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TMI Blog2019 (7) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... urchase flats in a project known as 'Orbit Heaven' (for short "the project") being developed by Orbit Corporation Ltd. (In Liq.) (for short "The builder"), at Nepean Sea Road in Mumbai and in furtherance thereof parted with huge amounts of money to the builder ranging in several crores although the construction of the project was under way. The appellant(s) had started paying installments towards the consideration of the concerned flats from 2009. Admittedly, no registered agreement/document for purchase of concerned flats has been executed in favour of respective appellant(s). The appellant(s), however, would rely on the correspondence and including the letter of allotment issued by the builder in respect of concerned flats to assert that there was an agreement between them and the builder in respect of the earmarked flat(s) mentioned therein and which had statutory protection. 4. The respondent No.1bank gave loan facility to builder against the project only around year 2013, aggregating to principal sum of Rs. 150 Crores in respect of which a mortgage deed is said to have been executed between the builder and the bank. That transaction came to the notice of the concerned plaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rashtra Ownership Flats Act. (b) That the Plaintiff is also entitled for a declaration that there is no legal, valid enforceable lien, charge or mortgage in favour of Defendant No.15 in respect of the building or any part thereof known as Orbit Haven, situated at Darabshaw Lane, Napeansea Road, Mumbai 400036; (c) The Defendant No.1 be also ordered and directed to disclose all their assets, properties including the personal properties of the Directors and its sister concern particularly M/s Apex Hotel Enterprise Pvt. Ltd. on Affidavit before this Hon'ble Court, within the period of two weeks or such other time as this Hon'ble Court may deem fit and proper; (d) This Hon'ble Court be pleased to pass an order of injunction restraining the Defendant No.1 from in any manner creating any third party rights in respect of all the properties that may be disclosed by the Defendant No.1, pursuant to the orders of this Hon'ble Court on Affidavit; (e) The Plaintiff is also entitled for an order and direction that the Defendant No.1 be ordered and directed to give clear and marketable title in respect of flat being Flat Nos.2302 and 2402 and the building Orbit Haven, situated at Darab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he balance money from the Flat Purchasers as mentioned in Exhibit 'E', being Plaintiff and Defendant Nos.2 to 14; iii. To execute the Agreement for and on behalf of Defendant No.1 with the Plaintiff as provided under the provisions of MOFA on payment of stamp duty, registration charges and all other incidental charges to be paid by the Plaintiff; iv. To pay all requisite fees to Municipal Corporation of Greater Mumbai as may be required for further progress of the work; v. To appoint the existing Architect, who are the Architect to complete the said Project; vi. To appoint the existing Contractor of the said building, to complete the work; vii. To appoint the existing Structural Engineer who have already been the Structural Engineer of the said Project; viii. To pay all fees/charges in respect of the aforesaid persons; ix. To regularly submit report to this Hon'ble Court with regard to the progress and any other measures that may be required for completion of the Project; x. To make all application to Corporation and all other Semi Government Authorities as may be required for completing the said building Orbit Haven. xi. After completion of the Project, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the present case clearly indicate that the cause of action and the reliefs claimed by the concerned plaintiff(s) fell within the excepted category and the bar under Section 34 read with Section 17 of 2002 Act would be no impediment in adjudicating the subject matter of the concerned suit. The learned Single Judge referred to decisions of this Court in Mardia Chemicals Ltd. and Ors. Vs. Union of India and Ors. (2004) 4 SCC 311, Jagdish Singh Vs. Heeralal and Ors. (2014) 1 SCC 479 and of High Courts in State Bank of India Vs. Smt. Jigishaben B. Sanghvi and Ors. 2011 (3) Bom. C. R. 187 and Arasa Kumar Vs. Nauammal II (2015) BC 127. However, the learned Single Judge rejected the argument/objection raised by the appellant(s) that it is impermissible to reject the plaint only against one of the defendant(s), in exercise of power under Order 7 Rule 11(d) of CPC by relying on the decision of the Division Bench of the same High Court in M.V. "Sea Success I" Vs. Liverpool and London Steamship Protection and Indemnity Association Ltd. and Ors. AIR 2002 BOMBAY 151 As the notice of motion moved by respondent No.1bank came to be dismissed, respondent No.1 carried the matter in appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t genuine home buyers but are investors of developers i.e. Orbit Corporation Ltd. (In Liq.). Due to the close acquaintance/business relationship, the concerned appellant(s) took commercial unsecured risk by purportedly investing huge amount under the guise of purchasing flats and entered into transactions which were contrary to the provisions of 1963 Act. Thus, the appellant(s) cannot claim any right merely on the basis of a self serving allotment letter pertaining to the concerned flat, purportedly given by the builder. Noticeably, contends learned counsel for respondent No.1 that the averments in the plaint(s) regarding allegation of fraud played upon the appellant(s) are vague and general. The same are baseless and unsubstantiated. Rather, no case can be culled out from the averments in the plaint so as to hold that the suit filed by the concerned appellant(s) comes within the excepted category predicated in Mardia Chemicals Ltd. (supra). Respondent No.1 has supported the impugned judgment of the Division Bench and would contend that the bank is not a necessary or even a proper party to suit for specific performance of the alleged agreement and including in relation to alternati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompliance of mandatory requirements or being replete with any institutional deficiency at the time of presentation of the plaint, ascribable to clauses (a) to (f) of Rule 11 of Order 7 of CPC. In other words, the plaint as presented must proceed as a whole or can be rejected as a whole but not in part. In that sense, the relief claimed by respondent No.1 in the notice of motion(s) which commended to the High Court, is clearly a jurisdictional error. The fact that one or some of the reliefs claimed against respondent No.1 in the concerned suit is barred by Section 34 of 2002 Act or otherwise, such objection can be raised by invoking other remedies including under Order 6 Rule 16 of CPC at the appropriate stage. That can be considered by the Court on its own merits and in accordance with law. Although, the High Court has examined those matters in the impugned judgment the same, in our opinion, should stand effaced and we order accordingly. 14. Resultantly, we do not wish to dilate on the argument of the appellant(s) about the inapplicability of the judgments taken into account by the Division Bench of the High Court or for that matter the correctness of the dictum in the concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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