1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO. 5315 OF 2011 Shri Umesh Jayaram Desai. .. Petitioner Vs Sion Kamgar CHS Ltd. and Another. .. Respondents -- Shri Mayuresh D. Modgi for the Petitioner. -- CORAM : A.S. OKA, J DATED : 10TH AUGUST, 2011 P.C. 1. Heard the learned counsel for the parties. The Petitioner is the original disputant who has filed a dispute under the provisions of Maharashtra Co-operative Societies Act, 1960. An application was made in the dispute for injunction which was rejected by the Co- operative Court. An appeal was preferred by the Petitioner before the Co-operative Appellate Court. In the Appeal, an Application for temporary injunction was made which has been rejected by the impugned order. 2. The main prayer in the application for injunction made in the Appeal was for restraining the 2nd Respondent from carrying out further construction and from giving the possession of the flats to the 2 alleged flat purchasers in a building “F” on Plot No.126. Scheme No.6. Bhandarwada, Sion (East), Mumbai. By the impugned order, the said application was rejected. 3. As far as the prayer restraining the Respondent No.2 from carrying out construction is concerned, even in application made before the Co-operative Court on which the impugned order in Appeal has been passed, such a prayer was not made. The only prayer made in the Misc. Application No.283 of 2010 was for restraining the 2nd Respondent from giving possession of the flats to the flat purchasers to whom he had already sold the flats. 4. Learned counsel appearing for the Petitioner relies upon the undertakings of the 2nd Respondent in the Appeal from Order No. 42 of 2009 preferred by the Petitioner and others against an interim order passed in the same dispute. He submitted that the 2nd Respondent was directed to maintain status quo by the judgment and order dated 31st May, 2010 in the said Appeal. His submission is that till disposal of the dispute or at least till the disposal of the Appeal, the order of status quo be passed. 5. I have perused the order dated 31st May, 2010 passed by the Co-operative Appellate Court in Appeal from Order No.42 of 2009 3 which was preferred by the Petitioner and others. Clauses 2 to 4 of the said order read thus:- “2. The affidavit/undertaking given by Respondent No.1 affirmed on 12/05/2010 is accepted by the Court. 3. The affidavit/undertaking given by Respondent No.2-builder solemnly affirmed on 12th May 2010 in respect of present status of Respondent No.1 Society, especially in respect of the rights created in building ‘F’ which is under construction, is accepted by this Court and Respondent No.2 is directed to maintain “status quo” in terms of the undertaking filed by the Respondent No.2 in affidavit dated 12/05/2010. The Respondent No.2 if carries out further construction, the same will be at the risk and cost of the Respondent No.2. 4. The Respondent No.2 shall not create any further right save and except recorded in the undertaking/affidavit dated 12/05/2010 until disposal of the dispute No.CC.III/867/2008.” 6. A copy of the undertaking which is referred to in the said order has been tendered on record across the bar. The undertaking of the 2nd Respondent is not to sell the flats save and except the flats and shops specifically mentioned in the undertaking which were already agreed to be sold by the said Respondent. The said undertaking was accepted by the Appellate Court. The effect of the acceptance of the undertaking is that save and except the flats and shops specifically set out in the undertaking dated 12th May, 2010, the 2nd Respondent is not entitled to create any third party interests in respect of any other flats or 4 shops. The Petitioner has not challenged the order passed in the Appeal from Order No.42 of 2009. Therefore, the Petitioner cannot get the order of interim relief as prayed for in the present Appeal. Now, the Respondent No.2 cannot be restrained from parting with possession of the flats and shops which were already agreed to be sold and which were set out in the undertaking which was accepted by the Co-operative Appellate Court in the earlier Appeal. The Co-operative Appellate Court in the earlier appeal has not restrained the 2nd Respondent from parting with possession of the flats and shops which are specifically mentioned in the undertaking dated 12th May, 2010. 7. Hence, the Appellate Court was right in not granting the discretionary order of interim relief. It is obvious that all the actions of the 2nd Respondent during the pendency of the dispute are subject to the final outcome of the dispute. 8. Subject to what is observed above, no interference is called for. The Writ Petition is accordingly rejected. Hearing of the Dispute is expedited. ( A.S. OKA, J )