Sandeep K. Shinde, J
1. On 31st May 2016, Competent Authority under Section 5A of the Maharashtra Ownership Flats Act, 1963 (“said Act†for short), in exercise of
powers under Section 11(4) of the said Act, issued a Certifcate, in favour of Sukruti Apartment Co-operative Housing Society Limited-appellant, for
enforcing unilateral execution of conveyance deed. M/s. Tirumala Developers (plaintiff-respondent no.1) questioned its validity in the suit instituted in
the City Civil Court, Bombay. Pending suit, the learned Judge, by order dated 7th April, 2021 stayed the implementation of order of Competent
Authority. Feeling aggrieved by that order, appellant-defendant no.1, has challenged it, in this appeal under Order 43(1)(r) of the Civil Procedure
Code.
Background facts are as under :
2. M/s. Sukruti Builders-defendant no.3 (hereinafter called “Promoterâ€), by deed of conveyance dated 31st December, 1979 purchased land
bearing Plot no.2, Survey No.161, C.T.S. No. 526/1 to 526/9, Mulund (E), Mumbai admeasuring about 1203.9 sq.mtrs (“said larger plot†for short)
alongwith the structure standing thereon known as “Bhavani Shankar Bungalow†from its owners, Urmila K. Madeka and others, through its
partners for the consideration and on terms and conditions, more particularly set out therein. Whereafter, Promoter constructed a building on part of
the said plot of land, known as “Sukruti Apartments†consisting of ground and seven upper foors and sold fats, vide individual agreements. Later,
the fat purchasers formed a Co-operative Housing Society-the appellant herein. A, recital in the agreements, executed by the Promoter reads as under
:
“AND WHEREAS M/s. Sukruti Builders are constructing the building consisting of ground and seven upper foors on the portion of
the said land (excluding the land under the existing structures), tentatively named “Sukruti Apartments†as per plans,
specifcations and designs sanctioned by the B.M.C and the said portion of land under the said new building under construction and land
appurtenant thereto admeasures about 668 sq.meters, as shown on the plan annexed to the agreement. (emphasis supplied)
The next recital, contains a stipulation that, the Co-operative Housing Society of the fat owners of the Sukruti Apartments, shall have ‘lessees
interest’, in the said portion of the said land on which the new building is being constructed, as per details set out in Clause-28 of the agreement.
Clause-28 of the agreement, reads as under :
“28. The title which is intended to be created in favour of the Co-operative Society Association or Limited Company, as the case
may be in respect of the said new property shall be as under :-
(a). There will be a lease for a term of 98 years at a token rent of Rs.150/- per annum in respect of the said portion of the said land
under the aforesaid new building named ‘SUKRUTI APARTMENTS’ and the land appurtenant thereto being part of the said
land described in the Schedule I hereunder written and shown on the aforesaid sketch plan hereto annexed, and a Conveyance of the
said new building constructed thereon.â€
AND
SCHEDULE I ABOVE REFERRED TO :
ALL THAT piece or parcel of land with hereditaments, premises and buildings, admeasuring 1203.90 square metres or thereabout,
bearing Survey No.161, Pot No.2 and bearing City Survey No.526 and 526/1 to 9 of Mulund (East), bearing Municipal T-ward No.478
and 479 and situate at Lokmanya Tilak Road, Mulund (East), in the Registration Sub-District and District of Bombay City and Bombay
Suburban and bounded on or towards North by Lokmanya Tilak Road, on or towards South by property known as Kesar Baug
Dhayphule Private Scheme, on or towards East by the property of Lahensingh Shersingh and Ratanbai Bomanji Patel and on or towards
West by property of Vasant Gauri Jadhavji Narbheram and Others.â€
3. Thus, under the agreement for sale executed with fat purchasers, promoter had agreed to create ‘lease interest’ in respect of portion of
larger plot admeasuring 668 sq.mtrs, in favour of the appellant Society for a term of 98 years.
Dates and Events after Agreements with Flat Purchasers :
4. On 6th October 1986, fat purchasers registered the Society. On 17th October 2015, the Promoter (defendant no.3), sold said larger plot
admeasuring 1203.9 sq.mtrs to defendant no.4, subject to rights of the appellant-Society. Later, by Deed of Conveyance dated 31st March, 2016
defendant no.4, sold his rights in the larger plot to the plaintiffs, M/s. Tirumala Developers-respondent no.1. In the meanwhile, on 4th September, 2015
the appellant-Society fled an application under Section 11(3) of the said Act, for a Certifcate to execute unilateral deemed conveyance in respect of
said larger plot admeasuring 1203.9 sq.mtrs. Whereafter on 11th April 2016, M/s. Tirumala Developers (plaintiffs), sought intervention in the
proceedings before the Competent Authority. However, on 31st May 2016, Competent Authority, issued a Certifcate in favour of Society for
executing unilateral conveyance deed in respect of larger plot admeasuring 1209.90 sq.mtrs. Feeling aggrieved by the order dated 31st May 2016,
passed by the Competent Authority, plaintiffs questioned its validity in Writ Petition. On 5th July 2019, petition was withdrawn with a liberty to fle
substantive suit. Pursuant to the liberty, M/s. Tirumala Developers-plaintiffs, instituted S.C. Suit No. 2354/2019 in the City Civil Court at Bombay,
seeking declaration that, order dated 31st May, 2016 passed by the Competent Authority, granting unilateral execution of conveyance deed in respect
of larger plot admeasuring 1203.90 sq.mtrs was illegal, bad in law, null and void and not binding upon the plaintiffs. Pending suit, the learned trial Court,
stayed the effect and implementation of the said order dated 31st May 2016 and restrained the appellants from acting in furtherance of the said order.
5. Question, that falls for consideration is, “Whether, order of Competent Authority, granting unilateral execution of conveyance deed, in favour of
appellant-society, in respect of larger plot, was in accordance with the Agreements for sale, executed by the Promoter in favour of fat purchasers ?â€
6. In cases of (i) Zainul Abedin Yusufali Massawawala Vs. Competent Authority District, 2016 SCC Online Bom. 6028; (ii) Mazda Construction
Company v. Sultanabad Darshan CHS Ltd. 2012 SCC Online 1266; (iii) Jamuna Darshan CHSL Vs. J.M.C. & Meghani Builders and Ors., 2009 SCC
Online Bom 42; and (iv) Grand Paradi CHSL Vs. Mont Blanc Properties & Industries Pvt. Ltd. & Anr. 2010 SCC Online Bom.608, this Court held,
that :
(i) Reading of Section 10 and 11 of the MOFA, with Section 5A would make it amply clear, what is to be performed by the Competent Authority is
the duty and obligation which the Promoter is to perform in law i.e. to convey the title and execute the documents according to agreements;
(ii) When Section 10 and 11 are read together and harmoniously with the preceding Sections, it is to be held that, the Competent Authority has to take
into account, entitlement of parties in terms of agreement executed between them and the Promoter.
(iii) Competent Authority cannot permit the parties to pray something that is beyond their agreement with the Promoters and other relevant
documents.
7. Therefore, if the Promoter fails to execute the conveyance in favour of Society or Company, or Association of apartment owners, as the case may
be, the Company or Association of apartment owners, may apply under Section 11(3) of the Act, for a Certifcate of their entitlement to have unilateral
deemed conveyance; In that event, jurisdiction of Competent Authority is confned to sub-section (4) of Section 11. In the case of Angeline Pereira,
(WP-4373/2017), this Court has held that, “Contentions regarding title, in respect of the property in question or adjudication in respect of the
property in question or adjudication in respect of entitlement of exact quantifcation of FSI on plot in question, cannot be gone into the proceedings
under Section 11 of the MOFAâ€.
Herein, the Promoter had executed agreement with fat purchaser in the year 1981 i.e. before the format of the agreement was prescribed under the
MOFA. However, format, under the Act, was prescribed for the frst time in the year 1986. Therefore, fat purchasers would be entitled for
conveyance of the property, only in terms of agreements with Promoter and nothing more.
Therefore, Society could not have applied for conveyance of said larger plot in question and further Competent Authority could not have granted the
same. Reason being, Promoters had agreed to create ‘lease interest’ in favour of Society in plot admeasuring 668 sq.mtrs only and not 1203.90
sq.mtrs. Contention of Mr. Damle, learned Counsel for the appellants, that plot admeasuring 668 sq.mtrs (part of said larger plot), which Promoter has
agreed to convey, being disproportionate to constructed area of the building and since appellants are paying Municipal taxes for the area exceeding
668. sq.mtrs, Certifcate granted by Competent Authority, cannot be faulted with, requires no consideration. Contention is rejected. However,
appellants are not precluded from seeking adjudication of their right, title and interest in property in question by fling suit. For all that reasons, impugned
order calls for no interference. Appeal is dismissed.
8. With dismissal of the Appeal from Order, Interim Application No. 2843 of 2021, taken out for stay, does not survive. The same also stands disposed
of.
9. Hearing of S.C. Suit No.2354/2019 is expedited.
