Landowner granting limited development rights is not a MOFA ‘promoter’; reserved FSI belongs exclusively to owner.

The Appellant ("Owner") owns a large land parcel in Borivali, Mumbai

Between 2005 and 2008, the Owner entered into Development Agreements with Respondent No. 2 ("Developer"), granting development rights for a specific portion of the land (31,123 sq. mtrs.) with FSI capped at 59,157 sq. mtrs.

The Developer constructed three buildings, consuming the entire allocated FSI

The Agreements for Sale executed with flat purchasers explicitly stated that the Developer's entitlement was limited and that any balance or additional FSI/TDR remained the exclusive property of the Owner

In 2019-2020, municipal notices were issued regarding unauthorized additions in the Respondent Society's building

After failed negotiations to purchase additional FSI from the Owner to regularize these illegalities, the Society filed a suit for a bare injunction to restrain the Owner from utilizing its reserved FSI or commencing further construction

The Trial Court granted the injunction, which the Owner challenged in this appeal

The Court primarily applied Section 2(c) of the Maharashtra Ownership Flats Act (MOFA), which defines a "promoter" as one who constructs or "causes to be constructed" buildings for sale

It relied on Vaidehi Akash Housing Pvt. Ltd. v. New D.N. Nagar CHS and Deepak Prabhakar Thakoor v. MHADA, establishing that a landowner granting development rights to an independent contractor is not a promoter

Regarding maintainability, the Court applied the principles from T.V. Ramakrishna Reddy v. M. Mallappa and Ananthula Sudhakar v. P. Buchi Reddy, which hold that a suit for bare injunction is not maintainable where a cloud is cast on the plaintiff’s title, requiring a prayer for declaration

Finally, the Court invoked Order VII Rule 11(d) of the CPC to reject the plaint as barred by law

The Court reasoned that the Owner is not a "promoter" because the Developer acted as an independent contractor, bearing all costs and risks, and the Owner did not participate in the sale or construction activity

The Court found that the execution of a Power of Attorney was merely a procedural necessity for obtaining permissions and did not create an agency relationship

The Court rejected the Society's "blanket consent" argument under Section 7 of MOFA, noting that the reservation of FSI was specifically and quantifiably disclosed in the Agreements for Sale, which the purchasers had accepted

Furthermore, Section 7 applies only to "promoters," which the Owner is not

The Court observed that the Society had omitted a prayer for declaration of title to circumvent the express contractual limits it had agreed to

It concluded that the suit was a "pressure tactic" to force the Owner to provide FSI for regularizing illegal constructions, constituting an abuse of legal process

The Court held that the Owner was not a promoter and that the suit for bare injunction was not maintainable in the face of disputed title

Exercising its powers under Order VII Rule 11(d) read with Section 151 of the CPC, the Court suo motu rejected the Society’s plaint

The Society was ordered to pay costs of ₹10,00,000/- to the Appellant for filing a vexatious suit