Appeal from Order (ST) No. 30848 of 2013. Case: Anuj Hemant Sheth Vs Sumer Set Co-operative Housing Society Limited a Cooperative Housing Society Registered Under the Provisions of Maharashtra Co-operative Societies Act, 1960, Neo Housing and Infrastructure Development Limited and Vishal H. Mandlani. High Court of Bombay (India)
| Case Number | Appeal from Order (ST) No. 30848 of 2013 |
| Counsel | For Appellant: Ms. Manjiri Shah A/w Mr. Tushar Shah and A. D'Souza i/b Lex Firms and For Respondents: Mr. V.A. Thorat, Senior Adv. A/w Mr. Rohit Shetty I/b Purav Domanra, Mr. Atul G. Damle i/b Mr. K.S. Dubey and V.K. Damle, Advs. |
| Judges | Anoop V. Mohta, J. |
| Issue | Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 - Section 7 |
| Judgement Date | November 22, 2013 |
| Court | High Court of Bombay (India) |
Judgment:
Anoop V. Mohta, J.
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Heard the learned Counsel appearing for the parties. The Appellant-Original Plaintiff No. 1 has challenged order dated 22.10.2013 passed by the learned Judge, City Civil Court, Dindoshi, Goregaon, Mumbai, thereby dismissed the Notice of Motion. The Appellant along with Respondent No. 3 filed the suit sometime in September 2013 along with Notice of Motion in question thereby prayed and sought declaration that the work of construction carried out by the Defendants is in contravention of Section 7 of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA Act). They also prayed for interim protection/injunction thereby prayed to restrain the Respondent-Society as well as Builder-Developer to carry out any further work or construction activity on the suit plot of the Society.
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The averments so made in the plaint and the supporting affidavit itself show that the Appellants were fully aware of the development agreement/permission to develop the suit property wide agreement dated 9 October 2010. Admittedly, 38 members of the Society have already vacated the premises. The adjacent premises/flats and those structure were demolished also. The construction is already commenced which is up to the plinth level. The Developer, admittedly have been paying the necessary charges and incurring expenses by providing the compensation, in lieu of alternate accommodation since November 2012.
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Admittedly, the Society-Respondent No. 1 formed/registered in the year 1992-93 covering the total land including the land below the two bungalows in question. Though there is a specific Clause No. 13, the Appellant/bungalow owners not become member of the Society, as contemplated under MOFA Act. No steps have been taken to become member of the Society. The bungalows though owned by the Appellant, is admittedly on the plot in question of the Society. No justifiable reason and/or averred by the Appellant-Plaintiff No. 1 for filing such suit and/or injunction
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The plain reading of the plaint and the affidavit, itself shows that there was no challenge whatsoever was raised with regard to the agreement/conveyance. The Developer of the Society and its members have proceeded on the basis of necessary clauses/permissions obtained from the authorities since 2010.
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The rights of the Appellant, even if any, though not member of the Society as of today need to be tested by the...
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