1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.145 OF 2009 IN WRIT PETITION NO.2358 OF 2009 1.Shri.R.B.Sambare & ors. ...Appellants. vs. 1.Kumar Housing Corpn.Ltd & ors. ...Respondents. AND LETTERS PATENT APPEAL NO.147 OF 2009 IN WRIT PETITION NO.2361 OF 2009 1.Shri.Anant H.Mhadadalkar & ors. ...Appellants. vs. 1.Kumar Housing Corpn.Ltd & ors. ...Respondents. --- Mr.R.A.Thorat & Mr.P.J.Thorat, for Appellants. Mr.Sham Mehta with Ms.F.Behrin Kamdin & Ms.Swati Deshpande i/b. FZB Associates, for Respondent no.1. Mr.J.P.Sen i/b. Ms.S.Nadar, for Respondent no.2. 2 CORAM: D.K.DESHMUKH & R.S.MOHITE, JJ. DATED: 14th July,2009. P.C.:- 1. Heard the learned Counsel appearing for Appellants and the learned Counsel appearing for the Society. The facts that are relevant and material for deciding these Letters Patent Appeals have already been stated in detail in the order passed by the learned Single Judge which is impugned in these appeals. The admitted facts are that out of total number of 216 members, the Resolution of the General Body was passed by a overwhelming majority. 166 members submitted a joint requisition to the Society to call a Special General Body Meeting for consideration of the proposal for reconstruction. In that meeting by overwhelming majority a Resolution was passed deciding to redevelop the property through the developer M/s.Kumar Housing Corporation Ltd. Out of 216 members, 197 members had consented for redevelopment. 173 members have already vacated the 3 premises occupied by them. 14 members are willing to vacate if the others also vacate. These disputes about vacating the premises occupied by the members is raised only by 29 persons. There only contention is that the work of redevelopment should not have been entrusted to M/s.Kumar Housing Corporation Ltd. By the order which was impugned before the learned Single Judge, the present appellants have been directed to vacate the premises presently occupied by them. No doubt, it is a mandatory order of temporary injunction, but in our opinion, in the facts and circumstances of the case, the Court had no other alternative but to make the order. Admittedly, the appellants had participated the meeting of the General Body where the Resolution was passed for redevelopment of the building. They had filed dispute before the Co-operative Court challenging the Resolution. They have also asked for interim relief, that interim relief has been denied to them. We have not been shown anything which will show that the Resolution of the General body by which the decision was taken to redevelop is illegal in any way. If the interim order 4 in mandatory terms is not passed, redevelopment of the building will be indefinitely delayed. When 173 members have already vacated their premises, they will not be able to get new premises if mandatory order of temporary injunction is not made. In our opinion, if there is any case where mandatory order of temporary injunction is to be made, it is this case, because if such order was not made it would have resulted in inconvenience and hardship to a overwhelming majority of members of the society just because of 29 members who have taken an adamant stand. 2. We do not see any reason to interfere with the order. However, in our opinion, the Co-operative Court while making the order of mandatory temporary injunction should have made some provision for the builder/developer to furnish security so that in the event the dispute fails at least monetary interest of the members is protected. In our opinion, therefore, though the order impugned does not need to be interfered with, the Co-operative Court needs to be directed to consider the question whether the 5 builder/developer should be directed to furnish bank guarantee of the approximate valuation of the structures occupied by the appellants till the disposal of the dispute and also give direction to the builder/developer not to create third party rights in the structures that would construct and earmark for the appellants. The learned Counsel for the builder/developer has expressed before us willingness of the builder/developer to comply with such direction if they are made by the Co-operative Court, if the appellants do not want any alternate accommodation or rent in lieu of the alternate accommodation. 3. At the request of the learned Counsel appearing for the appellants, it is directed that the order of the Co-operative Court for vacating of the premises by the appellants will not be implemented for a period of four weeks from today subject to the condition that within one week from today the appellants furnish an undertaking in this Court undertaking therein to hand over vacant possession of the premises to the Society, in case they do not 6 secure contrary order within a period of four weeks. If the undertaking is not given within a period of one week from today, the respondents shall be free to execute the order. 4. In our opinion, no further directions are necessary in the appeals. The appeals are disposed of. 5. In view of the aforesaid order, Civil application no.181/09 in L.P.A.no.145/09 and Civil application no.182/09 in L.P.A.No.147/09 do not survive for consideration and are disposed of as such. (D.K.DESHMUKH, J.) (R.S.MOHITE, J.)