Bombay High Court
M/S. Krishna Constructions And Others vs Mr. Subhash Uttam Dalvi And Others on 10 June, 2025
2025:BHC-AS:22796
901-AO-744-2024.doc
rrpillai IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
APPEAL FROM ORDER NO. 744 OF 2024
1. M/s. Krishna Constructions,
A Partnership Firm Registered under
the Provisions of Partnership Act,
Having Office At : S.No. 28/1,
Old Kharadi Mundhwa Road
Next To Kran Radar Factory
Pune 411014 and also at
20, Ghodapdeo Cross Road
No. 01, Mumbai-400 010
through its Partners
2. Mrs. Shikha M. Mistry
Age : Adult, Occ : Business
3. Mr. Mittal Pranjivan Mistry
Age : 48 years, Occ : Business ... Appellants
Versus
1. Mr. Subhash Uttam Dalvi,
Age: 46 Years, Occ: Business,
R/at: First Floor, A Wing, Flat No. 103,
Spring Dale CHS LTD.,
Old Mundhwa Road, Wadgaonsheri,
Pune - 411014.
2. The Pune Municipal Corporation,
Through its Commissioner.
1/65
::: Uploaded on - 10/06/2025 ::: Downloaded on - 10/06/2025 22:45:49 :::
901-AO-744-2024.doc
3. The Commissioner,
Pune Municipal Corporation, Pune.
4. City Engineer,
Building Permission and Unauthorized
Construction, Control Department,
Office of No. 2(a) to 2(b) above at:
Pune Municipal Corporation,
PMC Main Building, Shivajinagar,
Pune - 411005.
5. M/s. Sandeep Hardikar & Associates,
through its authorized signatory
Sandeep Hardikar [Licensed
Architect], Age: Adult, Occ:
Profession/Architect, R/at: Flat No.
502, Sadhana Apartment,
Shivajinagar, Pune - 411005.
6. Mr. Varun Atulkumar Shah,
Age: 38 Years, Occ: Not Known,
7. Mrs. Richa Varun Shah,
Age: 36 Years, Occ: Not Known,
Both Nos. 6 & 7 R/at : A/602, Shivyog,
Sambhajinagar, Shiv Vallabh Road,
Near Sai Baba Temple, Ashok Va
Dahisar, Mumbai - 400068.
8. Mrs. Renu Yadav,
Age: 39 Years, Occ: Not Known,
2/65
::: Uploaded on - 10/06/2025 ::: Downloaded on - 10/06/2025 22:45:49 :::
901-AO-744-2024.doc
9. Mr. Anil Rajaram Yadav,
Age : 41 Years, Occ: Not Known,
Both Nos. 8 & 9 R/at: Flat No. 302,
Oxy 04 Valley, Phase II, Gade Vasti,
BJS College, Wagholi,
Pune - 412207.
10. Mrs. Laxmi Mukund Mane,
Age: 40 Years, Occ: Not Known,
11. Mr. Mukund Gundanna Mane,
Age: 49 Years, Occ: Not known,
Both Nos. 10 & 11 R/at:
Wadgaonsheri,
Pune - 411014.
12. Mr. Harshal Uday Kulkarni,
Age: 40 Years, Occ: Not Known,
13. Mrs. Amruta Harshal Kulkarni,
Age: 34 Years, Occ: Not known,
Both Nos. 12 & 13 R/at: Plot No. 18,
Gat No. 190/1, Nisarg Colony,
Pimprala, Jalgaon - 425001.
14. Mr. Vipul Naveen Thakkar,
Age: 36 Years, Occ: Not known.
15 Mrs. Shweta Vipul Thakkar,
Age: 31 Years, Occ: Not known.
16. Mrs. Lata Naveen Thakkar,
Age: 57 Years, Occ: Not known.
3/65
::: Uploaded on - 10/06/2025 ::: Downloaded on - 10/06/2025 22:45:50 :::
901-AO-744-2024.doc
All No. 14, 15 & 16 R/at: Flat No. A-
903, Goodwill 124, Porwal Road,
Dhanori,Jakat Naka, Lohegaon,
Pune - 411047.
17. R. Pankaj Prakash Patil,
Age: 38 Years, Occ: Not known.
18. Mrs. Kalyani Pankaj Patil,
Age: 35 Years, Occ: Not known,
Both Nos. 17 & 18 R/at: F-202,
Santosh Park, Bhoisar Tarapur Road,
Mark Gate,Tal. Palghar Salvad,
Tarapor Upper Thane - 401504.
19. Mrs. Khushboo Sushil Bajaj,
Age: 38 Years, Occ: Homemaker,
20. Mr. Sushil Suresh Bajaj,
Age: 38 Years, Occ: Service,
Both Nos. 19 & 20, R/at:
B5 Sai Nandanvan Housing Society,
Ganesh Nagar, Near Sundarabai
School, Wadgaonsheri,
Pune - 411014.
21. Mr. Kaushik Guha,
Age : 56 Years, Occ: Not known
22. Mrs. Priyadarshini Roy,
Age: 51 years, Occ: Not Known,
Both Nos. 21 & 22 R/at:
4/65
::: Uploaded on - 10/06/2025 ::: Downloaded on - 10/06/2025 22:45:50 :::
901-AO-744-2024.doc
Flat No. 5, Building No. 08,
Konark Nagar, CHS LTD,
Viman Nagar, Dunkirline,
Pune- 411014.
23. Mr. Parmatma Prasad,
Age: Adult, Occ: Not Known.
24. Mrs. Pooja Gupta,
Age: Adult, Occ: Not Known,
Both Nos. 23 & 24 R/at:
C-1/1004, Colonade,
S. No. 25/1A,26/1,
Kharadi, Pune- 411014.
25. Mr. Rahul Kumar Singh,
Age: 35 years, Occ: Not Known.
26. Mrs. Ruchita Shaligram Bakoliya,
Age: 33 years, Occ: Not Known,
Both Nos. 25 & 26 R/at:
Flat No. 09, Building No. C-2,
Punyadham Society, Tempo Chowk,
Wadgaonsheri, Pune- 411014.
27. Mr. Narendra Bhaskar Lagad ,
Age: Adult, Occ: Not Known.
28. Mrs. Supriya Wamanrao Navale,
Age: Adult, Occ: Not Known ,
Both Nos. 27 & 28 R/at:
Hasnapur Road, Behind Pravara
5/65
::: Uploaded on - 10/06/2025 ::: Downloaded on - 10/06/2025 22:45:50 :::
901-AO-744-2024.doc
Bank, At Post. Loni Budruk, Tal.
Rahata, Loni Budruk,
Ahmednagar- 413736
29. Mr. Lakshit Chabda,
Age: 35 years, Occ: Not Known.
30. Mrs. Komal Arora,
Age: 32 years, Occ: Not Known,
Both Nos. 29 & 30 R/at:
Flat No. 6, Unique Enclave,
Sadesatra Nali, Hadapsar,
Pune- 411028.
31. Mr. Sujoy Dutta,
Age: 43 years, Occ: Not known.
32. Mrs. Saheli Dutta,
Age: 38 years, Occ: Not known,
Both Nos. 31 & 32 R/at:
S. No. 42/2/2A, Plot No. 5B,
Anand Mangal Society, Ganesh Nagar,
Jain Temple, Wadgaosheri,
Pune- 411014.
33. Mrs. Pooja Agarwal,
Age: 33 years, Occ: Not known.
34. Mr. Saurabh Shrivastav,
Age: 32 years, Occ: Not known,
Both Nos. 33 & 34 R/at:
B/1-1106, Tatva Apartment,
6/65
::: Uploaded on - 10/06/2025 ::: Downloaded on - 10/06/2025 22:45:50 :::
901-AO-744-2024.doc
Old Kharadi- Mundhawa Road,
Kharadi, Pune- 411014.
35. Mr. Priya Madhab Mohapatra,
Age: 35 years, Occ: Not known.
36. Mrs. Priyanaka Lekan,
Age: 33 years, Occ: Not known,
Both Nos. 35 & 36 R/at:
Trupti Sada, Nimidhi,
Paradeep gadh, Jagatsinghpur,
Odisa- 754141.
37. Mrs. Priya Sagar Jaju,
Age: 32 years, Occ: Not known.
38. Mr. Sagar Shamsunder Jaju,
Age: 33 years, Occ: Not known,
Both Nos. 37 & 38 R/at:
A/206, Sidhivinayak Park,
Ashoka Marg, Ganesh Babanagar,
Nashik- 411011.
39. Mr. Kapil Vijay Kulkarni,
Age: 36 years, Occ Not known.
40. Mr. Ketan Vijay Kulkarni,
Age: 38 years, Occ: Not known,
Both Nos. 39 & 40 R/at:
Flat No. A3, Radhika Vihar,
Kesnand Road, Wagholi,
Pune- 412207.
7/65
::: Uploaded on - 10/06/2025 ::: Downloaded on - 10/06/2025 22:45:50 :::
901-AO-744-2024.doc
41. Mrs. Maya Ashish Oza,
Age: 33 years, Occ: Not known.
42. Mr. Ashsih Rajaram Oza,
Age: 35 years, Occ: Not known,
Both Nos. 41 & 42 R/at:
A1-201, Runwal Seagal Twonship
Handewadi Road, Hadapsar,
Pune- 411028.
43. Mrs. Shradha Madhur Rathi,
Age: 36 years, Occ: Service,
44. Mr. Madhur Babulalji Rathi,
Age: 37 years, Occ: Service,
Both Nos. 43 & 44 R/at:
36, Sarthak, Indramani Housinng
Society, Near Anand Park Bus Stop,
Wadgaon Sheri, Pune- 411014
45. Mr. Amar Vishwas Mane,
Age: 33 years, Occ: Not known.
46. Mrs. Snehal Bajirao Shinde
Age: 31 years, Occ: Not known,
Both Nos. 45 & 46 R/at:
S. Nos. 191, Nagpur Chal, Airport
Road, Post Office, Yerwada, Pune-
411006
47. Mr. Amol Dattatray Todkar,
Age: 37 years, Occ: Not known.
8/65
::: Uploaded on - 10/06/2025 ::: Downloaded on - 10/06/2025 22:45:50 :::
901-AO-744-2024.doc
48. Mrs. Sangita Sudam Ghavte
Age: 34 years, Occ: Not known,
Both Nos. 47 & 48 R/at:
S. No. 41/5, Jai Housing Society,
Jai Gas Agency, Wadgaonsheri,
Dunkerline, Pune- 411014.
49. Mrs. Jayesh Suhas Shimpi,
Age: 43 years, Occ: Not known.
50. Mrs. Ansha Jayesh Smimpi,
Age: 40 years, Occ: Not known,
Both Nos. 49 & 50 R/at:
Flat No. 602, A3, Prasad Nagar
Society, Sidhivinayak Temple,
Wadgaonsheri, Pune- 411014.
51. Mr. Ranjit Sambhaji Pisal,
Age: 31 Years, Occ: Not known
52. Mrs. Priyanka Shivaji Shende,
Age: 31 Years, Occ: Not known,
Both Nos. 51 & 52 R/at:
Trivenishwar Temple, Handi Nimgaon,
Bhalegaon, Ahemdnagar - 414603.
53. Mrs. Sneha Prasad Dhoot,
Age: 35 Years, Occ: Doctor,
54. Mr. Prasad Suresh Dhoot,
Age: 35 Years, Occ: Service,
Both Nos. 53 & 54 R/at: A/303, Bora
9/65
::: Uploaded on - 10/06/2025 ::: Downloaded on - 10/06/2025 22:45:50 :::
901-AO-744-2024.doc
Ville Society, Kharadi, Pune - 411014.
55. Mrs. Nayana Paresh Wadodariya
Age: 56 Years, Occ: Not known,
56. Mr. Hirishraj Paresh Wadodariya,
Age: 31 Years, Occ: Not known,
Both Nos. 55 & 56 R/at: C5, Amrapali,
Society, Agakhan Palace, Nagar Road,
Yerwada, Pune - 411006.
57. Mr. Sandeep Rajendra Satpute,
Age: 38 Years, Occ: Not known,
58. Mrs. Bhagyashree Sandeep Satpute,
Age: 33 Years, Occ: Not known,
Both Nos. 57 & 58 R/at: Kalparaj,
Bungalow, Subhash Nagar, Behind
Sangli Akashwani Kendra, Kolhapur,
Sangli - 416416.
59. Mr. Anup Anil Peshwe,
Age: 41 Years, Occ: Not Known,
60. Mrs. Nidhi Anup Peshwe,
Age: 40 Years, Occ: Not Known,
Both Nos. 59 & 60 R/at: Flat No. 604,
A Wing, Vishalshrushti Residency,
Old Mundhwa Road, Wadgaonsheri,
Pune - 411014.
61. Mr. Ashok Bhagwanrao Nagargoje
Age: 55 Years, Occ: Not Known,
10/65
::: Uploaded on - 10/06/2025 ::: Downloaded on - 10/06/2025 22:45:50 :::
901-AO-744-2024.doc
62. Mrs. Surekha Ashok Nagargoje,
Age: 45 Years, Occ: Not Known,
Both Nos. 61 & 62 R/at: Flat No. 3,
Vishal Corner, S. No. 34/1, Tingre
Nagar,Pune Sub Office, Indrayani
Nagar, Pune - 411032.
63. Mrs. Manisha Raghunath Dabhade
Age: 47 Years, Occ: Not Known,
64. Mr. Raghunath Sopan Dabhade,
Age: 54 Years, Occ: Not Known,
Both Nos. 63 & 64 R/at: 550,
Matoshree, Niwas, Baif Road,
Dabahde Wasti, Wagholi,
Pune - 412207.
65. Mr. Akshay Arvind Kayande,
Age: 31 years, Occ: Not known,
R/at: Plot No. 71, Yoheshwari Plaza,
Hanuman Nagar, Nagpur - 440009
66. Mrs. Smita Sitaram Somwanshi,
Age: 32 Years, Occ: Not known,
67. Mr. Ganesh Bhagwan Kakde,
Age: 34 Years, Occ: Not known,
Both Nos. 66 & 67 R/at: Building,
C-305B, Golmohar Paradise Homes,
Thite Wasti, Behind Zensar IT Park,
Kharadi, Pune - 411014.
11/65
::: Uploaded on - 10/06/2025 ::: Downloaded on - 10/06/2025 22:45:50 :::
901-AO-744-2024.doc
68. Mrs. Poonam Prakash,
Age: 58 Years, Occ: Not known,
69. Mr. Mayank Prakash,
Age: 28 Years, Occ: Not known,
70. Mr. Animesh Prakash,
Age: 33 Years, Occ: Not known,
All Nos. 68 to 70 R/at: Flat No. 201 A,
Riverview Apartment, Lane No. 01,
Wadeshwar Nagar, Sainath Nagar
Road, Pune - 411014.
71. Mrs. Prachi Kumar,
Age: 35 years, Occ: Not Known,
R/at: Deepak Bungalow, Darshan Mall,
Shridhar Nagar, Chinchwad,
Pune - 411033.
72. Mrs. Ashwini Kailash Lendal,
Age: 31 Years, Occ: Not known,
73. Mr. Suhas Shreedhar Veer,
Age: 35 years, Occ: Not Known,
Both Nos. 72 & 73 R/at: Plot No. 1,
Gat No. 139/3, Chhatrapati Nagar,
Near Mahadeo Temple, Satra Parisar,
Aurangabad - 431001.
74. Mr. Manish Arvind Rashnikar,
Age: 50 years, Occ: Not Known,
75. Mrs. Meera Manish Rashnikar,
12/65
::: Uploaded on - 10/06/2025 ::: Downloaded on - 10/06/2025 22:45:50 :::
901-AO-744-2024.doc
Age: 48 years, Occ: Not Known,
Both Nos. 74 & 75 R/at: S. No. 51/1,
House No. 06/847, Renuka Niwas,
Gharkool Housing Society, Plot No.
36/2 Behind Stella Marie School,
Wadgaonsheri, Pune - 411014.
76. Mrs. Kavita Vijay Shetty
Age: 43 Years, Occ: Not known
77. Mr. Vijay Muddanna Shetty
Age: 54 years, Occ: Not known
Both Nos. 76 & 77 R/at:
Flat No. 03, Navdurga Homes,
S. No. 46/7/8,Bombay Sapphires
Colony, Plot No. 6, Pune- 411014
78. Mr. Amit Anant Utekar
Age: 37 years, Occ: Not known
79. Mrs. Aparna Amit Utekar
Age: 36 years, Occ: Not known
Both Nos. 78 & 79 R/at:
Room No. 504, 2D Building,
Phase II, Mohan Tulsi Vihar Complex,
Hendrapada, Badlapur,
Thane, 421503
80. Mr. Himanshu Mishra
Age: 46 years, Occ: Not known
81. Mrs. Seema Mishra
13/65
::: Uploaded on - 10/06/2025 ::: Downloaded on - 10/06/2025 22:45:50 :::
901-AO-744-2024.doc
Age: 44 years, Occ: Not known
Both Nos. 80 & 81 R/at:
Flat No. 06, Wing No. 'A',
Devkar Residency, S. No. 39/5/2/2
Near Dutta Temple, Wadgaonsheri,
Pune- 411014
82. Mr. Parag Satish Kolhe
Age: 30 years, Occ: Not known
83. Mrs. Mamta Satish Kolhe
Age: 54 years, Occ: Not known
Both Nos. 82 & 83 R/at:
Flat No. 504, Building No. C4,
Lake Town CHS LTD, S. No. 11,
Katraj, Pune- 411046
84. Mr. Kishore Shankar Pramanik
Age: 43 years, Occ: Not known
R/at: 23B, Kantilal Chal,
Shreyas Colony,
Near Arey Road, Next to
Satyam Park Hall,
Mumbai, Goregaon East- 400063
85. Mr. Avinash Ganpat Mahajan
Age: 33 years, Occ: Not known
R/at: Ram Temple Area,
Jalgaon Khurd, Jalgaon - 425002
86. Mrs. Sapna Gajendra Kedia
14/65
::: Uploaded on - 10/06/2025 ::: Downloaded on - 10/06/2025 22:45:50 :::
901-AO-744-2024.doc
Age: 31 years, Occ: Not known
87. Mr. Ankit Suresh Agarwal
Age: 32 years, Occ: Not known
Both Nos. 86 & 87 R/at:
Near Lahanuji Maharaj Temple,
Krushnarpan Colony, Sai Nagar,
Amravati- 444607
88. Mrs. Aparna Arvind Bhairat
Age: 36 years, Occ: Not known
89. Mr. Arvind Balaji Bhairat
Age: 39 years, Occ: Not known
Both Nos. 88 & 89 R/at:
301, Vedant Residency,
Raghvendra Nagar, S. No. 35, Plot
No. 45, Padmachaya Hsg Soc.,
Kharadi,Pune- 411014
90. Mr. Naveenkumar Patro
Age: 49 years, Occ: Not known
91. Mrs. Bhavani Lata V
Age:42 Years, Occ: Not Known
Both Nos. 90 & 91 R/at:
27-8-307/33, Survana Plaza,
Shreenagar Gajuwaka,
Vishakapatnam,
Andhra Pradesh- 530026.
92. Mr. Rahul Ramkumar Rathi,
15/65
::: Uploaded on - 10/06/2025 ::: Downloaded on - 10/06/2025 22:45:50 :::
901-AO-744-2024.doc
Age: 36 Years, Occ: Not Known,
93. Mr. Ramkumar Tolaram Rathi,
Age: 65 Years, Occ: Not Known,
Both Nos. 92 & 93 R/at:
S. No. 232/12, Flat No. 02,
Anand Avenue Society,
Sakore Nagar, Viman Nagar,
Airport Road,Pune- 411014.
94. Mr. Anil Kumar,
Age: 38 Years, Occ: Not Known,
95. Mrs. Nidhi Kumari,
Age: 37 Years, Occ: Not Known,
Both Nos. 94 and 95 R/at:
Flat No. 908, Selene Park, Sasane
Nagar, Kale Padal Road, Hadapsar
Pune 411028.
96. Mr. Pores Bejan Katrak,
Age: 68 Years, Occ: Not Known,
97. Mrs. Parveen Pores Katrak,
Age: 68 Years, Occ: Not Known,
Both Nos. 96 & 97 R/at:
Wing 'A', 302-303, Nirlep House,
GD Ambekar marg,
Behind Halfkin Institute, Village Parle,
Parle East, Mumbai 400012.
98. Mr. Darshan Dinesh Maru,
16/65
::: Uploaded on - 10/06/2025 ::: Downloaded on - 10/06/2025 22:45:50 :::
901-AO-744-2024.doc
Age: 37 Years, Occ: Not Known,
99. Mrs. Nilam Darshan Maru,
Age: 35 Years, Occ: Not Known,
Both 98 & 99 R/at:
B-12, Kashinath Bhavan, Old Agra
Road,Near Ratan Cinema, Narpoli,
Bhiwandi Vidyashram,
Bhiwandi Thane 421035.
100. Mrs. Anushree Das,
Age: 36 Years, Occ: Not Known,
R/at: Azad Colony, Bhatt Bazar,
Purniya, Bihar-854301.
101 Mrs. Madhuri Ashok Shah,
Age: 58 Years, Occ: Not Known,
102. Mr. Pratik Kumar Ashok Shah,
Age: 37 Years, Occ: Not Known,
Both 101 & 102 R/at:
B-402, Karan Athena, Sainath Nagar,
Wadgaonsheri, Near Kumar
Primavera, Pune 411014.
103 Kiran Kailash Shinde,
Age: 46 Years, Occ: Not Known,
R/at: S. No. 59, Rajeshree Colony,
Road No. 4A, Niramayee Hospital
Wadgaonsheri, Pune-411014. ... Respondents
17/65
::: Uploaded on - 10/06/2025 ::: Downloaded on - 10/06/2025 22:45:50 :::
901-AO-744-2024.doc
Mr. Surel Shah, Senior Advocate a/w. Mr. Atharva Kamble and Mr.
Ishaan Kapse i/b. Mr. Mrinal Shelar for the Appellants.
Dr. Abhinav Chandrachud (through VC a/w. Mr. Pavan Patil, Mr.
Shubham Saraf, Mr. Darshan Patankar and Mr. Kartavya Ostwal for
Respondent No. 1.
Ms. Manisha Jagtap for Respondent Nos. 2 and 3 - PMC.
CORAM: GAURI GODSE, J.
RESERVED ON: 2nd MAY 2025
PRONOUNCED ON: 10th JUNE 2025
JUDGMENT:
1. This appeal is preferred by defendant nos. 1 to 3 to challenge
the interim order passed in a suit filed by respondent no.1.
Respondent no. 1 is a purchaser of one flat in the building
developed by the appellants. The agreement in favour of the plaintiff
is executed under the provisions of The Maharashtra Ownerships
Flats (Regulation of the Promotion of Construction, Sale,
Management and Transfer) Act, 1963 ("MOFA") by the appellants,
i.e. defendant no. 1 as promoter. The partners of the promoter are
joined as defendant nos. 2 and 3. Defendant no. 4 is the Pune
Municipal Corporation ["corporation"], and defendant nos. 5 and 6
are officers of the corporation. Defendant no. 7 is the Architect of
901-AO-744-2024.doc
the project. Defendant nos. 8 to 105 are the flat purchasers in the
building in question.
2. The suit is filed to seek rectification in terms of the agreement
and specific performance of the rectified agreement, and challenge
the amendment to the sanctioned layout. Various other reliefs are
prayed, including a declaration that the additional floors constructed
as per the amended plan are illegal and thus also challenged the
flat purchase agreements in favour of the flat purchasers of the
additional floors. By the impugned order, the application filed by the
plaintiff seeking the grant of a temporary mandatory injunction and a
temporary prohibitory injunction is decided. The prayer for a
temporary mandatory injunction to hand over possession of the suit
flat is rejected. However, the trial court partly allowed the interim
application and granted a temporary injunction restraining defendant
nos. 1 to 3 (promoters) from carrying out any activity in the said
project with respect to the additional construction and from dealing
with or creating any further third party interest and handing over the
possession to the flat purchasers of the additional floors. The
defendant nos. 4 to 6 are restrained from sanctioning and revising
any plan, issuing any permission, sanction with respect to additional
construction not forming part of the disclosure made to the plaintiff,
901-AO-744-2024.doc
and restrained defendant nos. 8 to 105 from creating any third-party
interest.
3. The appeal was admitted vide order dated 21 st January 2025,
and by way of ad-interim relief, the order of temporary injunction
was stayed. Being aggrieved by the ad-interim relief granted by this
court, the plaintiff filed a Special Leave Petition in the Hon'ble Apex
Court. The Special Leave Petition is allowed, the ad-interim relief
granted by this court is vacated, and this court is directed to hear
and finally decide the appeal. Hence, in view of the directions
issued by the Hon'ble Apex Court, this appeal was heard for final
disposal on 2nd May 2025.
Facts in Brief:
4. By a registered agreement dated 20 th January 2017 entered
into by defendant no.1 as promoter and the plaintiff as flat
purchaser a residential flat No. 502, admeasuring 67.11 square
meters carpet area on the 5 th floor of Wing "A" of the housing
complex known as Lotus Court ("the suit flat") was agreed to be sold
to the plaintiff for a total consideration of Rs.43 lakhs. Out of the
total consideration, an amount of Rs. 5,22,500/- was paid by the
plaintiff as recorded in paragraph 8 of the agreement. The payment
901-AO-744-2024.doc
schedule regarding balance consideration was agreed between the
parties as per the Third Schedule attached to the agreement. Thus,
the balance consideration out of the total consideration of Rs .
44,93,500/- was to be paid slab-wise as indicated in the payment
schedule.
5. The plaintiff filed a suit to challenge the amendment to the
sanctioned layout on the ground that it was altered without the
informed consent of the plaintiff. The plaintiff also prayed for a
declaration that certain clauses in the agreement were violative of
the provisions of MOFA and, therefore, be declared to be duly
rectified to the effect that such clauses do not exist in the
agreement. The plaintiff thus prayed for specific performance of
such a rectified agreement. Various other reliefs were claimed for
declarations that the promoter would not be entitled to carry out
construction and other activities based on the amended plan and
would not be entitled to sell the flats constructed on the additional
floors. The plaintiff also prayed for a decree for possession of his
flat. The plaintiff further prayed for a declaration that the agreements
in favour of the flat purchasers of the additional floors were illegal.
901-AO-744-2024.doc
6. The plaintiff filed an application for a temporary injunction by
seeking various temporary and mandatory injunctions, directing
Defendant Nos. 1 to 3 to hand over the vacant and peaceful
possession of the unit to the Plaintiff, and a temporary prohibitory
injunction restraining Defendant Nos. 1 to 3 from carrying out any
activity, including but not limited to construction/completion activity,
in the said project with respect to the entire additional construction
and from dealing with or creating any further third party interest and
handing over possession under any head (e.g. soft, Interior,
Furniture, Etc.) to the purchasers who purchased their respective
units/flats in the said entire additional construction. A further
injunction was prayed to restrain the Corporation and its officers
from sanctioning and/or revising any plan and/or issuing any
permission/s sanction/s and/or Completion Certificate in part or full
in favour of the Defendant Nos. 1 to 3 with respect to the entire
additional construction The plaintiffs also prayed to restrain
Defendant Nos. 8 to 105 from creating third-party interest on the
basis of their respective agreements.
Submissions on behalf of the Appellants:
7. Learned senior counsel for the appellants submitted as
follows:
901-AO-744-2024.doc
(a)The initial commencement certificate was granted on 30 th
March 2007 for the construction of a total of 68 units. The
commencement certificate was revalidated on 27 th May 2011.
Subsequently, the commencement certificate was received on
13th October 2015 for the construction of 62 units having
Basement, Ground, Upper Parking, Podium, plus seven
floors, with a height of 32.95 metres. By way of an agreement
executed in favour of the plaintiff, he had agreed to have
purchased the suit flat with an initial date for possession as
31st December 2019. On 4th May 2019, the promoter was
permitted to construct 110 units having Basement Ground,
Upper parking, Podium, plus 14 floors with a height of 49.95
meters. On 1st June 2022, a commencement certificate was
issued for the construction of 126 units, having a Basement,
upper parking, a Podium, plus 16 floors, with a height of 55.95
meters.
(b)After filing the suit, the plaintiff called upon the promoter by
letter dated 25th November 2023, seeking possession of the
suit flat. In view of the filing of the suit challenging the various
terms and conditions of the agreement, the promoters replied
to the plaintiff's notice intimating the cancellation of the
901-AO-744-2024.doc
agreement with a refund. The promoter accordingly filed a
Written Statement-cum-Counter Claim and prayed for a
declaration that the agreement in favour of the plaintiff stands
cancelled.
(c) The trial court granted a temporary injunction by holding that
the promoters violated their obligations under MOFA and the
balance of convenience would lie in favour of the plaintiff.
Paragraph 11 of the agreement contained various clauses of
informed consent by the plaintiff. After the entire disclosure
about the project, as contained in paragraphs 2 to 11, the
specific and informed consents on behalf of the plaintiff with
regard to the additional construction were recorded in the
terms and conditions agreed between the promoters and the
plaintiff. Thus, all the relevant clauses in paragraph 11
containing the informed consent of the plaintiff were sought to
be challenged by the plaintiff in the suit. Clauses (c), (f), and
(g) of paragraph 11 contain the informed consent of the
plaintiff.
(d) The plaintiff does not challenge the termination of the
agreement by the promoter in the suit. Hence, the suit for
901-AO-744-2024.doc
specific performance of a terminated agreement would not be
maintainable. The notice dated 20 th February 2023 issued by
the plaintiff is suppressed by him at the time of filing the suit,
hence, in the written statement the promoter specifically
contended that the plaintiff by way of notice dated 20 th
February 2023 sent through Advocate Karan Parmar had
called upon the plaintiff to hand over possession of the suit
flat. The only grievance made by the plaintiff was regarding
the extension of time for completion of the construction. The
plaintiff thus never raised any grievance with regard to the
informed consent for the additional construction. The notice
issued by the plaintiff calling upon the promoters to hand over
possession is completely silent about the challenge raised by
the plaintiff in the suit. The conduct of the plaintiff indicates
that the grounds raised in the suit are by way of an
afterthought, when the plaintiff had already accepted the
additional construction and had called upon the promoters to
hand over possession of the suit flat.
(e)The cause of action pleaded by the plaintiff is of December
2022; however, the suit is filed on 14 th September 2023, after
the construction was completed and third-party rights were
901-AO-744-2024.doc
already created in favour of the flat purchasers of the
additional floors. The sanctioned plan of 27th May 2011
attached to the plaintiff's agreement shows the permissible
tenements as 149 and the proposed tenements as 68. The
consent of all the persons as contemplated under Section 7(1)
(ii) was therefore obtained from the plaintiff as specifically
recorded in paragraph 11 of the plaintiff's agreement. The
clauses in the agreement showing the informed consent of the
plaintiff are challenged for the first time in the suit. Thus, the
prayer for a temporary injunction in the suit is based on the
declaration sought by the plaintiff to challenge the clauses
containing informed consent. Hence, the plaintiff seeking to
challenge the clauses containing informed consent indicates
that he was very well aware of the informed consent as
contemplated under the provisions of MOFA. Thus, the
clauses in paragraph 11 of the agreement containing the
informed consent of the plaintiff are valid and subsisting
unless the plaintiff succeeds in the prayers in the suit seeking
to challenge the clauses. Hence, without considering the
nature of the suit and the peculiar prayers seeking specific
performance of the rectified agreement, which was based on
901-AO-744-2024.doc
the challenge to the clauses of the informed consent, the trial
court has granted a temporary injunction by also completely
ignoring the rights created in favour of the flat purchasers who
are also joined as party defendants.
(f) The occupation certificate upto the 14 th floor has already been
received, and tenements on the 15 th and 16th floors have
already been sold. Out of the total 120 tenements, the
promoter has already sold 110 tenements. Thus, considering
the nature of the dispute raised by the plaintiff, the trial court
was required to consider the three golden rules for the grant
of a temporary injunction, which has resulted in drastic
consequences in the facts of the present case. He submits
that the trial court has completely ignored the three basic
principles of prima facie case, balance of convenience and
irreparable loss.
(g)The sanctioned plan attached to the plaintiff's agreement and
the relevant clauses in the agreement clearly indicate
disclosure of the full potential of the land under development.
All the necessary approvals granted by the competent
authorities upheld the additional construction, hence there is
901-AO-744-2024.doc
no substance in the grievance raised on behalf of the plaintiff
that the additional construction would hamper the structural
integrity of the building. Admittedly, no changes have been
made to the common spaces and amenities as agreed in the
terms and conditions of the plaintiff's agreement.
(h)To support his submissions, learned senior counsel for the
appellants relied upon the legal principles regarding informed
consent as settled in the following decisions:
(a) Jayantilal Investments vs. Madhuvihar Co-op
Housing Society and Others.1
(b) Manratna Developers, Mumbai vs. Megh Ratan
Co-operative Housing Society Ltd, Mumbai and Others. 2
(d) Zircon Venture Co-operative Housing Society Ltd.,
Lohagaon, Pune vs. Zircon Ventures, Pune and Others. 3
(e) Ambalal Sarabhai Enterprise Limited vs. KS
Infraspace LLP Limited and Another.4
(f) Lakeview Developers vs. Eternia Co-operative
Housing Society Ltd.5
1 (2007) 9 SCC 220
2 2009 (2) Mh.L.J. 115
3 2014 (4) Mh. L. J. 481
4 (2020) 5 SCC 410
5 2015 SCC OnLine Bom 3824
901-AO-744-2024.doc
(g) Dosti Corporation, Mumbai vs. Sea Flama Co-
operative Housing Society Ltd. Mumbai and Others 6
(h) Madhuvihar Co-operative Housing Society,
Mumbai and Others vs. Jayantilal Investments, Mumbai
and Others7.
(i) Learned senior counsel for the appellants thus submitted that
the conduct of the plaintiff does not deserve any discretionary
relief as envisaged under Order XXXIX Rule (1) and (2) of the
CPC. He submits that the principle of delay defeats equity
would fairly apply to the facts of the present case. He submits
that in any event, suppression of issuance of notice in January
2023 calling upon the promoters to hand over possession of
the suit flat, without making any grievance about the additional
construction, the plaintiff is not entitled to any discretionary
relief as granted by the trial court.
(j) After the amendment of MOFA by insertion of Section 7A, if
the promoter gets approval from the planning authority for
additional structure or building, the purchaser cannot object to
the additional structure. In the case of Jayantilal Investment, it
6 2016(5) Mh.L.J. 102
7 2011(1) Mh.L.J. 641
901-AO-744-2024.doc
is held that in the absence of consent of flat purchasers, the
promoter cannot raise additional structure without sanction of
the modified plan. In the present case, since additional
structure has come up after the sanction of the local authority,
no express consent was necessary from the flat purchasers.
(k) The plaintiff has miserably failed to prove any prima facie
case, a balance of convenience, or irreparable loss to him. It
is a well-established position of law that before granting a
temporary injunction, the applicant has to satisfy the three
basic principles of a prima facie case, balance of convenience
and irreparable loss. In the facts of the present case and the
conduct of the plaintiff, he is not entitled to the injunction
granted by the trial court. The trial court has erroneously held
that irreparable loss would be caused to the plaintiff. The trial
court has completely ignored that the promoter has invested a
large amount in developing the property to its full potential and
that defendant no. 8 to 105 have invested their hard earned
money for purchasing flats and thus if the defendants are
restricted at this stage by way of temporary injunction granted
by the impugned order, irreparable loss would be caused to
the promoters as well as the flat purchasers and the loss
901-AO-744-2024.doc
cannot be compensated in terms of money. Hence, the
impugned order deserves interference by this court.
Submissions on behalf of the Respondent No.1 (Plaintiff):
8. The submissions made by the learned counsel for the plaintiff
are as follows;
a) The entire complexion of the project has changed in view of
the additional construction in terms of the amended plan. The
promoter does not deny the plaintiff's factual averments in the
written statement. The trial court considered the plaintiff's
specific contention regarding the change in the nature of the
amenities while granting the interim injunction.
b) On the aspect of legal position regarding informed consent,
learned counsel for the plaintiff relied upon paragraphs 14 and
15 of the decision of Jayantilal Investment. Only in the event
of constructing an additional building, informed consent from
the flat purchasers will not be necessary. However, in view of
section 7(1)(ii) of MOFA, the informed consent of flat
purchasers would be necessary in the event any additional
construction is proposed in the same building, which amounts
to a change in the nature of the building. A separate consent
901-AO-744-2024.doc
may not be necessary only when there is a specific disclosure
in the agreement regarding any proposed change or addition
to the building.
c) In the plaintiff's agreement, the disclosure regarding the FSI
potential is 4921.53 sq. meters. However, by way of amended
plans, the same is increased to 11575.14 sq.mtrs. Thus, it is
incumbent upon the promoter to disclose the full development
potential. To support his submissions, learned counsel for the
plaintiff relied upon the legal principles in paragraph 18 of the
decision of Jayantilal Investment.
d) The term 'prior consent' would include disclosure of
everything by the promoter. On the ground of the blank
consents as recorded in the suit agreement, the promoter is
not entitled to carry out changes in the building by adding
floors, which would amount to a change in the complete
complexion of the building. The full and complete disclosure,
even with regard to the phases of the project, is to be made in
the agreement. The additional floors would mean that the
amenities available to the flat purchasers would be required to
be shared with almost double the number of occupants in the
901-AO-744-2024.doc
building, which is unfair to the plaintiff, who was put on notice
that the amenities would be shared by the occupants of only
the ground plus six floors.
e) In the facts of the present case, the clauses in paragraph 11
of the agreement would amount to a blanket consent, which is
contrary to the provisions of MOFA. Hence, the legal
principles settled by this court in the case of Madhuvihar CHS
squarely apply in favour of the plaintiff. The legal principles
settled in the decision of Manratna Developers, relied upon by
the learned senior counsel for the appellants, are
distinguished in the decision of Lakeview Developers.
Considering the legal principles in the decision of Lake View
Developers and Dosti Corporation, the legal principles settled
in the decision of Manratna Developers would not be of any
assistance to the arguments raised on behalf of the promoter.
In the decision of Malad Kokil Co-operative Housing Society
vs. The Modern Construction Co. Ltd .8, this court held that if
the floor space index is utilised by the promoter elsewhere,
then the promoter is required to furnish to the flat purchasers
with all the detailed particulars in respect of such utilisation of
8 (2012) 46 BOM C.R. 476
901-AO-744-2024.doc
the FSI. So far as the residual FSI in the plot or layout is
concerned, it is not consumed by the promoter and will be
available to the promoter only till the registration of the
society. The promoter is therefore not only required to make
disclosure concerning the inherent FSI, but also required to
declare whether the plot in question in future is capable of
being loaded with additional FSI/TDR. This court held that at
the time of execution of the agreement with the flat
purchasers, the promoter is obliged statutorily to place before
the flat purchasers the project scheme for any one building or
multiple buildings. Therefore, in the absence of disclosure of
the project's full potential, the clauses in paragraph 11 of the
plaintiff's agreement would amount to taking a blanket
consent contrary to the legal principles settled by this court in
the case of Madhuvihar CHS.
f) Therefore, in the present case, in the absence of complete
and full disclosure, the promoter would not be entitled to
construct additional floors, which would adversely affect the
rights created in favour of the plaintiff. The obligation as
contemplated under MOFA is to be performed by the
developer. Hence, the termination letter issued after the filing
901-AO-744-2024.doc
of the suit would not be relevant for deciding the prayers for
an interim injunction. The suit was filed on 14 th September
2023, and the promoter issued the termination on 27 th
November 2023. Therefore, it will always be open to the
plaintiff to challenge the illegal termination. Hence, on the
ground of termination not being challenged at this stage, the
plaintiff cannot be denied the relief of a temporary injunction.
g) Learned counsel for the plaintiff, therefore, submits that the
view taken by the trial court is plausible. Hence, in view of the
legal principles settled by the Wander Ltd. vs. Antox India (P)
Ltd9 the plausible view taken by the trial court may not be
interfered with in this appeal only on the ground that a
different view would be possible.
Analysis and conclusions:
9. I have considered the submissions made on behalf of both
parties. I have perused the papers of the appeal. The following
dates and events would be relevant for considering whether the
plaintiff would be entitled to a discretionary relief of temporary
injunction:
9 1990 (Supp) SCC 727
901-AO-744-2024.doc
(a) 20th January 2017: An agreement is executed
under MOFA for purchasing the suit flat based on the
commencement certificate dated 13 th October 2015 for the
construction of 62 out of the permissible units of 126.
(b) 4th May 2019: Commencement Certificate is issued
for constructing 110 units.
(c) 1st June 2022: Commencement Certificate is
issued for constructing 126 units based on the initial
permissible units.
(d) 2017-2020: The plaintiff claims to have visited the
construction site periodically to see the updated
construction.
(e) December 2022: The plaintiff claims to have
visited the construction site for the first time after the
COVID-19 lockdown from March 2020. Plaintiff pleads he
learnt about the construction of higher floors in December
2022.
(f) January 2023: According to the promoter, the
plaintiff issued notice through his Advocate calling upon
901-AO-744-2024.doc
the promoter to handover possession of the suit flat. It is
pertinent to note that the plaintiff made no grievance about
the additional construction in his notice issued through his
Advocate in January 2023. It is further pertinent to note
that the plaintiff has not disclosed the issuance of such
notice in the plaint.
(h) 14th September 2023: The plaintiff filed the present
suit seeking to challenge the relevant clauses in
paragraph 11 of the suit agreement containing informed
consent.
(i) 9th November 2023: The occupation certificate up
to the 14th floor is granted.
(j) 25th November 2023: The plaintiff called upon the
promoter to provide information about the occupation
certificate received and also sought possession of the suit
flat.
(k) 27th November 2023: The promoter intimated the
plaintiff about cancellation of the suit agreement with
refund.
901-AO-744-2024.doc
(l) Admittedly, the suit agreement in favour of the
plaintiff is for a total consideration of Rs. 42 lakhs, and
according to the promoter, the remaining consideration
amount to be paid till date is Rs. 27 lakhs.
(m) 16th July 2024: The trial court decided the interim
application for a temporary injunction and granted various
injunctions restraining the promoter as well as the flat
purchasers of the additional floors.
10. To decide whether the plaintiff is entitled to an interim
injunction, it is necessary to understand the legal position based on
which the plaintiff is seeking an interim injunction. Learned counsel
for the plaintiff has mainly relied upon the decision of this court in
the case of Madhuvihar CHS, to support his submissions that the
construction carried out pursuant to the sanctioned amended plans
without the informed consent of the plaintiff is in breach of the
provisions of MOFA.
11. In view of the unamended Section 7 of MOFA, consent was
attached to the concept of additional structure. Section 7 of MOFA
came to be amended, and for the purpose of removal of doubt,
additional Section 7-A came to be added by the Maharashtra Act 36
901-AO-744-2024.doc
of 1986. The Hon'ble Apex Court in the decision of Jayantilal
Investments, held that by this amendment, the words indicated in
the parenthesis in the unamended Section 7(1)(ii), namely, "or
construct any additional structures" came to be deleted and
consequential amendments were made in Section 7(1)(ii).
Maharashtra Act 36 of 1986 operated retrospectively. The Apex
Court held that reading Section 7 and Section 7-A, it is clear that the
question of taking prior consent of the flat takers does not arise after
the amendment in respect of any construction of additional
structures; however, the right to make any construction of additional
structures/buildings would come into existence only on the approval
of the plan by the competent authority and that the object behind
the said amendment was to give maximum weightage to the
exploitation of development rights which existed in the land. It is
further held that the promoter is also required to declare that no part
of that FSI has been utilised elsewhere, and if it is utilised, the
promoter has to give particulars of such utilisation to the flat takers
and under the proforma agreement, the promoter has to further
declare utilisation of FSI of any other land for the purposes of
developing the land in question which is covered by the agreement.
901-AO-744-2024.doc
12. After discussing Sections 3, 4 and 10 of MOFA, the Hon'ble
Apex Court in the case of Jayantilal Investments held that it was
necessary to balance the rights of the promoter to make alterations
or additions in the structure of the building in accordance with the
layout plan on the one hand vis-a-vis his obligations to form the
society and convey the right, title and interest in the property to that
society. It was further held that at the time of execution of the
agreement with the flat purchasers, the promoter is obliged
statutorily to place before the flat purchasers the entire
project/scheme, be it a one-building scheme or multiple number of
buildings scheme. The Hon'ble Apex Court thus, held that the
condition of true and full disclosure flows from the obligation of the
promoter under MOFA vide Sections 3 and 4 and Form V, which
prescribes the form of agreement and this obligation remains
unfettered because the concept of developability has to be
harmoniously read with the concept of registration of society and
conveyance of title. Thus, it was held that once the entire project is
placed before the flat takers at the time of the agreement, then the
promoter is not required to obtain prior consent of the flat takers as
long as the builder puts up additional construction in accordance
with the layout plan, building rules and Development Control
901-AO-744-2024.doc
Regulations. The Hon'ble Apex Court remitted the matter to the
High Court for reconsideration on merits.
13. Accordingly, this Court decided the matter in the case of
Madhuvihar CHS. In the meantime, the Hon'ble Division Bench of
this Court, by relying upon the legal principles settled by the Hon'ble
Apex Court in the case of Jayantilal Investments, decided the case
of Manratna Developers. The Hon'ble Division Bench held that in
the facts of that case, the parties had agreed that the promoters
would be developing the property in a phased manner, the entire
FSI/TDR was to be used by the Promoter to the exclusion of the flat
purchasers or the Society that they would form, and the disclosure
in regard to TDR was not made in the agreement, as the very
concept of TDR was non-existent in the year 1988. It was thus, held
as under in paragraph 12;
"12. Taking over all view of the matter whats surfaces is that the
defendants have constructed only one wing of a building which is
very small portion even according to the original sanctioned plan.
Rest of the property could not be developed though was
intended to be developed in phased manner, as according to the
appellants, the premises were not vacated by the tenants.
However, after a portion of the plot was vacated by the tenants
901-AO-744-2024.doc
residing in the dilapidated structures, it became feasible for the
defendants to develop the property upto its permissible full
potential and thus modified plans in accordance with the building
bye-laws were submitted to the Corporation. The local authority,
on being satisfied that the defendants were not constructing
anything in excess of what is permissible according to the
potential of the property, sanctioned the modified plan and after
approval of the modified plans, the appellant was proceeding to
carry out the construction which was objected to by the flat
purchasers of erstwhile lower arm of Building "A". The amenities
in the form of recreation ground are, in no way, reduced. The
consent of the flat purchasers after amendment of section 7 and
insertion of section 7A is not necessary if additional
structures/buildings are to be raised after obtaining approvals or
sanction from the' Municipal Corporation. The balance of
convenience lies in favour of the defendants, as restraining them
from carrying out the proposed construction which has been
sanctioned by the Municipal Corporation, would cause undue
hardships and inconvenience and lock the property for years. We
are also of the view that the agreements entered into with the flat
purchasers clearly postulate the development of the property in
phased manner, according to the sanctioned plans or modified
plans sanctioned in due course of time. Thus, prima facie, the
appellants/defendants appear to have complied with the
requirement of true and full disclosure as envisaged by Clauses
3 and 4. There could not have been disclosure in regard to TDR,
as the very concept of TDR was not prevailing when the
agreement was entered into in the year 1988 and had been
901-AO-744-2024.doc
introduced by the Development Control Rules in the year 1991.
Hence, the appellants/defendants can not be blamed on that
count."
emphasis applied by me
14. This court in the decision of Madhuvihar CHS, referred to the
findings in Manratna Developers and held that it would not be
applicable to the facts of the case as the plaintiff, who was flat
purchaser in lower arm of building "A", was in occupation of small
portion of the building and the scheme was for development of the
property in a phased manner and not one building scheme; hence,
the Division Bench prima facie found that the amenities in the form
of recreation ground, etc. are nowhere reduced and, as such, in the
facts of the case, as no prima facie case was made out, interfered
with the order of injunction. In the case of Madhuvihar CHS, the
project was never intended to be a project for phased development,
hence this Court held that on the interpretation of section 7(1) of the
MOFA, reference to other judgments except to the judgment of
Ravindra Mutenja vs. Bhavan Corporation 10, would not be
necessary, in view of the law explicitly laid down by the Apex Court
in the judgment of Jayantilal Investments while remanding the
10 2003 (5) Mh. L.J. 23
901-AO-744-2024.doc
matter. The applicability of the judgment in the case of Ravindra
Mutenja was considered, as was directed by the Supreme Court in
the judgment of remand.
15. This Court in the judgment of Madhuvihar CHS, held that the
learned Single Judge in the decision in the case of Ravindra
Mutenja, in unequivocal terms held that once the building shown in
the approved plan submitted in terms of the regulations under an
existing scheme, has been completed and possession handed over,
the builder/owner cannot contend, that because he has not formed
the society and has not conveyed the property under the MOFA, he
is entitled to take advantage of any additional F.S.I. that may
become available because of subsequent events and that once the
building is completed and the purchasers are put in occupation in
terms of plan and the time to form the society or convey the
property in terms of the agreement or the rules framed under MOFA
is over, the permission of such purchasers would be required. The
relevant findings in paragraphs 32 and 33 in the case of Ravindra
Mutneja, were reproduced, which read as under :
"32. The real issue as has been noted earlier is what is the
stage up to which the developer/owner can put up additional
construction after the building in terms of the registered plan has
901-AO-744-2024.doc
been constructed and occupied. In my opinion, once the
buildings shown in the approved plan submitted in terms of the
regulations under an existing scheme filed before the authorities
under MOFA Act, have been completed and possession handed
over, the builder/owner cannot contend, that because he has not
formed the society and/or not conveyed the property by sale
deed under the Act he is entitled to take advantage of any
additional F.S.I. that may become available because of
subsequent events. That would be so at the stage the building is
under construction or the building is not completed and/or
purchasers are not put in occupation provided such building
forms part of the development plan and/or layout plan already
approved. Subsequent amendment of the layout plan after the
building plan is registered under MOFA, without the consent,
prima facie, of the flat purchasers would not be permissible. It
may be possible to accept that the development plan could be
modified as long as the right of the purchasers and the benefits
which they are entitled to including recreational and open areas
are not effected by the revised development plan. Once the
building is completed and the purchasers are put in occupation in
terms of plan filed and the time to form the society or convey the
property in terms of the agreement or the rules framed under
MOFA is over the permission of such purchasers would be
required.
33. In the instant case, the building completion certificate for the
plaintiff's building, was issued in the year 1997. The
901-AO-744-2024.doc
builder/owner defendant Nos. 1, 3 and 4 had to put up the
construction, based upon the permission/license granted. The
defendant Nos. 1, 3 and 4 had to construct the building and to
convey the title by sale deed in terms of Rule 9. If property had
been conveyed, prima facie the remaining FSI or FSI which
become subsequently available on the facts of the case, would
be to the society to whom the land had to be conveyed. The
record shows that the building was approved in December, 2001.
It cannot prima facie, be said that defendants Nos. 1, 2, 4 and 5
have any rights under which they are entitled to put up an
additional building contrary to section 7A of the Act."
(emphasis applied in the judgment of Madhuvihar CHS)
16. This court, in the decision of Madhuvihar CHS, thus, held in
paragraph 42 as under:
" 42. In the present case, the scheme was floated in the year
1985, showing 7 wings. The building was completed in the
year 1989 and the purchasers who had entered into
agreement with the promoter were put in possession. In this
respect, it would also be relevant to refer to condition No. 4 of
the occupation certificate dated 12th April, 1989 issued by the
Bombay Municipal Corporation, which reads thus :
901-AO-744-2024.doc
"That, the Co-operative Society shall be formed and
registered within three months from the dale of issue
hereof, or before B.C.C. whichever is earlier."
It is not in dispute, that in furtherance to the statutory
obligation enjoined upon the promoter, in view of section 10 of
the MOFA and Rule 8 of the Rules, though the promoter had
initially taken steps for forming of Co-operative Society, the
matter was not taken to logical end. As such, the flat takers
were required to move the appropriate authority for registration
of the Society. Accordingly, the competent authority granted
registration to the plaintiff No. I/Society on 20th January, 1993.
It is further to be noted that though the appeal was preferred
by the promoter against the said order, the appeal was
rejected. It could, thus, be seen that the promoter was under
the statutory obligation in view of section 11 of the MOFA read
with Rule 9 of the Rules, to execute conveyance in favour of
the Society, within a period of four months. In view of the
judgment of the learned Single Judge of this Court, in the case
of Ravindra Mutenja (cited supra), once the building shown in
the approved plan was completed and possession handed
over and the time frame prescribed for registration of the
Society and conveying land to the Society is over, the
promoter was legally precluded from putting up further
construction without consent."
emphasis applied by me
901-AO-744-2024.doc
17. This court, after referring to various other decisions of this
court, decided the question as to whether the consent which is
deemed to be given in the clauses of the agreement would be a
valid consent for the purposes of section 7 of the MOFA. It was held
that it is a consistent view of this Court, that the consent as
contemplated under section 7(1) of the MOFA has to be an
informed consent which is to be obtained upon a full disclosure by
the developer of the entire project and that a blanket consent or
authority obtained by the promoter at the time of entering into
agreement of sale would not be a consent contemplated under the
provisions of the MOFA. In the facts of the case in Madhuvihar
CHS, it was therefore concluded that the promoter was statutorily
obliged to execute conveyance in favour of the Society within a
period of 4 months from 20th January, 1993 i.e. the date of
registration of the Society; therefore the additional structure which
was not forming part of the original layout in the year 1985, could
not have been constructed without consent of the Society.
18. The decision in the case of Lakeview Developers, relied upon
by the learned counsel for the plaintiff, would not be of any
assistance to the plaintiff in view of the different facts of this case.
901-AO-744-2024.doc
After discussing all the legal principles by referring to the various
judgments, including the judgments discussed in the above
paragraphs, this court in the decision of Lakeview Developers, in
view of the facts of that case, held that if the full development
potential of the land is exhausted and the obligation for conveyance
of land in favour of the Society has arisen as per the Act and Rules
and if the developer fails to do so then any further benefit which
would accrue to the developer on account of any additional TDR or
FSI made available, cannot be used by him for the purpose of
construction of additional buildings. Thus, even in the decision of
Lakeview Developers, the stage of construction for utilising the
additional benefits of FSI and the obligation of the promoter to
convey the land to society are considered as important factors.
19. Even the decision of this court in the case of Dosti
Corporation, would not be of any assistance to the plaintiff. This
Court, in the said decision, was dealing with a challenge to the order
of a temporary injunction granted in favour of a society against the
developer restraining from putting up any construction work upon or
over the suit properties till disposal of the suit and further restraining
from using any FSI as available in the suit properties or part thereof
901-AO-744-2024.doc
till disposal of the suit. The relevant facts of the case were that the
development of the suit property commenced on 27 th May, 2004
and continued till 31st March, 2008. During the stage of the
construction on the suit property, various parties entered into
agreement for sale with the defendant No. 1 for purchase of various
flats in the four wings. A complex comprising four wings was
completed, and four separate co-operative housing societies
connected by a common basement podium were registered. A
completion certificate was also issued. Thereafter, the developer
applied for modification of the plan and had applied for construction
of a public parking lot without obtaining consent of the flat
purchasers. In these facts, this court after discussing the well-
established legal principles held that the members of the society
were already put in possession of their respective flats and the
subsequent amendment of the lay out plan could not have been
effected without the consent of the flat purchasers and such
amendment without such consent was not permissible and thus not
binding on the flat purchasers.
20. This court in the decision of Malad Kokil CHS, held that the
very purpose that the entire layout should be presented to the flat
901-AO-744-2024.doc
purchasers and that there should be full disclosure made to him is
with the purpose that he should be aware as to what is the entire
layout of the scheme in which he is going to purchase the property.
It is held that if the original layout shows only the proposed building
of ground + one, the flat taker would purchase the same with the
knowledge that only few more persons are likely to join the Society
and there would not be much effect on the facilities, amenities etc.
provided to the members of the Society; however, if a structure of
ground + one is converted in a towering structure of 28 storeys, the
entire scenario would change and the number of additional
members that would reside on the said plot would increase by
substantial number, thereby putting an additional load on the
infrastructure, amenities, facilities etc. available on the said plot.
This court thus held that if this is permitted, the very purpose of
requiring a developer to make full and complete disclosure would
stand frustrated. This court held that it is a consistent view of this
Court, that the consent as contemplated under Section 7(1) of the
MOFA has to be an informed consent which is to be obtained upon
a full disclosure by the developer of the entire project and that a
blanket consent or authority obtained by the promoter at the time of
entering into agreement of sale would not be a consent
901-AO-744-2024.doc
contemplated under the provisions of the MOFA. It is important to
note that even in this case, the construction was complete, the
society was registered and the suit was filed by the society for a
decree to convey the property and for a declaration that the
concessions/relaxations granted to the developer are bad in law,
malicious etc. and thus prayed for a declaration that
commencement certificate was null and void. In this suit, a
temporary injunction was granted restraining the defendants from
making any construction.
21. In all these decisions, the suit was filed after the construction
was complete and the society of the flat purchasers was formed and
registered. Hence, the issue of informed consent was examined in
the context of full disclosure about the potentiality of the permissible
construction. In the decision of Zircon Venture CHS, this court held
that the sanction of the layouts is evidenced by the certificate issued
by the Architect and therefore, the Promoter/Developer would be
entitled to put up the building as per the layout sanctioned by the
Local Authority. With reference to the contention in respect of the
pressure on the infrastructure on account of the construction of the
building this court held that the said objection cannot be
901-AO-744-2024.doc
countenanced once there is a true and full disclosure of the
complete scheme by the Developer and that it was only when there
is no full disclosure that the said contention would be available to
the flat purchasers. The facts of the scheme of development had
been disclosed and the sanctions envisaged the construction of 12
buildings and therefore, it was held that it was not a case where the
nature of construction has undergone a drastic change, and
therefore the judgment in Malad Kokil CHS would have no
application regarding the contention about the pressure on
infrastructure. It was thus held as under:
"The prior consent of the flat owner would not be required if the
entire project is placed before the flat taker at the time of
agreement and that the builder puts an additional construction in
accordance with the layout plan, building rules and Development
Control Regulations. It is, thus, manifest that if the promoter
wants to make additional construction, which is not a part of the
layout which was placed before flat taker at the time of
agreement, the consent as required under section 7 of the
MOFA, would be necessary."
901-AO-744-2024.doc
22. Thus, considering the well-established legal principles as
discussed above, it is necessary to balance the rights of the
promoter to make alterations or additions in the structure of the
building in accordance with the layout plan on the one hand vis-à-
vis his obligations to form the society and convey the right, title and
interest in the property to that society. At the time of execution of
the agreement with the flat purchasers, the promoter is obliged
statutorily to place before the flat purchasers the entire
project/scheme, be it a one-building scheme or multiple number of
buildings scheme and the condition of true and full disclosure flows
from the obligation of the promoter under MOFA vide Sections 3
and 4 and Form V, which prescribes the form of agreement and this
obligation remains unfettered because the concept of developability
has to be harmoniously read with the concept of registration of
society and conveyance of title. Thus, once the entire project is
placed before the flat takers at the time of the agreement, then the
promoter is not required to obtain prior consent of the flat takers as
long as the builder puts up additional construction in accordance
with the layout plan, building rules and Development Control
Regulations. Thus, the issue of disclosure of the full potential of the
project and developability, and the informed consent of the flat
901-AO-744-2024.doc
purchaser cannot be decided on any straightjacket formula, in as
much as, these issues would depend upon the facts of each case.
The concept of informed consent cannot be stretched beyond the
statutory obligations of the Promoter as contemplated under
Sections 3 and 4 of MOFA and form V, which prescribes the format
of the agreement.
23. In the present case, the flat purchase agreement discloses the
revised layout and revised commencement certificate dated 27 th
May 2011 and 13th October 2015 for the construction of multi-storied
buildings, amenity space, open space and the area under internal
roads. Paragraphs 1 to 5 of the agreement disclose the
specifications of the complex. Paragraph 11 of the agreement
discloses the particulars regarding the explicit consent of the plaintiff
regarding the promoter's entitlement to consume FAR and
Transferable Development Rights, extended construction and
additional floors. The clauses in paragraph 11 also provides for the
developer's right to exploit the full potentiality of development even
if possession of units is handed over and the entitlement of the
promoter to make changes in the elevation and specifications of the
901-AO-744-2024.doc
complex, on a condition that such changes shall not materially affect
the internal plan and location of the unit sold to the plaintiff.
24. It is important to note that the layout of the 2015 annexed to
the plaintiff's agreement discloses the complete area statement,
including permissible tenements of 123 out of which 62 tenements
are shown as proposed. Thus, the clauses providing the plaintiff's
consent in paragraph 11 of the agreement are to be read with
reference to the area statement and the tenement statement in the
approved layout annexed to the agreement. It is further pertinent to
note that the relevant clauses containing the plaintiff's consent,
recorded in paragraph 11 of the agreement, are challenged by the
plaintiff in the suit. The challenge to the amended plans of 2019 on
the ground that it is without the plaintiff's consent is based on the
substantive prayer to challenge the clauses containing the plaintiff's
consent to enable the developer to utilise the full potential of the
land, including extension to the construction and additional floors.
Thus, the plaintiff signed the agreement, with full knowledge about
the scope of the project and he consenting for the promoter to
utilise the full potentiality of the project. However, by filing the suit,
the plaintiff for the first time raised objection to the clauses of the
901-AO-744-2024.doc
agreement containing his consent and sought to withdraw his
consent. Prima facie, the clauses in agreement contain the plaintiff's
informed consent as contemplated under Section 7 of the MOFA,
and the appellants/defendants appear to have complied with the
requirement of true and full disclosure, as contemplated under
Section 3 of MOFA.
25. A perusal of the reasons recorded in the impugned judgment
indicates that the trial court has misinterpreted all the relevant terms
and conditions of the agreement. The trial court has completely
ignored that the substantive prayer in the suit is to challenge the
clauses in paragraph 11 of the suit agreement, which pertain to the
informed consent of the plaintiff for the proposed additional
construction. A perusal of the reasons recorded by the learned trial
Judge does not indicate an appreciation of the disclosure made in
the plaintiff's agreement.
26. The learned trial judge has reproduced the changes made in
the updated and revised plans. However, the learned Judge has
ignored the contents of the agreement and the plan attached to the
agreement, which indicates that the permissible units in the building
in which the plaintiff has purchased the flat are 126 flats. Learned
901-AO-744-2024.doc
Judge has emphasised the commencement certificate and the total
flat area, including amenities, and the open space. However, the
learned Judge has not considered the effect of the specific clauses
in paragraph 11 of the suit agreement, which also disclose the
proposed increase in the floors. Without recording any prima facie
findings on the effect of the specific clauses in paragraph 11 of the
plaintiff's agreement, the learned Judge has held that the consent of
the plaintiff and other flat purchasers was not taken before the
alteration. Learned Judge emphasized the construction of additional
floors; however, completely ignored the effect of the specific clauses
in paragraph 11 of the plaintiff's agreement.
27. Based on the subsequent changes and alterations in the
sanctioned plan, the learned Judge has erroneously concluded that
the promoters have obtained sanction illegally and colluded with the
municipal corporation and its officers. There is absolutely no basis
or foundation for the findings in the impugned judgment for
concluding that there was collusion with the corporation and its
officers. In the absence of any pleadings and prima facie indication
of any collusion, the reasons recorded in the impugned judgment
amount to perverse findings.
901-AO-744-2024.doc
28. Without considering the effect of the clauses in paragraph 11
of the plaintiff's agreement, the learned Judge observed that the suit
raises triable issues. The conclusion recorded by the trial court that
there is a prima facie case made by the plaintiff and that the
balance of convenience lies in his favour, is based on the reason
recorded by the trial court that triable issues are raised in the suit.
Only raising a triable issue would not entitle the plaintiff to any
temporary injunction that has drastic consequences.
29. The learned Judge completely ignored the rights created in
favour of the flat purchasers of the additional floors who were added
as party defendant nos. 8 to 105. The impugned judgment is bereft
of any discussion on the conduct of the plaintiff in not disclosing his
Advocate's letter in January 2023 seeking possession without
raising any grievance about the additional construction and seeking
an injunction at a belated stage despite having knowledge about the
construction of additional floors. The relevant clauses in paragraph
11 of the plaintiff's agreement disclose the future potential
development of the building in which the flat is purchased by the
plaintiff. The learned trial judge has completely ignored the effect
901-AO-744-2024.doc
and drastic consequences of the injunction on the rights created in
favour of the flat purchasers of the additional floors.
30. The learned Judge has not even referred to the total
consideration of the plaintiff's flat and the balance payments yet to
be made by the plaintiff towards the total consideration. Thus, the
impugned order's ultimate effect is granting a drastic injunction in
favour of the plaintiff who has not yet paid the entire consideration
amount. The plaintiff has not pleaded his rights in respect of the
additional TDR or FSI available to the developer. Admittedly, the
stage of formation of a co-operative society and registration of the
society has not yet arisen in the facts of the present case. Hence,
the reasons recorded by the trial Judge in paragraphs 61 and 62
are irrelevant regarding the plaintiff's grievance in the suit.
31. Learned Judge in paragraph 63 of the impugned judgment
further recorded findings on the duties discharged by the architect
and the alleged collusion with the corporation in permitting illegal
construction. Thus, the learned Judge has proceeded on the footing
that the construction carried out by the promoter is an illegal
construction. The reasons regarding collusion between the
promoter, the municipal corporation and the architect are ill-founded
901-AO-744-2024.doc
and imaginary. Thus, the reasons recorded for the grant of an
injunction that has drastic consequences are without any prima
facie findings on the entitlement of the plaintiff to the nature of the
prayers made in the suit. The grant of injunction, even if in aid of
final reliefs, cannot be granted without recording findings on any
prima facie case made by the plaintiff, the balance of convenience
and irreparable loss.
32. Learned Judge held that the irreparable loss and balance of
convenience is in favour of the plaintiff by completely ignoring the
plaintiff's conduct and the execution of the agreements in favour of
the flat purchasers on the upper floors. Nothing is indicated in the
impugned judgment and order about the irreparable loss that would
be caused to the flat purchasers of the additional floors. Thus, the
reasons recorded in the impugned judgment for granting an
injunction with drastic consequences, without satisfying the basic
principles of the grant of a temporary injunction, are therefore
perverse and contrary to the well-settled legal principles. By the
impugned order, the promoter/developer is restrained from carrying
out any activity in the project with respect to the additional floors,
creating any further third-party interest or handing over possession
901-AO-744-2024.doc
to the purchasers of the respective flats of the upper floors. The
impugned judgment and order do not deal with the aspect as to
whether the rights of defendant nos. 8 to 105 need to be protected
for the loss that would be suffered in the event the plaintiff fails in
the suit. The drastic injunction granted by way of the impugned
order without recording any findings on the balance of convenience
and irreparable loss that would be suffered by defendant nos. 8 to
105 would not be sustainable.
33. Prima facie, the clauses in the agreement executed in favour
of the plaintiff, particularly the clauses in paragraph 11, would not
amount to any blanket consent. The challenge to the specific
clauses containing informed consent itself indicates that the plaintiff
was well aware of the informed consent for utilisation of the full
potential of the land under development, including the proposed
additional units as reflected in the sanctioned layout of 2015
attached to the plaintiff's agreement. Admittedly, there is no
alteration in the flat, or there is no alteration or change in the
common amenities to be provided as per the agreement and the
sanctioned layout. Hence, the impugned order granting an
injunction with drastic consequences would not be sustainable.
901-AO-744-2024.doc
34. The plaintiff has not yet challenged the termination of his
agreement. Though it may be open to the plaintiff to amend his
plaint to challenge the termination, it cannot be ignored that at the
stage of deciding the prayer for interim injunction, there is no
challenge to the termination of the agreement. The plaintiff has
prayed for rectification of the clauses in the agreement pertaining to
the disclosure of the project and the plaintiff's consent, which prima
facie amounts to full disclosure and informed consent. The plaintiff
has made a peculiar prayer for specific performance of such
rectified agreement.
35. The learned trial judge ignores the legal principles settled by
the Hon'ble Apex Court in the decision of Ambalal Sarabhai
Enterprises for the grant of the interim injunction. The Hon'ble Apex
court held that the grant of relief in a suit for specific performance is
itself a discretionary remedy, and a plaintiff seeking a temporary
injunction will therefore have to establish a strong prima facie case
on the basis of undisputed facts. It is further held that the conduct of
the plaintiff will also be a very relevant consideration for the purpose
of injunction, and the discretion has to be exercised judiciously and
not arbitrarily. The Hon'ble Apex Court held that the principles in
901-AO-744-2024.doc
Wander Ltd., prescribe a rule of prudence only, and much will
depend upon the facts of each case.
36. In the present case, the learned trial judge has not only
ignored the vital facts but also misappreciated the legal principles;
thus, the trial court has exercised the discretion arbitrarily and the
reasons to grant the injunction are perverse and based on
unreasonable grounds. Therefore, the impugned judgment and
order would require interference by this court. Hence, the decision
in the case of Wander Ltd. would not be of any assistance to the
plaintiff.
37. In the facts of the present case, the legal principles relied
upon by the learned counsel for the plaintiff, referring to the various
judgments discussed above, would not assist the plaintiff's
arguments. For the reasons recorded above, I am satisfied that the
impugned judgment and order granting the injunction is not
sustainable. The appeal is therefore allowed by passing the
following order:
(i) The impugned judgment and order dated 16 th July
2024 passed by the learned 15th Joint Civil Judge
901-AO-744-2024.doc
Pune below Exhibit 5 in Special Civil Suit No. 1869 of
2023 is quashed and set aside.
(ii) The application filed below Exhibit 5 is rejected.
[GAURI GODSE, J.]
Digitally
signed by
RAJESHWARI
RAJESHWARI RAMESH
RAMESH PILLAI
PILLAI Date:
2025.06.10
07:12:26
+0200
