Bombay High Court
Shiv Nirmal Chsl vs Girish Dharod And 4 Ors on 8 June, 2022
Author: R.I. Chagla
Bench: R.I. Chagla
23.IA.604.22 in S.45.22.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO. 604 OF 2022
IN
SUIT NO. 45 OF 2022
Shiv Nirmal CHS Ltd. ... Applicant/Plaintiff
Versus
Girish Dharod & Ors. ... Defendants
Mr. Dinyar Madon, Senior Advocate a/w Dibyojyoti Banerji i/b Neel Gala
a/w Neha Mishra for the Plaintiff.
Mr. Sanjay Jain, Senior Advocate, Pratamesh Kamat, Mridul Sharma and
Atul Umekar i/b M S Legal for Defendant No.1.
Mr. T.D. Deshmukh a/w H.D. Chavan for Defendant No.2-MHADA.
Ms. Pooja S. Yadav i/b Sunil Sonawane for Defendant Nos.3 to 5-
M.C.G.M.
CORAM : R.I. CHAGLA, J.
DATED : 8th JUNE, 2022.
ORDER :
1 The Applicant/Plaintiff is seeking order of injunction restraining Defendant No.1 from carrying on any further construction beyond 17th floor part as well as other consequential relief. 2 It is a submission of Mr. Madan for the Plaintiff that as per the agreement for sale dated 29.12.2014 between the members of the Waghmare 1/4
23.IA.604.22 in S.45.22.doc Society/flat purchasers and Defendant No.1/owner, the construction contemplated in respect of the subject building was comprising of stilt, four podiums, and part 13 upper floors in pursuance of building plans approved and modified and sanctioned by M.C.G.M., who issued IOD dated 11.01.2008. It was further declared by the Defendant No.1/owner in the agreement for sale that the FSI available in respect of the subject property is 1114.20 sq. mts. only and that no part of the said FSI will be utilized by the owner.
3 Mr. Madan has submitted that no further construction beyond the 17th floor part was contemplated under the agreement for sale and any further construction can only by virtue of the consent of the society and/or their members/flat purchasers. Mr. Madan has referred to the additional affidavit filed by Defendant No.1 wherein it is stated that there was balance 0.5 FSI which had been applied for by the architect of Defendant No.1 way back in 2011. Case is made out that Defendant No.2 issued a revised NOC in favour of Defendant No.1 for the balance 0.5 FSI as far back on 26.08.2015 and revised NOC was issued on 24.12.2019. It is stated in the additional affidavit that the Plaintiff-Society was aware atleast since 2014 that NOC was applied for the balance FSI. Waghmare 2/4
23.IA.604.22 in S.45.22.doc 4 Mr. Madan has submitted that there is nothing on record to show that consent of the Plaintiff-Society members/flat purchasers were taken to the Application for balance 0.5 FSI of Defendant No.1 and/or revised NOC dated 24.12.2019.
5 Mr. Sanjay Jain, learned Senior Counsel appearing for Defendant No.1 states that construction of building has reached up to the 17th floor part. He has referred to an earlier order passed by this Court on 10.08.2021 to the effect that the matter to be listed for hearing and final disposal.
6 Having considered the submissions, it would be appropriate to direct that since the construction is ongoing and has reached up to 17 th floor part of the subject building, no equities shall be claimed by Defendant No.1 for construction beyond the 17 th floor part and that any further construction will be subject to the orders passed in the present Interim Application.
7 Interim Application No.604 of 2021 requires to be heard and shall be placed for hearing on 30.06.2022 at 2.30 p.m. 8 Defendant No.1 is at liberty to file further affidavit in reply to the Interim Application which shall be filed on or before 14.06.2022. Waghmare 3/4
23.IA.604.22 in S.45.22.doc 9 The Applicant/Plaintiff is at liberty to file further affidavit in rejoinder to the further affidavit of reply on or before 24.06.2022.
Digitally signed by WAISHALI WAISHALI SUSHIL SUSHIL WAGHMARE WAGHMARE Date:
2022.06.09 (R.I. CHAGLA, J.) 17:12:39 +0530 Waghmare 4/4