Case Note & Summary
The matter arose from a civil suit filed by forty-three flat purchasers against the promoter/builder, M/s. Noopur Developers, seeking a permanent injunction to restrain the builder from carrying out further construction on the plot where the building 'Megh' stood. The builder had developed two wings, 'A' and 'B', on the plot and sold flats to the plaintiffs. At the time of sale in 1997, the builder represented that a recreation ground and parking space would be provided. The plaintiffs requested formation of a cooperative society, but the builder avoided doing so. Subsequently, the builder sought to demolish an old building on the plot that had been occupied by tenants, claiming that additional Floor Space Index (FSI) became available after the tenants vacated. The builder intended to construct a new building using this additional FSI. The plaintiffs contended that the builder had lost the right to develop and use Transferable Development Rights (TDR) by failing to form the society, and that without their consent, no additions or alterations could be made. They argued that the builder could not take advantage of his own wrong. The builder resisted, claiming the plan was approved by the municipal corporation, the old building was vacated, the additional FSI was legitimately available, and major construction had already commenced. The builder also argued that the plaintiffs approached the court with delay and that the injunction being an equitable relief was not warranted. The trial court granted an injunction in favour of the plaintiffs, which led to the builder filing an Appeal from Order before the Bombay High Court. The judgment excerpt provided does not contain the court's analysis or final decision.
Issue of Consideration
Whether the defendant/promoter is entitled to make additional construction without consent of flat purchasers and whether injunction was justified.
Law Points
- promoter's right to use additional FSI
- consent of flat purchasers
- equitable relief
- delay in seeking injunction
- redevelopment
- sanctioned plan
Case Details
2010 LawText (BOM) (01) 34
Appeal from Order No.1195 of 2009 with Civil Application No.1495 of 2009
Mr. V A Thorat, Senior Advocate, with Mr. Jain and Mr. G S Godbole i/by M/s. L J Law for the Appellants; Mr. Niranjan Lapashiya with Ms. Uma Jha i/by M/s. Niranjan & Co. for Respondent Nos. 1 to 43
Himanshu V Ganatra & Ors.
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Nature of Litigation
Civil suit for permanent injunction by flat purchasers against the builder/promoter.
Remedy Sought
Plaintiffs sought to restrain the defendant from demolishing old building and constructing new building without their consent.
Filing Reason
Defendant represented to leave recreation ground and parking, failed to form cooperative society, and sought to use additional FSI from vacated old building, affecting plaintiffs' rights.
Previous Decisions
Trial court granted injunction; defendant appealed.
Issues
Whether the defendant has the right to use additional FSI and construct new building without consent of flat purchasers?
Whether the trial court's injunction was justified?
Submissions/Arguments
Plaintiffs argued that the defendant lost right to develop and use TDR by not forming society, cannot take advantage of own wrong, and cannot make additions/alterations without consent.
Defendant argued that plan was approved by municipal corporation, old building vacated giving additional FSI, major construction already done, plaintiffs approached court with delay, and injunction is an equitable relief.
Judgment Excerpts
The Original Defendant/Appellant is a promoter. He constructed a building known as “Megh” at Borivali, Mumbai on Original Plot No.78, Final Plot No.120. He constructed the building having two wings `A’ and `B’ on the said plot. The Plaintiffs purchased the flats in wings `A’ and `B’.
The Plaintiffs were requesting the Defendant/Appellant to form a cooperative society but the Defendant/Appellant avoided to do so... the Defendant/Appellant has lost his right to develop the property and use the TDR.
The Defendant/Appellant resisted the said Application... contending that the Defendant has every right to make construction. The Plan was approved by the Municipal Corporation... the old building was in occupation of the tenants and the tenants have recently vacated that building and due to vacation of that building, an additional FSI has become available to the Defendant.
Procedural History
Plaintiffs filed suit for injunction in trial court; trial court granted injunction; defendant filed Appeal from Order No.1195 of 2009 before High Court; Civil Application No.1495 of 2009 also filed.
Acts & Sections
- Indian Partnership Act, 1932:
