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society. It is submitted that on account of this the developer was liable to pay huge amount to the appellant-Society. It is submitted that so called settlement which is relied on by the learned trial Court is only in respect of the aforesaid claims of the Society and it cannot be construed as a general consent whereby the appellant has permitted the developers to make any construction in the manner he so desires. The learned Counsel submits that the perusal of the various agreements of 1982 and 1984 would reveal 12/63 NMS1359.11.sxw that in most of the agreements there is no mention of the building S-5. It is submitted that insofar as some of the agreements are concerned though there is a mention regarding building S-5, the said structure is shown only as ground + one. It is further submitted that the plan which has been given by the developer along with the agreements and the plan obtained by the appellant from the Corporation do not show the existence of S-5 building. Shri Dwarkadas further submits that as a matter of fact in view of the statutory provisions, upon formation of appellant no.1 society the respondent-developer was bound to execute conveyance in favour of the appellant-society. It is submitted that as a matter of fact the developer had intimated the appellants that he desired to execute the conveyance. However, since there was no sub-division of plot coming to the share of plaintiff and appellant-society, the conveyance could not be executed. The learned Counsel submits that as a matter of fact the developer had also applied for sub-division as a step in furtherance of the execution of the conveyance. The learned Counsel submits that the developer cannot take advantage of his own wrong inasmuch as had the conveyance been executed, the right to load the TDR would have been available to the appellant-society and not the developer.

53/63 NMS1359.11.sxw

54. In so far as contention of Shri Samdani that there is clear distinction between the building plan and the layout plan is concerned, I find that said contention to be well merited. Regulation 21 of the DC Regulations of 1991 require the layout to be submitted when more than one building is proposed on any land and when development or redevelopment of any tract of land includes its division or sub-division into plots and when the land under development admeasures 1000 sq.m. Or more in a residential or commercial or inany industrial zone. The very purpose of the layout plan is that intending purchaser knows the complete layout of the property in which he is purchasing the flat. In the present case, as I have already discussed hereinabove the construction sought to be made is not in consonance with the layout presented to the flat purchasers at the time of the agreement.

59. It is to be noted that the plaintiff- society was registered on 9 th November 1982. It would, thus, be clear that the developer has given a clear undertaking that they have not made and will not make any alterations in the structure of the building and will not construct any additional structure without the previous consent of all the persons to whom units have been sold out, until the property is conveyed in the name of the society after its registration. The developer has also undertaken to convey the right title and interest in the property without making any reservation within the period mentioned in the agreement executed under section 4 of MOFA and if no such period is mentioned in the agreement upon registration of the society. It can, thus, be seen that after the registration of the plaintiff and appellant societies, the developer was duty bound to execute the conveyance in their favour. Though it is tried to be urged on behalf of the developer that time to execute conveyance would be only after the entire project is complete i.e. after the completion of building S-5 59/63 NMS1359.11.sxw and, as such, time to execute conveyance is yet to arrive at, I am unable to accept this contention. If the developer does not complete the project for decades together, does it mean that the statutory rights available to the society to get the conveyance executed would stand defeated. It is further to be noted that the advocate on behalf of the developer, on 11 th March 1993 has communicated to the advocate for the appellant that the conveyance could not be executed since there was no sub-division of the property falling to the share of the plaintiff-society and the appellant- society and it has further been stated that the developer was willing to execute the conveyance jointly in favour of both the societies. Not only that but the developer has also applied for sub-division of plot on 8 th February 2000. However, it appears that the developer has not pursued the matter thereafter. In this view of the matter, I find that the contention that the time to execute the conveyance is yet to arrive is without any substance. The plaintiff- society was registered on 9th November 1982 whereas the appellant- society was registered on 24th May 1993. In that view of the matter, the developer was duty bound to execute the conveyance within a period of four months from the date of registration of the societies. It will also be relevant to note that clause-4 of the statutory agreement in Form V which was in existence between the period from 12 th January 1990 to 6th March 1997 included the following portion: