Bombay High Court
Jaydeep Developers vs Lok Everst Co Op Hsg. Soc. Ltd. And Ors on 7 November, 2025
Author: R.I. Chagla
Bench: R.I. Chagla
2025:BHC-OS:20248
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
Kavita S.J.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.308 OF 2019
IN
SUIT NO.191 OF 2023
Lok Everest Co-Op.Hsg. Soc. Ltd. ...Applicant/
Org. Plaintiff
Versus
Jaydeep Developers & Ors., ...Respondents/
Org. Defendants
WITH
INTERIM APPLICATION NO.2718 OF 2020
IN
INTERIM APPLICATION NO.308 OF 2019
IN
SUIT NO.191 OF 2023
Jaydeep Developers ...Applicant/
Org. Defendant No.1
Versus
Lok Everest Co-Op.Hsg. Soc. Ltd. ...Respondent/
Org. Plaintiff
----------
Dr. Abhinav Chandrachud a/w Mr. Mukesh Gupta, Ms. Ashwini Patil
i/b Solicis Lex for the Plaintiff.
Mr. Ashutosh Kumbhakoni, Senior Counsel a/w Mr. Vishal
Narichania, Mrs. Pallavi Kulkarni i/b Ms. Minal Parab a/w Mr. Manoj
B., Mr. Shrinidhi Suryawanshi for Defendant No.1 in Suit and for
Applicant in IA 2718/2020.
Ms. Pooja Yadav i/b Ms. Komal Punjabi for Defendant No.2.
Mr. G.S. Bhat for Applicant in IA 452/2022.
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RO-IA 308.19 with IA 2718.20 in S 191.23.doc
CORAM : R.I. CHAGLA, J.
RESERVED ON : 27th JUNE, 2025.
PRONOUNCED ON : 7th NOVEMBER, 2025.
ORDER :
1. By this Interim Application, the Plaintiff/Applicant is
seeking an order of injunction restraining the Defendant No.1 and /
or their agents, servants and assigns from making any alterations and
/ or constructing new Building C5 or Wing C5 or undertaking any
construction in the Larger Property. Further, consequential relief has
been sought in addition to the primary relief.
2. The captioned Suit has been filed by the Plaintiff in
which the present Interim Application has been taken out seeking to
enforce its rights under Section 7(1)(ii), read with Sections 3(2)(c)
and 4(1A)(a)(i) of the Maharashtra Ownership Flats (Regulation of
the Promotion of Construction, Sale, Management and Transfer) Act,
1963 ("MOFA"). The Plaintiff is a society of flat purchasers occupying
Building No.4, consisting of four Wings B1, B2, C1 and C2 that are
connected to each other. The Plaintiff - Society has 309 members.
The case of the Plaintiff is that, Defendant No.1 - Developer has
exhausted the development potential of the land as disclosed to the
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
flat purchasers at the time of the execution of the flat purchase
agreements, and in spite of which Defendant No. 1 is seeking to
utilize more FSI on the subject plot on account of an increase in FSI
due to a change in law, which the Plaintiff contends is contrary to
MOFA.
3. A brief background of the facts is necessary:
(i) The land of the Plaintiff - Society is part of City
Survey No. 661/1/1. The Developer had
constructed two buildings on the said land viz.
Buildings Nos. 4 and 5. An Agreement was executed
between Defendant No. 3 (land owner) and Lok
Holdings (partnership firm) on 31st July, 1990
granting development rights over the larger layout
of the said land. The partners of Lok Holdings
incorporated a company called Lok Housing and
Constructions ("Developer").
(ii) An Agreement was executed between Lok Holdings
(partnership firm) and the Developer, whereby the
latter was assigned the former's development rights
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
in the larger layout.
(iii) A Supplemental Agreement was executed between
Defendant No. 3 and the Developer on 22 nd June,
1993 modifying the terms of its Agreement.
(iv) The Layout/sub-division for the larger property was
sanctioned by Defendant No. 2 (MCGM) on 26th
November, 1993.
(v) A Commencement Certificate was obtained by the
Developer for development of Building No. 5 on 4th
January, 1995.
(vi) The Sanctioned Plan of the project was issued on 5th
April, 1995.
(vii) The Developer executed Agreements for Sale with
flat purchasers in Buildings No. 4 and 5 on 27th April,
1995. The layout plan mentioned in the said
Agreement is the 1993 layout plan. It is pertinent to
note that it is the Plaintiff's case that the 1993 layout
plan was not disclosed to the Plaintiff and varied
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
from copy of the layout plan annexed at Exhibit-A to
the said Agreements.
(viii) A layout plan of Building No.5 was issued on 11th
March, 1999.
(ix) The Building No.4 received a full Occupation
Certificate on 25th February, 2003.
(x) The residents of Building No.4 formed a co-
operative housing society under the name
Kanchanchanga Lok Everest (name subsequently
changed, on 23rd December, 2014 to Lok Everest
Cooperative Housing Society Ltd. - the Plaintiff herein
on 4th September, 2006). It is pertinent to note that
there are ten societies which have been formed on
larger layout of the said land.
(xi) A fresh sanctioned plan of the project was issued on
1st November, 2007.
(xii) An Architect's Certificate was issued on 4th January,
2008.
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
(xiii) A Memorandum of Understanding ("MoU") was
executed between the Developer and Defendant
No.1 on 29th April, 2011.
(xiv) A Joint Venture Agreement was executed between
the Developer and Defendant No. 1 on 29th April,
2011.
(xv) The Plaintiff - Society filed an Application on 11th
March, 2014 before the Competent Authority for the
deemed conveyance under the provisions of MOFA.
(xvi) The Competent Authority rejected the Plaintiff's
application for deemed conveyance on 16th October,
2014.
(xvii) The layout plan was approved by the Defendant
No.2 on 23rd December, 2016.
(xviii) The Plaintiff once again filed an application for
deemed conveyance before the Competent Authority
on 29th December, 2016.
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
(xix) The Developer received a Commencement Certificate
for construction of Wing C5 (part of Building No.5)
on 10th January, 2017.
(xx) The Competent Authority held in favour of the
Plaintiff and granted a deemed conveyance on 21st
March, 2017.
(xxi) The work of development was commenced and the
work of shore piling has been completed in June
2017.
(xxii) A Stay Order dated 6th July, 2017 was granted by this
Court in Writ Petition No.6418 of 2017 filed by the
Developer against order of deemed conveyance.
(xxiii) A Stop Work Notice was issued by Defendant No.1 to
the Developer on 5th January, 2018.
(xxiv) The Assignment Agreement was executed between
the Developer and Defendant No.1 on 29th March,
2018, whereby the Developer assigned its rights to
Defendant No.1.
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
(xxv) A MoU was executed between the Developer and
Defendant No.1 on 18th May, 2018.
(xxvi) An Order dated 8th March, 2019 was passed by this
Court in Writ Petition No.6418 of 2017, wherein it
was clarified that the stay order was applied only to
the deemed conveyance order.
(xxvii) A Stop Work Notice was issued by Defendant No.1 to
the Developer which was withdrawn on 16th April,
2019.
(xxviii) A fresh plan was submitted by Defendant No.1 to
Defendant No.2 on 16th May, 2019.
(xxix) A Report was prepared by M/s Nadkarni & Co.
(Architects) on 10th July, 2019 which concludes that
Defendant No. 1 is attempting to carry out
construction which was never disclosed in the 1995
and 2007 plan, as per the 2019 plan, and to utilize
FSI which was never available in 1995 and 2007.
(xxx) The Plaintiff issued Notice to Defendant No.1 on 9 th
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September, 2019.
(xxxi) The present Suit was filed on 17th October, 2019
alongwith present Interim Application No.308 of
2019.
(xxxii) A Reply was filed by Defendant No.1 to the present
Interim Application No.308 of 2019 on 18 th
December, 2019. It is pertinent to note that in
Paragraph 9 of the said Affidavit-in-Reply, the
Defendant No.1 contended that the flat purchasers
were informed that the development was going to be
carried on in a "phase wise manner".
(xxxiii) An order was passed by this Court on 5th February,
2020 recording the statement of Defendant No. 1
that no further activity would be conducted on site
until the next date. The present Interim Application
was part-heard and stood over on account of a
request made on behalf of Defendant No. 1 in order
to enable the advocate for Defendant No. 1 to study
the sanctioned plans according to the Plaintiff. It is
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
pertinent to note that this statement had been
continued from time to time and remains in force
until date.
(xxxiv) By an Order dated 22nd February, 2022 this Court
dismissed an application filed by the flat purchasers
in Building C5 for impleadment.
4. Dr. Abhinav Chandrachud, learned Counsel appearing
for the Plaintiff has submitted that the Defendant No.1 (hereinafter
referred to as "Developer") has exhausted the development potential
of Building No. 5 and of the entire layout. He has submitted that
once the Developer exhausts the development potential of the land,
no further construction is permissible without the informed written
consent of 100% of the flat purchasers.
5. Dr. Chandrachud has submitted that the said land /
subject plot is City Survey No. 661/1/1. The Developer was required
to construct two buildings on this plot of land viz. Building Nos. 4
and 5. The Plaintiff - Society occupies Building No. 4 which consists
of 4 Wings (B1, B2, C1 and C2) and has 309 members.
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
6. Dr. Chandrachud has submitted that the 1993 layout
plan was prepared by the erstwhile Developer which has been
annexed to the Additional Affidavit of Defendant No. 1 dated 10th
February 2020 does not disclose the development potential of
Building No.5. The words/letters "S+16" have been illegibly
scribbled in a far corner of this layout plan alongside Wing B4 of
Building No. 5. The 1993 layout plan does not contain vital details
such as the total square meter area of Building No. 5 or how many
tenements Building No. 5 was to comprise of. He has submitted that
the 1993 layout plan does not constitute a "full and true disclosure"
as per the Supreme Court's decision in Jayantilal Investments v.
Madhuvihar Cooperative Housing Society1 at Paragraphs 15, 17, 18
and 19. In the said decision, the Supreme Court has held that the
Developer must make a full and true disclosure of particulars
mentioned in Section 3(2) of MOFA, including the FSI available in
respect of the land, and the "development potentiality of the plot".
7. Dr. Chandrachud has submitted that during the course of
arguments, the learned Senior Counsel for Defendant No. 1 had to
produce an enlarged version of layout plan for the Court to see the
1(2007) 9 SCC 220
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
text clearly. He has submitted that this could hardly constitute
sufficient disclosure/informed consent under MOFA. He has placed
reliance upon the Judgment of this Court in Madhuvihar Cooperative
Housing Society v. Jayantilal Investments 2 at Paragraph 47 and Dosti
Corporation v. Sea Flama Cooperative Housing Society 3 at
Paragraphs 80, 83, 85, 87, 92-93, 96-97, 100-102. It has been held
that the Developer must make a full disclosure of the entire project to
the flat purchasers. In Malad Kokil Cooperative Housing Society v.
Modern Construction Co.,4 at Paragraph 38, this Court has held that
the Developer must make a full and true disclosure of the
development potential of the plot and place before the flat
purchasers the entire project/scheme.
8. Dr. Chandrachud has submitted that the 1993 layout
plan did not disclose to the flat purchasers that Wing B4 consists of
three Wings (A, B, and C) each of 22 floors, that additional FSI of
14,233.96 square meters would be used to construct the same, or
that 265 additional tenements would be constructed in the said
building, as is now proposed by the Developer in the plan of 2019.
2(2011) 1 Mh LJ 641
3(2016) 5 Mh LJ 102
4(2012) SCC Online Bom 1310
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
9. Dr. Chandrachud has submitted that in Pro-Forma A at
item 11, the 1993 layout plan reveals that the total development
potential of the entire layout is 74,476.04 square meters. He has
submitted that admittedly, this development potential has already
been exhausted. The Developer has already constructed buildings
which exhaust this development potential as on today. He has
submitted that no further construction is now permissible. He has
relied upon Judgment of this Court in Sheth Developers v. Venus
Vasant Valley5 at Paragraphs 115, 119, 122, 125, 126) as well as
Judgment of this Court in Lakeview Developers v. Eternia
Cooperative Housing Society6 at Paragraphs 43-44.
10. Dr. Chandrachud has submitted that it is an admitted
position that the 1993 layout plan was never disclosed to the flat
purchasers at the time of entering into the flat purchase agreements.
He has referred to Paragraph 6.1.2 of the Rejoinder dated 15th
February 2020, wherein the Plaintiff has averred that what was
shown to the flat purchasers at the time of executing the flat
purchase agreements was not the plan of 1993 but the sanctioned
layout plan of the year 1995. He has submitted that this has not been
5(2024) SCC Online Bom 1054
6(2015) SCC Online Bom 3824
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
countered by Defendant No. 1 in any sur-rejoinder/affidavit
thereafter.
11. Dr. Chandrachud has submitted that one of the recitals
to the flat purchase agreement referred to a layout plan dated 26th
November 1993. However, the flat purchase agreement itself makes
it abundantly clear that this 1993 layout plan was never disclosed to
the flat purchasers. Recital (c) of the flat purchase agreement reveals
that what was disclosed to the flat purchasers was a plan annexed at
Exhibit-C to the flat purchase agreement. The said plan annexed at
Exhibit-C does not even disclose that Wing B4 of Building No. 5
would have 16 floors. It does not disclose the development potential
of Building No. 5 or that of the entire layout.
12. Dr. Chandrachud has submitted that what a Developer is
required to disclose to the flat purchasers is the development
potential of the land/building, not the number of floors. Once the
development potential is exhausted, no further construction is
permissible. He has placed reliance upon Sheth Developers (supra)
and Lakeview Developers (supra) in this context.
13. Dr. Chandrachud has submitted that the Defendant No. 1
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
during the course of oral arguments, relied on a recital in the
Agreement for Sale dated 27 th March, 2007 which has no relevance
to the present case since it was between purchasers in Lok Everest
Mansarovar CHS and the Developer whereas the said recital does not
exist or find any mention in the Agreement of sale entered into by
the flat purchasers of the Plaintiff - Society from 27 th April, 1995
onwards.
14. Dr. Chandrachud has submitted that Defendant No.1
during oral arguments, relied on an NOC of the Chief Fire Officer
dated 30th October, 1993 and parking layout plan dated 27 th January,
1995, which were not provided to the flat purchasers at the time of
the flat purchase agreements. Hence, they cannot be relied upon by
the Developer.
15. Dr. Chandrachud has submitted that the 1995
Sanctioned Plan was the only plan which was admittedly disclosed to
the flat purchasers while executing the flat purchase agreement. He
has submitted that in Pro-Forma A at item 12 of the 1995 Sanctioned
Plan, the total development potential of Building No. 5 was disclosed
as 22,807.89 square meters. The total development potential of the
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
entire layout was 67,028.44 square meters. He has submitted that it
is an admitted position that this development potential for both
Building No. 5 and the entire layout has been exhausted by the
Developer. Thus, no further construction is permissible.
16. Dr. Chandrachud has submitted that in the Tenement
Statement (table on the left-hand side of the 1995 Sanctioned Plan),
Building No. 5 was to consist of 9 typical floors (216 tenements) and
2 refuge floors (32 tenements). He has submitted that what matters
is the development potential disclosed to the flat purchasers and not
the number of floors/tenements etc. disclosed. He has relied upon
Sheth Developers (supra) at Paragraphs 115, 119, 122 and 125 in
this context.
17. Dr. Chandrachud has submitted that the 2007
Sanctioned Plan contained a "location plan" on the left-hand side of
the plan. In it, it was stated that Building No. 5 would consist of four
Wings (B3, C3, C4 and C5). However, the entire development
potential of all four Wings was only 22,513.38 square meters.
Further, while Wings B3, C3 and C4 were to be stilt+16 storey
structures, Wing C5 was only going to be a stilt+1 storey structure.
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
In other words, the entire development potential of Building No. 5,
i.e. 22,513.38 square meters, was proposed to be used up by the
Developer in Wings B3, C3 and C4. The total development potential
of the layout was 83,621.77 square meters mentioned in Pro-Forma
A on the right hand side of the Plan.
18. Dr. Chandrachud has submitted that it is an admitted
position that the development potential of Building No. 5 (i.e.,
22,513.38 square meters) and the entire layout (83,621.77 square
meters) has been fully exhausted by the Developer. Thus, no further
construction is permissible.
19. Dr. Chandrachud has submitted that the 2016
Sanctioned Plan contained a "Summary of Buildings Proposed Area"
statement on the left-hand side of the page. This table makes it clear
that the entire development potential of Building No. 5 (i.e.
22,513.38 square meters) has been utilized by the Developer in
Wings B3, C3 and C4 of Building No. 5, which were each Stilt+16
storey structures. It was for this reason that Wing C5 was shown as a
Stilt+1 storey structure with "Nil" FSI. Thus, in short, the 2016
Sanctioned Plan makes it clear that the Developer had fully
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
exhausted the development potential of Building No. 5 by 2016 itself.
Thus, no further construction is permissible.
20. Dr. Chandrachud has submitted that against the total
development potential of 74,476.04 in respect of the entire layout in
the 1993 layout plan and total development potential of 67,028.44
sq. mtrs. disclosed to flat purchasers in the 1995 Sanctioned Plan, the
Developer had consumed total FSI of 82,755.62 sq. mtrs. He has
submitted that no consent for the same was obtained from flat
purchasers and the flat purchasers could not take any legal recourse
against these unilateral constructions of the Developer in view of the
blanket legal immunity granted to the Developer for a period of
about fifteen years from 27th January, 1999 to 25th April, 2014 under
Bombay Relief Undertakings (Special Provisions) Act, 1958.
21. Dr. Chandrachud has submitted that the 2019
unapproved Plan contains a "Summary of Buildings Proposed Area"
Statement (at the center of the page). This table shows that the
developer has exhausted the development potential of Building No. 5
in Wings B3, C3 and C4, i.e., 22,513.38 square meters. However, the
Developer now proposes that Wing C5, which was earlier shown as a
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
Stilt+1 storey structure with "Nil" FSI will now be a structure with
three Wings (A, B and C) each of 22 floors, and will have additional
FSI of 14,233.96 square meters.
22. Dr. Chandrachud has submitted that this is contrary to
MOFA because the Developer, having exhausted the development
potential of Building No. 5 and the development potential of the
entire layout, cannot seek to construct more now as FSI has become
available due to a change of law. He has placed reliance upon Sheth
Developers (supra) and Lakeview Developers (supra) in this
context.
23. Dr. Chandrachud has submitted that the 2019 plan was
prepared shortly before the present Suit was filed on 17 th October
2019. He has submitted that there is no delay on the part of the
Plaintiff - Society in filing the present Suit. No cause of action arose
prior to the 2019 plan, since none of the previous sanctioned plans
altered the development potential of Building No. 5. It was only in
the 2019 plan that the Developer sought to alter / add to the
development potential of Building No. 5 for the first time. Further, in
any event, the previous Developer had been granted legal immunity
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
under the Bombay Relief Undertakings (Special Provisions) Act,
1958, between 1999-2014 which barred the Plaintiff from filing any
proceedings against the said Developer.
24. Dr. Chandrachud has submitted that the flat purchase
agreements did not contain any disclosure as to what the
development potential of the land was, unlike the disclosure made by
the promoter in the case of Sheth Developers (supra). Further, the
flat purchase agreements in the instant case contained several clauses
of general consent/blanket consent which gave the Developer
permission to utilize more FSI as and when additional FSI became
available due to a change in law. He has placed reliance upon
Madhuvihar (supra) wherein this Court has held that it is not
permissible for a developer to obtain blanket consent/general
consent from flat purchasers. The aforesaid clauses of the flat
purchase agreement in the instant case are contrary to this principle
and therefore not binding on the flat purchasers.
25. Dr. Chandrachud has submitted that the plan that was
annexed at Exhibit C to the flat purchase agreements did not contain
any disclosure about the development potential of the land or the
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
number of floors in the Wings of Building No. 5. He has submitted
that though the flat purchase agreement was originally executed with
Lok Housing and Construction Ltd., which is now in insolvency
proceedings, it is an admitted position that the agreement binds
Defendant No. 1 who is an assignee of the said original Developer.
The agreement itself says that the term "Developer" includes the
"successors and assigns" of the original Developer.
26. Dr. Chandrachud has submitted that the Defendant No. 1
has not produced the report of any expert of its own to counter the
report of M/s Nadkarni & Co. Thus, the report of Nadkarni & Co.
reflects the admitted position between the parties.
27. Dr. Chandrachud has submitted that the report of
Nadkarni & Co. reveals that both Buildings No. 4 and 5 are on the
same plot of land, i.e., CTS No. 661/1/1 and it stands to reason that
the residents of Building No. 4 have a vital interest in any additional
structures that are put up as part of Building No. 5.
28. Dr. Chandrachud has submitted that the report of
Nadkarni & Co. concludes that in the 2019 plan, Defendant No. 1 is
planning on constructing 258 new tenements in Wing C5 of Building
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No. 5, in a structure of three Wings (A, B, and C) each comprising
Stilt+22 upper floors. This makes for an increase of 265 tenements
over the number of tenements approved in the 1995 approved plans.
The report notes that the 2019 plan is based on a change in law
brought about by DCPR 2034. He has submitted that what is
contemplated by the developer in the 2019 plan is clearly contrary to
MOFA.
29. Dr. Chandrachud has submitted that on 21st March, 2017
the competent authority had granted a deemed conveyance to the
Plaintiff society of the area underneath its building (5,219.90 square
meters) and an undivided share in the plot to the extent of 17,288.80
square meters. This deemed conveyance order has been upheld by
the learned Single Judge of this Court on 26 th March 2025 in Writ
Petition No. 6418 of 2017. He has referred to Paragraph 33 of the
said order, wherein this Court had observed that the developer has
"unilaterally revised the sanctioned plan and introduced a fourth
building", that the developer has "consum[ed] the entire permissible
Floor Space Index (FSI) under the Development Control
Regulations". Having "consumed the entire FSI and revised the lay-
out unilaterally", it was held that the developer cannot take
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advantage of its own wrong.
30. Dr. Chandrachud has submitted that though liberty was
granted in the said order to the previous developer to file a Suit
against the Plaintiff society, no such Suit has been filed.
31. Dr. Chandrachud has referred to the Judgment dated 4 th
April 2025 passed by this Court in Flagship Infrastructure Ltd. v.
Competent Authority in Writ Petition No.151 of 2019 at Paragraph
26, wherein this Court commented on the conduct of the Developer
in the instant case. It was held that the Developer was making a
"similar excuse", that "even after 30 years, the promoter had not
given conveyance", which was "completely against the purpose of
MOFA", and "very unfair to flat owners". He has submitted that the
conduct of Defendant No. 1 shows that it is not worthy of any
equitable orders at the interim stage.
32. Dr. Chandrachud has submitted that the Plaintiff has not
conceded/admitted that the FSI which became available on the
subject plot prior to 2015 belongs to the Developer. He has submitted
that it is well settled that pleadings must be read as a whole and in a
liberal manner, not like statutes. Admissions must be clear,
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unambiguous and unequivocal, and on a perusal of Paragraph 42 of
the Plaint it would reveal that there is no such admission on the part
of the Plaintiff. In any event, there cannot be any
admission/concession of a point of law.
33. Dr. Chandrachud has submitted that the Plaintiff in
Paragraph 42 of the Plaint has stated that the Developer has
exhausted the development potential of the land. Further down the
paragraph, the Plaintiff has made a statement that in any event, after
2015, all the FSI of the land belongs to the registered societies in the
layout. He has submitted that this averment in Paragraph 42 does
not constitute an admission that all the FSI which accrued on the
subject plot prior to 2015 belongs to the Developer. He has
submitted that it is well settled that pleadings in India must be read
as a whole and liberally, not pedantically or like a statute. He has
placed reliance upon Judgment of the Supreme Court in Ram Sarup
Gupta v. Bishun Narain7 at Paragraph 6 and S.B. Noronah v. Prem
Kumari8 at Paragraphs 3, 5 and 6.
34. Dr. Chandrachud has submitted that it is well settled that
7(1987) 2 SCC 555
8(1980) 1 SCC 52
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an admission of facts may bind a party, but an admission of law is
not binding. He has placed reliance upon the Judgment of the
Supreme Court in Banarsi Das v. Kanshi Ram 9 at Paragraph 11 in
this context. He has submitted that assuming, while denying, that
the Plaintiff has admitted in Paragraph 42 that the FSI which accrued
on the subject plot prior to 2015 belongs to the Developer, this would
be contrary to MOFA and therefore an admission in law, can never be
binding on the Plaintiff.
35. Dr. Chandrachud has submitted that it is well settled that
an admission has to be clear, unambiguous and unequivocal. He has
placed reliance upon the Judgment of the Supreme Court in Sita
Ram Bhau v. Ramchandra 10 at Paragraphs 17-18 in this context.
36. Dr. Chandrachud has submitted that the present Suit is
not barred by the provisions of the Real Estate (Regulation and
Development) Act, 2016 as the Occupation Certificate of the
Plaintiff's building was obtained prior to 2016. He has relied upon
the Judgment of the Division Bench of this Court in Neelkamal
Realtors v. Union of India11 at Paragraphs 87, 89 in this context.
9(1962) SCC Online SC 90
10(1977) 2 SCC 49
11(2017) SCC Online Bom 9302
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
37. Dr. Chandrachud has submitted that the statutory notice
under Section 527 of the Mumbai Municipal Corporation Act, 1888,
was duly issued by the Plaintiff to the Municipal Corporation. It was
issued prior to the Suit being filed. He has submitted that this has not
been disputed by the municipal corporation in their reply. It would
therefore not lie in the mouth of the Developer to contend that the
statutory notice was not issued by the Plaintiff prior to the Suit being
filed. He has placed reliance upon the Judgment of this Court in
Chandmal Lodha v. Pravin Sutar12 at Paragraphs 5, 9 wherein it has
been held that such objections must be raised by the corporation, and
not by private parties.
38. Dr. Chandrachud has submitted that Section 149 of the
Maharashtra Regional and Town Planning Act, 1966, does not bar
Suits seeking to prevent Developers from acting in pursuance of plans
illegally sanctioned contrary to MOFA. He has placed reliance upon
the Judgment of this Court in Raja Bahadur v. State of Maharashtra13
at Paragraph 12; Gadre Constructions v. Sadashiv Sathe 14 at
Paragraph 5, and Jitendra Santilal Shah v. Zenal Construction Pvt.
12(2015) SCC Online Bom 7454
13(2002) SCC Online Bom 679
14(2004) 3 Mh LJ 875
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
Ltd.15 at Paragraphs 65-66, in which this Court has held that Section
149 of the Maharashtra Regional and Town Planning Act, 1966 does
not bar Suits by which parties can be prevented from acting in
pursuance of an order made under the Act. In Jitendra Santilal Shah
(supra) it has been held that despite the said provision, a flat
purchaser is entitled to challenge the construction itself as being
violative of MOFA. He has submitted that the challenge in the instant
case is not to the sanctioned plans alone/per se, but to the right of
the Developer to even submit the plans or carry out construction in
view of the provisions of MOFA.
39. Dr. Chandrachud has submitted that the Developer is
wrong to contend that the society of Building No. 5 has not opposed
the additional construction which is now proposed in the plan of
2019. He has referred to Intervention Application [IA No. 452 of
2022] filed by the society of Building No. 5 which opposes the
construction now proposed by the Developer i.e. three Wings (A,
and C) of C5, each Wing being 22 storeys.
40. Dr. Chandrachud has submitted that Section 7(1)(ii) of
MOFA requires the informed written consent of 100% of the flat
15(2009) SCC Online Bom 105
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
purchasers before any additional construction is carried out once the
development potential of the land has been exhausted by the
Developer. This is different from section 14(2)(ii) of the RERA Act,
which requires the permission of 2/3rds of the flat purchasers for
putting up any such additional construction. The Plaintiff - Society
represents 309 flat purchasers. Even if one flat purchaser was to
object to the additional construction, the Developer would have been
prohibited from carrying it out under Section 7(1)(ii) of MOFA.
Thus, even if the intervenor did not have any objection to the
additional construction proposed under the plan of 2019, the
objection of the Plaintiff - Society to the same is sufficient to bar the
developer from carrying out the said additional construction.
41. Dr.Chandrachud has submitted that the
concession/suggestion made by the counsel for Defendant No. 1
during oral arguments, that Defendant No. 1 will only construct one
building of 16 floors at the interim stage, is contrary to MOFA. He
has submitted that it has been demonstrated above that the
Developer has exhausted the development potential of Building No. 5
and the development potential of the entire layout. Having done so,
it is no longer permissible for the Developer to construct even one
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
square meter more than what was disclosed to the flat purchasers.
He has placed reliance upon Sheth Developers (supra) and Lakeview
Developers (supra).
42. Dr. Chandrachud has submitted that the consent orally
given by the counsel for the intervenor (Lok Everest Mansarovar
Cooperative Housing Society Ltd.) to the said suggestion of the
Defendant No.1 is immaterial. Under Section 7(1)(ii) of MOFA, the
consent of 100% of the flat purchasers is required prior to carrying
on any additional construction contrary to what has been disclosed to
the flat purchasers at the time of execution of the flat purchase
agreements. In the instant case, the Plaintiff - Society has objected to
the proposal which has been made by the Defendant No. 1 during
oral arguments.
43. Dr. Chandrachud has submitted that the Judgment of
this Court in Sheth Developers (supra) relied upon by Defendant
No.1 supports the case of the Plaintiff. In that case, the Developer
had disclosed the development potential of the land as being
6,00,000 square feet (i.e., 55,762.08 square meters) in the flat
purchase agreements themselves. The Court noted in the said case
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
that the Developer was not exceeding the development potential of
the land as disclosed to the flat purchasers in the flat purchase
agreements. The Court noted that the source of the FSI was
irrelevant, as were the number of floors. What was important was
that the Developer had disclosed the development potential of the
land and was "in no manner exceeding the same".
44. Dr. Chandrachud has submitted that in the instant case,
the Developer did not disclose the development potential of the land
in the flat purchase agreement. The development potential of the
subject plot and Building No. 5 were only revealed in the 1995
sanctioned plan. This development potential has admittedly been
exhausted by the Developer. Thus, no further construction is
permissible as per the law laid down by this Court in Sheth
Developers (supra).
45. Dr. Chandrachud has submitted that in Krishna
Constructions v. Subash Uttam Dalvi, Appeal from Order No.
744/2024, Judgment dated 10th June, 2025, relied upon by
Defendant No.1, this Court has held that there is " no straitjacket
formula" for determining the issues of disclosure, developability and
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
informed consent (paragraph 22). Thus, each case would have to be
decided on its own facts. Further in the said case, the Developer had
terminated the flat purchase agreement with the only flat purchaser
who filed a Suit, which was not challenged by the said flat purchaser.
Finally, the said case did not consider the binding decision of this
Court in Sheth Developers (supra) on the duty of the developer to
disclose the development potential of the land.
46. Dr. Chandrachud has submitted that the Judgment of
this Court in Zircon Venture Cooperative Housing Society Ltd. v.
Zircon Ventures16 relied upon by Defendant No.1, was decided
before the Judgment of the Division Bench of this Court in Lakeview
Developers (supra). Thus, the Court did not have the benefit of the
binding decision of Lakeview Developers (supra) wherein it has been
held that the Developer cannot construct anything further once the
development potential of the land has been exhausted. In any event,
in Zircon Ventures (supra), it was not argued that the development
potential of the land was exhausted. It has been held by this Court
that what is required to be seen is whether the developer is intending
on making a "drastic change" to what was disclosed to the flat
16(2014) 4 Mh LJ 481
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
purchasers. In the instant case, the Developer is proposing to utilize
14,233.96 square meters to construct three Wings, each with 22
floors, and adding 265 tenements to what was disclosed to the flat
purchasers. This certainly is a drastic change.
47. Dr. Chandrachud has submitted that the decision of this
Court in Chetan Shelke v. Savannah Vasant Lawns 17 relied upon by
the Defendant No.1, the Court noted in Paragraphs 24 and 25 that
the Plaintiff therein was guilty of substantial delay/laches in filing
the Suit, since the plans in the said case had undergone eight
revisions between 2007-2022. In the instant case, the development
potential of Building No. 5 was not altered by the Developer until the
plan of 2019. In fact, the 2016 sanctioned plan showed Wing C5 as
having "Nil" FSI. It was only in 2019 that the Developer sought to
construct more than what was disclosed to the flat purchasers since
1995 by inter alia adding 14,233.96 square meters to Wing C5. The
present suit was filed on 17th October 2019. Thus, there is no delay
on the part of the Plaintiffs in the instant case.
48. Dr. Chandrachud has submitted that in Chetan Shelke
(supra) at Paragraph 27, this Court prima facie found that the Suit
17(2025) SCC Online Bom 130
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
was barred by the provisions of the RERA Act, which do not apply in
the instant case since the occupation certificate of the Plaintiff society
was obtained prior to the coming into force of the RERA Act. Finally,
in Paragraph 30 of Chetan Shelke (supra), this Court has held that
the question of whether the development potential of the land was
consumed could not be decided summarily on the basis of pleadings
alone. However, in the instant case, the Plaintiff has established
through documentary materials (including the sanctioned plans of
1995, 2007, 2016, the plan of 2019, and the report of Nadkarni &
Co.) that the developer has exhausted the development potential of
the land.
49. Dr. Chandrachud has submitted that the present Interim
Application ought to be allowed and Defendant No. 1 restrained from
carrying on any further construction on the subject plot.
50. Mr. Ashutosh Kumbhakoni, learned Senior Counsel for
the Defendant No.1 - Developer has submitted that admittedly, the
proposed construction does not even 'touch' the Building of the
Plaintiff Society i.e. Building No. 4 or has any impact on any of its
flats in any manner whatsoever. The Plaintiff has not even made such
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
an allegation in the pleadings.
51. Mr. Kumbhakoni has submitted that it is pertinent to
note that occupiers of existing three Wings of the Building No.5 of
which 'identical' fourth Wing is proposed to be constructed, are not
objecting to such construction of Wing C5 of Building No. 5, more
particularly since the construction of such Wing C5 of Building No. 5
was always disclosed to the flat purchasers of both Building Nos. 4
and 5. Even the Occupation Certificate for the three constructed
Wings of Building No. 5 has not been granted. Therefore, it is
submitted that the construction of Building No. 5 has not been
completed.
52. Mr. Kumbhakoni has submitted that the fundamental
principle to be observed in such matters is that the flat purchasers are
"not taken by surprise" by sudden additional construction taking
place in or around their building, which was never disclosed to them.
This is certainly not the facts in the present case. He has submitted
that Building No.5 having 4 Wings of 16 floors each, including Wing
C5 (proposed construction), was always disclosed at the specific
location pointedly indicated in the original 1993 plan disclosed to the
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
flat purchasers, which is referred in the flat purchase agreements,
and it was always disclosed that Building No. 5 would be 'identical'
to Building No. 4, being also of 4 Wings having 16 floors. He has
submitted that this necessarily means that there had been an
informed consent obtained and/or such adequate and sufficient
disclosure made as required by law.
53. Mr. Kumbhakoni has submitted that the revised 1995
plan which the Plaintiff contends is the only plan which had been
disclosed to them at the time of execution of the flat purchase
agreements has not even been referred to or annexed to the flat
purchase agreements. The Plaintiff has only relied upon an Affidavit
of a flat purchaser to contend that the revised 1995 plan was
disclosed to it. He has submitted that it is the Plaintiff's own case that
there had been a purported deviation from the revised 1995 plan as
the developer had constructed 3 Wings of Building No. 5 with 16
floors, but no objection was admittedly raised by the Plaintiff as to
the purported deviation in construction of 3 Wings of Building No. 5
with 16 floors till date.
54. Mr. Kumbhakoni has submitted that it is not the case of
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
the Plaintiff that, the Plaintiffs sought/asked for the 1993 plan at any
time and that still it was not given/'shown'. Clause 1 of the flat
purchase agreements expressly mentions that the layout plans and
specifications were kept for inspection at the site and the office of the
developers. The fact that the Plaintiff did not ask/sought for it itself,
at this prima-facie/interim stage, on the basis of 'preponderance of
probabilities', leads to an inescapable conclusion that it was not only
'disclosed' to the Plaintiff but also that it was 'shown' to the Plaintiff
that Building Nos. 4 and 5 were two 'identical' buildings, like mirror
images, with total 8 Wings i.e. 4 Wings each would be constructed,
the exact design and location of which was 'shown' on the plan
annexed to the flat purchase agreements.
55. Mr. Kumbhakoni has submitted that as Wing C5 of
Building No. 5 was an additional structure in redevelopment scheme
in the 1995 layout plan 'disclosed' to the Plaintiff, the requirements
of Section 7-A of the MOFA have been met and no further consent
is/was required for construction of Wing C5 of Building No. 5.
56. Mr. Kumbhakoni has submitted that the Defendant No. 1
- Developer is entitled to develop in a phase wise manner, once the
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
scheme including Wing C5 of Building No. 5 had been disclosed by
the erstwhile Developer - Lok Housing Co-operative Housing Society
to the flat purchasers. The MOFA Flat Purchase Agreements further
provide that the FSI would be available to the societies only after the
completion of the scheme and registration of societies.
57. Mr. Kumbhakoni has submitted that the Developer was
entitled to apply for and claim 33% premium FSI introduced under
the 2011 amendment to the 1991 DCPR Regulations as the
completion of the entire scheme had not been completed as
construction of Wing C5 of Building No. 5 with 16 floors as disclosed
to the flat purchasers of Building Nos. 4 and 5 had not been
completed.
58. Mr. Kumbhakoni has submitted that the Plaintiff cannot
claim that there was zero FSI on the plot as the Defendant No. 1 was
entitled to apply for the 33% premium FSI (introduced by the
amendment to the 1991 DCPR Regulations) as the construction of
Wing C5 of Building No. 5 as disclosed to the flat purchasers under
the original 1993 sanctioned layout had not been completed and
such benefit of change in law would accrue to the Developer until
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
such scheme of Building Nos. 4 and 5 being 8 Wings of 16 floors
under the original 1993 plan as disclosed to the flat purchasers and
expressly mentioned in the flat purchase agreements had been
constructed and completed.
59. Mr. Kumbhakoni has submitted that the 1993 layout
plan was disclosed to the Plaintiff and this has also been noted in
Paragraph 37 of this Court's Order dated 26.03.2025 in Lok Housing
& Construction Ltd. v. State of Maharashtra and others, Writ Petition
No. 6418 of 2017. The Plaintiff was a party to the Writ Petition as
Respondent No.3 and defending the Deemed Conveyance Order
dated 21st March, 2017 passed in its favour. He has submitted that
the 1993 Layout Plan clearly refers to Building C5 (at the time
numbered as B-4) as having stilt + 16 floors.
60. Mr. Kumbhakoni has submitted that the documents on
record also refer to the 1993 Layout Plan and Building No. 4 and 5
being identical buildings having 4 Wings of 16 floors each. This
include the Recital in Agreement for Sale dated 27 th March, 2007 and
the Recitals in Flat Purchase Agreements entered into with flat
purchasers of the Plaintiff dated 27 th April 1995; 9th February, 2000;
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
30th December, 2000 & 3rd August, 2006.
61. Mr. Kumbhakoni has submitted that the Plaintiff alleges
that the IOD drawing dated 5 th April 1995 sanctioned by MCGM was
disclosed to its members in Paragraph 24 of the Plaint. However,
none of the Flat Purchase Agreements annex the 1995 IOD Plan. The
Plaintiff has solely relied on Affidavit of Mr. Mahendra Kumar
Prabhashankar Bhatt which is a matter of evidence which cannot be
considered at this stage.
62. Mr. Kumbhakoni has placed reliance upon Zircon
Venture Co-operative Housing Society Ltd. (supra), wherein this
Court was dealing with a similar situation where the flat purchasers
of a society did not mention in the Plaint that the original plan of
2005 had been disclosed to it, which expressly mentioned that there
were 12 buildings contemplated in the 2005 plan. Ultimately, 9
buildings were constructed. The flat purchasers only relied in the
Plaint on a subsequent revised plan of 2008, to allege that the
proposed construction of the 10th building was being done where the
2008 revised plan indicated closed car parking space and that the FSI
had been consumed in constructing the 9 buildings. Ultimately, this
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
Court had held that there had been a reference to the original 2005
plan in the flat purchase agreements, which indicated the 10 th
building and therefore, prima facie, there had been a full and true
disclosure of the construction of 12 buildings and there was no
further consent required for putting up the 10th building.
63. Mr. Kumbhakoni has referred to Paragraphs 23 and 32 of
Plaint and Paragraph 5 and 6 of Plaintiff's Affidavit-in-Rejoinder
dated 15th January 2020. The Plaintiff admitted therein that as per
the 1995 IOD plan that had been purportedly disclosed to the
Plaintiff that Building No. 5 would have 4 Wings including Wing C5
of Building No. 5, all Wings of Building No. 5 having 12 floors. He
has further referred to Paragraphs 37 and 52 of Plaintiff's Affidavit-
in-Rejoinder dated 15th January, 2020, wherein the Plaintiff
acknowledges that the layout sketch annexed to flat purchase
agreements indicated that Building No. 5 had 4 Wings. In Paragraph
6.1.2 of Plaintiff's Rejoinder dated February 2020, the Plaintiff
admits that he was shown layout of Building No. 5 as having 4 Wings
titled B3, C3, C4 and B4 (B4 now known/titled as C5). The Plaintiff
in Paragraph 6.1.5 does not deny that the 1993 Layout Plan showed
a Wing of 16 floors. Additionally, in Paragraph 6.4 of Plaintiff's
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
Rejoinder dated February 2020, the Plaintiff admits that Wing B-4 of
Building No.5 had been renamed as Wing C5.
64. Mr. Kumbhakoni has submitted that the 1995 IOD Plan
disclosed to Plaintiff's members, as per the Plaintiff's own admission,
indicated that there was a refuge area on the 7 th and 12th floor for
Wing B-4 (now known as Wing C5). Therefore, Wing C5 of Building
No. 5 was always going to have more than 12 floors.
65. Mr. Kumbhakoni has submitted that the Plaintiff has
produced the No Objection Letter dated 30 th October 1993 issued by
the Chief Fire Officer which evidences Building C5 (at the time
referred to as Wing B-4) of Building No. 5 having 16 floors. Further,
it is mentioned that the refuge area was on 7 th and 12th floor,
indicating Wing C5 having 16 floors. He has submitted that this No
Objection Letter dated 30th October, 1993 has been referred in
Paragraph 41 of the Plaint and is also mentioned in the Nadkarni's
Report.
66. Mr. Kumbhakoni has also relied upon fact that the
Plaintiff has produced Parking Layout dated 27th January 1995 issued
by the Traffic Department of MCGM, which evidences Building C5 (at
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
the time referred to as Wing B-4) of Building No. 5 having 16 floors.
Further, the layout plan dated 19th April 1997 shows Wing No. C5 (at
the time numbered as B-4 as having stilt and 16 floors).
67. Mr. Kumbhakoni has placed reliance upon other
documents on record which also state that Wing C5 would have 16
floors. This includes the MoU dated 29 th April, 2011 and Joint
Venture Agreement dated 29th April, 2011 pursuant to which the
Defendant No. 1 acquired rights to develop Wing C5. The Joint
Venture Agreement dated 29th April, 2011 in Recital F states that
Building Nos. 4 and 5 were being constructed being 8 buildings of 16
floors. Further, in the Joint Venture Agreement signed in 2016
between Lok Housing and Defendant No. 1 states in Recital I that
Building Nos. 4 and 5 comprised 8 Buildings having 16 floors. In the
Agreement of Assignment of Development Rights dated 29 th March,
2018 signed by Lok Housing in favour of Defendant No. 1 stated in
Recital I that Lok Everest comprised of 8 buildings having stilt + 16
floors, of which 7 buildings were completed.
68. Mr. Kumbhakoni has submitted that the Plaintiff in its
final arguments has made no allegation that garden, swimming pool
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
and clubhouse are being affected by construction of Wing C5, if the
same is constructed in accordance with the 1993 Layout Plan.
69. Mr. Kumbhakoni has submitted that in the Flat Purchase
Agreements dated 27th April 1995, 9th February 2000, 30th December
2000 and 3rd August 2006 it is stated that the residual F.A.R (F.S.I) in
the plot of the layout not consumed will be available to the
Developers till the completion of the scheme and registration of the
Societies (Clause 29 of the Agreement).
70. Mr. Kumbhakoni has submitted that in Sheth Developers
(supra) this Court held in Paragraphs 133 and 134 that clauses in flat
purchase agreements that provide that formation of the society and
conveyance taking place after the entire property was developed or
full payment was received was not contrary to Sections 10 and 11 of
MOFA.
71. Mr. Kumbhakoni has submitted that the 1993 layout
plan was for 5 buildings only and the 1995 IOD Plan referred to only
7 buildings. He has submitted that the 1993 Layout Plan and the
1995 IOD Plan refer the total area and permissible area as 74,476.04
sq.meter for the entire sub-divided Plot A. He has submitted that
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
there had been multiple revisions to the sanctioned plans on 6 th
August, 1994, 5th April, 1995, 9th October, 1995, 20th May, 2000, 10th
March, 2003, 12th January, 2006 and 1st November, 2007 which had
led to an increase in the number of buildings being constructed,
which were NOT a part of these plans.
72. Mr. Kumbhakoni has submitted that the buildings
constructed are more than those mentioned in the aforementioned
plans. The Plaintiff at no point in time raised any objection that there
had been a deviation in relation to the disclosure of construction of
Buildings that had not been disclosed in 1993 or 1995 Plan.
73. Mr. Kumbhakoni has submitted that the MCGM had
conceded by placing reliance upon the 2000 layout plan that Building
No. 5 in issue is not completed. This 2000 layout plan shows Wing
C5 (at the time numbered as Wing B-4). He has submitted that it is
pertinent to note that the 2000 layout plan was to add Building Nos.
3 and 11.
74. Mr. Kumbhakoni has placed reliance upon the Judgment
of this Court in Chetan Shelke (supra) at Paragraphs 8.6 and 8.7,
wherein it has been held that where there had been various
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
modifications/amendments to the original sanctioned plan and at no
point of time did the flat purchasers file their objections nor resisted
the amendment of the original sanctioned plan, this conduct was a
relevant factor to determine whether injunction ought to be refused.
It has been held in the said case that there had been 8 revisions of
the original sanctioned plan, which were in public domain and the
fact that the flat purchasers had not raised any objections to any of
the revisions was a strong mitigating factor. The flat purchasers were
held to have approached the Court after gross delay. Further it was
held that the grievance that the FSI had been exhausted could not be
decided summarily merely on the basis of pleadings.
75. Mr. Kumbhakoni has also placed reliance upon the
Judgment of this Court in Krishna Constructions (supra) at
Paragraphs 17 and 18 which referred to the decisions of Lakeview
Developers (supra) and Dosti Corporation (supra). These Judgments
have been distinguished as being cases where the construction as
disclosed to the flat purchasers had been completed. Further the
decision of this Court in Malad Kokil (supra) has been referred to and
distinguished on the ground that in that case construction was being
done not in accordance with the disclosed layout. It has been held in
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
Krishna Constructions (supra) that the Suits in the aforementioned
decisions were filed after the construction was complete and the
society of the flat purchasers had been formed and registered.
Further, it is held that the issue of full potential of the project and
developability, and the informed consent of the flat purchasers could
not be decided in a straitjacket formula as these issues depend on the
facts of each case.
76. Mr. Kumbhakoni has submitted that the Plaintiff though
having admitted that additional FSI of 33% was added to DCR 1991
by amendment vide Notification dated 24th October, 2011 and,
having acknowledged that this additional FSI became available after
construction of 3 Wings of Building No. 5 did not mention that this
additional FSI of 33% became available prior to the registration of
Building No. 5 on 31st August, 2015. Therefore, the development
potentiality on account of 33% FSI under change to DCR 1991
belonged to Defendant No. 1. Clause 7 of such notification states that
"any disclosure made for use of TDR/FSI, while making agreements
with purchasers under MOFA Act shall be held valid for use of 0.33
FSI".
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
77. Mr. Kumbhakoni has submitted that the construction of
proposed Wing C5 of 16 floors would require approximate 8357 sq.
meter which was available to the developer on account of
introduction of premium FSI of 33% under the 2011 amendment to
the 1991 DCPR regulations. The developer was entitled to make the
application to MCGM for availing the premium FSI of 33% as the
construction of Wing C5 with 16 floors as disclosed to flat purchasers
had still not been completed and therefore, the construction of the
entire scheme had not been completed.
78. Mr. Kumbhakoni has submitted that the Defendant No.1
has mentioned in the Sur-rejoinder dated 22 nd January, 2020 to the
Plaintiff's Rejoinder dated 15th January 2020 that necessary approvals
for utilizing 0.33 FSI and loading TDR for construction of Wing C5
were pending. Subsequently, vide Notification dated 4 th December,
2015 the premium FSI under DCR 1991 increased to 50%.
79. Mr. Kumbhakoni has submitted that the Plaintiff has
admitted in Paragraph 42 of the Plaint and Paragraph 12 of the
Plaintiff's Affidavit-in-Rejoinder dated 15 th January 2020 that as the
society for Building No. 5 was formed in August 2015, the balance
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
FSI after that date, i.e. August 2015 purportedly belonged to the
Society. Consequently, as per the Plaintiff's own admitted case in the
Plaint the extra FSI prior to August 2015 would belong to Defendant
No. 1.
80. Mr. Kumbhakoni has submitted that as the flat purchase
agreements mention that the layout was being constructed as a
scheme in a phase wise manner, all FSI belongs to the Developer
until completion of the scheme and construction of Wing C5 with 16
floors as disclosed to the flat purchasers under the flat purchase
agreements.
81. Mr. Kumbhakoni has submitted that this Court ought to
decide the entitlement of Defendant No. 1 on the question of area,
dehors the Orders passed by this Court dismissing the Writ of Lok
Housing filed against the Deemed Conveyance Order dated 21 st
March, 2017. This is in view of the Competent Authority while
exercising jurisdiction under Section 11 of MOFA was concerned
primarily with prima-facie entitlement of the society and did not
adjudicate upon disputed title involving complex factual questions,
which required detailed evidence and for which the predecessor-in-
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
interest of Defendant No. 1 had the liberty to file a civil Suit to
establish right, title and interest in relation to the larger property and
such Suit would be decided on its own merits, without being
influenced by the observations made in the Deemed Conveyance
Order.
82. Mr. Kumbhakoni has submitted that the balance of
convenience is also in favour of Defendant No. 1. Pursuant to the
MoU dated 29th April, 2011 and Joint Venture Agreement dated 29 th
April, 2011, the Defendant No. 1 has taken steps for redevelopment
including putting up its board. Based on these agreements,
Defendant No. 1 obtained Commencement Certificate dated 10 th
January, 2017. Thereafter, Agreement of Assignment of Development
Rights dated 29th March, 2018 was signed by Lok Housing in favour
of Defendant No. 1. The Development work had started after grant
of Commencement Certificate in 2016, which was paused due to stop
work notice. Excavation and shore piling work has been done after
withdrawal of stop work notice. The Defendant No. 1 has invested a
sum of INR 12 crores on the project. Multiple individuals had also
made claims in respect of various flats in Building No. C5 in the
communication dated 1st February, 2010 received from Insolvency
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
Professional. Lok Housing was entitled to 25% of constructed area
under the assignment agreement in which the said individuals may
claim. Without accepting these claims, these individuals may be
adversely affected.
83. Mr. Kumbhakoni has accordingly submitted that the
Interim Application requires to be dismissed in view of no prima facie
case being made out and balance of convenience also being against
the Plaintiff.
84. Having considered the submissions, the issue that arises
for determination is whether the Defendant No.1 - Developer has
exhausted the development potential of the land as disclosed to the
flat purchasers at the time of the execution of the flat purchase
agreements and is now seeking to utilize more FSI on the subject plot
on account of an increase in FSI due to change in law, contrary to
MOFA.
85. It is the Plaintiff's case that the Developer had exhausted
the development potential of Building No.5 and of the entire layout.
That once the Developer had exhausted the development potential of
the said land, no further construction is permissible without the
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
informed written consent of 100% of the flat purchasers. The Plaintiff
has based its case on the disclosures made by the Developer of the
1995 layout plan to the flat purchasers while executing the flat
purchase agreements.
86. It is pertinent to note that in the flat purchase
agreements executed between the Developer and the flat
purchasers / members of the Plaintiff - Society, the 1993 layout plan
has been specifically mentioned. Admittedly, the 1995 layout plan
has neither been referred to nor annexed to the flat purchase
agreements. The only reliance of the Plaintiff in support of its
contention that the revised 1995 plan was disclosed by the Developer
to the members of the Plaintiff - Society at the time of execution of
the flat purchase agreements is an Affidavit of Mr. Mahendra Kumar
Prabhashankar Bhatt - flat purchaser. This overlooks the fact that in
Clause 1 of the flat purchase agreements, it is expressly mentioned
that the layout plans and specification i.e. the 1993 layout plan were
kept for inspection at the site and office of the Developer. It is
nowhere the Plaintiff's case that the Plaintiff had sought/asked for
the 1993 layout plan and that the same was not given / "shown".
Thus, at this prima facie stage, on a balance of "preponderance of
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
probabilities", it can only result in one conclusion that the 1993
layout plan was not only "disclosed to the Plaintiff", but also was
"shown" to the Plaintiff.
87. Further, it is evident from the 1993 layout plan, of which
I have had the benefit of perusing, that Building Nos.4 and 5 are
shown as two "identical" buildings, like mirror images, with total 8
Wings, i.e. 4 Wings each which were to be constructed. I have also
had the benefit of perusing the plan annexed to the flat purchase
agreements and from which it is evident that the exact design and
location of Building Nos. 4 and 5 is "shown" on the plan. In my prima
facie view Building Nos.4 and 5 have been disclosed to the members
of the Plaintiff - Society and which buildings were "identical" with 4
Wings, having 16 floors each. It is an admitted position that only 3
Wings of Building No.5 have been constructed. The Defendant No.1 -
Developer has proposed completion of Building No.5 by completing
the construction of the balance 4th Wing i.e. Wing C5 with 16 floors.
88. I find much merit in the submissions on behalf of the
Defendant No.1 - Developer that the Developer is entitled to develop
in a phase wise manner, the scheme which includes Wing C5 of
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
Building No.5 which has been disclosed to the flat purchasers. In the
flat purchase agreements, certain clauses are relevant to reproduce as
under:
"1. The Developers are constructing various
buildings in the said complex known as "Lok Everest"
as per the layout and building plans sanctioned by the
Bombay Municipal Corporation. The said plans and
specifications have been kept for inspection at the site
and also at the office of the Developers, which the
Purchaser(s) have seen and approved. It is hereby
agreed that the Developers shall be entitled to make
such variations or amendments as may be required to
be done from time to time by the Bombay Municipal
Corporation or any other local authorities or
Government body and the Purchaser(s) shall not be
entitled to raise any objection on account of such
variation or amendment provided that the Developers
shall obtain prior consent in writing from the
Purchaser(s) in respect of such variations or
modification which may adversely affect the premises
agreed to be furnished by the Purchaser(s)
....
16. Nothing contained in this Agreement is
intended to be nor shall be construed as a grant,
demise or assignment in law of the said premises or
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
of the said plot and Building or any part thereof. The
Purchaser(s) shall have no claim save and except in
respect of the premises hereby agreed to be sold to
him and all open spaces, parking spaces, recreation
spaces etc. will remain the property of the Developers
until the said land and Building is transferred to the
Society as hereinafter mentioned.
....
20. The Developers shall have a right to make
additions, alterations, to raise additional storeys or
structures at any time as may be permitted by
Municipal Corporation of Bombay and such additions,
alterations and additional structures or storeys shall
be the sole property of the Developers who shall be
entitled to deal with or dispose it of in any manner
that they may deem fit and the Purchaser(s) hereby
consents to the same. The Purchaser(s) hereby agrees
that he/she/they will give all necessary facilities and
fully cooperate with the Developers to enable the
developers to make any additions and alterations
and/or to raise additional storeys or structures in
accordance with the plans sanctions or which may
hereinafter be sanctioned and the Purchaser(s)
hereby further agrees even after being admitted as a
member of the said Society, he will consent to the
Society giving to the Developers full facility,
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
assistance and cooperation to enable the Developers
to make the said additions and alterations and/or to
raise additional storeys or structures complete and fit
for occupation in all respects and for the aforesaid
purpose the Developers shall be entitled to utlise
and/or make connection from all water pipe-lines and
storage tanks, sewrage and draining pipe-lines,
electric cables and electric lines and other
convenience and amenities to the said additional
storeys or structures which may be constructed by the
Developers and the Purchaser(s) hereby consents to
the same, and he/she/they shall not raise any
objection whatsoever.
...
25. The Developers, shall after the construction
of the said Building is completed in all respects and
after the Occupation Certificate is granted by the
Bombay Municipal Corporation, get the Purchaser (s)
admitted as member of the Co-operative Society,
which may be formed by the Purchaser(s) of the
different premises of the said Building subject,
however, that the Developers shall be entitled to form
the said Co-operative Society of an individual or of a
group of buildings in particular sector. The said Co-
operative Society shall then be entitled to look after
and manage the affairs of the said building. The
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
Conveyance of the said plot and the Buildings
standing thereon shall be executed or caused to be
executed by the Developers in favour of such Society
only after completion of the entire scheme, namely
"LOK EVEREST".
...
28. The Purchaser(s) is/are aware that the plot
on which the said Building is constructed, forms a
part of the larger property which is more particularly
described in the first schedule hereunder written. The
Purchaser(s) is/are also aware that he said plot is a
part of the entire layout which includes staff quarter
buildings as well as the buildings at the disposal of
the Developers known as "LOK EVEREST". The
Developers shall be entitled either to form and
register a cooperative society of all the buildings in
the layout or to form a Cooperative Society of each
individual building. The discretion shall solely lie
with the Developers and the Purchaser(s) shall have
no objection of whatsoever nature in respect of the
same. In view of the said entire scheme being a large
property, the individual Cooperative Societies in the
said scheme shall not be entitled to any title deeds.
The title deeds shall be handed over to the apex body
of all the cooperative societies in the said scheme
after the competition of the entire scheme "LOK
EVEREST" and after the execution of the
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
Conveyance/s in respect of the said property.
29. The Developers hereby declare that the
Floor Area Ratio (Floor Space Index) available in
respect of the said entire land is as per the FSI
statement given in the plans sanctioned by the
Bombay Municipal Corporation (BMC) and that no
part of the said Floor Space Index has been utilized
by the Developers elsewhere for any purpose
whatsoever. In case the said Floor Space Index has
been utilized by the Developers elsewhere, then the
Developers shall furnish to the Purchaser(s) all the
detailed particulars in respect of such utilization of
Floor Space Index by them. In case while developing
the said land the Developers have utilized any Floor
Space Index of any other land or property by way of
Transferable Development Rights (TDR), then the
particulars of such floor space index shall be disclosed
by the Developers to the Purchaser(s). The residual
F.A.R (F.S.I) in the plot of the layout not consumed
will be available to the Developers till the completion
of the scheme and registration of the Societies.
Whereas after the registration of all Societies, the
residual F.A.R (F.S.I) in "Lok Everest" complex, if any
shall be available to the respective Societies or the
apex body.
...
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
32. The purchaser(s) is/are aware that the said
property more particularly described in the First
Schedule hereunder written is divided by the
Developers into various smaller plots for the effective
development of the said property consisting of
various buildings in the layout. The purchaser is also
aware that the Developers shall be consuming the full
potential of F.S.I. in relation to the total area of the
said entire property as permissible under the relevant
D.C. Rules while constructing the said building on the
basis of the approved, single layout. It has also been
brought to the notice of the Purchaser(s) that the FSI
consumed in the said building has no relation with
the area of the plot on which the said building is
constructed. It is abundantly made clear to the
Purchaser(s) that none of the plots on which the said
buildings are constructed shall be entitled to
additional benefits of FSI in lieu of the open spaces,
internal road, garden and/or appurtenant to the said
building as the FSI of the entire property has been
utilized fully by the Developers irrespective of the size
or height or floor space consumed by the individual
buildings. As far as possible the Developers may cause
to form a Co-operative Society of an individual
building but, however, it shall be at the discretion of
the Developers to form a Society of more than one
building or all the buildings in a particular sector. The
Conveyance shall accordingly be executed in favour
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
of such Society or Societies. In view of what is stated
hereinabove it is hereby agreed that none of the
purchasers and none of the Societies so formed shall
claim any proportionate benefit of FSI in respect of
their individual buildings, nor shall they be entitled to
raise objection for the said imbalance in the
distribution/consumption of FSI, interse between Lok
Everest and Staff Quarters Buildings."
(Emphasis Supplied)
89. The extracted clauses of the flat purchase agreement
makes it clear that the FSI in the plot of the layout not consumed will
be available to the Developers till the completion of the scheme and
registration of the societies. Further, it is provided that the
Developers shall be consuming the full potential of FSI in relation to
the total area of the entire property as permissible under relevant DC
Rules while constructing the said buildings on the basis of the
approved, single layout itself. The purchasers shall not have any
claim save and except in respect of the premises agreed to be sold to
them and all open spaces, parking spaces, recreation spaces, etc. will
remain the property of the Developers until the said land and
building is transferred to the Society as mentioned therein.
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
90. It is an admitted position that additional FSI of 33% was
added to DCR 1991 by amendment vide a Notification
No.TBP/4308/776/CR127/2008/UD-11 dated 24th October, 2011.
The Plaintiff has also admitted that this additional FSI became
available after construction of 3 Wings of Building No.5. Under the
aforementioned clauses of the flat purchase agreements the
development potentiality on account of 33% FSI under change to
DCR 1991 belongs to Defendant No.1 - Developer as the registration
of Building No.5 was on 31st August, 2015. It is pertinent to refer to
Clause 7 of the said Notification dated 24th October, 2011 which
states that "any disclosure made for use of TDR/FSI, while making
agreements with purchasers under MOFA Act shall be held valid for
use of 0.33 FSI".
91. It has been held in the Judgment of this Court in Krishna
Constructions (supra) that the issue of full potential of the project
and developability, and informed consent of land purchasers cannot
be decided in a straitjacket formula as these issues depend on the
facts of each case. The Judgments of this Court in Lakewood
Developers (supra); Dosti Cooperation (supra) and Malad Kokil
(supra) have been distinguished in the said Judgment. In Lakewood
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
Developers (supra) and Dosti Cooperation (supra) , the construction
disclosed to the flat purchasers had been completed and in Malad
Kokil (supra), the construction was not done in accordance with the
disclosed layout.
92. An attempt has been made on behalf of the Plaintiff to
distinguish the said judgment, on the ground that the Developer in
that case had terminated the flat purchase agreement with the only
flat purchaser who filed a Suit, which was not challenged by the said
flat purchaser. Further, the said case had not considered the
Judgment of this Court in Sheth Developers (supra), on duty of the
Developer to disclose the development potential of the land. I find
that the distinguishing of the said Judgment on this ground is
misplaced as the ratio of the Judgment is that the issue of full
potential of developability and informed consent of the flat
purchasers cannot be decided in a straitjacket formula as these issues
depend on the facts of each case. The further development cannot in
any manner be interfered with, at the behest of the flat purchasers
who have informed consent as contemplated under Section 7 of
MOFA and where the Developer has been held to comply with the
requirement of true and full disclosure, as contemplated under
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
Section 3 of MOFA.
93. In Zircon Venture Cooperative Housing Society Ltd.
(supra) which has been relied upon by Defendant No.1, this Court
had considered a similar case where the flat purchasers of the society
had not mentioned in the Plaint that the original plan of 2005 had
been disclosed to them, which expressly mentioned that there were
12 Buildings contemplated in the said plan. Ultimately 9 Buildings
had been constructed. The flat purchasers had relied upon a
subsequent revised plan to contend that in the revised plan, the
proposed construction of the 10th building was done where the said
plan indicated closed car parking space and that FSI had been
consumed in constructing the 9 Buildings. This Court had considered
the fact that there was a reference to the original 2005 plan in the
flat purchase agreements which indicated the 10th Building and
therefore, prima facie held that there had been a full and true
disclosure of the construction of the 12 Buildings and no further
consent was required for putting up the said 10th Building.
94. I do not find merit in the attempt made on behalf of the
Plaintiff to distinguish this Judgment on the ground that it had been
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
decided before the Lakeview Developers (supra) and it did not have
the benefit of this binding decision. In the said Judgment, it has been
held that what is required to be seen is whether the Developer
intends on making "drastic change" to that disclosed to the flat
purchasers. It is contended by the Plaintiff that the Developer in the
present case is proposing to utilize 14,233.96 square meters to
construct 3 Wings, each with 22 floors and thereby adding 265
tenements to what was allegedly disclosed to the flat purchasers and
this certainly is a drastic change. It is pertinent to note that during
the course of arguments, Mr. Kumbhakoni for the Defendant No. 1
has suggested that Defendant No. 1 will only construct one building
of 16 floors as Wing C5 and not 3 Wings of 22 floors as per the 2019
plan. This concession on behalf of Defendant No. 1 being in
consonance with the 1993 sanctioned layout plan is entirely
reasonable. It is not contrary to MOFA as sought to be contended by
the Plaintiff.
95. It is evident from the documents on record that Wing C5
would have 16 floors and these documents include the no objection
letter dated 30th October, 1993 issued by the Chief Fire Officer which
the Plaintiff has itself produced; the parking layout dated 27th
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
January, 1995 which the Plaintiff itself has produced and the layout
plan dated 19th April, 1997. Further, the joint venture agreement
dated 29th April 2011 at recital F states that Building Nos. 4 and 5
were being constructed, being 8 buildings of 16 floors each. The joint
venture agreement signed in 2016 between Lok Housing and
Defendant No. 1 states in recital 1 that Building Nos. 4 and 5
comprises of 8 Buildings having 16 floors each. This is also
mentioned in the agreement of assignment of development rights
dated 29th March 2018 signed by Lok Housing in favour of
Defendant No. 1 at recital 1 viz. that Building Nos.4 and 5 comprise
of 8 buildings having 16 floors, of which 7 buildings were completed.
Thus, at this prima facie stage, the Plaintiff has been aware of
Building Nos. 4 and 5 comprising 8 buildings having 16 floors each
and out of which 7 buildings have been completed and the remaining
building being Wing C5 in Building No.5 also having 16 floors is to
be completed.
96. Further, it is not the Plaintiff's contention that the
garden, swimming pool and club house would be affected by
construction of Wing C5, if the same was constructed in accordance
with the 1993 layout plan.
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
97. There have been multiple revisions to the 1993
sanctioned layout plan on 6th August 1994, 5th April 1995, 9th
October 1995, 20th May 2000, 10th March 2003, 12th January 2006
and 1st November 2007 which have led to increase in number of
buildings being constructed, which were not part of these plans. In
the 1993 layout plan only 5 buildings were provided. The 1995 IOD
plan referred to only 7 buildings. In view of the multiple revisions to
the sanctioned plans, there are 10 societies in the layout, excluding
the Plaintiff's society (Building No.4) and Lok Mansarovar
Cooperative Society Limited (3 Wings of Building No.5) covering 14
Buildings in the current layout. This indicates that the Buildings
constructed are more than that were mentioned in the 1993 layout
plan or the 1995 IOD plan.
98. The Plaintiff has at no point of time raised any objection
to there being a deviation in relation to the disclosure of construction
of Buildings that had not been disclosed in the 1993 or 1995 plan.
Building No.8 was originally planned with 2 Wings only i.e. L1 and
L2, and this was subsequently amended and now comprises of 7
Wings consisting of L1 to L7 which have been constructed. It is
pertinent to note that even in respect of Building No.5, although it
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
was the contention of the Plaintiff that the FSI of 22,807.89 square
meters for 4 Wings of 12 floors, had been exhausted by the Developer
in constructing 3 Wings of 16 floors plus stilt and podium. The
Building No.5 with 3 Wings of 16 floors had admittedly been
completed in 2008. No objection had been raised by the Plaintiff for
deviation from the 1995 IOD plan in relation thereto.
99. It has been held by this Court in Chetan D. Shelke
(supra), relied upon by Defendant No.1 that where there has been
various modification / amendments to the original sanction plan and
at no point of time did the flat purchasers file their objections nor
resist the amendments to the original sanction plan, the Court before
granting injunction, would consider the conduct of the party as a
relevant factor to determine whether injunction ought to be refused.
It has been held in that case that the flat purchasers had approached
the Court after gross delay as there had been 8 revisions of the
original sanction plan, which were in public domain and the fact that
the flat purchasers had not raised any objections to any of the
revisions was a strong mitigating factor.
100. I do not find merit in the attempt made on behalf of the
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
Plaintiff to distinguish this Judgment on the ground that in the
present case it was only in 2019, that the Developers sought to
construct more than what was disclosed to the flat purchasers in the
1995 plan by inter alia adding 14233.96 square meters to Wing C5.
This is on the misconceived premise that the 1995 plan was the plan
shown to the Plaintiff at the time of executing the flat purchase
agreements. Further, the only basis for this premise is an Affidavit of
a flat purchaser produced by the Plaintiff and which requires to be
proved by evidence to be substantiated in trial and not at this prima
facie stage.
101. The flat purchase agreements provide that the layout
was being constructed as a scheme in a phase wise manner and that
all FSI belongs to the Developer until completion of the scheme by
construction of Wing C5 with 16 floors as per the 1993 layout plan
disclosed to the flat purchasers under the flat purchase agreements. It
has been held in Sheth Developers (supra) that clauses in flat
purchase agreements that provide that formation of the society and
conveyance taking place after the entire property was developed or
full payment was received was not contrary to Sections 10 and 11 of
MOFA.
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
102. The Plaintiff also relied upon Sheth Developers (supra)
to contend that in that case the Developer had disclosed development
potential of the land as being 6,00,000 square feet in the flat
purchase agreements themselves. They have contended that in the
instant case the Developer had not disclosed the development
potential of the land in the flat purchase agreement and which was
only revealed in the 1995 sanctioned plan. It is their contention that
this development potential has admittedly been exhausted by the
Developer. Accordingly no further construction is permissible as per
the law laid down in Sheth Developers (supra). I find this contention
misconceived in view of the fact that the 1993 sanctioned layout plan
had revealed the development potential of the said land including the
construction of Building No.5 which included Wing C5 and Building
No.5 was a mirror image of Building No. 4.
103. In view of the layout being constructed as a scheme in a
phase wise manner, including construction of Wing C5 with 16 floors,
until completion of the scheme and construction of Wing C5 with 16
floors, the FSI would belong to the Developer. This would include the
additional FSI accruing to the Developer in 2011 as the construction
of Wing C5 of Building No.5 had not been completed as per the 1993
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
layout plan disclosed and registration of Building No.5 was on 31 st
April, 2015.
104. With regard to the report of M/s Nadkarni & Co. relied
upon by the Plaintiff, the report has proceeded on the premise that
the 1995 layout plan had been disclosed to the flat purchasers i.e.
members of the Plaintiff - Society when the flat purchase agreements
had been executed. Although the Defendant No.1 had not produced
the report of any expert of its own to counter the report of M/s
Nadkarni & Co., in view of the report being based on the 1995 layout
plan without considering the 1993 layout plan which, in my prima
facie view, had been disclosed to the flat purchasers, the findings in
the report cannot be accepted at this stage. Further, in view of the
concession which has been made by Mr. Kumbhakoni on behalf of
Defendant No.1 that instead of constructing three Wings (A, B, C)
each comprising stilt plus 22 upper floors as Wing C5 of Building
No.5 as per the 2019 Plan, there shall be construction of only one
building of 16 floors at the interim stage in consonance with the
1993 layout plan, this concession deserves acceptance.
105. The Plaintiff has sought to rely upon an Order dated
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
26th March 2025 passed by the learned Single Judge of this Court in
Writ Petition no. 6418 of 2017, wherein it is observed that the
Developer has unilaterally revised the sanctioned plan and
introduced a fourth building and that the Developer has consumed
the entire permissible FSI under the Development Control
Regulations and inspite of which revised the layout unilaterally.
These findings in my view, is in the context of the competent
authority exercising jurisdiction under Section 11 of MOFA in
granting deemed conveyance. There remains adjudication of disputed
title which involves complex factual issues which have rightly not
been gone into by the learned Single Judge whilst dismissing the Writ
Petition of Lok Housing filed against the deemed conveyance Order
dated 21st March, 2017. This would be a matter of trial in the Suit.
Having arrived at a prima facie finding that the Developer can utilize
the additional FSI which became available by amendment to DCR
1991 vide a Notification dated 24th October, 2011 as the phase wise
construction of proposed Wing C5 of 16 floors is yet to be carried out
as disclosed to the flat purchasers, the observations made in deemed
conveyance Order dated 21st March, 2017 cannot come in the way of
these prima facie findings.
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
106. I find that the balance of convenience is also in favour of
the Defendant No.1 as Defendant No.1 has pursuant to the
agreements entered into including the joint venture agreement dated
29th April 2011 taken steps for redevelopment. Defendant No.1 -
Developer has put up its board at the site of Wing C5 i.e. after the
assignment of the agreement the board in the name of joint venture
had changed to the Developer. Inspite of which no steps have been
taken by the Plaintiff until 2019 when Defendant No.1 submitted
new plans for development. Further, the Defendant No.1 has based
on the agreements including joint venture agreement executed in
2016 obtained commencement certificate dated 10th January 2017.
Thereafter the agreement of assignment of development rights has
been executed on 29th March 2018 by Lok Housing in favour of
Defendant No.1.
107. Development work started after grant of Commencement
Certificate in 2016 which was paused due to stop work notice. The
excavation and shore piling work has been done after withdrawal of
stop work notice. The Defendant No.1 is stated to have invested a
sum of INR 12 crores on the project, a break up of which is
mentioned in Paragraph 11 of Defendant No.1's reply dated 18th
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
December 2019. There are multiple individuals who have made
claims in respect to various flats in Wing C5 in communication dated
1st February 2010 received from the Insolvency Professional. The Lok
Housing was entitled to 25 percent of the constructed area under the
assignment agreement in which the said individuals may claim.
Thus, without accepting these claims, the individuals may be
adversely affected.
108. In view of the delay in approaching this Court,
considering that the construction had begun after the issuance of the
Commencement Certificate on 10th January, 2017, coupled with the
balance of convenience being in favour of the Defendant No.1 and no
prima facie case being made out, the present Interim Application
requires to be dismissed.
109. Accordingly, the present Interim Application is dismissed.
The statement of Defendant No.1 that no further activity would be
conducted on site recorded in Order dated 5 th February, 2020 passed
by this Court which has continued till today is vacated. In so doing I
accept the concession / statement made by Mr. Kumbhakoni on
instructions of Defendant No.1 that Wing C5 to be constructed by
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
Defendant No.1 shall comprise of one Building of 16 floors at the
interim stage. The Defendant No.1 shall accordingly not construct
Wing C5 of Building No.5 comprising of 3 Wings and 22 floors as per
the 2019 plan, but a single Building of 16 floors as per their
statement which is accepted, pending the hearing and final disposal
of the captioned Suit.
110. The Interim Application No.308 of 2019 is accordingly
disposed of.
111. The Interim Application No. 2718 of 2020 filed by the
Defendant No.1 is also disposed of by this Judgment and Order.
[R.I. CHAGLA, J.]
112. After pronouncement of this Judgment and Order, Dr.
Chandrachud, learned Counsel appearing for the Plaintiff has applied
for continuation of the statement of Defendant No.1 that no further
activity will be conducted on the site which has been recorded in the
Order dated 5th February, 2020 passed by this Court, for a period of
six seeks from today.
RO-IA 308.19 with IA 2718.20 in S 191.23.doc
113. Although Mr. Narichania, learned Counsel for Defendant
No.1 has opposed the continuation of the statement, considering that
the statement of Defendant No.1 has been in operation from 5th
February 2020, there shall be no further activity conducted on the
site for a period of four weeks from today.
[R.I. CHAGLA, J.]
