP No. 252 of
2021.
_______________________
CORAM: M. S. KARNIK, J
RESERVED ON: 17th NOVEMBER 2022
PRONOUNCED ON: 4th MAY 2023 - (THROUGH V.V.)
_______________________
ORDER
1. The challenge in this Appeal from Order is to an order dated
18.12.2020 passed by the Civil Judge, Senior Division. Appellants in
AO No. 2 of 2021 are original Defendant nos. 2 to 4. The Appellants
in AO No. 854 of 2022 are the original plaintiffs. Appeal from Order
No. 854 of 2022 is filed by the original plaintiffs challenging the very
same impugned order. The interest of the appellants is common.
The contest is between the appellants in both the Appeal from Orders
on one side and the respondent no.1-defendant no.1 on the other.
2. The plaintiff nos. 1 to 25 (present respondent nos.2 to 26) filed
a suit for declaration, avoidance and cancellation of contract and
injunction. The details of the suit properties are mentioned in the
plaint. The plaintiffs entered into Development agreement with the
defendant no.1 on 22.12.2007 and executed Confirmation Deed,
Power of Attorney on 16.01.2010 with respect to the suit properties
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mentioned in serial nos. 1 to 4 in the suit. An unregistered
Memorandum of Understanding (MoU) dated 15.12.2010 was entered
between the plaintiffs and the defendant no.1 in respect of the
properties mentioned at serial nos. 5 to 11 in the plaint.
3. The plaintiffs executed registered Developments agreements
with defendant no.2-firm on 16.10.2014 with regard to property at
serial no. 65 (serial no.9). Another Development agreement with
regard to serial no.73/9A and survey no. 72/1 (admeasuring 5300
square metres), at serial nos. 10 and 11 with defendant no.2-firm
came to be executed. The plaintiffs on 16.10.2014, executed registered
agreement of sale in favour of defendant nos. 3 and 4 in respect of
property survey no. 72/1 (admeasuring 1600 square metres) at serial
no. 10 in the plaint.
4. It is the case of the plaintiffs that despite the Development
agreement in favour of defendant no.1 and despite verbal assurance
of defendant no.1 that he shall commence with development of suit
property nos. 1 to 4, nothing was done, no development activities
were carried out between the period December 2007 till 2014. It is
the case of the plaintiffs that the defendant no.1 has fraudulently
included in the suit agreement, certain properties owned by the
plaintiffs i.e. nos. 9 to 12 with survey no. 65, 73/1, 73/9A and 73/4,
which were not intended nor agreed to be given for the development.
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It is the case that the Development agreement was delayed and
according to the plaintiffs, the defendant no.1 had no intention to
develop the suit properties.
5. Sometime in 2014, the plaintiff being in monetary need,
decided to develop their property nos. 9 to 11 (survey nos. 65, 73/1
and 73/9A) and agreed to grant development right of suit properties
nos. 9 to 11 to defendant nos. 2 to 4. Thereafter, Development
agreement registered on 16.10.2014 was executed by the plaintiff in
favour of defendant no.2 M/s. Vighnaharta Enterprises and granted
development rights in respect of suit property no. 9 together with
Power of Attorney dated 16.10.2014 in favour of the partner of
defendant no.2-firm. Agreement of sale dated 16.10.2014 was also
entered in respect of the suit property no. 10 by the petitioners in
favour of defendant no.2. The possession of the suit property nos. 9
to 11 was handed over to the defendant nos,. 2 to 4. It is averred that
the plaintiffs had discussion with defendant no.1 for settlement since
2014 and even offered to return the amount of Rs. 60 Lakhs, which
they had received pursuant to the deposit of the suit agreement the
plaintiff had with the defendant no. 1. That the defendant no.1 came
to the suit properties on 27.09.2015 and threatened to take forcible
possession of the suit properties. The plaintiffs as an abundant
caution terminated the Development agreement dated 13.02.2007
and the Power of Attorney executed by Advocate's notice dated
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09.02.2015. The suit is therefore filed for declaring the agreements
entered into between the plaintiffs and defendant no.1, and suit
agreements/development agreements/Power of Attorneys/MoU
stated validly terminated/cancelled and the same are not binding on
the plaintiffs.
6. The suit was filed on 18.02.2015. The present respondent no.1-
origin al defendant no.1 filed an application for injunction restraining
the plaintiffs and defendant nos. 2 to 4 from proceeding with the
construction of the suit property and from creating any third party
right/interest in any manner whatsoever and from also changing the
nature of the suit property. The said application was filed on
08.08.2019. The trial Court by an order dated 18.12.2020, allowed
the injunction application filed by the defendant no.1 restraining the
plaintiffs, defendant nos. 2 to 4 from making and/or proceeding with
the construction of the suit properties till disposal of the suit. Further
injunction regarding creating third party interest in the suit
properties or changing the nature of the suit properties till disposal of
the suit was granted.
7. Learned Senior Advocate Shri Sakhre appearing on behalf of
the appellants submitted that though the suit was filed in 2015, the
application exhibit 40 for injunction came to be filed by the
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defendant no.1 only in 2019. The following are the submissions of
Shri Sakhare :
"4. That the Ld. Trial Court has erred in applying the
principles of Prima facie case, balance of convenience,
irreparable loss caused to the Appellants due to the grant
of injunction and failed to consider the conduct of the
party seeking relief of temporary injunction. That the
injunction being an equitable relief the discretion to grant
such relief should be exercised only when the conduct of
the party is free from blame.
5. It is well settled that, when construction has been
made on a land, which is of considerable magnitude, and
when the Defendant No.1 is not facing any substantial
injury, no order of injunction ought to have been granted.
Also, the Plaintiffs have voluntarily deposited amount of
Rs 60,00,000/- on 02.05.2015, before the Trial Court
towards refundable security Deposit.
6. That the Appellants have carried out construction on
the property bearing Survey No. 65, since 20.03.2019,
after obtaining all the necessary permissions from the
authorities concerned. The Total sanctioned Plan is of
Ground + 16 floors. The Appellants have constructed 9
Floors till December 2020. (The Appellants have
completed slab work upto 14 slabs and upto 9 Floors
internal and external plaster work). The Appellants have
incurred expenses to the tune of six crores towards the
construction of the said building. Therefore, the balance
of convenience is in favour of the Appellants.
7. The Appellants submit that, Appellants have sold flats
to 10 purchasers out of which 3 flat buyers have entered
into agreement to sale with the Appellant Firm. The
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Petitioner project is registered with Maharashtra Real
Estate Regulatory Authority, vide registration No.
P51700020930. The said registration is valid for period
commencing from 23.05.2019 and ending with
30/03/2023.
8. That refusal of injunction, would not cause substantial
injury to the Defendant No.1, in as much as the loss or
injury if any caused to the Defendant No.1 can be
compensated in damages.
9. That the Defendant No.1 was aware of the
Development agreements as well as the Agreement to sale
entered by the Plaintiffs with the Defendants No.2 to 4 in
the month of February 2015. Inspite, thereof no efforts
were made by the Defendant No. 1 seeking enforcement of
his alleged rights as against the Plaintiffs.
10. That since the year 2007, the Defendant No.1 has not
addressed a single notice or letter to the Plaintiffs, thereby
calling upon the Plaintiffs to full fill their part of contract,
till filing of the suit by the Plaintiffs. No steps have been
taken by the Defendant No.1, to act in furtherance of suit
agreements-I and II. The Defendant No.1 was a silent
spectator for over a period of 7 years and was neither
ready or willing to develop the suit properties.
11. That the Defendant No.1 has not sought specific
performance of the both the suit agreements till date. The
reliefs sought for by the Defendant No.1, in the counter
claim is for declaration and injunction only.
12. That the Defendant No. 1 has filed counter claim on
11.06.2015. No application seeking temporary injunction
was filed with the Counter claim. Though the Defendant
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No.1 avers in the W.S, that attempt made in Feb 2015 to
start construction activity. The Defendant No.1 filed
Application below Exh 40, dated 08.08.2019, seeking
grant of injunction as against the Plaintiffs and
Defendants No. 2 to 4. The Defendant No.1 did not pray
for ad-interim reliefs pending the injunction application.
During the said period the Appellants were carrying out
construction openly to the knowledge of the Defendant
No.1. The Ld. Trial Court was pleased to allow the
Application below Exh 40 vide order dated 18.12.2020,
thereby restraining the Plaintiffs, Defendant No.1 and
Defendants No. 2 to 4 from raising construction and
creating third party rights in respect of the said property.
13. That the Appellants have placed reliance upon the
judgment of the Hon'ble Supreme Court in the case of
Sushil Agarwal vs Meenakshi Sadhu and Ors, (2019) 2
SCC 241, wherein the provisions of provisions of section
14(3)(c )(i) of Specific Relief Act, 1963 are discussed. The
Appellants rely on paragraphs 22,26,27 of the said
judgment.
14. That the Defendants No.2 to 4 have entered into
registered Development agreement in respect of property
bearing Survey No. 65 with the Plaintiffs. The said
Defendants have paid an amount of Rs 20,00,000/- and
security deposit towards consideration. The Defendants
No. 2 to 4, would suffer irreparable loss due to the
injunction granted.
15. Therefore, due to the unexplained delay and conduct
of the Defendant No.1, the Defendant No.1 is not entitled
for equitable relief of temporary injunction.
16. That the Ld Trial Court has failed to consider that,
MOU i.e Suit Agreement No.2, is an unregistered
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document and not a concluded contract. The said
agreement is not enforceable in law and therefore no relief
of injunction could have been granted on basis of said
MOU."
8. Learned Senior Advocate Shri Sakhare, relied upon the
decision of the Supreme Court in the case of ECE Industries
Limited (2) vs. S. P. Real Estate Developers Private Liited &
anr.1, specially paragraphs 26 and 27 and contends that when
construction has been made on a land, which is of considerable
magnitude, and when the plaintiff shall not face any substantial
injury, the Court will not, as a matter of course, pass an order of
injunction against the other party restraining the other party from
raising any construction on the suit property till the disposal of the
suit.
9. Shri Shakare also relied on the decision of the Supreme Court
in the case of Mandali Ranganna v. T. Ra,achandra 2 (paragraphs 18,
22 and 23) to draw the attention of this Court about the factors which
the Court will have to take into consideration while considering the
application for grant of injunction.
1 (2009) 12 SCC 776
2 (2008) 11 SCC 1
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10. The learned Counsel for the plaintiffs (appellants) in AO No.
854/2022) supported and adopted the arguments canvassed by
learned Senior Advocate Shri Sakhare.
11. Shri Walawalkar, learned Senior Counsel appearing for
respondent no.1-original defendant no.1, opposed the appeals. He
argued in support of the impugned order. Following are the
submissions and as extracted from the written submissions filed on
behalf of defendant no.1 :
"WRITTEN SUBMISSIONS ON BEHALF OF
DEFENDANT NO.1 TO OPPOSE APPEALS BY
PLAINTIFFS AND BY DEFENDANT NO. 2 TO 4.
1. Defendant No. 1 filed Counter Claim in Plaintiffs suit,
and is in the position of a plaintiff, and was within his
right to apply for interim injunction.
2. In plaintiffs suit, prayers are for a declaration that
Agreement No. 1 Development Agreement dated
22.12.2007, Power of Attorney dated 16.01.2010 and suit
agreement No.2 Memorandum of Understanding dated
15.12.2010 to be validly terminated and cancelled and for
a decree that the same are not binding upon the Plaintiffs
and/or the suit properties or any part thereof and for
other reliefs of permanent injunctions. So if this suit is
dismissed, agreements will continue to bind the plaintiffs.
Defendant No. 1 filed written statement with counter
claim. The prayers in Defendant No. 1's Counter Claim are
for a declaration that both the deeds dated 22.12.2007 and
agreement dated 16.01.2010 as also agreement dated
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15.12.2010 - agreement 2, are subsisting and it is binding
on plaintiffs and defendants to fulfil the terms and
conditions of the same. He has further prayed that all the
three agreements between Plaintiffs and Defendants No.2
to 4 are illegal and that they are not binding on Defendant
No.2. He also prayed that it was the responsibility of the
Plaintiffs to get the suit lands measured and to reconcile
the areas mentioned in the agreements.
3. It is argued that defendant No.1 filed his Written
Statement and Counter Claim on 11.06.2015, and filed
application for Interim Injunction on 08.08.2019, and
that this conduct on the part of Defendant No.1 of delay in
applying for Interim injunction disentitles him to get
discretionary relief. It is clear from the facts on record
that plans submitted by Defendants No.2 to 4 were
sanctioned on 20.03.2019 and, when he found
construction activity on the land, he applied for interim
injunction.
4. Thus there is no delay for applying for interim
injunction. The construction made by the defendants
during the pendency of the suit and application was a risk
run by defendants No. 2 to 4 as a business risk, and they
cannot now rely on the amounts invested in the
construction to plead irreparable injury if the order
granting interim injunction was to be passed. If this
construction is not to be reckoned, then both defendant
No.1 on the one hand and defendants No.2 to 4 are on the
same footing and Lower Court is right in ignoring
monetary investment in the construction while
considering and comparing irreparable injury to both of
them.
5. Moreover the Lower court has rightly observed that
such order is necessary to avoid multiplicity of
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proceedings and to avoid hardships to innocent or
bonafide purchasers of the flats. The construction during
pendency of application for interim injunction and even
after the order is placed before the court as fait accompli.
6. The conduct of Plaintiffs in entering into agreement
with Defendant No.1 and also with Defendant No.2 to 4
relating to the same properties is highly objectionable. In
this background, Defendants No.2 to 4 do not deserve any
sympathy in respect of construction carried out during the
pendency of the application for interim injunction, which
was a business risk taken by them, and to make it fait
accompli.
7. Moreover, these Defendants No.2 to 4, who carried out
further construction of 8 to 14 floors even after interim
injunction disentitles Defendants No.2 to 4 to any interim
relief of stay of interim injunction granted by the lower
court by considering all the facts on record. In fact interim
stay is a discretionary relief and more so when order of
Interim injunction is to be stayed. Even plaintiffs have
disentitled themselves to such discretionary relief of stay
of discretionary relief of interim injunction which was
granted by the lower court by a well considered judgement
and order as they, as owners should have prevailed upon
Defendants No.2 to 4 to stop further construction after the
order of interim injunction was passed.
8. The deposit of the amount of Rs.60,00,000/- into
Court will not improve the dishonest conduct of the
plaintiffs, in entering into agreements with different
persons about the same properties.
9. The Judgment of the Supreme Court reported in
(2019) 2 SCC 241 is not applicable to the facts of the
present case, as that was a case of simple building
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contract, whereby Defendant owner wanted the plaintiff a
building contractor to construct a house for him on
payment of his costs and charges, without creating any
interest in the property Supreme Court found that because
the conditions in Section 14(3)(c) (I) and (ii) were not
satisfied plaintiff contractor was not entitled to decree of
specific performance.
10. In our case, it is a development agreement, not simple
contract for construction of building for the owner and
different considerations will apply. This agreement is not
determinable in its nature like agreement to create license
or such similar cases.
11. From present notices, and replies it is clear that at one
point of time many of the plaintiffs admitted that 2 nd
agreement was with respect to all the plots mentioned
therein. It is by way of an afterthought that the plaintiffs
are denying even the reply given by the plaintiffs to the
notice given by Honey hatcheries to them engaging an
advocate in which they admitted that all the lands
mentioned in 2nd agreement were agreed to be sold to
Defendant. Then it becomes a matter of evidence, when
Plaintiffs will be cross examined by Defendant No. 1
about the said reply admitting at the trial and lower court
has therefore rightly protected the suit property and
ordered preservation of status quo again lower court has
rightly observed that the plaintiffs have not pleaded how
the alleged fraud was played on them by Defendant No. 1
when 2nd Agreement was executed. Moreover, the order of
trial court is not and is not shown to be perverse in any
manner. On the contrary it has observed rightly that to
avoid multiplicity of proceedings and to prevent the
sufferings of or hardship to the bona fide innocent
purchasers, such an interim injunction is necessary.
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12. Then most important aspect of the matter is
dishonest termination of agreements with Defendant No. 1
by the plaintiffs. The time of performance was appointed
by agreements, i.e. after the plaintiffs make out a clear and
marketable title. The Trial Court is right in holding that it
is not open to the plaintiffs to blame defendant No.1 for
not taking steps to perform the agreements. In fact it was
only on the Tahsildar's orders dated 11.03.2016,
25.01.2018 and order by Collector dated 21.02.2018 that
the time to perform agreement for Defendant No.1 would
commence, but plaintiffs terminated the agreements by
notice dated 09.02.2015 in unholy haste because of
agreements dtd. 16.10.2014 with Defendants No.2 to 4.
13. Moreover the objections of Plaintiffs and Defendants
No.2 to 4 to agreements with Defendant No. 1 on the
ground that they are MOU is not sustainable in law. When
even oral agreement is specifically enforceable, written
MOU is also held to be enforceable, and there is no
impediment in its enforcement. Agreement to enter into
further agreement is also enforceable.
14. Moreover as laid down in Sushil kumar case MOU is
to be read as a whole. The final agreement is to be entered
into on the same terms and conditions and the period is
five years after making out clear title. The terms are
certain, the consideration is certain and hence there is no
hurdle in holding the said MOU agreement to be binding
on the plaintiffs.
15. Wandar V/s. Antox India, when the discretionary
order is passed by the Trial Court, Appeal Court must be
slow to interfere except when such order is illegal or
perverse. Here it is a well considered judgment and this
Hon 'ble Court may appreciate that this is not a fit case to
Interfere with it in favour or at the instance of Plaintiffs
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who have chosen to receive monies from both the parties,
Defendant No. 1 and Defendants No.2 to 4, and also in
favour of Defendants No.2 to 4 who are guilty of violation
of order of Interim injunction passed by the trial court.
16. As per their own case, on the next day of the order
under challenge. Defendants No.2 to 4 say that the
advocate for Defendants No.2 to 4 gave an undertaking to
the court such an undertaking was not in accordance with
the order of the court. Then as per Defendants No.2 to 4's
case, they gave an undertaking but the same is not found
in the record of the court therefore now they have filed an
affidavit to say that such an undertaking was filed by them
in record of the Trial court. This conduct again disentitles
defendants No.2 to 4 to any discretionary relief from this
court.
17. Moreover there is no interim or ad-interim relief in
favour of appellants since 18.12.2020, or in any event from
1st March, 2021 and no effort or attempt by appellants to
move the courts for ad-interim reliefs.
18. In the affidavit of Appellant No.2, dt. 15 th December
2021, in para 7 made a bold statement that they have sold
10 flats and out of which they entered into agreement with
3 buyers, except the statement no documents produced on
record, till today."
12. Heard learned Counsel. I have perused the photographs of the
building and the construction.
13. The plaintiffs had executed Development agreement, Power of
Attorney, Memorandum of Understanding (MoU) in favour of the
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defendant no.1 for development of the suit properties in the year
2007. Pursuant thereto, there was a Confirmation Deed of the year
2010 and Power of Attorney executed in favour of the defendant no.1
on 16.01.2010. It is the case of the plaintiffs that the defendant no.1
did not take any steps to develop the suit property. An amount of Rs.
60 Lakhs was paid by the defendant no.1 to the plaintiffs. It is the
contention that some of the properties are included for development
by the defendant no.1 fraudulently. Till 2014, there was no
development and therefore the Development agreements/agreement
of sale was executed in favour of defendant nos. 2 to 4. By way of
abundant caution, notice was issued terminating and revoking the
Development agreements and other agreements which the plaintiffs
had executed in favour of defendant no.1. The plaintiffs issued an
Advocate's notice in 2015. Since the defendant no.1 was obstructing
the plaintiffs, the suit was filed for declaration and injunction. The
development of the property commenced in 2019. The application
exhibit-40, was filed by the defendant no.1 for injunction on
08.08.2019. It is an admitted fact that nine storeys are constructed
by the defendant no.2. Shri Walawalkar was at pains to point out that
in breach of the orders, the defendant no.2 proceeded with the
construction and have constructed 10th to 14th floor in defiance of the
orders of the Court. It is submitted that such a conduct disentitles
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the defendant no.2 from seeking any equitable reliefs and on this
ground itself, the present appeals should be dismissed.
14. There is no dispute that the plaintiffs are the owners of the suit
property. The plaintiffs had executed Development agreement/Power
of Attorneys for development of the property in favour of the
defendant no.1. From 2007 to 2015, there are no construction
activities. The plaintiffs entered into the Development agreement
with the defendant nos. 2 to 4 and after the plans were sanctioned,
the construction commenced in 2019. The application for injunction
was moved by the defendant no.1 only on 08.08.2019. The
justification provided by learned Counsel Shri Walawalkar is that
there was no reason to file any application for injunction as the suit
was pending and it is only after noticing that there was some
construction activity going on that the application came to be filed.
15. No doubt, a counter claim has been filed by the defendant no.1.
However, factually, there was no development in the property from
2007 till 2015 and thereafter also pursuant to the filing of the suit, no
application was filed by the defendant no.1 for injunction. The
defendant nos. 2 to 4 constructed nine floors which, admittedly, was
not in breach of any orders passed by the Court. The sanctioned
plans are for 16 floors. Third party rights have been created in
respect of some of the flats and considerable amount has been spent
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by defendant no.2 in the development work. To restrain further
construction at such a juncture will not enure in anybody's interest.
The Supreme Court in ECE Industries Limited (2) (supra) in
paragraph nos. 26, 27 and 28 has observed thus :
"26. It is well settled that when construction has been
made on a land, which is of considerable magnitude, and
when the plaintiff shall not face any substantial injury, if
no order of injunction is granted because of
payment/deposit of the entire amount payable by the
defendant to the plaintiff under the agreement, though
belatedly, we are of the view that the Court will not, as a
matter of course, pass an order of injunction against the
other party restraining the other party from raising any
construction on the suit property till the disposal of the
suit.
27. If ultimately, the suit filed by the appellant-plaintiff is
decreed, he can be compensated in damages or the
respondent-defendants may be directed to pull down the
construction and deliver vacant possession to the
appellant-plaintiff when no equity can be claimed for such
construction by the respondent-defendants.
28. On the other hand, in our view, if at this stage, an
order of injunction is granted against the respondent-
defendants from proceeding with further construction in
the suit property, it will undoubtedly destroy the
constructions already made by the respondent-defendants
and the respondent-defendants will suffer irreparable loss
and injury for not allowing them to make construction on
the suit property."
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16. So far as proceeding with the construction in breach of the
injunction orders from ten storeys to 14 storeys is concerned,
Contempt Petition have been filed and the same shall be obviously
taken to its logical conclusion. The appellants will face the
consequences. I do find some merit in the submissions of learned
Senior Advocate Shri Sakhare that unless the entire building is
completed, the flat purchasers in whose favour third party interest
have been created, will not be able to effectively utilise the premises
as facilities for the beneficial enjoyment of the suit flat will not be in
place. The appellants submitted that the building is being
constructed in accordance with the sanctioned plans. If the suit of
the plaintiffs is dismissed and the counter claim is to be allowed, it is
always open for the defendant no.1 to seek appropriate reliefs
including that of pulling down the building. The defendant nos. 2 to
4 are proceeding with the construction at their own risk and learned
Senior Advocate for the defendant nos. 2 to 4 stated that they will not
claim any equities. The plaintiffs as well will not claim any equities.
The plaintiffs have further submitted that they are willing to refund
the amount of Rs.60 Lakhs which they had received from the
defendant no.1 pursuant to the execution of the Development
agreement in 2007. The impugned order to a limited extent, calls for
interference.
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17. In my opinion, the appeals can be partly allowed and the
following order will meet the ends of justice :
ORDER
(i) The plaintiffs and the defendant nos. 2 to 4
are permitted to complete the construction of
the building Ground plus 16 floors on property
bearing Gat No. 65, situated within the limits of
village Mathardi, Diva, District Thane.
(ii) The defendant nos. 2 to 4 are permitted to
create third party rights in the flats upto 9 th floor
of the said building.
(iii) Defendant nos. 2 to 4 shall not create any
third party right constructed above the 9 th floor
during the pendency of the suit.
(iv) The plaintiffs and defendant nos. 2 to 4 shall
file an affidavit within a period of four weeks
disclosing the interest created by them, in respect
of ten flats situated in the said building
constructed on survey no. 65 together with
relevant documents.
(v) Defendants shall be at liberty to file
appropriate proceedings in the trial Court for
violation of the order of the interim injunction
passed by the trial Court below exhibit-49 by
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constructing additional floors (10th to 14th floors)
out of the 16 floors of the said building on survey
no, 65.
(vi) The appellants shall not claim any equities
for anything done under this order.
(vii) Except the building in survey no.65, the
impugned order passed by the trial Court will
operate as regards rest of the suit properties
during the pendency of the suit unless otherwise
modified by the trial Court.
(viii) The prospective flat purchasers shall be
informed about the pending suit as well as the
injunction orders and shall incorporate such a
clause in the agreement entered into between
them that such third party interest is created
subject to the orders in the suit.
18. The Appeal from Orders are disposed of in the above terms. No
costs
19. Civil Applications are disposed of. It is clarified that the
Contempt Petition may proceed in its own merits.
20. At this stage, after the order is pronounced, it is brought to my
notice that in a collateral writ petition filed before the Division Bench
4th May 2023
AO-02-2021-854-2020.DOC
by one Mr. Amit Patkar, who is not a party to the present
proceedings, a restraint order has been passed in Writ Petition no.
13600 of 2022. Obviously, the parties are bound to abide by the
orders passed by the competent Court.
M. S. KARNIK, J
Digitally signed by ANDREZA
ANDREZA PEREIRA PEREIRA
Date: 2023.05.04 17:21:06 +05'30'
4th May 2023
