IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2544 OF 2010
Nahalchand Laloochand Pvt. Ltd. ...Appellant
Panchali Co-operative Housing Society Ltd. ...Respondent
CIVIL APPEAL NO. 2545 OF 2010
CIVIL APPEAL NO. 2546 OF 2010
CIVIL APPEAL NO. 2547 OF 2010
CIVIL APPEAL NO. 2548 OF 2010
CIVIL APPEAL NO. 2449 OF 2010
CIVIL APPEAL NO. 2456 OF 2010
R.M. Lodha, J.
Of these seven appeals which arise from the
judgment dated April 25, 2008 passed by the High Court of
Judicature at Bombay (Appellate Jurisdiction), five are at the
instance of the original plaintiff and the other two are by the
parties, who were not parties to the proceedings before the
High Court or the trial court but they are aggrieved by the
findings recorded by the High Court as they claim that these
findings are affecting their rights.
2. Few important questions of law arise in this group of appeals. It will be convenient to formulate the questions after we set out the material facts and the contentions of the parties. The narration of brief facts from S.C. Suit No. 1767 of 2004 will suffice for consideration of these appeals. Nahalchand Laloochand Private Limited is a Private Limited Company. As as promoter, it developd few properties in Anand Nagar, Dahisar (East), Mumbai and entered into agreements for sale of flats with flat purchasers. The flat purchasers are members of Panchali Co-operative Housing Society Ltd. (for short, `the (Society'). The promoter filed a suit before the Bombay City Civil Court, Bombay for permanent injunction restraining the Society
2 (defendant) from encroaching upon, trespassing and/or in any manner disturbing, obstructing, interfering with its possession in respect of 25 parking spaces in the stilt portion of the building. The promoter set up the case in the plaint that under the Agreements for sale it has sold flats in its building and each flat purchaser has right in respect of the flat sold to him and to no other portion. It was averred in the plaint that each flat purchaser has executed a declaration/undertaking in its favour to the effect that stilt parking spaces/open parking spaces shown in the plan exclusively belong to the promoter and that the declarant has no objection to the sale of such spaces by it. The defendant (Society) traversed the claim and set up the plea that the promoter has no right to sell or dispose of spaces in the stilt portion and that the undertakings given by the flat purchasers are not binding being contrary to law and based on such undertakings, the promoter has not acquired any right to sell stilt parking spaces.
3. The parties let in evidence (oral as well as documentary) in support of their respective case. 3 4. On April 4, 2007, the Presiding Judge, City Civil Court, Greater Bombay dismissed the suit with costs.
5. The promoter preferred first appeal before the High Court which was dismissed on April 25, 2008.
6. For brevity, we shall describe Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 as `MOFA', Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Etc.) Rules, 1964 as `1964 Rules', Development Control Regulations for Greater Bombay, 1991 as `DCR', Maharashtra Apartment Ownership Act, 1970 as `MAOA', The Maharashtra Regional and Town Planning Act, 1966 as `MRTP Act' and Transfer of Property Act as `T.P....
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