SARIKA PARESH MEHTA Vs. ERA REALTORS PRIVATE LIMITED

JUDGEMENT

(1.) Heard finally by consent of the parties.

(2.) The Appellants/original Plaintiffs challenged order dated 15 November 2013 passed by the learned Judge, City Civil Court, Dindoshi, Mumbai, whereby Appellants' Notice of Motion is dismissed, wherein the prayer was pending the Suit restrain the Defendant from selling transferring, alienating or creating third party rights in suit flat No. 506 on 5th Floor in building "Omkar Alta Monte", Malad (East), Mumbai, total area admeasuring 3098 sq.ft. An adinterim relief was also sought of similar nature. The learned Judge refused to grant any adinterim relief. Therefore, Appeal from Order No.1176/2013 was filed. This Court after hearing both the sides, by a reasoned order, on 12 November 2013, directed the learned trial Judge to dispose of the Notice of Motion expeditiously. The impugned order is the result of that.

(3.) There is no dispute with regard to the agreement and so also the receipt of amount of Rs.1,00,43,603 by the Respondent. The dispute is with regard to the actual carpet area1549.94 sq.ft or 3097.69 sq.ft. The case of Plaintiff as alleged is that pursuant to the representation made, they agreed to purchase flat having 3097.69 sq.ft carpet area. The payment was accordingly made. The Respondent, however, denying the same in every aspect by saying that there was no such representation made with regard to the carpet area as claimed. The total area as per the agreement certainly 3098 sq.ft, but that was divided into two parts, covering carpet area (1549 sq. ft.) and other area like Niche, Duct and Slabs; Flower beds, elevational features, AHU as per the sanctioned plan, about 1547.75 sq.ft, for beneficial use of the flat. Admittedly, no further agreement as contemplated under the Maharashtra Ownership of Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (for short, 'MOFA Act"), entered into. The Plaintiff ultimately therefore filed the Suit in October 2013, by invoking the said provisions and sought direction/decree against the Defendants as recorded above. The Suit is, therefore, basically for specific performance of the agreement read with the reliefs as per the provisions of MOFA Act for the flat/property in question.