S.J. Deshpande, J.
1. The appellant is the original plaintiff in Suit No. 7083 of 1982 pending in the City Civil Court at Bombay. Respondents are original defendants Nos. 1 and 2 in the said suit.
2. The plaintiffs Instituted the above suit in the City Civil Court, Bombay, against the defendants-respondents for declaration and injunction. Respondent No. 1 is the Municipal Corporation of Greater Bombay and respondent No. 2 is M/s. Noble Construction, a firm doing business of construction. The main attack in the suit from the averments appears to be against respondent No. 1 saying that respondent No. 1 has granted permission for construction of certain buildings on certain plots without following certain procedure. The said lands are governed by Development Control Rules and plans to be submitted to the Municipal Corporation. It is alleged that defendant No. 1 i.e. Municipal Corporation has granted completion certificate to respondent No. 1 in regard to certain buildings on certain plots, without scrutinising the plans in the layout and the sub-division of the property and the commencement certificate granted to respondent No. 1 and sanction thereunder is illegal, and bad and void.
2-A. As far as defendant No. 2 is concerned, the case of the plaintiff is based on an agreement dated 7th March, 1977 arrived at between the parties in suit, by which respondent No. 2 has agreed to share additional F.S.I. which may be available to him. It is averred in the plaint that defendant No. 2 has committed breach of that agreement and is continuing breach and proceeding with the construction of his buildings. Respondent No. 2 has no right to construct those buildings as his rights are subject to terms in the contract dated 7th March, 1977. The prayers in the suit made by the plaintiff are :
(a) for a declaration that the sanction or sanctions accorded by the defendant No. 1 to the buildings plans of the defendants No. 2 on the plot Nos. 1, 3, 4, 6, 7 and 8 of the layout and sub-division of the property described in Exhibit A hereto and as shown on the plan Exhibit C hereto and the commencement certificates issued in pursuance of the said sanctions are illegal, bad-in-law and void;
(b) that the defendant No. 1 by themselves, their servants, and agents may be ordered by a mandatory injunction to grant building completion certificate to the plaintiff in respect of the plaintiff's 12 buildings constructed on Plot Nos. 5, 9 and 10 of the said layout and sub-division as per plan the Exhibit C annexed hereto;
(c) that the defendants No. 1 by themselves, their servants and agents may be permanently restrained from entertaining or sanctioning any new building plans in respect of construction of any building or buildings on plot Nos. 1, 3, 4, 6, 7 and 8 of the said lay out and sub-division as per plan Exhibit C annexed or from granting any further commencement certificate for construction of any building or any part thereof on the said plots until all the terms and conditions of the said layout and sub-division as per Exhibit D annexed hereto and the terms of the constant decree dated 7-3-1977 passed in Suit No. 4222 of 1976 of this Hon'ble Court are complied with by defendant No. 2;
(d) that the defendant No. 2 by themselves, their servants, and agents may be permanently restrained from carrying out any further work of the construction of the said buildings or any part thereof on the said plots Nos. 1, 3, 4, 6, 7 and 8 in pursuance of the sanction granted by the defendants No. 1 to the said building plans of the defendant No. 2;
(e) that in the alternative to prayer (d) above, the defendant No. 2, by themselves, their servants and agents may be permanently restrained from utilising any additional FSI for their buildings on the said plots Nos. 1, 3, 4, 6, 7 and 8 until the division of the said additional FSI available under the said layout and sub-division is made between the plaintiffs and the defendants No. 2 in compliance with the said consent decree dated 7th March, 1977 passed in Suit No. 4222 of 1976 of this Hon'ble Court;
(f) that the defendant No. 1 by themselves, their servants/officers and agents may be ordered by a mandatory order of injunction to construct the portion of the 60 ft. wide D.P. Road on the land covered by the said layout and sub-division and referred to in the conditions of sub division Exhibit C annexed hereto, within such time as this Hon'ble Court may deem just and proper;
prayer (h) relates to reliefs which is not necessary to recite hereto.
3. Shortly stated, the undisputed facts in this case are as follows : The plaintiff are a Co-operative Society, who owns certain plots in the sub-division which form part of development plans recognised by the Municipal Corporation-Respondent No. 1. The plaintiffs are owner of plots Nos. 5, 9 and 10 . They have obtained these plots from the land which was formerly owned by M/s. Ajanta Traders, who are their predecessor entitle. The land was required for development according to the plans. The plaintiffs desire to develop the same. Plans were sanctioned in the year 1971. The plaintiffs commenced the work and completed 12 buildings on the said plots in the year 1976.
4. It is said that this Ajanta Traders had undertaken by certain terms and conditions which were attached to the said land and the proposed development plans to construct certain roads and carry out other terms and conditions which are mentioned in Schedule I Exhibit D to this appeal. It is not necessary to recite those conditions here.
5. Defendant No. 2 also is the owner of Plots Nos. 1, 3, 4, 6, 7 and 8. This land also includes 11000 Sq. Meters of land which is purchased by defendant No. 2 under a conveyance somewhere in 1972. Respondent No. 2 also is the owner of the plots mentioned above and is also interested in constructing buildings thereon. It has started construction.
6. It may also be mentioned here that according to the development plans, area of D.P. Road is also mentioned which is to be constructed by the party concerned, who wants to develop the property or who has got interest in obtaining these plots and construct buildings thereon.
7. Defendant No. 2 started its construction after submitting plans somewhere in 1981. It is alleged by the plaintiffs that M/s. Ajanta Traders were themselves bound by certain terms and conditions and under these terms and conditions defendant No. 2 itself was under an obligation to construct certain roads and also abide by certain other terms. The defendant No. 2 neglected to abide by the said terms from 1972 onwards. However, it submitted plans in 1981 which were got sanctioned by the Municipal Corporation and started its own construction on the plots belonging to him.
8. It appears that Suit No. 4222 of 1976 was filed by the present respondent No. 2 who was plaintiff in that suit in the City Civil Court against the present appellant, who was the sole defendant in that suit. That suit related to certain complaint which was made by plaintiffs in that suit, that the defendant was carrying out certain construction of road in his land and causing him encroachment and, therefore, prayed for interim reliefs in that suit. During the pendency of that suit, it appears that parties arrived at settlement. That settlement is dated 7th March, 1977. The terms of the settlement are made the basis of the present action of the appellant. The terms of settlement which were arrived at in that suit are at Exhibit I, which are as follows :---
Consent terms between Noble Construction and Nau Saurakshan Co-operative Housing Society Ltd. :
'1. Agreed and declared that in view of the agreement between both the parties as set out in Ex. A hereto the plaintiff have no claim whatsoever against the defendants in respect of the alleged encroachment which is the subject matter of the suit.
2. By consent, in view of the agreement arrived at between the plaintiffs and the defendants set out in Schedule hereto and annexed and marked Exhibit 'A' no other order in the suit.
3. No order as to costs.'
Along with these are annexed Exhibit A which embodies the terms of the agreement. They are as follows;
'Heads of agreement arrived at between M/s. Noble construction and M/s. Nau Saurakshan Co-operative Housing Society Ltd., hereinafter referred to as 'Noble' and 'Nau Saurakshan' respectively.
1. Noble construction agrees to discharge its liability in respect of the completion of the D.P. and access roads as per sub-division and layout approved by the Municipal Corporation of Greater Bombay, including, in particular, the D.P. Road and the access roads already constructed by Nau Saurakshan, its being specifically understood by the Nau Saurakshan, Noble shall at its own cost, complete the said roads with regard to street lighting and storm water drainage.
2. Noble shall complete the said portion of the D.P. Road and the access road, already constructed by the Nau Saurakshan in the manner set out herein above within a period of 3 months from the date hereof and in any event before the on set of the monsoon. Nau Saurakshan states that it has made the necessary application to Bombay Suburban Electric Supply Company Ltd. for the grant of power for providing lighting in respect of the said roads already constructed by them. Nau Saurakshan also states that it shall render all necessary assistance and co-operation to Noble with regard to the applications that are or may be required to be made to the relevant authorities in the matter of the completion of the said portion of roads already constructed by Nau Saurakshan.
3. Noble declares that it shall have no claims against Nau Saurakshan in respect of the alleged encroachment being the subject matter of the Bombay City Civil Suit No. 4222 of 1976 filed by Noble against Nau Saurakshan.
4. Nau Saurakshan agree and declares that it shall not hereafter in any manner make any claim whatsoever in respect of any amount that may have been expended by them towards the construction of the roads already constructed by them.
5. Noble agrees that Nau Saurakshan shall be entitled to claim and utilise the F.S.I. available and granted by the B.M.C. in respect of the portion of the D.P. Roads and Access Roads already constructed by the Nau-Saurakshan in proportion to the total additional F.S.I. that is available in respect of the D.P. and Access Roads which are to be constructed on the entire plots. It is agreed and understood that for the purpose of calculation of the said F.S.I. (both the F.S.I. agreed to be given to the Nau Saurakshan and the F.S.I. remaining to be utilised by Noble) regard shall be had to the total area of the entire plot comprised of in the sub-division and layout.
6. Both Noble and Nau Saurakshan agree and declare that they are in lawful and proper possession of the proportion of the entire plot that are in their respective possession at present.
7. In light of the above, Noble shall withdraw the suit filed against the Nau Saurakshan as also the proceedings for contempt both against committee members and Nau Saurakshan with no order as to costs.
8. Nau Saurakshan states that this agreement has been approved by Managing Committee as per Managing Committee Resolution dated March 1977 what has been authorised and is empowered to sanction this statement.'
It is undisputed that no decree was passed in terms of such agreement between the parties. It is the case of the plaintiff that defendant No. 2 has committed breach of these terms inasmuch as (i) he failed to construct the roads (ii) he also failed to abide by the terms relating to grant of additional F.S.I. as mentioned in Term No. 5 of the said terms.
9. After the suit, it appears that again a second suit being Suit No. 1638 of 1982 was filed by the present respondent No. 2 in the City Civil Court with a prayer that the present appellant who was defendant in the said suit may be prevented from constructing the road as at that time present respondent No. 2 who was plaintiff in the said suit was carrying out construction in accordance with the sanctioned plans and the appellant had no right to interfere with the activity of construction which he was carrying out. In the said suit, it appears that respondent No. 2 herein applied for injunction which he obtained from the City Civil Court and it was granted to him. Against the order of granting injunction in favour of the plaintiff in the said suit, the present appellant filed an appeal against the said order being A.O. No. 662 of 1982 in the High Court and in the said appeal it was contended that respondent No. 2 herein, had no right at all as he himself has committed breach of several terms and conditions and he is not entitled to the injunction as granted by the Court. This appeal came up for final decision on 25th January, 1983 and the High Court dismissed the same saying that if the appellant-Nau Saurakshan has got any right as they want to say that they had some right, they may file proper suit and obtain such reliefs as may be available to it.
10. It appears that during the pendency of the said Appeal No. 662/1982, the appellant had also filed a substantive suit on the basis of the consent terms and certain allegations against respondent No. 1 in regard to illegality committed by it in granting sanction to plans. This suit was filed in the City Civil Court on 28th December, 1982. It was filed for a declaration as stated above, that respondent No. 1 Municipal Corporation has wrongly granted sanction to the plans and that it may be declared that the sanction is illegal and other prayers; against respondent No. 2 that they may be permanently restrained from carrying out their construction subject to the terms of the contract. During the pendency of the said suit, the plaintiff applied by way of Notice of Motion for interim reliefs with a prayer that the defendant No. 2 be restrained from carrying out any further work of construction of buildings on the plots mentioned therein in pursuance of the sanction granted by defendant No. 1 to the plans of defendant No. 2 and defendant No. 2 be further restrained by an order of injunction from utilising any additional F.S.I. for their buildings on the said Plots Nos. 1, 3, 4, 6, 7 and 8 until the division of the said layout and sub-division is made between the plaintiffs and the defendant No. 2 in compliance with the said consent decree dated 7th March, 1977 passed in Suit No. 4222 of 1976. In prayer (d) of the Notice of Motion, it was again prayed for mandatory injunction against defendant No. 1 to construct the portion of the 60 ft. wide D.P. Road on the land covered by the said layout and sub-division and referred to in the sub-division Exhibit D. We are not concerned in this Notice of Motion with the terms as far as term against respondent No. 1 is concerned. Briefly stated, with the fear of repetition, I may again point out that both plaintiffs and defendant No. 2 have their independent and separate plots of lands on a common land which had their common predecessor-in-title and which they have purchased under respective conveyances. At this stage, it is not necessary to narrate whole history of the litigation. Suffice it to say that Ajanta Traders were the common predecessor-in-title of the plaintiffs as well as defendant No. 2 in respect of their respective portion of the land and they have purchased this land at the time when Ajanta Traders themselves had submitted plans of development and they were bound by certain terms conditions given in the plans. It may also be noted that the appellants-plaintiffs and defendant No. 2 are interested in developing the property. Plaintiffs submitted its plans to the Municipal Corporation in 1971 in respect of Plots Nos. 5, 9 and 12 and as the liability of construction certain roads to be constructed was taken by Ajanta Traders and that liability was also transferred to both, who were interested in development and especially defendant No. 2, the plaintiffs performed their obligations and constructed a part of that road and obligation which was outstanding against defendant No. 2 was not performed by it. It is the case of the plaintiffs that due to non-fulfilment of the obligations by respondent No. 2, the plaintiffs were obstructed in getting the completion certificate and he was required to deposit a sum of Rs. 45,000/- and a guarantee and he was also forced to construct the part of the road to obtain completion certificate and sanction to its plans. The plaintiff, therefore, started construction of the said roads and when they started construction as stated above, Suit No. 4222 of 1976 came to be filed against them by respondent No. 2. It is the case of the plaintiffs that they have spent more than Rs. 2 Lakhs in fulfilling the obligations to the Corporation for completion of the construction of the roads. The defendant No. 2, who ultimately compromised the said suit had agreed to divide and share the additional F.S.I. which will be available on releasing the land of 60 ft. wide road.
11. It is the case of the plaintiffs that the additional F.S.I. of the road comes to 4990 sq. meters out of which, according to them, they are entitled to 3043 sq. meters and defendant No. 2 is entitled to 1946 sq. meters. The main grievance of the plaintiff in the suit is that defendant No. 2 has neglected to perform that obligation and refused to give F.S.I. to the plaintiffs and started his own construction on utilising/additional F.S.I., although portion of F.S.I., although, portion of F.S.I. i.e. 436 square meters was left to be utilised by the plaintiffs. The defendant No. 2 also showed the area as additional F.S.I. to be 5036 square meters in the plans submitted to the Municipal Corporation.
12. The plaintiffs also complained that on the basis of the holding which they are having, the additional F.S.I. which is granted to defendant No. 2 capable of being divided between the plaintiffs and defendant No. 2 and under the contract, dated 7th March, 1977, defendant No. 2 is liable to get share according to the proportion. It is for this reason that the plaintiffs filed the suit and present Notice of Motion and prayed that defendant No. 2 be restrained from carrying out construction and utilising the F.S.I. This Notice of Motion was opposed by the defendant No. 2 by raising several contentions that the suit is not maintainable; that the suit is also time barred; that true interpretation of certain terms is that the plaintiffs are entitled to only F.S.I. which is available in regard to access road which they have constructed and they cannot have any claim to additional F.S.I. and consent terms do not bind the defendant No. 2 to give share as stated. The parties also filed affidavits. It is also stated by the defendant No. 2 that the F.S.I. is not transferrable and shareable and at the most the plaintiffs may be entitled to damages. It was also stated that the plaintiffs at the most can file a suit for specific performance and the plaintiff's on their own showing are at the most entitled to certain compensation for construction of roads which they have done on their own costs. Reliance was also placed on certain letters which I will refer to latter, to show that the contract entered into on 7th March, 1977 should be read in the light of that letter which would show that it does not remain in the same condition.
13. In short, the plaintiffs want to enforce the terms of the contract and enforcement of the terms and conditions. They also want that at present, defendant No. 2 prevented from utilising F.S.I by not carrying out construction.
14. The learned trial judge after hearing both the parties at length, has found that F.S.I is not alienable or divisible right. It goes with the ownership of the land to which it is annexed. Although, the learned judge has referred to in his judgment at paragraph 19 that contention of the learned Advocate for the plaintiff that as the entire holding is one unit, the plaintiff will be entitled to use their proportion of the additional F.S.I without any difficulty and their plans could be lawfully sanctioned, the learned judge in his concluding judgment has observed that the grievance of the plaintiffs must be that at some stage defendant No. 2 itself was willing to pay Rs. 2 lakhs to the plaintiffs towards the costs and compensation and expenses which the plaintiffs incurred for constructing the roads. This offer is not accepted and the learned judge finally concluded that the plaintiffs are only entitled to be granted 60 ft. wide D.P constructed by them and the additional F.S.I available equal thereto. Then the learned judge made a clarification of the said order and in the result, the Notice of Motion was dismissed by his order dated 28th November, 1983. It is against this order that the present appeal from Order has been filed by the original plaintiffs.
15. Shri Walawalkar, learned Counsel for the appellant plaintiffs submitted that this suit is to enforce contract embodied in the terms which were arrived at between the parties on 7-3-1977. According to the terms of the contract, the plaintiffs are entitled to share of additional F.S.I. which is available or which is granted to by defendant No. 2 and he has restricted his claim to the additional F.S.I. to be granted. He has also referred to Rule 10 of the Development Control Rules to which I will refer to latter. It was contended before me by the learned Counsel for the appellants that the obligation of sharing the F.S.I. has been embodied in the contract, contract of sharing F.S.I. is not against any public policy and was not hit by any provisions of the Contract Act and it is liable to be enforced by the courts. If defendant No. 2 has committed any breach, the appellants were entitled to come to the Court to prevent breach of the contract and compel the defendant No. 2 to perform such contract. The main controversy in my opinion, turns round on the Term No. 5 of the said contract, which is the basis of the suit. Shri Walawalkar contended that in fact the learned Judge has passed a favourable order inasmuch as there is no dispute in regard to right to share F.S.I. and only extent of such sharing is in dispute and according to him, extent must be in proportion to the actual additional F.S.I. which the plaintiffs may get. He has further invited my attention to paragraph 11 of the impugned judgment, which according to him has actually granted what he wanted. In para 11 it is observed that there is no dispute between the parties that the plaintiffs are claiming share in F.S.I. only for that portion of 60' wide D.P. Road which they have constructed. That para then refers to total area of entire plot compromised in the sub-division and layout etc. It was then contended by Shri Walawalkar that the learned Judge has actually said that the plaintiffs-appellants are entitled to F.S.I. but he has restricted his claim to the proportion of the road area which he has constructed and he has not extended it to entire area of plots.
16. Term 5 of the consent terms is as follows :
'Noble agrees that Nau Saurakshan shall be entitled to claim and utilise the F.S.I. available and granted by the B.M.C. in respect of the portion of the D.P. Road and Access Roads already constructed by the Nau Saurakshan in proportion to the total additional F.S.I. that is available in respect of the D.P. and Access Roads which are to be constructed on the entire plots. It is agreed and understood that for the purpose of calculation of the said F.S.I. (both the F.S.I. agreed to be given to the Nau Saurakshan and the F.S.I. remaining to be utilised by Noble) regard shall be had to the total area of the entire plot comprised of in the sub-division and lay out.'
Mr. Walawalkar contended that the construction put up by the learned Judge of the term is erroneous for the following reasons : It was contended by him firstly that the clause beginning with the words 'it is agreed and understood that for the purpose of calculation of the said F.S.I. '(both the F.S.I. agreed to be given to the Nau Saurakshan and the F.S.I. remaining to be utilised by Noble)' clearly shows that the intention of the parties was not to restrict the claim of F.S.I. to the proportion of the roads area, but to the extent of total F.S.I. which defendant No. 2 was entitled or granted by the Municipal Corporation. Secondly, it was contended by Shri Walawalkar that reference to the plots area comprise of sub-division and layout must include reference to the plots in the entire sub-division which includes the plots owned by defendant No. 2. Thirdly, it was contended that in this clause the pirates had intended to provide not to restrict the grant of F.S.I. to the portion constructed roads but it was to the entire quantity of F.S.I. which the defendant No. 2 was entitled to have in regard to his plots. The learned Counsel also pointed out that the words ' in proportion of the total area' must be read to mean in proportion to the total area of the plots and sub-division as common one unit and entire area should be taken into consideration and, therefore, he contended that in this view of the matter, the restricted interpretation by the learned Judge of Term No. 5 is erroneous and wrong.
17. In answer to these contentions the learned Counsel for defendant-respondent No. 2 pointed out that whole idea and intention behind this term is clearly expressed by the words which are quite clear and unambiguous. It was stated that what was agreed was that 'Noble agrees that they shall be entitled to claim and utilise F.S.I. available and granted by the B.M.C. in respect of the portion of the D.P. Roads and Access Roads already constructed by the Nau Saurakshan in proportion to the total additional F.S. I. that is available in respect of the D.P. and Access Roads which are to be constructed on the entire plots.' The learned Counsel for respondent No. 2 contended that in no case, the words which have been used by the parties clearly indicate that what was in mind was that the F.S.I. which had direct connection with the portion of D.P. and Access Roads which the appellants had constructed. It was known to the parties that the appellant had spent a sum of Rs. 2 Lakhs for the purpose of constructing these roads. It was also known that the defendant No. 2 had failed to perform its obligation. It was also known to the parties that unless roads are completed and they are surrendered, No F.S.I. would be available. The learned Counsel for the respondent No. 2 contended that the intent which is expressed in the side term is in respect of the portion of D.P. and Access Roads and can have no connection with the entire area plots for the simple reason that the plots are held by the parties in separate, independent and absolute ownership. Plots of the parties form part of a common sub-division. It cannot be said that the parties have any right in regard to the plots inter se. In view of the separate and independent ownership of the plots, it is impossible to construct this term to mean that defendant No. 2 clearly agreed even to give additional F.S.I. which was available to them in regard to their individual plots on which he has entitled to construct the buildings.
18. I am at the interim stage and I do not propose to go into the general controversy raised by the parties. In my opinion, interpretation put forth by the learned Counsel for the appellants of the words unused in Term 5 cannot be accepted. The construction suggested by the learned Counsel for the respondents appears to be reasonable and consistent with the objects and purpose of the rules. So, I am not inclined to accept the interpretation put forth by the learned Counsel for the appellants on the Term 5 set out above in para 16.
19. The words used in Term 5 are to be interpreted and given their true import. They are plain, unambiguous and clear. It is the dominant intention which is always to be taken into consideration, while interpreting such contracts. The expression used by the parties in the beginning of the Term 5 clearly shows that the available additional F.S.I. has bearing in regard to D.P. Roads i.e. Development Plan Roads and access roads which will be constructed by the Nau Saurakshan in proportion to the additional F.S.I. which is available in respect of D.P. Roads and access Roads which are to be constructed on the entire plots. The use of the words D.P. Roads and access Roads along with the words 'entire plots' in Term 5 must be given its clear meaning. The entire plots referred to in the initial part of Term 5 must be reference to the entire plots as owned by the respondents. Defendant No. 2 is the owner of independent plots. The construction of D.P. Roads and access roads is a part of the scheme of sub-division and plans proposed to be sanctioned by the Municipal Corporation. The roads may interrupt and pass through different plots of different persons. The area of road occupied by such land on which such roads are to be constructed may also belong to different persons. In this case, it is undisputed that the land on which roads are to be constructed belongs to defendant No. 2. Defendant No. 2 himself owns plots independently. He is constructing his own buildings on the said plots as absolute and full owner and he is entitled to whatsoever F.S.I. is available to him on the basis of his surrender of the roads in comparison with the land occupied by the same. Rule 39 of the Development Control Rules for Greater Bombay, which deals with the lay out of the sub-division in the last provides: 'N B. Independent holding means continuous piece of land in one ownership.' Sub-rule (vii) of Rule 39 also provides that for the purpose of F.S.I. the net area of the plot shall only be considered. Sub-rule (iv) of Rule 39 provides for minimum dimension of such recreational space. Sub-rule (v) provides that no independent plot in sub division shall have an area less than 400 sq. yds. and width less than 50 ft. Sub-rule (vi) provides that every such plot and the recreational space shall have an independent means of access. The cumulative effect of those provisions is pointer to the fact that independent ownership of the plots and construction thereon is the sole basis for obtaining F.S.I.
20. I may also refer to the definition of F.S.I. as defined in Rule 51 of the said rules which is as follows :
'51(vi) 'Floor Space Index' of a plot or premises is the ratio of the combined gross floor area of all stories including the area of all walls as well as mezzanine floor of a building on a plot or premises to the total area of the plot or premises......................'
According to his definition the entire plots has only reference to plots or premises. The object of these rules is to provide facility for development of undeveloped areas and land. The builders who are interested in developing the land are under conditions permitted construction of their respective buildings on their own plots. Reference to buildings and premises in this definition clearly shows that plots and buildings constructed thereon by any individual owners. I may also point out that this definition on Floor Space index is given for the purpose of those rules which expresses that the Floor Space Index is a ratio in regard to the combined gross floor area of all storeyes including the area of all walls as well as mezzanine floors area of a building on plot or premises to the total area of the plot or premises, which clearly emphasises that there cannot be any right of Floor Space Index apart from the plot and building constructed on the said plot. If a person holds an independent plot of land and desires to develop that land by construction of a building in a particular manner, it is at that stage that this concept of Floor Space Index may arise. If suppose a builder does not build at all, there is no question of any F.S.I. being granted at all.
21. Against this background, if we look to Rule 10(2) of the Rules, it will be obvious that the Floor Space Index mentioned in Rule 10(2) has got reference only to the road widening or such construction of roads which are formed part of the development plans which forms part of the lands owned by different persons. Rule 10(2) provides as follows :
'With the previous approval of the Government the Floor Space Index specified above, may be permitted to be exceeded in respect of buildings of Educational and Medical Relief Institutions and Government and Semi-Government Offices and luxury Hotel's and in respect of any building on the top of which any revolving structure is to be constructed as a place of public entertainment or amusement.
The Municipal Commissioner shall permit additional Floor-Space-Index on 100% of the area required for the road-widening or for constructing new roads proposed under the Development Plan, or those proposed under any provision of the Bombay Municipal Corporation Act, if the owner (including a lessee) of such land is prepared to release such area for road widening or for construction new roads without claiming any compensation thereof. Such 100% of the area going under such road-widening or road construction shall be limited to 40% of the area of the plot remaining after release of the land required for such road widening or road construction. This concession would also be available in industrial Zones.'
If one analyse Rule 10(2) one finds that it has reference firstly to the road widening. Secondly, it has got reference to the road which forms part of the development plan. Thirdly, it has got reference to the land on which these roads are to be constructed. Fourthly, reference to surrender of this land by the owner or lessee to the Municipal Corporation after completion of the roads. So, under Rule 10(2), whole basis of grant of additional F.S.I. has direct connection with roads or road widening and secondly it has direct connection with the roads which are on the land belonging to particular portion of the piece of land. It is undisputed in this case that the alleged D.P. Road which was constructed by the plaintiff-appellant was certainly a part and parcel of the piece of land owned by defendant No. 2. If it was so, it was defendant No. 2 who could surrender this land without claiming any compensation. It is very significant to understand the true import of the additional F.S.I. which is granted against road widening and for the purpose of road construction. Against this background, if we look to Term No. 5, I am unable to agree with interpretation put forth by the learned Counsel for the appellant that the entire area of plots which belong or is of the ownership of the person concerned should be taken into account . In my opinion, even if sub-division is one, there are different persons and their individual ownership is absolute, complete and exclusive. In such state of affair, it is not possible to calculate or take into account the entire plots or area of plots for the purpose of calculation of F.S.I. If that is so, the plain meaning of Term 5 would be that in this contract , defendant No. 2 only agreed to give that much portion of F.S.I. which was available to him and which he consumed for surrendering road as defendant No. 2 was under an obligation to construct the roads. In this case, Noble Brothers did not construct the roads under the scheme. Completion certificate to which he was entitled was, therefore, delayed. It is true that the plaintiffs performed the obligation which was to be performed by defendant No. 2 which was binding on him. At the most this act of the plaintiffs of construction of roads which give him a right to claim from defendant No. 2 because of his failure to perform the obligation. In equity, the plaintiff will be entitled to cost or compensation which the plaintiff had incurred for performance of such obligation which was to be performed by defendant No. 2. Under Term 5 of the contract, agreement shows that the additional F.S.I. was to have reference only to the area which was consumed for road widening and the appellant-plaintiff have constructed the road at his own cost by spending a sum of Rs. 2 Lakhs which amount plaintiffs will be entitled to recover from defendant No. 2.
22. It was submitted by the learned Counsel for respondent No. 2 that the claim for F.S.I. is not impossible to be valued in terms of money and in such case grant of injunction would be very injurious to his rights and monetary compensation may be awarded. The learned Counsel for the appellant disputed this position that the F.S.I. can be valued in terms of money. However, there is intrinsic evidence on record which contained admission of the plaintiff that the loss which is suffered on account of non-receipt of F.S.I. can be valued in terms of money. There is a letter dated 20th March, 1982 on record which is written by Nau Saurakshan to Noble Construction, which was relied on by both the parties. It was contended by the learned Counsel for the appellants that the said offer stands even today. According to this letter, valuation put by the appellant is mentioned in paragraph 2 of the said letter which says that :
'M/s Noble Construction shall pay compensation in lieu of 2000 sq. yds. F.S.I. against the entitlement and claim of 3500 sq. yds. approx. of F.S.I. It was further agreed to by you that out of 2000 sq. yds. of F.S.I. claimed and admitted by you to our society, Noble shall pay to our society towards the actual F.S.I. out of Society's entitlement used by M/s Noble Construction which is approx. 1120 sq. yds. at the rate of Rs. 40/- per sq. ft. against our claim of Rs. 85/- per sq. ft.'
The learned Counsel for the defendant No. 2 disputed contents of this letter saying that no such agreement or settlement was ever arrived at and stated that this letter was received by them after sometime, but he disowned receipt of that letter and alleged that the settlement referred to therein is quite fraudulent and he disputed the same. I am not on merits of the alleged settlement. However, the learned Counsel for the respondent No. 2 relied on the contents of this letter for a limited purpose to show that the claim for F.S.I. cannot be valued in terms of money, is not correct. Willingness of the appellant to accept the compensation for the loss of additional F.S.I. expressed in Clause 2 of this letter itself shows that the injury caused to the appellant can be compensated by an award of monetary compensation. In my opinion, the contention that the F.S.I. cannot be valued in terms of money prima facie appears to be not tenable. However, it is obvious from the bare contents of this letter which are at least binding on the appellants, that the appellants has expressed readiness and willingness to accept certain compensation at the rate mentioned in this letter. To that extent, the appellants have admitted in this letter that compensation can be awarded or compensation can be accepted by him for the loss of F.S.I. although it will be equitable and unjust to ignore and overlook this limited admission of the appellant for the purpose of granting interim relief. I, therefore, feel that this would be a circumstance in favour of the respondent No. 2 and against the appellant for grant of interim relief of injunction.
23. The learned Counsel for the appellant invited my attention to a judgment of the Supreme Court in the case of Gangubai v. Sitaram, : AIR1983SC742 and contended that the Court can grant injunction restricting the construction and reserving the F.S.I. in that judgment, in fairness to the learned Advocate for the appellant, it must be pointed out that he admits that there the land was common ownership and one of the parties was claiming ownership of the land which was the entire basis for grant of F.S.I. There were common owners of the land. Holding was one unit. It is in the context that the Supreme Court observed that if the appellant was restricted from construction, in that particular case, he was not subject to any inconvenience because they were already in possession of 9,000 sq. meters of land on which they could put construction. The distinguishing feature of the Supreme Court judgment is that the parties therein were in joint possession of land and so their claim was on the basis of ownership which was the basis of claim for F.S.I. In the present case, plots are differently owned by different persons. It is true that they are in one unit and sub-division. But that cannot be said to be of common ownership at all. Parties here are owning their lands in their absolute ownership separately. Merely because the lands are situate in one unit and sub-division, it cannot be said that they are of joint ownership in joint title and joint enjoyment in each other's property. So, the judgment of the Supreme Court is of no assistance to the appellant in this case.
24. The learned Counsel for the appellant then contended before me that the negative convenant arise out of terms and it cannot be enforced by this Court and defendant No. 2 can be prevented from construction of buildings on certain plots which belongs to him. It is well settled that when the parties had arrived at some terms and such terms are reduced to writing, such terms alone are evidence of intention of the parties. The terms which are before me are affirmative and positive. Affirmative stipulations cannot be converted into negative stipulations having its negative effect to the terms of the contract. Contract itself must contain some term that the party will not do certain things. In the absence of any such term in Clause 5 of the contract in dispute, I do not think that such an argument is available to the appellant in this case. I am afraid, in this contract which if before me, there is no such negative stipulation saying that defendant No. 2 will not do certain act. The negative stipulation which a party wants to enforce must be quite clear and distinct from affirmative stipulation, in the contract itself. Affirmative stipulation by itself cannot be implied converted into negative stipulation. Otherwise every affirmative stipulation, if a breach is committed would be made negative stipulation although it is affirmative stipulation and cannot be enforced. For example, agreement of sale does not make a negative agreement that the party will not sell the property to somebody else. In order to obtain injunction on the basis of the agreement, it is necessary that the contract itself must contain such negative stipulation to show the intention of the parties by putting such term in the contract itself. It is such negative term which can be forced by the Court and party can be compelled to act on such term. The learned Counsel for the Appellant pointed out provisions of section 41 of the Specific Relief Act to show how contract can be enforced in terms. However, I do not find any basis in this contention. So this contention is rejected.
25. The learned Counsel for the appellants invited my attention to a declaration in the case of Formby v. Barker, reported in (1903)2 Ch D 539. He relied on the following passage :
'If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a Court of Equity has to do is to say, by way of injunction, that which the parties have already said by way of covenant, that the thing shall not be done; and in such case the injuction does nothing more than give the sanction of the process of the Court to that which already is the contract between the parties. It is not then a question of the balance of convenience or inconvenience or of the amount of damage or of injury. It is the specific performance by the Court, of that negative bargain which the parties have made, with their eyes open, between themselves.'
The principle enunciated in the above passage will show that the Court has said that something which is to be done is to say which the parties have already said by way of convenant and in such case balance of convenience is not relevant. It is in that case that the specific performance of that negative covenant which the parties had made was sought to be enforced. In my opinion, the above decision thus does not support the contention of the learned Counsel for the appellant. On the contrary, it emphasises that such negative contract must be apart from the contract itself in order that it may be competent for the Court to enforce the same.
26. In my opinion, the contract which defendant No. 2 has made with the appellant in Term 5 is a personal contract and effect of grant of additional F.S.I. is collateral inasmuch as F.S.I. has relation to the D.P. Road. I do not think that the appellant will be entitled to have extended claim for additional F.S.I. beyond that restriction. If at all defendant No. 2 has committed any breach of the term, this is a fit case where appellant can be compensated by awarding damages. In my opinion on the plain meaning of Term 5 of the contract with Rule 10(2) of the Development Control Rules and definition of F.S.I. the appellant will not be entitled to any claim of additional F.S.I. with reference to entire holding. Therefore, I agree with the interpretation put forth by the learned Judge of the City Civil Court on the said term of the reasons which I have given above.
27. This is an appeal at the interim stage of grant of injunction. The appellant wants defendant No. 2 to restrain him from carrying out his construction on his plots of his own buildings and contends that certain pots can be reserved out of certain portion of the premises so that rights in the suit will be protected. The injuction is entirely an suitable relief. It is granted in the ends of justice, but always depends on facts and circumstances of each case. It is a matter of discretion of the Court, which discretion, is to be exercised after looking into the circumstances and nature of the controversy in the suit. The power to grant injunction is given under Order 39, Rule 1 or section 151 of the Code of Civil Procedure. In some exceptional circumstances it is granted to preserve status qua. Prima facie existence of the right and its infringement, irreparable injury of loss that may be caused are the factors which may be considered. Balance of convenience is also relevant factors. It is not sufficient for the plaintiff to show that there in a prima facie case, but he has also further to show that if injunction is not granted he is threatened with harm and injury of such serious nature which would cause irreparable loss to him and which is required to be prevented immediately. Here is case where suit is filed challenging the sanction of the plans in favour of defendant No. 2. It may be that the Municipal Corporation has wrongly granted sanction to the plans of defendant No. 2. However, the Municipal Corporation or a Public Body in granting sanction to the plans must be assumed to have acted in accordance with the rules. There is valid sanction in favour of defendant No. 2 on the strength of which he is constructing building and developing the plots. Defendant No. 2 has started construction activities which requires sufficient expenditure. He might have incurred sufficient expenditure provisionally and also for future commitments. He might have made agreements with some persons also. It is a discretion of the Court to consider the balance of convenience. There is no reference in the judgment of the lower Court on this point. It was very relevant to decide the prayer for grant of injuction in addition to the existence of the prima facie case which the plaintiff must have proved. In my opinion, defendant No. 2 is likely to suffer more harm if his construction is arrested at this stage on the supposed challenge to the sanction of the plan and his right to construct on his plots with his own capital. The plaintiff has no present right of enjoyment of possession either on the land or on plots or buildings under any of the terms which are intrinsic and construction activities is admittedly not a common property at all. Grant of F.S.I. is a collateral benefit which may fall upon the plaintiff after construction. In such case, pecuniary compensation itself may provide a good remedy in the plaintiff ultimately succeeds in the suit. At this stage, it can be said that the plaintiff did contemplate a monetary compensation for the loss caused to him. The fact that the plaintiff may ultimately lose the fruits of the decree can hardly be relevant to prevent the builder or owner unless the plaintiff is able to show that his present right has been infringed or any injury is caused to him or his right of enjoyment is infringed contrary to law. Result and chances of success in the suit cannot be very relevant circumstances for the purpose of grant of injuction. What is necessary is to consider prevention of present immediate mischief which is likely to be caused, such as irreparable loss which cannot be compensated in terms of money. The plaintiff has his own plots and has constructed his own buildings more than 12 in number. In such circumstances, payment of compensation or damage will be adequate relief in matter like this when the parties cannot claim any such right or interest except on the basis of the contract which is entered into in this case. I do not, therefore, think that the appellants are entitled to interim injuction against defendant No. 2.
28. The main prayer in the suit for permanent injuction restraining the defendants from construction on the basis of the wrong sanction of the plans. The defendants have not yet filed their written statement. They may have their own case, to defend. It must be borne in mind, at this stage for grant of interim relief, the plaintiff must show something in the nature of his actual rights being affected by the act of defendants. There is no such interference caused by the defendants to his present right of enjoyment of the property or right even breach of any contract which is the basis in this suit. If there is no infringement of the right of the plaintiff or any mischief caused to the enjoyment of his property, it would be difficult to restrain defendant No. 2 from exercising his right of construction on his own property which he absolutely owns. In the absence of any such right being created or stipulated in the contract, it is impossible to 9 restrain defendant No. 2 from carrying out construction on the plea that the plaintiff ultimately will not get fruits of his decree. In such case, monetary payment of compensation can be adequate relief. So it is not a case where interim injuction can be granted as the appellant has failed to make out any case of immediate injury or irreparable loss or damage to him which could have been prevented legally at this stage.
29. In the result, the appeal fails and the same is dismissed. No order as to costs.