A.M. Khanwilkar, J. - (1.) The captioned appeal challenges the judgment and order passed by the Division Bench of the Bombay High Court dated 9th July, 2018 in Commercial Appeal No.173 of 2017, whereby the Division Bench dismissed the appeal filed by the appellant and upheld the decision of the learned Single Judge dated 9th October, 2017 in Notice of Motion No.147 of 2013, wherein the learned Single Judge inter alia passed a mandatory interlocutory injunction directing the appellant to hand over 8 (eight) flats along with 16 (sixteen) car parking spaces under the Settlement Agreement dated 4th November, 2016 and Consent Terms dated 25th September, 2017 between respondent Nos.1 and 2 inter partes.
(2.) The relevant facts are as follows: Respondent No.1/plaintiff was appointed by one Andheri Kamgar Nagar Cooperative Housing Society Ltd. (for short, "the Society') under a Development Agreement dated 6th October, 1996 as a developer under the Slum Development/ Rehabilitation Scheme to develop the suit property in question, being a plot of land situated at Versova Link Road, Taluka Andheri and bearing Survey No. 139, City Survey No. 1319 (Part) admeasuring 8892 sq. mts. or thereabouts as per Indenture of Lease dated 31st March, 1993 and 9402 sq. mts. as per City Survey Records. One part of the suit property was for constructing tenements free of charge for project-affected persons and the balance property could be used to develop and sell the balance FSI. Respondent No.1 then executed an Agreement for Sub-Development dated 22nd September, 1999 with respondent No.2/defendant No.1, transferring the benefits of development rights in the suit property, with the consent of the aforementioned Society, to respondent No.2 after keeping aside 15,000 sq. ft. for itself i.e. respondent No.1.
(3.) Subsequently, respondent No.2 executed an Agreement for Development dated 10th March, 2003 with the appellant/defendant No.2, whereunder the appellant would be entitled to 55% of the total area available for free sale buildings and car parking in the suit property and respondent No.2 retained 45% of the total area available for construction of free sale buildings and car parking by utilizing FSI which may be available on the suit property as per the Slum Rehabilitation Scheme. This agreement was entered into without the consent of respondent No.1 and hence, all three parties executed a Tripartite Agreement dated 11th September, 2009, referencing the previous agreements of 6th October, 1996 and 22nd September, 1999 wherein respondent No.1 was entitled to an area of 22,500 sq. ft., an increase from its earlier agreed upon 15,000 sq. ft., which would be allocated out of the 45% share due to respondent No. 2.;