BUILDTECH ENGINEERS NEW MUMBAI Vs. MAHADEO BANDU SONAWANE

JUDGEMENT

(1.) This Appeal from Order is presented by the original plaintiff taking exception to the order passed in Notice of Motion No. 1328/2007 decided by the Judge, City Civil Court, Greater Mumbai on 17 th September, 2011. The plaintiff has presented Notice of Motion claiming an order of temporary injunction restraining the defendants, their agents, servants or their officers from dispossessing the plaintiff from the suit property i.e. an area of 14918.50 sq. ft. together with available FSI of 17080 sq. ft. on City Survey No. 342/1 to 82 for construction of building KAVERI situated at Little Malbar Hill, SionTrombay Road, Near Poonam Petrol Pump, Chembur, Mumbai without following due process of law on the grounds set out in the plaint. The plaintiff in the plaint has made following substantial prayers:-

(2.) According to the plaintiff by a letter of allotment dated 23 rd December, 1960, Government has allotted a plot of land having an area of 72 gunthas at Chembur to M/s. Harijan Vijay Co-operative Housing Society Ltd. Due to some dispute between the members of Harijan Vijay Co-operative Hsg. Society and defendants herein, the defendants presented a writ petition bearing No. 3400/2002 in the High Court which was ultimately disposed of in view of the consent terms placed on record on 22 nd October, 2002. As per the consent terms M/s. Harijan Vijay Co-operative Housing Society agreed to hand over an area admeasuring 14918.50 sq. ft. together with the available FSI for construction of building Kaveri to the defendants. It is not disputed that Co-operative Housing Society has constructed three buildings on the suit property and handed over flats to the members. The defendants with a view to construct a building for the members entered into a development agreement with the plaintiff in respect of suit property on 1 st October, 2003. Pursuant to the said consent terms one Mrs. Gandhari Soma Jadhav and defendants nos. 18 and 19 were appointed as promoters and have entered into a separate development agreement with the plaintiff on 25 th June, 2004. Thus, the defendants have entrusted the work of construction of building to the plaintiff and also handed over the physical possession of the suit property to the plaintiff. It is submitted by the plaintiff that by virtue of development agreement the plaintiff is entitled to sale additional flats to the prospective buyers other than the members of the Society. The Society is also entitled to utilize and consume FSI and also can purchase TDR and utilize the same while constructing building on the disputed property. The plaintiffs states that after taking possession of the property, he has taken certain steps by carrying out the construction over the property handed over to him by the defendants such as construction of cabin securing electricity connection and submission of the plans etc. According to plaintiff by virtue of the development agreement rights are created in his favour in relation to the suit property and the plaintiff has right and interest in the property. Despite this the defendants have attempted to dispossess the plaintiffs from the suit property. Hence the suit seeking a decree of perpetual injunction and restraining the defendants from interfering in the possession of the plaintiffs over the suit property.

(3.) The defendants appeared and resisted the suit by filing written-statement. According to defendants inspite of execution of agreement with the plaintiff in the year 2003, he has not commenced construction of the building. It is stated that plaintiff has suppressed material facts from the Court as regards termination of the agreement and as such he is not entitled to claim equitable relief from the Court. As the plaintiff did not commence the work of construction, defendants were constrained to terminate the agreement. The plaintiff was aware of the termination of agreement, however, he withheld the material fact from the Court. The plaintiff has not presented suit claiming specific performance of agreement but has presented the suit claiming simplicitor injunction. It is contended that the plaintiff is appointed merely a contractor to develop the property and hand over the constructed portion to the members of the Society at the prescribed rate. It is specifically contended that no interest is created in the land and property in favour of the plaintiffs and as such he is not entitled to claim a prohibitory order of injunction. Thus, it is prayed that application seeking temporary injunction be rejected.