Appeal (L) No.531 of 2015,Notice of Motion No.1519 of 2013,Suit No.760 of 2013,alongwith Notice of Motion(L) No.1769 of 2015

20th October, 2015.

Petitioner Counsel: Mr. MILIND SATHE, Sr. Adv. a/w Mr. KAUSHAL TAMHANE, MEENAKSHI DHANUKA, Mr. PRANESH GADA i/b DHANUKA & PARTNERS
Respondent Counsel: Mr. P.S. DANI, Sr. Adv. a/w Mr. SUNIL R. SHARMA

JUDGMENT

V. M. Kanade, J.:- Appellant/original Plaintiff has filed this appeal challenging the Judgment and Order passed by the learned Single Judge. By the said Judgment and Order dated 15/06/2015, the learned Single Judge was pleased to restrain Defendant No.1 from creating third party rights in respect of Flat No.702 admeasuring 830 sq. ft. carpet area in the suit building. The learned Single Judge further held that the Plaintiff was entitled to the judgment in terms of prayer clause (b) in respect of Flat No.702 admeasuring 830 sq. ft. carpet area in the suit building which was to be constructed by Defendant No.1 as per the redevelopment agreement. It was further held that the Plaintiff was entitled to 562.5 sq.ft. carpet area free of cost from 830 sq.ft. of carpet area of the flat and that the Plaintiff was entitled to purchase remaining 267.5 sq. ft carpet area for Rs 14 lakhs.

2. Brief facts which are relevant for the purpose of deciding this appeal are as under:-

3. Appellant is a member of Respondent No.2 Society and was in possession of Flat No.2 which was admeasuring 417 sq. ft. Redevelopment agreement was executed between Respondent No.1 - Developer and Respondent No.2 - Society, which was registered on 14/10/2010. In the said agreement, Developer had agreed to give 25% additional carpet area free of cost to each existing member. Accordingly, as per the said agreement, the Appellant was entitled to get additional carpet area of 104 sq. ft. Appellant also wanted to purchase additional carpet area admeasuring 309 sq.ft and, accordingly, as per the agreement the Appellant was to pay total consideration of Rs 27,98,810/- for the additional area and, as such, became entitled to get the Flat admeasuring 830 sq.ft. carpet area in the new building.

4. The Society and the members demarcated the flats that were to be sold to existing members. Appellant and Respondent No.1 entered into agreement dated 31/12/2010 wherein it was agreed that Respondent No.1 would allot Flat bearing No.102 on the first floor admeasuring 830 sq. ft carpet area to the Appellant. Thereafter, Respondent No.1 started work of reconstruction. Appellant paid an amount of Rs 2,79,881/- for additional area and the balance consideration was to be paid on Respondent No.1 handing over possession of the new flat to the Appellant.

5. In the meantime, however, Respondent No.1 amended the sanctioned plans without seeking consent of Respondent No.2 - Society or its members. After amended plans were made available to the Appellant on RTI application being made, the Appellant realized that one bedroom that was forming part of the Flat was not shown in the amended plans. Respondent No.1 then informed the Appellant that they would be allotting Flat No.702 admeasuring 830 sq. ft carpet area on the 7th floor of the new building and provisional allotment letter was received in his favour.

6. Appellant therefore filed a suit and took out Notice of Motion seeking an order of appointment of Court Receiver of all the flats on 7th and 8th floor of the building which was constructed by Respondent No.1.

7. On 07/08/2013, this Court restrained Respondent No.1 from selling, alienating, encumbering, parting with possession and/or creating any third party rights in respect of any of the Flats on the 7th and 8th floor of the new building. Respondent No.1 filed an affidavitinreply and it was stated in the reply that Flat Nos.701 and Flat No.801 on the 8th floor were sold by Respondent No.1 to the third party viz. Mr. Suresh Oza. Details of the said transaction, however, were not given to the Appellant. Appellant added Mr. Suresh Oza as Defendant in the suit. In the meantime, Development Control Rules were amended and additional FSI became available to the Developer. Appellant claimed that he was entitled to 50% of the additional area which was made available to the Builder and therefore claimed a flat admeasuring 1000 sq. ft.

8. The learned Single Judge was pleased to pass the Judgment and Order in terms of prayer clause (b) in favour of the Plaintiff by relying on admission of Defendant No.1. Appellant/Plaintiff had also filed Chamber Summons seeking leave to amend the plaint in view of the additional FSI which was made available to the Developer. The said Chamber Summons was allowed and the Plaintiff was permitted to amend the Plaint.

9. Mr. Sathe, the learned Senior Counsel appearing on behalf of the Appellant submitted that the learned Single Judge has not considered the case of the Appellant seeking additional FSI to the extent of 35% which was to be shared equally between the Developer and members. He submitted that in view of the amendment which was allowed, the Judgment could not have been passed in terms of prayer clause (b) of the Plaint. He submitted that proviso to amended Development Control Rules clearly provided that FSI for rehabilitation component could not be used for free sale component. He invited our attention to proviso No.3 of the Development Control Rules. He submitted that therefore the learned Single Judge has clearly committed an error of law which is apparent on the face of record and, therefore, the entire judgment and order is liable to be set aside.

10. On the other hand, Mr. Dani, the learned Senior Counsel appearing on behalf of Respondent No.1 submitted that Respondent No.1 had already created third party rights in respect of the said flat and Respondent No.1 was ready and willing to give to the Appellant/Plaintiff the flat admeasuring 830 sq. ft. carpet area. He submitted that the Appellant was not entitled further 35% of the area as contended.

11. After having heard both the parties at length, we are of the view that there is much substance in the submission made by Mr. Sathe, the learned Senior Counsel appearing on behalf of the Appellant. The learned Single Judge has not taken into consideration the plea raised by the Plaintiff by way of amendment, claiming additional area towards the fungible FSI which was made available to the Developer and, therefore, the learned Single Judge has clearly erred in passing the Judgment and Order in terms of prayer clause (b) in favour of the Plaintiff. Secondly, no material is brought on record to show that, in fact, the adjoining Flat to Flat No.702 was sold to one Mr. Suresh Oza or for that matter Flat No.801 on the 8th floor. We are therefore of the view that the Appellant has clearly made out a prima facie case for being entitled to claim an area of 1000 sq.ft i.e. 830 sq.ft carpet area plus additional area which was made available as a result of fungible FSI being made available to each member.

12. We therefore set aside the Judgment and Order passed by the learned Single Judge and by an order of injunction restrain Respondent No.1 from creating any third party rights in respect of Flat No.701 and Flat No.801 on the 8th floor of the building. Respondent No.1 is also restrained from carrying out any further construction in respect of 7th and 8th floor of the new building.

13. Appeal is accordingly allowed in the aforesaid terms. Hearing of the suit is expedited. Since Appeal has been allowed, Notice of Motion (L) No.1769 of 2015 does not survive and the same is accordingly disposed of.

Appeal allowed.