IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

NOTICE OF MOTION NO. 1525 OF 2014 IN SUIT NO.962 OF 2014

M/s Electrofab Engineering Pvt. Ltd. ...Applicant/Plaintiff vs Runwal Constructions, Real Estate & Property & Anr. ...Defendants

Mr D.J.Khambatta, Sr. Counsel a/w Mr Aditya Mehta, Ms Sheetal Sabnis, Mr Praveen Kejriwal, Ms Ipshita Sen, Mr G.T.Mestha & Ms Parvathy Nair i/b Gagrats for the Plaintiff.

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Mr D.D.Madon, Sr. Advocate a/w Mr Cyras Ardeshir i/b Kanga & Co. for the Defendants .....

CORAM : S.C. GUPTE, J.

JANUARY 16, 2015

P.C. :

The Plaintiff has taken out this Notice of Motion in a specific performance suit, seeking an interim injunction against the Defendants in respect of the alienation of certain piece of land or in the alternative, 24 flats described in the plaint, which according to the Plaintiff are the subject matter of the agreement of sale between the parties.

2 The Plaintiff is an agreement purchaser in respect of 24 flats in a project known as Runwal Infinity, building No.A-1, proposed by Defendant No.1 in the suit plot. It is the case of the Plaintiff that allotment letters in respect of these 24 flats, which had since been reconfigured into 12 flats, were issued in favour of the Plaintiff, as far back as in February 2006. The allotment letters contain all the essential terms and conditions of the agreement for sale, proforma whereof was handed over by Defendant No.1 to the Plaintiff at the time of such allotment. It is common ground that after execution of the allotment letters, Defendant No.1

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could not start the project by reason of a mutation entry of 'private forest land' made in the record of rights in respect of the subject plot of the land. There was a stop work notice issued by the Municipal Corporation as a result of such entry. Record of the case, however, indicates that throughout the following years upto 2013, Defendant No.1 kept assuring the Plaintiff that the Defendants' challenge to the entry of 'forest land' was pending consideration before the Supreme Court and that the Defendants were hopeful of getting a favourable order. It so happens that just about a month prior to the order passed by the Supreme Court accepting the Defendants' case and setting aside the stop-work notice issued to the Defendants by the Municipal Corporation on account of the entry of forest land, the Defendants purported to issue a notice to the Plaintiff, terminating the allotment agreement and cancelling allotment of the subject flats in favour of the Plaintiff. The cancellation has not been accepted by the Plaintiff. There is material placed on record to show that even after the purported cancellation of the allotment agreement, the parties continued to negotiate the matter right till filing of the present suit.

3 The record of the case, as noted above, indicates that prima facie there is an agreement for sale between the parties in respect of the subject flats. The only reason for cancellation of the allotment agreement cited by the Defendants in their termination letter is indefinite delay caused in the project and the Defendants' inability to commit to any particular time frame within which the possession of the subject flats could be handed over to the Plaintiff. As noted above, the record of the case does indicate that all through this period, the agreement was kept alive between the parties and just before the Defendants could procure a favourable order from the Supreme Court in respect of the entry of 'private forest land' and were in a position to take further steps towards completion of the project, the Defendants have purported to terminate the suit agreement. The reason cited by the Defendants in their reply to the Notice of Motion filed for opposing grant of ad-interim reliefs is that the parties could not enter into a formal agreement for sale in respect of the subject flats by reason of the Plaintiff being indecisive about reconfiguration of 24 suit flats into 12 flats as claimed in the plaint. There are documents on record, including signed receipts

of the Defendants, which prima facie indicate that reconfiguration of 24 flats into 12 flats as claimed in the plaint was already agreed between the parties. The correspondence between the parties is on the basis of such agreement.

4 In the premises, there is a case made out for grant of ad-interim relief. The question, however, is of moulding of appropriate ad-interim relief. It is a matter of fact that the project as proposed by the Defendants has not yet taken off, though there is some plinth found to be constructed on the suit plot, as per the Plaintiff. Interests of justice would be served if, in these premises, the Defendants are restrained from dealing with the suit plot without reserving and ear-marking an appropriate area, i.e. 14,306 sq.ft. carpet inclusive of balconies, representing the aggregate area of the suit flats. As and when such area is earmarked and reserved, further orders can be sought from this Court so as to restrict the to injunctive relief to such reserved and earmarked area. As and when such application is made, the question whether the area so reserved or earmarked will adequately protect the Plaintiff's interest or not, can be considered by this Court. Further directions, if any, regarding securing of the amounts in respect of the subject flats to the Plaintiff, may be considered as and when further orders are sought from this Court.

5 The Defendants to file their replies within a period of eight weeks from today. Rejoinder, if any, within four weeks thereafter. Place this Motion for hearing on 28 April 2015.

( S.C.GUPTE J. )