LAWS(BOM)-2010-1-105

NOOPUR DEVELOPERS Vs. HIMANSHU V GANATRA

Decided On January 14, 2010
NOOPUR DEVELOPERS Appellant
V/S
HIMANSHU V GANATRA Respondents

JUDGEMENT

(1.) This Appeal has been preferred by the Original Defendant against whom an order of injunction has been passed.

(2.) The facts giving rise to this Appeal are as under :The Original Defendant/Appellant is a promoter. He constured a building known as "Megh" at BorivaliMumbai on Original Plot No.78, Final Plot No.120. He constructed the building having two wings 'A' and 'B' on the said plot. The Plaintiffs purchased the flats in wings 'A' and 'B'. Both the wings consist of Ground+7 upper floors. Besides wings 'A' and 'B', there is in existence structure of W.C., Pump Room Suction Tank, Underground Water Tank and old building. In the year 1997, the Defendant/Appellant reprsented to the Plaintiffs that the Defendant is the owner of the property and he has requisite permission for redevelopment of the said property. When the said flats were offered for sale it was also represented that an area of 335 sq.mtrs. would be left for recreation ground and there would be space for parking of cars etc. The Defendant/Appellant therefore entered into agreement for sale for various flats and as stated earlier the Plaintiffs purchased some of the flats. The Plaintiffs were requesting the Defendant/Appellant to form a cooperative society but the Defendant/Appellant avoided to do so. According to the Plaintiffs since the Defendant/Appellant avoided to form a society, the Defendant/Appellant has lost his right to develope the property and use the TDR. The Plaintiffs further contended that the Defendant/Appellant is now seeking demolition of old building which was standing on the said plot and has decided to construct a new building. The Plaintiffs submit that the Defendant/Appellant has no right to do so, inasmuch as the rights of the Plaintiffs would be affected thereby. The Defendamt/Appellant cannot take disadvantage of his own wrong. Further it is contended by the Plaintiffs that without consent of the Plaintiffs, the Defendant/Appellant cannot make any addition, alteration and/or change in the sanctioned plan and the Defendant's proposed construction of new building is in breach of provisions of law. The Plaintiffs/Respondents, therefore, sought an injunction.

(3.) The Defendant/Appellant resisted the said Application of the Plaintiffs by filing an affidavit. It is the contention of the Defendant that the Defendant has every right to make construction. The Plan was approved by the Municipal Corporation. Further it is the contention of the Defendant that the old building was in occupation of the tenants and the tenants have recently vacated that building and due to vacation of that building, an additional FSI has become available to the Defendant. The Defendant has therefore a right to use the said FSI and therefore intends to make that construction. It is also contended by the Defendant that major part of construction is over and the Plaintiffs have approached the Court deliberately after the major part of the construction is over. It is contended that this is being done by the Plaintiffs in order to pressurise the Defendant. Further it is contended that the injunction relief being an equitable, the Plaintiffs should have promptly approached the Court.