ASN 1 APP-389.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL LODGING NO.389 OF 2011 IN NOTICE OF MOTION NO.1380 OF 2011 IN SUIT NO.1790 OF 1994 Tushar J. Parikh and anr. ..Appellants. Vs. The Bombay Home Project Pvt. Ltd. & ors. ..Respondents. And Shree Mathruchaya Co.op.Hsg.Soc. Ltd. ..Applicants. Mr.Zal Andhiyarujina with Mr. Nilesh Modi with Deepali Thakur i/by M/s. Rustamji & Ginwala for the Appellants. Mr.Rajan Jayakar for Respondent Nos.3,4,5A and 5B. Ms. Indrayani Koparkar for Respondent Nos. 6A to 6C. Mr. K.D.Shukla for Respondent No.7. CORAM : MOHIT S. SHAH, C. J. AND GIRISH S. GODBOLE, J. DATE : 23rd June, 2011 PC: What is challenged in this petition is the order dated 9th June, 2011 of the learned Trial Judge of this Court in Notice of Motion No.1380 of 2011 in Suit No.1790 of 1994. ASN 2 APP-389.sxw 2 The above numbered suit is filed by the plaintiffs for specific performance of an unregistered agreement to sell which was executed by original defendants (which is stated to have been executed by original defendant No.6) in favour of the plaintiffs. During the pendency of the suit the original defendant No.6 expired and thereupon his heirs have been brought on record as defendant Nos.6(a) to 6(c) who are admittedly in possession of the suit flat. The said defendants have been injuncted from transferring or encumbering the flat. It is contended that the injunction which was granted on 16th August, 1996 has been vacated by the Trial Court by order dated 9th June, 2011 and therefore defendant Nos. 6(a) to 6 (c) herein are intending to transfer the suit flat. As a consequence, Shree Matruchhaya Co. op. Housing Society Ltd. Applicant in the Notice of Motion giving rise to this appeal cannot be allowed to demolish and develop the suit flat as desired by the applicant-society. The applicant society is having 11 flats and the applicant-society desires to develop the suit building in which the suit flat is one of the flats. The learned Judge noted that building is stated to be 30 years old and the applicant-society proposes redevelopment as indicated in the proposal at Exhibit-B in support of the Notice of Motion. Both the plaintiffs as well as defendant Nos.6(a) to 6(c) submitted that there was no urgency for vacating the injunction as various steps are yet to be taken by the applicant-society for the process of the redevelopment. The plaintiffs opposed the Notice of Motion also on the ground that if the injunction is vacated, their rights will be jeopardized by the new construction. On the above facts, the learned Trial Judge accepted the statements made by the applicant-society that the suit flat will be newly ASN 3 APP-389.sxw constructed. It is also stated while hearing of this appeal that as per the proposal of the applicant society each member would get additional area. 3 The learned Trial Judge after recording the submissions and statements passed the following order which is impugned in this appeal. “There would be no prejudice to either party by the development of the property. In fact the development would further enhance the property. It is clarified that for the development to proceed the Applicant shall take all steps as per law. The Applicant shall inform about the steps taken to defendant Nos. 6(a) to 6(c) as well as the plaintiffs. Defendant Nos. 6(a) to 6(c) would be paid the required rent as are paid to all other members upon they vacating the suit flat. Defendant Nos. 6(a) to 6(c) shall be entitled to be given any further area in the suit flat which would enure for the party which succeeds in the suit including the plaintiffs. The order of injunction dated 16th August, 1996 is modified to this extent at present to allow the aforesaid development as directed above”. 4 Having heard the learned counsel for the appellants- plaintiffs, learned counsel for respondent Nos.6(a) to 6(c) as well as learned counsel for respondent No.7-Shree Matruchhaya Co-op. Housing Society Ltd. and in view of the consensus between the concerned advocates before us during hearing and the peculiar facts of this case; the impugned order does not call for any interference, but certain clarifications are required to be recorded in order to safeguard the rights of the parties including the plaintiffs and defendant Nos.6(a) to 6(c); without treating this order as a precedent. ASN 4 APP-389.sxw 5 The learned Trial Judge has already clarified that while making development, the applicant society shall take all the steps as per law. The learned counsel for the applicant-society-respondent No.7 herein states that the society will follow the order dated 3d January, 2009 issued by Maharashtra Government under Section 79A of the Co- operative Societies Act,1960. 6 Secondly, it is clarified that in respect of the suit flat and for any further area which may be provided in the redevelopment of the property over and above the area of the suit flat, the Trial Court will pass appropriate order while moulding the reliefs in case the suit were to be decreed. It is further clarified that the injunction which was granted on 16th August, 1996 will continue till the building is required to be demolished for the purpose of redevelopment and that the same injunction will operate during the entire period taken for redevelopment of the property i. e. flat which will be allotted to respondent Nos. 6(a) to 6(c) in lieu of the suit flat and would thereafter operate when the new flat is handed over to respondent Nos. 6(a) to 6(c). 7 It will be open to the plaintiffs to make any further submissions at the time of final arguments in the suit. as regards any further benefits which might become available to defendant Nos. 6(a) to 6(c). We have proceeded to pass this order in the peculiar facts and circumstances of this case and particularly, to ensure that pending litigation in respect of one flat of the entire society which has 10 other ASN 5 APP-389.sxw flats as well does not come in the way of the development of the property. 8 Having regard to the fact that the suit is pending since 1994, the learned Trial Judge is requested to take up the suit for expeditious trial and hearing. We also record the statement coming from the parties that they will cooperate for expeditious trial of the suit. 9 In view of the above, appeal is accordingly disposed of in the aforesaid terms. 10 Notice of Motion No.1380 of 2011 pending before the learned Trial Judge is also disposed of with the consent of the learned counsel for the parties. 11 We further direct that the respondent No.7 society-Shree Matruchhaya Co-operative Housing Society Ltd. shall be joined as party defendant in Civil Suit No.1790 of 1994. The plaint to be amended within two weeks from today. 12 In view of the above, Notice of Motion No.2285 of 2010 pending before the learned Trial Judge also stands disposed of. 13 Having heard the learned counsel for the parties and in the peculiar facts and circumstances of the case where the society is being impleaded on its application and the concession of the learned counsel ASN 6 APP-389.sxw for the parties, we are of the view that Notice under Section 164 of the Maharashtra Co-operative Societies Act,1960 is not required to be given. We also record the statement made on behalf of the respondent No.7 society that society will not raise objection regarding Notice under Section 164 of the Maharashtra Co-operative Societies Act,1960. CHIEF JUSTICE GIRISH S. GODBOLE, J.