Ram Prakash Anand v. Devinder D. Ghai

VPH

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (L) No. 590 OF 2015 IN NOTICE OF MOTION No. 664 OF 2015 IN COUNTER CLAIM No. 1 OF 2009 IN SUIT No. 2698 OF 2002 WITH NOTICE OF MOTION (L) No. 2045 OF 2015 Ram Prakash Anand ...

Appellant Vs.

Devinder D. Ghai ...

Respondent *** Mr. Atul Damle, Sr. Counsel a/w Rupesh Lanjekar, for the Appellant. Mr. Chirag Balsara a/w D. V. Devkar, Sachin Pandey i/b M/s. Parimal K. Shroff & Co., for Respondent.

*** CORAM : V. M. KANADE, & REVATI MOHITE-DERE, JJ.

DATE : DECEMBER 14, 2015 PC.

1.

Heard the learned senior counsel appearing on behalf of the Appellant and the counsel appearing on behalf of the Respondent. The Respondent / original Defendant filed the notice of motion, restraining the Appellant / original Plaintiff from developing the suit 1 / 3

property and / or from creating third party rights. According to the Appellant, he had entered into an agreement with Defendant No. 6 only in respect of Plot No. 10 and not in respect of Plot Nos. 6 and 7 and if any development rights are accrued to the Developer from the said plot, he was entitled to use those rights for developing Plot No.

10. Defendant has also filed the counter-claim claiming his right to develop Plot Nos. 6 and 7 as well.

2.

The learned Single Judge has allowed the notice of motion filed by the Respondent / original Defendant and has injuncted the Plaintiff from creating third party rights not only in respect of Plot No. 10 but also in respect of Plot Nos. 6 and 7. 3.

According to the Plaintiff, the clauses under the original agreement clearly indicate that no rights have been given to the Defendant in respect of Plot Nos. 6 and 7 which were reserved garden and park.

4.

However, on the other hand, it is case of the Defendant that if clauses in the agreement are taken into consideration, it would indicate that he had right to utilise FSI of Plot Nos. 6 and 7. 2 / 3

5.

We have perused the impugned order. The impugned order does not take into consideration these rival submissions, which are made by both the parties. The said order is not a reasoned order and the contentions raised by both the parties are not taken into consideration. In our view, the impugned order will have to be set aside. The impugned order is set aside and the matter is remanded back to the learned Single Judge. The learned Single Judge is requested to decide the motion, without being influenced by any of the observations made in the impugned order dated 25th June, 2015, on merits and in accordance with law, as expeditiously as possible and in any case within 8 weeks. Till disposal of the motion, the impugned order passed by the learned Single Judge will continue. Sd/- Sd/- [REVATI MOHITE-DERE, J.] [V. M. KANADE, J.] Vinayak Halemath 3 / 3